Com. v. Fazzino

• Decision Date: 17 August 1989
• Docket Number: No. 88-P-218,88-P-218
• Citation: 539 N.E.2d 1060,27 Mass.App.Ct. 485
• Parties: COMMONWEALTH v. Matthew FAZZINO.
• Court: Appeals Court of Massachusetts

Page 1060

539 N.E.2d 1060

27 Mass.App.Ct. 485

COMMONWEALTH v. Matthew FAZZINO.

No. 88-P-218.

Appeals Court of Massachusetts Barnstable.

Argued Feb. 21, 1989.

Decided June 22, 1989.

Further Appellate Review Denied Aug. 17, 1989.

Chrystal Murray, Committee for Public Counsel Services, for defendant.

Thomas M. Yonce, Asst. Dist. Atty., for Com.

Before KASS, WARNER and FINE, JJ.

KASS, Justice.

At the close of the Commonwealth's evidence, the defendant moved for a required finding of not guilty. His fingerprint had been found in two places on a file box at the scene of a breaking and entry, but the defendant argues that those prints were the sole evidence tying him to the crime. The prosecution was bound to rebut the possibility that the fingerprints had been placed on the box at a time other than that of the occurence of the crime. See Commonwealth v. LaCorte, 373 Mass. 700, 702-703, 369 N.E.2d 1006 (1977); Commonwealth v. Clark, 378 Mass. 392, 405-406, 393 N.E.2d 296 (1979).

The motion for a required finding of not guilty was denied, and a jury of six returned a verdict of guilty of breaking and entering in the nighttime, with intent to commit a felony. We summarize what the jury could have found, viewing the evidence favorably to the Commonwealth.

Between closing time at 9:00 P.M., on Saturday, September 13, 1986, and 8:30 A.M., the following day, there had been a break, vandalism, and a theft at Bill's Repair Shop in Falmouth. Entry had occurred through a boarded-up window in an upstairs office. That window was at the rear of the building and could not be seen from ground level, permitting the inference that whoever had broken through at that point had some prior knowledge of the building, its layout, and its openings.

The boarded-up window gave access to the upstairs "private" office of the proprietor of the garage, William Ferreira. In that space, the intruder had opened desk drawers and file cabinets, and scattered papers and trophies. Downstairs there was another office in which the intruder had burned his way into a safe with a blowtorch. "Stuff" was scattered on the floor and a desk. A small amount of money, some tools, and some trophies were missing.

Ferreira was in the habit of leaving about $45 in cash hidden in a container in his private office to "open with" in the morning. It could be inferred that the intruder knew about such a stash. Fazzino had worked for Ferreira for two years and was familiar with the layout and operation of the garage. So it was that Fazzino would have known that Ferreira occasionally stored the day's receipts in the safe. Whoever had broken into the safe was handy with a blowtorch and Fazzino had developed that skill while working for Ferreira.

The file box upon which Fazzino's fingerprints were found was not such as would have been casually handled while Fazzino was visiting with Ferreira, as he did frequently. Normally, the box was located against a wall on a corner of Ferreira's desk. A doll labelled "Coach" customarily sat on top of the box. One could infer, therefore, that Fazzino's fingerprints could have been placed on the box only by his actually moving it. Ferreira periodically had his office cleaned and dusted, and the box had been dusted about a week before the break-in occurred. The fingerprints recovered from the rear and bottom of the box were, according to an expert witness, relatively fresh. Fazzino had been to see Ferreira on Saturday morning, and the break occurred late that night or in the very early hours of Sunday because when Ferreira came in Sunday morning the torches were cold. The Saturday morning interview between Fazzino and Ferreira had concerned the former's coming back to work at Bill's Repair Shop. Ferreira had turned Fazzino down and it could be inferred that Fazzino was in a vengeful frame of mind the following night. Fazzino denied having been fired by Ferreira or that the conversation that Saturday had been in any way unpleasant.

In sum, in addition to the fingerprints, there was evidence of 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 Ferreira. The location of Fazzino's fingerprints on the box were consistent with his having picked it up. Usually the box was not moved except for cleaning. There was testimony by Fazzino about his relationship to Ferreira which the jury could have been disposed to discredit.

1. The fingerprint evidence. We begin with the general principle that the presence of a fingerprint at the scene of the crime is not by itself a sufficient basis for submitting a case to a jury. Commonwealth v. LaCorte, 373 Mass. at 703, 369 N.E.2d 1006. Commonwealth v. Clark, 378 Mass. at 404, 393 N.E.2d 296. 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. It may be argued that the side of the tell-tale box which was against the wall was seldom cleaned and the fingerprints were from some occasion long ago and never disturbed. One can press, on behalf of the defendant, the implausibility of his burning open a safe in which Ferreira only occasionally put money. The intruder left behind valuable inspection stickers. Fazzino often brought cars over to Ferreira's place for inspection and knew their value. Does this mean he would not have passed up the inspection stickers, or does it mean that, because he knew the stickers had numbers by which they could be traced, he was too smart to take dangerous goods? That Fazzino was able to use a torch is not overpowering; many persons possess that skill.

As is apparent from this recitation, the evidence was conflicting. The case against Fazzino was far from overwhelming, but there was evidence which, when coupled with the fingerprints, rationally linked him to the crime. See Commonwealth v. Latimore, 378 Mass. 671, 676-678, 393 N.E.2d 370 (1979). In such circumstances an appellate court is bound to resist acting as an additional juror. Compare Commonwealth v. Salemme, 395 Mass. 594, 599-600, 481 N.E.2d 471 (1985), in which the defendant's thumbprint established his presence at the scene of the crime but not that he fired the fatal shot.

2. Jury instruction. At the close of the government's case, the defendant...