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14-P-1257 Appeals Court

COMMONWEALTH vs. ERIC S. FRENCH.

No. 14-P-1257.

Hampden. May 13, 2015. - October 9, 2015.

Present: Trainor, Agnes, & Blake, JJ.

Breaking and Entering. Larceny. Practice, Criminal, Required 

finding. Evidence, Fingerprints, Identification. 

Identification.

Complaint received and sworn to in the Springfield Division 

of the District Court Department on September 27, 2013. 

The case was heard by Christopher P. LoConto, J. 

Joseph Visone for the defendant.

Alyson Yorlano, Assistant District Attorney, for the 

Commonwealth.

BLAKE, J. Following a jury-waived trial, a judge of the 

District Court found the defendant guilty of breaking and 

entering in the daytime with the intent to commit a felony, and

larceny of property over $250. On appeal, the defendant argues 

that absent additional evidence linking him to the crimes, a
2

latent fingerprint was legally insufficient to support the 

convictions. Because we conclude that the Commonwealth did, in 

fact, present further circumstantial evidence, we affirm the 

defendant's convictions.

Background. The undisputed facts are as follows. On 

August 30, 2013, Albano's Market in the city of Springfield 

closed at 6:00 P.M. When the proprietor left, the door was

locked and all windows were in place. She returned early the 

following morning after she was informed that there was an open 

window at the store. Once at the store, both she and a police 

officer noted that a plexiglass windowpane had been removed from 

its frame and left leaning against the front door of the store.

The empty window frame was about two and one-half feet wide,

over six feet from the ground at its highest point, and located 

to the right of the store's front door. Beneath the window 

frame was a "little knee wall." The police officer also 

observed a milk crate in front of the same door, which he 

surmised the thief had used to gain entry into the store. Items 

inside the store had been knocked to the floor from their 

shelves. The proprietor reported that cigarettes were missing, 

the value of which was about $400 to $500, in addition to an 

undetermined amount of change.

The subsequent police investigation yielded latent 

fingerprints "around the sides" of the upper half of the 
3

plexiglass windowpane, "like if you lifted it and put it to the 

side."

1 Springfield police Detective Juan Estrada analyzed the 

fingerprints, and testified that one was a match with a known 

sample provided by the defendant.

2 Estrada further testified 

that the age of a fingerprint cannot be determined when a crime 

scene is processed, but that fingerprints can deteriorate when 

exposed to weather. At trial, the defendant did not contest the 

manner by which the fingerprint evidence was secured and 

analyzed. Nor did he contest that the fingerprint was his.

Discussion. In reviewing the denial of a motion for a 

required finding of not guilty, we view the evidence in the 

light most favorable to the Commonwealth. Commonwealth v.

Latimore, 378 Mass. 671, 676-677 (1979). The Commonwealth may 

submit a case wholly on circumstantial evidence; inferences 

drawn from that evidence "need only be reasonable and possible,” 

not "necessary or inescapable." Commonwealth v. Woods, 466 

Mass. 707, 713 (2014), quoting from Commonwealth v. Merola, 405 

 

1 Although the officer equivocated somewhat on crossexamination regarding the orientation of the plexiglass in the 

frame, he affirmed on redirect that the fingerprints were

recovered "up high" on the window, as the plexiglass was 

oriented in the frame before it was removed.

2 Although there was some inconsistent testimony as to how 

many fingerprints were lifted from the windowpane by the police, 

Detective Estrada testified that he matched one print lifted 

from the windowpane with "the #9 ring finger of the defendant" 

by analyzing the defendant's previously obtained "standard 

fingerprint card." We refer to one fingerprint in this 

decision, but nothing turns on the exact number of prints.
4

Mass. 529, 533 (1989). "[T]he presence of a fingerprint at the 

scene of the crime is not by itself sufficient basis for 

submitting a case to a jury." Commonwealth v. Fazzino, 27 Mass.

