331 F. Supp. 457 | D.D.C. | 1971
MEMORANDUM OPINION
The defendant, Rudolph D. Preston, was indicted in one count for first degree burglary
The government produced four witnesses during the presentation of its case. The first witness to testify was an expert in the field of hair and fiber analysis. The government introduced into evidence a pair of tennis shoes, which allegedly belonged to the defendant and a small rayon carpet, which was stated to have come from the complainant’s bedroom. In addition, several microscope slides containing fibers from the bedroom carpet and fibers extracted from the defendant’s tennis shoes were admitted. On direct examination, the expert testified that following microchemical analysis of the fibers, he concluded that the fibers from both sources (i. e. the rug and the tennis shoes) were delustred rayon fibers. He stated that the tests he performed on the fibers from both sources could not conclusively establish that the fibers on the tennis shoes were from the carpet in complainant’s bedroom. During cross-examination, the expert testified that the rayon fibers from the bedroom carpet were capable of being transferred from that carpet to other carpets in the house, the floor in the apartment, or even the floor in the stairwell of apartment building where the complainants resided. Finally, he testified that it was possible for the defendant to have gotten rayon fibers from the bedroom carpet on the bottom of his tennis shoes without having actually stepped on it, since the fibers were capable of being transferred to other areas in the apartment.
The next two witnesses to testify were the complainants. Mrs. Jewl Dodd stated that she was awakened by a call from a policeman outside her bedroom window. She admitted the officer through
The next government witness was a police officer who testified that he came to the address in answer to a radio-run that a “burglar” was in the vicinity. He stated that upon noticing the torn screen and open window in the back of the Dodd’s apartment, he called to find out if anyone was home. He stated that Mrs. Dodd answered, and after he questioned her about the condition of the window and the screen, he decided to investigate further. Mrs. Dodd admitted him through the back door, and he proceeded into the living room, where it was discovered that the door opening into the stairwell was unlocked. The officer then went into the stairwell, where he noticed movement on the second floor landing. He climbed the stairs and found the defendant lying face down on the landing. The officer asked the defendant what he was doing. Not satisfied with defendant’s answer, the officer arrested him. He took the defendant into the Dodd’s apartment, where they were asked whether they recognized the defendant. Neither complainant knew the defendant. The defendant was then escorted out of the apartment, taken down to the precinct and held on suspicion of burglary. The officer testified that the defendant’s tennis shoes and a piece of the bedroom carpet were obtained later for the microchemical analysis. He also stated that the tests for fingerprints proved to be negative.
Following the close of the government’s case, as just outlined, the defense made its Motion for a Judgment of Acquittal.
This Court holds that the government’s evidence is barely sufficient to arouse a suspicion that Preston committed the offense, and suspicion is not enough to permit the case to go to the jury.
Finally, it is this Court’s carefully considered opinion that the defendant’s mere presence at the scene of the offense, without some evidence of actual perpetration of the offense is insufficient to sustain a verdict of guilty. As authority for this proposition, the Court relies on Bailey v. United States,
. D.C.Code sec. 22-1801 (a) (Supp. IV, 1971).
. See Nye & Nissen v. United States, 330 U.S. 613, 618-620, 69 S.Ct. 766, 93 L.Ed. 919 (1949) ; Bailey v. United States, 135 U.S.App.D.C. 95, 416 F.2d 1110 (1969) ; Curley v. United States, 81 U.S.App.D.C. 389, 392, 160 F.2d 229, 232, cert. denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947) ; Scott v. United States, 98 U.S.App.D.C. 105, 232 F.2d 362, 364 (1956).
. 124 U.S.App.D.C. 313, 365 F.2d 504 (1966) . In Hiet the government sought to prove that the defendant’s fingerprints on the complainant’s car demonstrated that the defendant liad broken into the car and stole the equipment therein. Since the government failed to show, however, that the defendant could not have had access to the car on previous days, and thus could have innocently left his print on the car, the inference could not properly be drawn.
. 127 U.S.App.D.C. 48, 380 F.2d 595 (1967) . In Borum the court held that the government was not entitled to an inference from the fart that the defendant’s fingerprint was on a glass jar, absent some proof that the print could not have innocently been placed on the jurat some earlier time.
. Id.
. 135 U.S.App.D.C. 95, 416 F.2d 1110 (1969).
. Id. at 1113.