NOTICE: All slip opinions and orders are subject to formal

revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108

- 1750; (617) 557

- 1030; SJCReporter @ sjc.state.ma.us
14

- P

- 1257 Appeals Court

COMMO NWEALTH 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. Identif ication
.

C omplaint received and sworn to in the Springfield Division of the District Court Department on September 27, 2013. The case was heard by Christopher P. LoCont o , 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 crime s , a2

latent fingerprint was legally insufficient to support the convictions. Because we conclude that the Commonwealth did, in fact , present further circumstantial evidence, w e 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 re turned 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 window pane had been removed from its frame and left leaning against the front do or 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,
th e v alue 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 the3

plexiglass window pane , "like if you lifted it and put it to the side
. " 1 Springfield p olice Detective Juan Estrada analyzed the fingerprints , and testifie d 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 deteri orate when exposed to weather. At trial, the defendant did not contest the manner by which the fingerprint evid ence was secured and analyzed. Nor did he contest t hat 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 . 70 7, 713 (2014), quoting from Commonwealth v . Merola , 405

1 Although the officer equivocated somewhat on cross

examination regarding the orientation of the plexiglass in the frame, he affirmed on redirect that the fingerprint s were recove red "up high" on the window, as the plexiglass was oriented in the frame before it was removed.

2 Although t here was some inconsistent testimony as to how many fingerprints were lifted fr om the windowpane by the police, Detective Estrada testified that he matched one print lifted fr o m 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)
. S uch a hypothesis has reasonably been excluded in this

case . I n 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 window pane , the point of entry for the break

- in, provides further circumstantial evidence
. The print was located nearly six feet from the
grou nd , on the perimeter of the pane, where someone would hold it in order to lift it out of its frame. Apart from removing the window pane to gain entry into the market , there is no other
reasonable , innocent explanation for the presence of the5

defendant's fingerprint on that part of the window
. 3 T aking all of the circumsta ntial evidence together, a fact finder reasonably could have inferred that the defendant perpetrated the crime
. See Commonwealth v . LeClair e , 28 Mass
. App . Ct . 932, 934 (1990) ; Commonwea lth v . Baptista , supra at 911

- 912
. 4 Judgments affirmed
.

3 T he dissent rests o n 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 a nd impressed his fingerprint while the pane was resting against the doo r of the market overnight , or that he someho w 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 it s 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 n ot 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 th e holding in Commonwealth v. Morris , 422 Mass. 254, 257 (1996) . There, t he 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 in tact 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 window pane 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 linkin g the defendant to the break

- in of the market other than a latent fingerprin t found on a plexiglass window pane. The evidence indica tes that the latent fingerprint was not in a location on the window pane that was inaccessible to the public prior to the bre ak

- in when the window pane was in its frame. The police witnesses did n ot testify that the fingerprint was fresh, and they c ould not estimate how long the fingerprint had been on the window pane. Furthermore, the evidence was that when the police arrived a t
t he scene, the plexiglass window pane was out of its frame, upright on the sidewalk and against the market's front door.
Furt hermore, the plexiglass window pane was out of its f rame and unattended for up to thirteen hours after the break

- in occurred.
T he only reported Massachusetts appellate decision in which latent fingerprint evidence alone was deemed sufficient to warrant a verdict of guilty beyond a reasonable doubt is2

Commonwealth v. Baptista , supra . The holding in Baptista , followed in Commonweal th 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 d efendant' s motion for a directed finding. 2
Accordi ngly, 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 o r

1 "[W]hen fingerprints constitute the only identification e vidence, 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 f rom 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 clos ed, locked Pepsi vending machine. In order to reach the coin box, the perpetrator had to cut off a lock on the machine. B ecause 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 the re 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 wo rth 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 w indow was over six feet, four inches. The windowpane that was removed was two and one

half feet wide. Inside the store, Officer Rooke went behind the counter where the cash register was located, and observed

sever al items on the floor. The police did no t dust for fingerprints anywhere inside the store.

3 There is no ev idence 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 arriv ed. 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 w as in the window frame, but he was " not sure." Jenkins lifted latent fingerprints 4 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, h e testified o n 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 visib le 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 vi sible 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 7 27

- 728, the court indicated that expert witness testimony based on the "ACE

V methodology" of latent fingerprint identification was admissible, but expressed reservations about whether a fingerprint examiner should be permitted to te stify 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 o f 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 f rom offering an opinion about a match between a projectile or cartridge casing and a specific firearm to a degree of absolute6

testified that he could not determine when the fingerprint had been impressed on the wi n dow pane . 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 invo lving 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) ( c ertitude of e xpert w itness o pinion ). 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 window pane to the inked prints associ ated with the defendant and Estrada's testimony that there was a match, t here 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 connect ion 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 window pane 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. Faz zino , 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 app arent, skill with a blowtorch, and that the intruder harbored ill feelin gs against [the victim] "); Commonwealth v. LeClaire , 28 Mass. App. Ct. 932 , 933 ( 1990) (in addition to defend ant's thumbprint found around jagged hole in window leading into building, there were three other smudged prints on interior of same wind ow 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 wi ndow, but had no authority or permission to be in that room); Commonwealth v. Hall , 32 Mass. App. Ct. 951 , 952 (1992) (d efendant'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 opport unity 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 door knob was not smudged, and since the bathroom was used regularly by all the stor e'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 imp ressed 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 objec t on which the fingerprint was found was inaccessible to anyone other than the perpetrator. That is not
t he case here because the window pane 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 an d from which $15,000 in cash , of which one

- third was in form of new $100 bills, was stolen from safe, there were cell ular telephone calls on day of burglary between defen dant and a nother suspect with link to house , and financial transactions by defendant a round 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 latc h 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 re cords of telephone calls to defenda nt'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 stan ding alone demonstrate that defendant p ossessed 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 entr y 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 t ouched 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 lik e 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 fin gerprints 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 Comm onwealth'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 eve nt 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 window pane the latent fingerprint was found. The location in question wa s not marked or photographed.10

that had b een broken open. I d
. 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 conclude d 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 loca tion of the latent fingerprint identified as the defendant's on the window pane 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 inac cessible to a passerby. We do know, howe ver, that the plexiglass window pane 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 tha t the latent fingerprint was " fresh ." Further , and more significantly, the window pane 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 di scovered 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
exclude d. 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 Delawar e 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 loca tions consistent with someone removing shards12

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 firs t 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 m other, (2) linking the defendant and his residence to two other men who were found in a vehicle in possession of firearms and other items us ed 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 demons trated 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 t he 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 i n 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 th e 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 rea sonable dou bt 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 gu ilty should have been allowed.

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

- 597 (D.C. Cir. 1967)
.