App. Ct. 485, 487 (1989). "The prosecution must couple the 

fingerprints with evidence which reasonably excludes the 

hypothesis that the fingerprints were impressed at a time other 

than when the crime was being committed." Ibid. See

Commonwealth v. Baptista, 32 Mass. App. Ct. 910, 911 (1992). 

Such a hypothesis has reasonably been excluded in this 

case. In addition to the fingerprint, the circumstantial 

evidence depicts a crime scene that essentially speaks to how 

the burglar gained access to the market: by entry through a 

window, from which a pane had been removed, with a milk crate 

that could have been used to bolster the burglar into the market 

from the ground. As in Commonwealth v. Ye, 52 Mass. App. Ct.

390, 392-393 (2001), here the defendant was unknown to the 

victim of the crime and had no apparent connection to the store. 

The location of the fingerprint on the windowpane, the point of 

entry for the break-in, provides further circumstantial

evidence. The print was located nearly six feet from the 

ground, on the perimeter of the pane, where someone would hold 

it in order to lift it out of its frame. Apart from removing 

the windowpane to gain entry into the market, there is no other 

reasonable, innocent explanation for the presence of the 
5

defendant's fingerprint on that part of the window.

3 Taking all 

of the circumstantial evidence together, a fact finder

reasonably could have inferred that the defendant perpetrated 

the crime. See Commonwealth v. LeClaire, 28 Mass. App. Ct. 932, 

934 (1990); Commonwealth v. Baptista, supra at 911-912.

4

Judgments affirmed.

 

3 The dissent rests on the assumption that it is equally 

plausible that, based on the evidence presented, the real 

culprit left no fingerprints behind while the defendant 

innocently touched the plexiglass and impressed his fingerprint

while the pane was resting against the door of the market 

overnight, or that he somehow climbed up and impressed it on the 

pane at an earlier time. While these scenarios are within the 

realm of possibility, "[t]he Commonwealth need not 'exclude 

every reasonable hypothesis of innocence to prove its case, if 

the record viewed in its entirety supports 'a conclusion of 

guilt beyond a reasonable doubt.'" Commonwealth v. Platt, 440 

Mass. 396, 401 (2003), quoting from Commonwealth v. Merola, 405 

Mass. 529, 533-534 (1989). 

 

4 The rationale of Baptista, supra, is not a bar to the 

result reached in this case. In Baptista, this court held that 

one way to infer that the fingerprints were impressed at the 

time the crime was committed was the placement of the 

defendant's prints in an area that was not accessible to the 

public. Id. at 911-912. This rationale did not exclude the use 

of other, equally valid, methods of proof in cases such as the 

one here.

Nor are we bound by the holding in Commonwealth v. Morris, 

422 Mass. 254, 257 (1996). There, the defendant's fingerprint 

was found on a mask left near the crime scene, without 

sufficient further proof to tie him to the crime. Here, the 

defendant's fingerprint was found in a distinct location on the 

plexiglass. If the plexiglass remained intact in the window, it

would not likely be touched by a member of the public, thereby 

further linking the defendant to the removal of the windowpane

that served as the point of entry for the break-in. 
AGNES, J. (dissenting). The majority opinion reasons that 

the Commonwealth's case consisted of not only latent fingerprint 

evidence, but also additional corroborative evidence that when 

taken together permitted the judge to conclude beyond a 

reasonable doubt that the defendant's fingerprint was impressed 

at the time the crime was committed. See Commonwealth v. 

Morris, 422 Mass. 254, 257 (1996); Commonwealth v. Baptista, 32 

Mass. App. Ct. 910, 911 (1992). I read the record differently. 

There is no evidence in this case linking the defendant to 

the break-in of the market other than a latent fingerprint found 

on a plexiglass windowpane. The evidence indicates that the 

latent fingerprint was not in a location on the windowpane that 

was inaccessible to the public prior to the break-in when the 

windowpane was in its frame. The police witnesses did not 

testify that the fingerprint was fresh, and they could not 

estimate how long the fingerprint had been on the windowpane.

