Lawless v. State

• Decision Date: 15 April 1968
• Docket Number: No. 155,155
• Citation: Lawless v. State, 3 Md.App. 652, 241 A.2d 155 (Md. App. 1968)
• Parties: Richard William LAWLESS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 652

3 Md.App. 652

241 A.2d 155

Richard William LAWLESS v. STATE of Maryland.

No. 155.

Court of Special Appeals of Maryland.

April 15, 1968.

Joseph Montedonico, Jr., Rockville, for appellant.

Henry J. Frankel, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Baltimore, William A. Linthicum, Jr., Andrew L. Sonner, Earl C. Hill, Jr., State's Atty., Deputy State's Atty., and Asst. State's Atty., for Montgomery County, respectively, on brief for appellee.

Before MURPHY, C. J., and MORTON, ORTH, and THOMPSON, JJ.

ORTH, Judge.

On August 27, 1964 R. Walter Linthicum left his dwelling about 8:00 A.M. His wife left about 9:30 A.M. Linthicum returned at 1:50 P.M. and, unlocking the front door, entered his home. He found that the master bedroom and den had been ransacked-furniture disarranged, bureau drawers on the bed and the contents dumped out and cabinets broken open. He called the police and while awaiting their arrival discovered that the rear door to the house was secure but that a pane of glass in the basement door, near the door knob had been broken and the door was open. Access to the basement door from outside the dwelling was by way of a flight of steps leading down to it. A revolver and holster valued at $56 and at least $48 in cash were missing. The pane of glass from the basement door was on the steps near the bottom of the stairwell and a fingerprint expert from the Identification Bureau of the Montgomery County Police Department found latent fingerprints on it. They proved to be the fingerprints of Linthicum, the appellant and Bernard Railey. The appellant and Railey were indicted on April 6, 1966 charged with breaking a dwelling house in the daytime with intent to steal (1st count), grand larceny (2nd count) and receiving stolen goods to the value of $100 or upwards (3rd count). ¹ The appellant was found guilty of grand larceny by a jury in the Circuit Court of Montgomery County on May 18, 1967 and sentenced to imprisonment for a term of 4 years. ²

On appeal the appellant contends:

I. The evidence was not sufficient to sustain the conviction.

II. He was denied a speedy trial.

III. His constitutional rights were 'violated by the State's taking his fingerprints without notifying counsel of record'.

I

The jury could find that the appellant had been at the basement door of the dwelling at some time from the evidence that his fingerprint was impressed on the pane of glass broken from the door where entry was gained. The print was properly admissible in evidence and its weight was a matter for the trier of facts. See Breeding v. State, 220 Md. 193, 199, 151 A.2d 743; Debinski v. State, 194 Md. 355, 359, 71 A.2d 460. However, the evidence must also be sufficient to show or to support a rational inference that the appellant was the criminal agent, for '(i)t is generally recognized that finger print evidence must be coupled with evidence of other circumstances tending to reasonably exclude the hypothesis that the print was impressed at a time other than that of the crime'. McNeil v. State, 227 Md. 298, 300, 176 A.2d 338, 339.

This rule has been applied in Maryland. In McNeil v. State, supra, McNeil's print, not more than 18 hours old, was found on a partially empty beer bottle near a damaged safe in a tavern that had been broken into and ransacked, which bottle had not been there on a previous visit of the proprietor several days before. The evidence was held to be sufficient. In Musgrove v. State, 3 Md.App. 54, 237 A.2d 804, the print of the appellant was found on a rifled jewelry box in a ransacked apartment. There was no evidence of a breaking of the apartment, keys to which were in the possession of the resident manager of the apartment and three occupants of the apartment. One occupant testified tht he did not authorize the appellant to enter the apartment and, in fact, did not see him or know him. The other occupants of the apartment did not testify. A repairman had been lawfully in the apartment on the day of the crime but did not testify. We held that those circumstances were not sufficient to exclude the hypothesis that the print was impressed at a time other than that of the crime.

