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

made part of the record, and

to

its

characteristics

smudging.

His

clearly warranted
constitutional
evidence did

such a

claim

was not

the witness who testified

did

testimony

the print

not
as

speak

to

finding.

requires

as

details,
Since

issue must be resolved against defendant.

non-

however,

defendant's

showing

not warrant the conviction,

to

that

the

this factual

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

__________________

appellant.
William J. Meade,
_________________

Assistant Attorney

General, with

Harshbarger, Attorney General, was on brief for appellee.

___________

____________________

January 3, 1996
____________________

whom

Sc
__

ALDRICH,

Wesley Hall,

court

Senior Circuit Judge.

_____________________

having

been convicted

in

Defendant Derek

the

Commonwealth's

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

trial,

may

facts,

as far

be briefly

as

stated.

they

were established

Harvard Square

at

Cleaners,

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

establishment

cleaning,

them

receives

sends them

out to

clothes

employee was

7:00 a.m.

working

to 7:00

there for some

from

clean, and

to customers upon receiving

the sole

from

that

customers

ultimately returns

payment.

On

Carmel Mhodhrain, who

p.m.

She testified

seven months.

At

for

May 9, 1989,

worked, alone,

she

had been

about 4:00 p.m. a

man she

had never

store.

She

seen before

could say no

entered the

more than

medium height, slender, with black

jeans

leather

and a black sweater.

jacket, which he had

that he

otherwise empty

was black, of

hair and was wearing blue

After inquiring about having his

with him, cleaned,

-3-

he said he

had to use a bathroom and left.

further discussion

began writing a

her

neck.

He then

Mhodhrain

She jumped back and

came inside the

saw the man holding a knife.

buttons on

in cash

Mhodhrain backed away, and, on his

that was behind the

closed the door and she heard a

or lock the

and

felt something prick

when it opened took some $400

orders, went into the bathroom

trying to tie

the counter

counter, pushed various

and put it in his pocket.

minutes

leaned on

customer slip when she

the cash register and

The man

He later returned, and after

door shut.

counter.

noise as if he were

After three or

four

she heard the front door close and came out, finding

a vacuum cleaner cord tied around the doorknob.

the telephone

but found

security, the security

the cord

cut.

She

She went to

then "went

office, and the security

to

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.

expert

testified

bathroom's outer

and no

No

that he

At trial, a police fingerprint

compared a

print taken

doorknob, finding 20 points

dissimilarities, with

of comparison,

defendant's print

opinion was offered as to how

from the

on record.1

long the print had been on

the knob.

____________________

1.

According to

FBI standards 12 points of

sufficient for a positive identification.

-4-

comparison is

At trial Mhodhrain testified that "the only persons

who

had access to th[e]

the persons

working in the

bring the clothes in."

to

whether excluding

store policy, or

unable

area [behind the

store or

counter] would be

the driver who

There was no testimony,

customers was

who had

worked the

however, as

her personal

day before.

to identify defendant in the courtroom.

has to

policy or

She

was

At the close

of

the Commonwealth's case

for a finding of not

defendant moved, unsuccessfully,

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,

defendant

as

to the

scene, our question

here,

there

crime other

is whether

is

than his

no

evidence

linking

fingerprint at

it could be

found beyond

the

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

_____
____

cert. denied, ___ U.S.

____________

353, 356-57 (9th Cir. 1991),

___, 112 S.Ct. 3055, 120

L.Ed.2d 921

(1992)

Appeals

(citing

cases of

several

Court here said as

much.

circuits).

Commonwealth
____________

Indeed,

the

v. Hall, 32
____

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

Reviewing

prosecution,

the

evidence

as we must, Jackson
_______

-5-

most

favorably

to

the

v. Virginia, 443 U.S. 307,

________

319

(1979),

concluding

was

not

we

see

problem

beyond a reasonable

made

after the
_____

assumption that

went for

no

with

robbery.

the security officer, the

Even

on the

court's

unlikely

unlocked while she

court could sufficiently

not slip in and handle

doorknob during her absence.

have been placed on

trial

doubt that defendant's print

Mhodhrain left the store

find that defendant did

the

the bathroom

Whether defendant's print might

the knob sometime before the

robbery is

more difficult.

The Massachusetts Appeals

conviction, reasoned

that

"because the

from the doorknob was unsmudged2,

used regularly by

Court, in affirming

all the store's

fingerprint

the

lifted

and since the bathroom was

employees, the print

was

likely

put there

by one

knob."

Hall, 32 Mass. App. Ct. at 952, 590 N.E. at 1178.

____

can

agree, but to what

Was

some, more generous,

Were there

last people

extent does this

employee on

attempt was

made to

defendant's print had

to touch

the

We

indicate the time?

duty the

no other prints, demonstrating

affirmative

that

of the

day before?

survivorship?

eliminate

not been made

No

the possibility

the previous day.

____________________

2.

Strictly, the exhibit showing the print was not made part

of

the

record,

characteristics
testimony as
finding.
showing

and
did

the
not

to details,

witness
speak

as to

testified

to

non-smudging.

however, clearly warranted

Since defendant's
that the

who

its
His
such a

constitutional claim requires a

evidence did

not warrant

the conviction,

this factual issue must be resolved against defendant.

-6-

At the same time, a doorknob is a very small

used

with

unsmudged.

pressure.

Defendant's

Mhodhrain had been

print,

on duty nine

area, and it is

an exhibit,

hours that day

and manifestly would have used the bathroom -- and,

handling

soiled clothes,

judges,

before ourselves,

for an

perhaps,

occasional wash-up.

have thought

was

the inference

Four

most

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

robbery.

In

Commonwealth

have

a doubt

based on

we count

against the

the prosecutor's

failure to

asked the obvious questions that would have cinched its

case?

Does this lapse

cinched

long

this circumstance should

indicate the answers

the case, but the

shot.

If

contrary?

the trial had

would not have

Admittedly,

been in the

this is a

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

its position.

We

of avoiding evidence contrary to

do not have such authority over our sister

courts.

Affirmed.
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