Furthermore, the evidence was that when the police arrived at 

the scene, the plexiglass windowpane was out of its frame, 

upright on the sidewalk and against the market's front door.

Furthermore, the plexiglass windowpane was out of its frame and 

unattended for up to thirteen hours after the break-in occurred. 

The only reported Massachusetts appellate decision in which 

latent fingerprint evidence alone was deemed sufficient to 

warrant a verdict of guilty beyond a reasonable doubt is 
2

Commonwealth v. Baptista, supra. The holding in Baptista,

followed in Commonwealth v. Morris, supra, is that in a case 

such as this, fingerprint evidence alone is sufficient to 

support a finding of guilt beyond a reasonable doubt only if the 

fingerprint was found in an area generally inaccessible to the 

public. This is the national rule as well.1 Because this case 

is substantially weaker than Baptista, and every other reported 

appellate decision in Massachusetts involving fingerprint 

evidence, I do not believe that the evidence was sufficient to 

withstand the defendant's motion for a directed finding.2 

Accordingly, I respectfully dissent.

1. Factual background. In order to understand why this 

case is different from and weaker than any other Massachusetts 

case in which fingerprint evidence has been the sole or 

 

1 "[W]hen fingerprints constitute the only identification 

evidence, most jurisdictions require the prosecution to 

establish beyond a reasonable doubt that the fingerprints in 

fact were placed at the scene during the commission of the 

crime." Commonwealth v. LaCorte, 373 Mass. 700, 703 (1977). 

Cases from other jurisdictions are collected in Monroe v. State, 

652 A.2d 560, 564-565 (Del. 1995), and State v. Watson, 224 N.J.

Super. 354, 358-360 (App. Div. 1988). 

2 In Baptista, we observed that "one of the defendant's 

fingerprints was found inside a closed, locked Pepsi vending 

machine. In order to reach the coin box, the perpetrator had to 

cut off a lock on the machine. Because the interior of that 

machine was not available to members of the public, the jury 

could reasonably infer that the defendant's fingerprints were 

left on the coin box at the time of the crime." Commonwealth v. 

Baptista, 32 Mass. App. Ct. at 911-912. Accord Taylor v. 

Stainer, 31 F.3d 907, 909-910 (9th Cir. 1994); State v. Lucca, 

56 Wash. App. 597, 599-603 (1990).
3

principal evidence against the defendant, it is necessary to set 

forth the facts in somewhat greater detail. From the evidence 

presented at trial, the judge could have found the following 

facts. The owner of the market returned to the store during the 

early morning hours of August 31, 2013, as a result of a 

telephone call informing her that there was an empty window 

frame on the street side of the store.

3 When she arrived at the 

scene, she observed that a plexiglass pane from the window 

located on the right-hand side of the front door had been 

removed and placed on the ground, leaning against the door. The 

window served as the entry point by which the perpetrator 

entered the store and took change from the cash register and 

cigarettes estimated to be worth approximately $400 to $500. 

Springfield police Officer Rooke arrived at the store at 

7:20 A.M. the next morning and observed the empty window frame. 

When the windowpane was intact inside its frame, the distance 

from the sidewalk to the top of the window was over six feet, 

four inches. The windowpane that was removed was two and onehalf feet wide. Inside the store, Officer Rooke went behind the 

counter where the cash register was located, and observed 

several items on the floor. The police did not dust for 

fingerprints anywhere inside the store. 

 

3 There is no evidence as to the precise time when the empty 

window frame was discovered. 
4

Detective Jenkins also arrived at the scene sometime after 

7:00 A.M. that morning and was informed that the windowpane had 

not been moved and had been leaning against the door when the 

police first arrived. Wearing gloves, Jenkins moved the 

windowpane so he could dust it for fingerprints. He assumed 

that the portion of the windowpane with a crack in it (depicted 

in a trial exhibit as the bottom area of the pane) was the 

bottom when it was in the window frame, but he was "not sure." 