The rationale of the rule has been followed in other jurisdictions in a variety of factual situations when the fingerprint of the defendant was found at the scene of the crime. Evidence was found to be sufficient to prove that the accused was the criminal agent in a number of cases. In Grice v. State, 142 Tex.Cr.R. 4, 151 S.W.2d 211 (1941) the print was found on a pane of glass removed at the time of entry into a store. Its location on the glass was in such a place as would be covered by molding when the glass was in place. It was immaterial, therefore, that the defendant had used the door frequently to lawfully enter the premises. In State v. Connors, 87 N.J.L. 419, 94 A. 812 (1915) the prints were found on a balcony post leading from the second story of a house. Also the defendant was shown to have been in town on the day of the burglary. In People v. Taylor, 32 Ill.2d 165, 204 N.E.2d 734 (1965) the prints were found on the inside lower window sash of a basement apartment, where a rape had occurred, in such position as to indicate they were left by a person opening the window from the outside. The window was not readily accessible to the public. The court said that 'the unexplained presence of the defendant's prints is not consistent with any reasonable hypothesis of innocence.' In People v. Rodis, 145 Cal.App.2d 44, 301 P.2d 886 (1956) the print was found on the outside of a window more than 9 feet from the ground at the rear of a burglarized store. Entry was gained through the window by removing a screen covering the window and some cardboard replacing a previously broken pane. The court held that the physical location of the print by itself was sufficient proof of the identity of the burglar. In State v. Tew, 234 N.C. 612, 68 S.E.2d 291 (1951) the prints of the defendant, whom the service station attendant had never seen before, were found on glass broken out of the front door of a service station. In State v. Helms, 218 N.C. 592, 12 S.E.2d 243 (1940) the prints were found on a window through which entry was made into a dwelling. The defendant's evidence that he had painted the window shortly before the crime was committed was rebutted by evidence of the State that the window had been thereafter washed. The court said that the question of resolving beyond a reasonable doubt that the print could only have been impressed on the window at the time the crime was committed was a matter for the jury. He was convicted of burglary and larceny.

Other cases have held that the evidence was not sufficient to sustain a conviction. In McGarry v. State, 82 Tex.Cr.R. 597, 200 S.W. 527 (1918) a window pane broken during a robbery contained the defendant's prints. The court held that this was insufficient to prove the defendant was the robber when it was shown that the pane was in a place accessible to the general public and the pane contained other prints. See also Davis v. State, 125 Tex.Cr.R. 6, 66 S.W.2d 343 (1933). In Anthony v. State, 85 Ga.App. 119, 68 S.E.2d 150 (1951) the prints were found on the money boxes of a pinball machine and music box from which money had been stolen after a restaurant had been broken into. It was not shown whether or not there were other prints on the money boxes, where on the machines the money boxes were located or whether the prints were on the outside or inside of the money boxes. Therefore, the court said, it could not be determined whether the prints could have been impressed only at the time of the crime. In State v. Minton, 228 N.C. 518, 46 S.E.2d 296 (1948) the prints were found on a glass door broken at the time of the crime. The place entered was a public place, prints other than the defendant's were found on the pane, and the defendant had been lawfully on the premises earlier that night during business hours. The evidence was held to be insufficient. In State v. Gilliam, 245 S.C. 311, 140 S.E.2d 480 (1965) prints found on a broken window pane were held to be insufficient where the evidence did not show that entry was gained through that window. In Ivey v. State, 176 So.2d 611 (Fla.App.1965) the only evidence of identity was a print found on a glass jalousie on the front door of a burglarized store building. The court felt that the print could have been made at any time prior to the crime despite the defendant's statement that he had never been in the town where the store was located.

From the cases considered, we think it clear that the 'finger print evidence found at the scene of the crime' as stated in the rule enunciated in McNeil v. State, supra, refers only to that evidence which proved that the print was that of the accused. Thus the 'circumstances tending to reasonably exclude the hypothesis that the print was impressed at a time other than that of the crime' need not be circumstances completely independent of the fingerprint, and may properly include circumstances such as the location of the print, the character of the place or premises where it was found and the accessibility of the general public to the object on which the print was impressed. A latent fingerprint found at the scene of the crime, shown to be that of an accused, tends to show that he was at the scene of the crime. The attendant circumstances with respect to the print may show that he was at the scene of the crime at the time it was committed. If they do so show, it is a rational inference, consistent with the rule of law both as to fingerprints and circumstantial evidence, ³ that the accused was the criminal agent. While a defendant does not have the obligation to testify himself or to offer testimony to explain the presence of his prints, a court cannot supply evidence that is lacking. United States v. Hayes, 385 F.2d 375 (4th cir. 1967). We also feel that the rule in...