Hall v. DiPaolo

• Court: Court of Appeals for the First Circuit
• Decided: January 3, 1996
• Docket: 95-1379
• Status: Published

Opinion

USCA1 Opinion

February 8, 1996  UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



                                 ____________________



          No. 95-1379



                                  DEREK WESLEY HALL,



                                Petitioner, Appellant,



                                          v.



                            PAUL DiPAOLO, SUPERINTENDENT,

                  MASSACHUSETTS CORRECTIONAL INSTITUTION - NORFOLK,



                                Respondent, Appellee.



                                 ____________________


ERRATA SHEET
                                     ERRATA SHEET



               The  opinion of  this Court  issued on  January 3,  1996, is

          amended as follows:



               Insert footnote 2 after the word "unsmudged,"  4th line from

          the bottom of page 5, as follows:



               2.   Strictly, the  exhibit showing  the print  was not

               made part of the record, and  the witness who testified

               to  its  characteristics  did  not  speak  as  to  non-

               smudging.    His  testimony  as  to  details,  however,

               clearly warranted  such a  finding.  Since  defendant's

               constitutional  claim  requires   a  showing  that  the

               evidence did  not warrant the conviction,  this factual

               issue must be resolved against defendant.



UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT

                                 ____________________



        No. 95-1379



                                  DEREK WESLEY HALL,



                                Petitioner, Appellant,



                                          v.



                            PAUL DiPAOLO, SUPERINTENDENT,

                  MASSACHUSETTS CORRECTIONAL INSTITUTION - NORFOLK,



                                Respondent, Appellee.



                                 ____________________


APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                   [Hon. Nathaniel M. Gorton, U.S. District Judge]
                                              ___________________



                                 ____________________


Before



                                 Selya, Circuit Judge,
                                        _____________



                            Aldrich, Senior Circuit Judge,
                                     ____________________



                               and Cyr, Circuit Judge.
                                        _____________



                                 ____________________


Richard B. Klibaner  with whom Klibaner &  Sabino was on brief for
            ___________________            __________________

        appellant.

            William  J. Meade,  Assistant Attorney  General, with  whom  Scott
            _________________                                            _____

        Harshbarger, Attorney General, was on brief for appellee.
        ___________



                                 ____________________



                                   January 3, 1996

                                 ____________________



ALDRICH,  Senior  Circuit Judge.    Defendant Derek
                                _____________________



            Wesley Hall,  having  been convicted  in  the  Commonwealth's



            court  for armed robbery in violation of M.G.L. c. 265,   17,



            was found guilty at a bench trial following the denial of his



            motion for acquittal.  After  exhausting his state appeals he



            petitioned for a writ of habeas corpus on the ground that the



            evidence was insufficient to  support his conviction for lack



            of  identification.   The  district  court  denied the  writ.



            Having reviewed the record de novo, Scarpa v. Dubois, 38 F.3d
                                       _______  ______    ______



            1, 8 (1st Cir.  1994), cert. denied, ___ U.S.  ___, 115 S.Ct.
                                   ____________



            940, 130 L.Ed.2d 885 (1995), we affirm.



                      The  facts,  as far  as  they  were established  at



            trial,  may  be briefly  stated.    Harvard Square  Cleaners,



            Harvard Square, Cambridge (hereinafter the store), is a small



            establishment  that  receives   clothes  from  customers  for



            cleaning,  sends them  out to  clean, and  ultimately returns



            them  to customers upon receiving  payment.  On  May 9, 1989,



            the sole  employee was  Carmel Mhodhrain, who  worked, alone,



            from  7:00 a.m.  to 7:00  p.m.   She testified  she  had been



            working  there for some  seven months.  At  about 4:00 p.m. a



            man she  had never  seen before  entered the  otherwise empty



            store.   She  could say no  more than  that he  was black, of



            medium height, slender, with black  hair and was wearing blue



            jeans  and a black sweater.  After inquiring about having his



            leather  jacket, which he had  with him, cleaned,  he said he


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had to use a bathroom and left.  He later returned, and after



            a  further discussion  Mhodhrain  leaned on  the counter  and



            began writing a  customer slip when she  felt something prick



            her  neck.  She jumped back and  saw the man holding a knife.



            He then  came inside the  counter, pushed various  buttons on



            the cash register and  when it opened took some $400  in cash



            and put it in his pocket.  Mhodhrain backed away, and, on his



            orders, went into the bathroom  that was behind the  counter.



            The man  closed the door and she heard a  noise as if he were



            trying to tie  or lock the  door shut.   After three or  four



            minutes  she heard the front door close and came out, finding



            a vacuum cleaner cord tied around the doorknob.   She went to



            the telephone  but found  the cord  cut.  She  then "went  to



            security, the security  office, and the security  man came in



            and he was going to call the  police and then he went back to



            the office to call the police from his office."