Jenkins lifted latent fingerprints4 from a location on the 

windowpane that would have been between five feet, eight inches, 

and six feet from the ground if the pane were in the window 

frame. More particularly, he testified on direct examination as 

follows:

Q: "Okay. And when that fingerprint powder -- when you 

applied it to the window, did you yield any results?"

A: "Yes."

Q: "And from where did you recover those results?"

A: "From the window -- from the plexiglass."

Q: "And where precisely in the plexiglass was it?"

A: "Around the sides -- like if you lifted it and put it 

to the side like that."

 

4 "Fingerprints are left by the deposit of oil on contact 

between a surface and the friction ridges of a finger. Latent 

fingerprints are fingerprint impressions that are not visible to 

the naked eye without chemical enhancement. These latent print 

impressions are almost always partial and may be distorted due 

to less than full, static contact with the object and to debris 

covering or altering the latent impression." Commonwealth v. 

Patterson, 445 Mass. 626, 629 (2005). 
5

Q: "Is that the upper half or the lower half of the 

plexiglass?"

A: "That was the upper half."

Q: "Alright. Is that visible in the picture you have 

before you?"

A: "No."

It was not possible to determine the age of the 

fingerprints. Detective Jenkins made photographic slides of the 

latent prints, which were submitted to the crime laboratory for 

identification. Jenkins did not mark the area of the windowpane 

where he lifted the latent prints, nor did he take a photograph 

of the location. 

Detective Juan Estrada, a member of the Springfield police 

crime scene identification division, testified without objection 

that one of the latent prints belonged to the defendant.5 He 

 

5 This case was tried after the decisions in Commonwealth v. 

Patterson, supra, and Commonwealth v. Gambora, 457 Mass. 715 

(2010), which addressed the reliability of latent fingerprint 

identification methods. In Gambora, 457 Mass. at 727-728, the 

court indicated that expert witness testimony based on the "ACEV methodology" of latent fingerprint identification was 

admissible, but expressed reservations about whether a 

fingerprint examiner should be permitted to testify to the 

"individualization" of a latent fingerprint, i.e., that based on 

a comparison between a latent fingerprint from a crime scene and 

a known fingerprint, the latent fingerprint came from the same 

source as the known fingerprint to the exclusion of all other 

persons. See Commonwealth v. Wadlington, 467 Mass. 192, 203-206 

(2014). In Commonwealth v. Pytou Heang, 458 Mass. 827, 846-849 

(2011), the Supreme Judicial Court established guidelines for 

forensic ballistics testimony that prohibit experts from 

offering an opinion about a match between a projectile or 

cartridge casing and a specific firearm to a degree of absolute 
6

testified that he could not determine when the fingerprint had 

been impressed on the windowpane. The defendant was unknown to 

the market's owner. No witnesses saw the defendant or a person 

matching his description coming or going from the store at the 

approximate time the incident occurred, and none of the stolen 

merchandise was ever recovered or tied to him.

2. Absence of corroborative evidence. The majority 

maintain that this is not a case involving fingerprint evidence 

alone, but rather one in which the fingerprint evidence was 

corroborated by other circumstantial evidence linking the 

defendant to the crime. Ante at __. However, the majority 

 

certainty. See note to Mass. G. Evid. § 702, at 234 (2015) 

(certitude of expert witness opinion).

Because the defendant did not raise any issue with respect 

to the reliability of the methods used by Detective Estrada in 

comparing the latent fingerprints removed from the windowpane to 

the inked prints associated with the defendant and Estrada's 

testimony that there was a match, there is no need to address 

the issue. In light of the decisions in Patterson, supra;

