In re J.C.M.
After a bench trial, appellant was convicted of burglary and theft,
I.
At trial, the complainant, Linda Johnson, testified that on the morning of November 23,1983 she had left her home and office at 710 C Street, N.E., with all the doors locked and the windows closed. When she returned at 4:30 or 5:00 p.m., she responded to a noise upstairs and found the bathroom window open. An almost full can of air freshener and a bottle of milk bath, both of which had been on top of the toilet tank, were in the waste basket next to the toilet. Johnson discovered that approximately $7,000 in property — two radios, jewelry, and a mink coat — had been stolen. Johnson also testified that appellant
looks just like somebody I have seen in the neighborhood.[2 ] He looks very familiar. In fact, one day I was coming out of the door, a young man that looks just like him, was nicely dressed, came up and said, "Where’s the doctor’s office? I’m looking for the doctor’s office.”3
She was not asked to make a permissible voice identification of appellant, see United States v. Dionisio,
Officer Dixon, a crime scene search officer, testified that he had searched the premises for latent fingerprints. He “dusted” the bathroom, including the window,
Appellant produced two witnesses. Carol Rubin, complainant Johnson’s administrative assistant, testified that on the day of the burglary she had heard two loud noises sometime between 3:00 and 3:30 p.m. Appellant’s mother provided evidence of an alibi; she testified that appellant had been home all afternoon on the day of the crime.
II.
We review the evidence. Complainant Johnson’s statements that appellant “looks very familiar,” “looks just like somebody I have seen in the neighborhood,” and “looks just like” a young man with whom she once had spoken in front of her house about a “doctor’s office,” are not probative of guilt, for four reasons: (1) Johnson did not positively identify appellant as that young man; (2) even if appellant was that person, Johnson might well have seen him in the normal course of events because appellant did, in fact, live in the vicinity, see swpra note 2; (3) Johnson’s encounter in front of her house with someone who looked like appellant was not perceptively suspicious; and (4) there was nothing else about the encounter to connect it with the burglary; for example, Johnson testified that she did not see appellant on the day of the crime.
Accordingly, the only evidence of appellant’s guilt was the latent fingerprints recovered from the can of air freshener. “Unquestionably the print raises a suspicion. But a suspicion, even a strong one, is not enough. Guilt must be established beyond a reasonable doubt....” Hiet v. United States,
In applying this test, our cases hold that fingerprint evidence alone will not support a conviction if the object from which the prints are removed is both mobile and accessible to the accused or the public; such mobility and accessibility imply a reasonable, innocent explanation and thus preclude a reasonable inference that the fingerprints necessarily were left during the crime. See Rhyne (fingerprints recovered from stereo dustcover held insufficient because dustcover was mobile and accessible to appellant); Townsley (fingerprint on outside of drugstore’s glass door, the point of entry for housebreaking, held insufficient because door accessible to public); Borum
Viewed in the light most favorable to the government, Crawford v. United States,
The government’s own witness testified that appellant’s fingerprints could have been on the can of air freshener for over a year (although the humidity in the bathroom would reduce the longevity of the latent prints). The government produced no evidence as to where or when complainant Johnson acquired the can, other than the implications that it came from K-Mart and was probably recently purchased because the can was almost full. Accordingly, the government failed to negate the most reasonable, innocent explanation for the presence of appellant’s fingerprints on the can: that before Johnson had recently purchased the can — and thus before the date of the burglary — appellant had touched it while shopping at the K-Mart store closest to the neighborhood where both appellant and Johnson lived. See supra note 2.
“[T]o affirm the conviction in this case on fingerprint evidence alone ... would jeopardize the liberty of every person who ever touched anything later found at the scene of a crime.” Borum,
Reversed.
Notes
.Appellant also contends that the trial court violated Super.CtJuv.R. 16 and Brady v. Maryland,
. Appellant resided with his mother at 340 15th Street, N.E. approximately ten blocks from Johnson’s home.
. Johnson also testified, without objection to hearsay, that her administrative assistant (later identified as Carol Rubin) had told Johnson that she had seen someone inside Johnson’s yard, on an earlier occasion, approaching the door and that, when asked what he wanted, he had answered he was looking for the dentist’s office.
. Johnson's administrative assistant, Carol Rubin, was later called as a defense witness. On cross-examination, the prosecutor did not ask Rubin whether she had seen someone in Johnson’s yard on an occasion before the date of the burglary (as Johnson reported she had) and, if so, whether appellant was the person whom she had encountered. See supra note 3. If the prosecutor had done so and Rubin had identified appellant as the person with whom she had spoken, then such testimony would have been probative of guilt and may also have provided a foundation for finding Johnson’s speculative identification probative as well.
. In contrast, when the government shows that the object from which latent fingerprints are removed is either immobile or inaccessible to the accused or the public, the evidence may be sufficient to convict the individual whose prints match those on the object. See In re M.M.J.