                      Some time after Mhodhrain returned a police officer



            came and lifted fingerprints.  At trial, a police fingerprint



            expert  testified  that he  compared a  print taken  from the



            bathroom's outer  doorknob, finding 20 points  of comparison,



            and no  dissimilarities, with  defendant's print  on record.1



            No  opinion was offered as to how  long the print had been on



            the knob.


____________________



            1.    According to  FBI standards 12 points of  comparison is

            sufficient for a positive identification.



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At trial Mhodhrain testified that "the only persons



            who  had access to th[e]  area [behind the  counter] would be



            the persons  working in the  store or  the driver who  has to



            bring the clothes in."   There was no testimony,  however, as



            to  whether excluding  customers was  her personal  policy or



            store policy, or  who had  worked the  day before.   She  was



            unable  to identify defendant in the courtroom.  At the close



            of  the Commonwealth's case  defendant moved, unsuccessfully,



            for a finding of not  guilty on the ground that the  evidence



            was  insufficient to sustain a finding that he was the person



            who  committed  the robbery.    He  has  advanced this  claim



            throughout direct and habeas appeals.



                      Where,  as  here,  there  is  no  evidence  linking



            defendant  to the  crime other  than his  fingerprint at  the



            scene, our question  is whether  it could be  found beyond  a



            reasonable doubt that defendant left his print at the time of



            the  robbery.   The  evidence must  foreclose all  reasonably



            viable possibilities that he could have left it at some other



            time.   Mikes v. Borg, 947 F.2d  353, 356-57 (9th Cir. 1991),
                    _____    ____



            cert. denied, ___ U.S.  ___, 112 S.Ct. 3055, 120  L.Ed.2d 921
            ____________



            (1992)  (citing  cases of  several  circuits).   Indeed,  the



            Appeals  Court here said as  much.  Commonwealth  v. Hall, 32
                                                ____________     ____



            Mass. App. Ct. 951, 952, 590 N.E.2d 1177 (1992).



                      Reviewing  the  evidence   most  favorably  to  the



            prosecution,  as we must, Jackson  v. Virginia, 443 U.S. 307,
                                      _______     ________


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319  (1979),  we  see  no  problem  with  the  trial  court's



            concluding  beyond a reasonable  doubt that defendant's print



            was  not  made  after the  robbery.    Even  on the  unlikely
                            _____



            assumption that  Mhodhrain left the store  unlocked while she



            went for  the security officer, the  court could sufficiently



            find that defendant did  not slip in and handle  the bathroom



            doorknob during her absence.  Whether defendant's print might



            have been placed on  the knob sometime before the  robbery is



            more difficult.



                      The Massachusetts Appeals  Court, in affirming  the



            conviction, reasoned  that  "because the  fingerprint  lifted



            from the doorknob was unsmudged2,  and since the bathroom was



            used regularly by  all the store's  employees, the print  was



            likely  put there  by one  of the  last people  to touch  the



            knob."  Hall, 32 Mass. App. Ct. at 952, 590 N.E. at 1178.  We
                    ____



            can  agree, but to what  extent does this  indicate the time?



            Was  some, more generous,  employee on  duty the  day before?



            Were there  no other prints, demonstrating  survivorship?  No



            affirmative  attempt was  made to  eliminate  the possibility



            that  defendant's print had  not been made  the previous day.


____________________



            2.  Strictly, the exhibit showing the print was not made part

            of  the  record,  and  the  witness  who  testified  to   its

            characteristics  did  not  speak  as to  non-smudging.    His

            testimony as  to details,  however, clearly warranted  such a

            finding.   Since defendant's  constitutional claim requires a

            showing  that the  evidence did  not warrant  the conviction,

            this factual issue must be resolved against defendant.


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At the same time, a doorknob is a very small  area, and it is



            used  with  pressure.   Defendant's  print,  an exhibit,  was



            unsmudged.   Mhodhrain had been  on duty nine  hours that day



            and manifestly would have used the bathroom -- and,  perhaps,



            handling  soiled clothes,  for an  occasional wash-up.   Four



            judges,  before ourselves,  have thought  the inference  most



            compelling that defendant's print was made at the time of the



            robbery.



                      In  this circumstance should  we count  against the



            Commonwealth  a doubt  based on  the prosecutor's  failure to



            have  asked the obvious questions that would have cinched its



            case?   Does this lapse  indicate the answers  would not have



            cinched  the case, but the  contrary?  Admittedly,  this is a



            long  shot.  If  the trial had  been in the  federal court we



            might have added to that remote possibility the breath of our



            general  authority,   not   simply  to   rebut   the   remote



            possibility, but, in part, to prevent government counsel from



            leaving even the appearance  of avoiding evidence contrary to



            its position.  We  do not have such authority over our sister



            courts.



                      Affirmed.
                      _________


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