Gambora, supra; Pytou Heang, supra, and other similar cases, it 

is important for prosecutors and defense counsel to appreciate 

the distinction between the admissibility of forensic expert 

witness testimony that is empirically based, but ultimately 

subjective in nature, and the expression by such experts of 

certainty or near certainty about their opinions. See 

Commonwealth v. Greineder, 464 Mass. 580, 596 (2013), quoting 

from National Research Council, Strengthening Forensic Science 

in the United States: A Path Forward, 7 (2009) ("[N]o forensic 

method has been rigorously shown to have the capacity to 

consistently, and with a high degree of certainty, demonstrate a 

connection between evidence and a specific individual or 

source"). See also Commonwealth v. Drayton, 473 Mass. ___ 

(2015) (expert witness testified without objection that latent 

fingerprint was "individualized or identified" with the 

defendant's print).
7

refers only to the location of the fingerprint, the absence of 

any connection between the defendant and the market, and the 

height of the windowpane when it was inside its frame. Ante at 

__. This is not the type of corroborative evidence described in 

prior cases involving fingerprint evidence.6 In cases of this 

 

6 See, e.g., Commonwealth v. Fazzino, 27 Mass. App. Ct. 485, 

487 (1989) ("in addition to the fingerprints, there was evidence 

of [the defendant's] knowledge of the premises, knowledge where 

money was kept, special knowledge about a point of entry that 

was not apparent, skill with a blowtorch, and that the intruder 

harbored ill feelings against [the victim]"); Commonwealth v. 

LeClaire, 28 Mass. App. Ct. 932, 933 (1990) (in addition to 

defendant's thumbprint found around jagged hole in window 

leading into building, there were three other smudged prints on 

interior of same window and near thumbprint; expert testified

that all prints had been impressed at same time and during 

commission of crime; and defendant was employed by business that 

occupied space inside that window, but had no authority or 

permission to be in that room); Commonwealth v. Hall, 32 Mass. 

App. Ct. 951, 952 (1992) (defendant's fingerprint was on 

doorknob of lavatory into which robber forced witness; court 

described additional circumstantial evidence as follows: "[1]

because the employee worked a twelve-hour shift that day and had 

been employed by the store since October, 1988, she would likely 

have recognized Hall if he was also a store employee, delivery 

person, or regular customer; [2] because the robber said he left 

the store to use a bathroom, he was unfamiliar with the fact 

that the establishment did have a bathroom; [3] because the 

robber apparently did not know that the store had a bathroom, it 

is reasonable to infer that he had no prior opportunity to place 

his fingerprint on the door handle to the bathroom which was 

only available to employees and delivery people; and [4] because 

the fingerprint lifted from the doorknob was not smudged, 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"); Commonwealth v. Keaton, 36 Mass. 

App. Ct. 81, 85 (1994) (victim's testimony established that 

defendant's fingerprint on glass inside apartment was impressed 

during commission of crime); Commonwealth v. Ye, 52 Mass. App. 

Ct. 390, 392-393 (2001) (in addition to "very fresh" prints 

belonging to defendant found inside of door of "rarely used" 
8

nature, in which the location of the fingerprint is the decisive 

factor, the object on which the fingerprint was found was 

inaccessible to anyone other than the perpetrator. That is not 

the case here because the windowpane was exposed to anyone 

passing by the market.7

3. Location of the latent fingerprint. The Commonwealth's 

theory at trial was that the fingerprint evidence was sufficient 

to permit an inference that the defendant was the perpetrator 

 

cabinet in "isolated" area of basement of house defendant had 

never visited and from which $15,000 in cash, of which one-third 

was in form of new $100 bills, was stolen from safe, there were 

cellular telephone calls on day of burglary between defendant 

and another suspect with link to house, and financial 

transactions by defendant around time of robbery involving new 

$100 bills); Commonwealth v. Newell, 55 Mass. App. Ct. 119, 126-

127 (2002) (fingerprint evidence combined with eyewitness 

identification evidence); Commonwealth v. Palmer, 59 Mass. App. 

Ct. 415, 419-421 (2003) (defendant's fingerprints were found on 

interior and exterior of truck used to escape scene of armed 

robbery; "[o]ne lift showed his fingers pointing downwards on 

the passenger door at the base of the passenger window frame.

