and Entering. Larceny. Practice, Criminal, Required finding.
Evidence, Fingerprints, Identification. Identification.
Visone for the defendant.
C. Yorlano, Assistant District Attorney, for the
a jury-waived trial in the District Court, a judge found the
defendant, Eric S. French, guilty of breaking and entering in
the daytime with the intent to commit a felony, in violation
of G. L. c. 266, § 18, and larceny of property over
$250, in violation of G. L. c. 266, § 30 (1). The
defendant appealed, arguing that the evidence was
insufficient to support the convictions. The Appeals
Court, in a divided decision, affirmed the judgments. See
Commonwealth v. French, 88 Mass.App.Ct. 477 (2015).
The case is now before this court on further appellate
review. Because we conclude that the evidence was not
sufficient to find, beyond a reasonable doubt, that the
defendant committed the crimes charged, we reverse.
convictions stem from a break-in and robbery that occurred at
a market in Springfield in August, 2013. At trial, one of the
proprietors of the store testified that she closed the store
at 6 £.M. on August 30. She returned to the store
"during the night" after being notified of a
break-in. When she arrived she saw that "[s]omebody had
broken in on the side window and taken the panel out and
climbed in." She also testified that approximately $400
to $500 worth of cigarettes had been stolen.
Springfield police officers also testified. Officer Eugene
Rooke responded to a call to go to the market on the morning
of August 31, and arrived there with his partner at
approximately 7:20 A.M. When they arrived, they spoke with
two men who lived next door to the store and who had alerted
the police that a front window to the store was
"missing." Officer Rooke saw that the plexiglass
window pane from the window located to the right of the front
door had been removed and was set against the door.
Photographs entered as exhibits at trial show the plexiglass
leaning against the front door, next to the window frame from
which it had been removed.
Rooke estimated that when the plexiglass was intact, inside
the window frame, the top of it was more than six feet, four
inches from the ground. Additionally, he saw a milk crate on
the ground nearby that he thought the perpetrator may have
stood on to gain entry to the store (through the open
window). Photographs show the milk crate on the ground, next
to the plexiglass. Inside the store, Officer Rooke observed
numerous items that would normally be on shelves located on
the floor instead.
Gifford Jenkins also responded to the scene after receiving a
call to do so on the morning of August 31, at around 7 A.M.
In the course of collecting evidence, Detective Jenkins
recovered a latent fingerprint from the plexiglass. He
testified that, on the basis of how he thought the plexiglass
would sit in the window frame, the fingerprint was recovered
from a portion of the plexiglass that was "up
high." If the plexiglass were sitting in the window
frame as described by Detective Jenkins, the location of the
fingerprint would have been, in his estimation, five feet,
eight inches to six feet from the ground. When asked on
cross-examination if he could identify which part of the
plexiglass was the top half and which was the bottom half, he
indicated that the "bottom" of the plexiglass, as
he found it at the scene (that is, removed from the frame and
leaning against the store's front door), had a crack.
When asked whether he "kn[e]w . . . for certain"
which was the top of the plexiglass and which was the bottom,
he responded "I'm just saying. I'm not sure. I
mean that's what it looks like to me." He also
testified that he took photographs inside the market but did
not further dust for fingerprints.
Detective Juan Estrada, who is trained in fingerprint
analysis, testified without objection that the latent
fingerprint recovered from the plexiglass matched a known
sample from the defendant. He also testified that a
fingerprint cannot be dated and can remain on a surface for a
long period of time.
as here, a defendant's fingerprint at a crime scene
constitutes the only identification evidence, "the
prosecution must prove beyond a reasonable doubt that the
fingerprint was placed there during the crime."
Commonwealth v. Morris, 422 Mass. 254, 257 (1996),
citing Commonwealth v. LaCorte, 373 Mass. 700, 703
(1977). "The prosecution must couple the fingerprint
with evidence which reasonably excludes the hypothesis that
the fingerprint w[as] impressed at a time other than when
the crime was being committed." Commonwealth v.
Fazzino, 27 Mass.App.Ct. 485, 487 (1989). See
Commonwealth v. Baptista, 32 Mass.App.Ct. 910, 911
(1992). Even viewing the evidence in the light most favorable
to the Commonwealth, as we must, see Commonwealth v.
Latimore, 378 Mass. 671, 676-677 (1979), the
Commonwealth has not done that here.
prior cases where a fingerprint was the only identification
evidence, and thus a decisive factor in convicting the
defendant, other evidence corroborated finding that the
fingerprint was placed during the crime. In
Baptista, 32 Mass.App.Ct. at 911, for example, one
of the defendant's fingerprints "was found inside a
closed, locked Pepsi vending machine," the interior of
which "was not available to members of the public."
On this basis, the jury "could reasonably infer that the
defendant's fingerprints were left ... at the time of the
crime." Id. at 911-912. See, e.g.,
Commonwealth v. Wei Ye, 52 Mass.App.Ct. 390, 392-393
(2001) (fingerprint found on door of cabinet rarely used,
located in basement, and opened by robbers coupled with other
evidence including records of telephone calls connecting
defendant to prior owner of home where robbery occurred);
Fazzino, 27 Mass.App.Ct. at 486-487 (location of
defendant's fingerprints on box that defendant, who was
familiar with premises, would not have "casually"
handled on previous visit to premises, coupled with, among
other things, possible ill feelings of defendant toward
Morris, 422 Mass. at 257-258, on the other hand, in
which we reversed the defendant's conviction, we
concluded that the defendant's fingerprint on a mask
found near the scene of the crime was not evidence sufficient
to connect the defendant to the crime. In that case, there
was some evidence, from which a reasonable inference could
have been drawn, that the defendant was associated with two
other defendants, the White brothers (who had already been
convicted), as well as, among other things, evidence that
linked the White brothers to the defendant's residence.
This was not enough, however, to conclude "beyond a
reasonable doubt that the thumbprint was placed on the mask
during the commission of the crime." Id. at