Another showed a fingerprint on the latch located in the 

interior of the truck by which the window opening into the bed 

of the truck could be made secure"; in addition, there was 

physical evidence inside the truck and records of telephone 

calls to defendant's girlfriend that linked defendant to crime).

Contrast Commonwealth v. Estremera, 37 Mass. App. Ct. 923, 923-

924 (1994) ("latent fingerprints on and above the outside door 

handle on the driver's side [of the vehicle], on the outside and 

inside of the window on the driver's side, and on the inside of 

the window on the passenger side" did not standing alone 

demonstrate that defendant possessed or was ever inside 

vehicle).

7 Implicit in the reasoning of the majority is that whoever 

removed the windowpane from its frame and thereby gained entry

to the market left a fingerprint on the plexiglass. There is no 

evidence to support such an assumption.
9

for three reasons: it was recovered from a location that was 

the point of entry into the store, it was found in a location 

that was so high up on the windowpane that it could not have 

been the result of an inadvertent touching by a passerby, and it 

was in the location that would have been touched by someone who 

lifted the windowpane from its frame. In particular, the 

Commonwealth points to testimony by Detective Jenkins that he 

found the latent fingerprint on the "sides [of the windowpane] -

- like if you lifted it and put it to the side like that."8 

This is the reasoning that underlies the result in 

Commonwealth v. Baptista, 32 Mass. App. Ct. at 911-912. There,

the defendant was convicted of breaking and entering a building 

on the basis of fingerprint evidence alone. The defendant's 

fingerprints were described as "fresh," and were found in three 

different locations, namely, on a tool box inside the business, 

on the door to a cabinet from which a typewriter had been 

removed, and from the coin box of a soft drink vending machine 

 

8 In determining that this evidence was sufficient to 

withstand the defendant's motion for a directed finding of not 

guilty at the close of the Commonwealth's case, the judge 

described the testimony by Detective Jenkins as to the location 

of the latent print as involving a "demonstration." Judges have 

discretion to permit a court room demonstration as long as it 

"sufficiently resembles the actual event so as to be fair and 

informative." Commonwealth v. Perryman, 55 Mass. App. Ct. 187, 

193–194 (2002), quoting from Terrio v. McDonough, 16 Mass. App. 

Ct. 163, 173 (1983). The problem with what occurred in this 

case is that neither Jenkins nor the judge indicated with 

precision where on the windowpane the latent fingerprint was

found. The location in question was not marked or photographed.
10

that had been broken open. Id. at 911. The result we reached 

in Baptista did not turn on the number of locations where the 

defendant's fingerprints were located. Ibid. Instead, we 

concluded that "[b]ecause the interior of [the vending] machine 

was not available to members of the public, the jury could 

reasonably infer that the defendant's fingerprints were left on 

the coin box at the time of the crime." Id. at 911-912.9 

This reasoning loses its force in the present case for two 

reasons. First, we do not know the precise location of the 

latent fingerprint identified as the defendant's on the 

windowpane because that was never marked or photographed. We do 

not know if the location of the fingerprint described by 

Detective Jenkins was in a location that was inaccessible to a 

passerby. We do know, however, that the plexiglass windowpane 

was not so high that a passerby could not stand on the ledge and 

touch the top of the window. Moreover, we do not have any 

evidence that the latent fingerprint was "fresh." Further, and 

more significantly, the windowpane that was removed from the 

window frame through which the perpetrator gained entry to the 

store became accessible to any passerby (in addition to the 

 

9 Accord State v. Thorpe, 188 Conn. 645, 648-650 (1982); 

Jones v. State, 156 Ga. App. 823, 824 (1980); State v. Watson, 

224 N.J. Super. at 361. See United States v. Talbert, 710 F.2d 

528, 531 (9th Cir. 1983); Hawkins v. United States, 329 A.2d 

781, 782 (D.C. 1974); State v. Mitchell, 332 S.C. 619, 623 

(1998).
11

perpetrator) after 6:00 P.M. on August 30. In fact, it is 

unclear whether the police took control of the crime scene until 

the following morning. According to the evidence, the owner of 

the store returned there "during the night." No specific time 

is given, and there is no indication whether she or anyone else 

remained at the store until the police arrived. Officer Rooke, 

who worked the day shift, testified that he responded to the 

scene immediately after the 7:00 A.M. roll call on August 31. 

Detective Jenkins arrived at the scene after 7:00 A.M. on August 

31. Thus, even if we assume that Jenkins discovered the latent 

fingerprint in a location on the windowpane that would not be 

accessible to a passerby when it was in its proper place inside 

the frame, the evidence that the windowpane was out of its frame 

and resting against the front door of the store for hours before 

the scene was under the control of the police means that "the 

hypothesis that the fingerprints were impressed at a time other 

than when the crime was being committed" cannot reasonably be 

excluded. Commonwealth v. Fazzino, 27 Mass. App. Ct. at 487. 

Cf. Commonwealth v. Salemme, 395 Mass. 594, 599-600 & n.6 

(1985).10

 

10 In Monroe v. State, 652 A.2d at 565-566, the Delaware 

Supreme Court concluded that the presence of eight latent 

fingerprints belonging to the defendant on a large piece of 

glass at the point of entry to a burglarized commercial 

building, coupled with testimony by police officers that the 

prints were in locations consistent with someone removing shards 
12

The present case is also weaker than Commonwealth v. 

Morris, 422 Mass. at 257-260, where the Supreme Judicial Court 

concluded that the circumstantial evidence pointing to the 

defendant as one of a group of armed and masked intruders who 

entered an apartment and shot the victim to death was not 

sufficient to support the jury's verdict that the defendant was 

guilty of murder in the first degree and armed assault in a 

dwelling. In Morris, there was evidence that the intruders left 

one of the masks outside the apartment. Id. at 256. An expert 

witness testified that there was a thumbprint belonging to the 

defendant on that mask. Ibid. There also was additional 

evidence (1) that a vehicle involved in the crime resembled one 

owned by the defendant's mother, (2) linking the defendant and 

his residence to two other men who were found in a vehicle in 

possession of firearms and other items used in the commission of 

the crime, and (3) that the intruder wearing the mask resembled 

the defendant. Id. at 258-259. Notwithstanding the fingerprint 

evidence and other circumstantial evidence, the court concluded 

that the Commonwealth's evidence demonstrated that it was 

possible that the defendant was one of the intruders, but "does 

not, however, warrant such a conclusion beyond a reasonable 

 

of glass from the door in order to gain entry and less likely to 

be touched by someone simply using the door handle to open the 

door, was not sufficient to support a finding that the 

fingerprints were impressed at the time the crime was committed. 

See Townsley v. United States, 236 A.2d 63, 65 (D.C. 1967).
13

doubt." Id. at 259. See Commonwealth v. Fancy, 349 Mass. 196, 

200 (1965), quoting from Commonwealth v. O'Brien, 305 Mass. 393, 

401 (1940) ("[I]f, upon all the evidence, the question of the 

guilt of the defendant is left to conjecture or surmise and has 

no solid foundation in established facts, a verdict of guilty 

cannot stand").11 The evidence deemed insufficient in Morris is 

even stronger than the evidence in this case. 

4. Conclusion. Massachusetts law, and the law in a 

majority of jurisdictions, is that fingerprint evidence alone is 

not sufficient to support a finding of guilt beyond a reasonable 

doubt if the fingerprints are found in an area that is generally 

accessible to the public. In this case, the location where the 

fingerprint was found was accessible to the public both before 

and after the break-in, which precludes a jury from concluding 

beyond a reasonable doubt that the defendant's fingerprint was

impressed at the time the crime was committed as required by 

Commonwealth v. Morris, supra, and numerous other Massachusetts 

decisions. Accordingly, the defendant's motion for a directed 

finding of not guilty should have been allowed.

 

11 Accord Borum v. United States, 380 F.2d 595, 596-597 

(D.C. Cir. 1967).