Mikes v. Borg

• Decision Date: 07 October 1991
• Docket Number: No. 90-55247,90-55247
• Parties: Melvin MIKES, Petitioner-Appellant, v. Robert G. BORG, Warden; Attorney General of the State of California, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 353

947 F.2d 353

Melvin MIKES, Petitioner-Appellant, v. Robert G. BORG, Warden; Attorney General of the State of

California, Respondents-Appellees.

No. 90-55247.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Nov. 5, 1990.

Decided Oct. 7, 1991.

Fern M. Laethem, State Public Defender, Michael Tanaka, Jill Ishida, Deputy State Public Defenders, Los Angeles, Cal., for petitioner-appellant.

John K. Van de Kamp, Atty. Gen. of State of Cal., Richard B. Iglehart, Chief Asst. Atty. Gen., Edward T. Fogel, Jr., Asst. Atty. Gen., David F. Glassman (argued), Donald F. Roeschke, Deputy Attys. Gen., Los Angeles, Cal., for respondents-appellees.

Appeal from the United States District Court for the Central District of California.

Before D.W. NELSON and REINHARDT, Circuit Judges, and TANNER, Senior District Judge. ^*

REINHARDT, Circuit Judge:

Melvin Mikes, a California state prisoner, appeals the district court's order dismissing his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following a trial by jury, Mikes was convicted of murder in the first degree ¹ and commission of an offense with the use of a deadly or dangerous weapon, and was sentenced to state prison for 25 years to life. The California Court of Appeal affirmed the judgment and the California Supreme Court denied Mikes' petition for review without explanation or citation of authorities. Mikes contends on habeas review that the inculpatory evidence, which consisted exclusively of fingerprint evidence, was insufficient to support his conviction. We agree.

I. Facts

On March 10, 1980, Harold Hansen was found dead in the basement of his fix-it shop, with the pockets of his clothing turned inside out. The shop, which was located on the main floor of the building, had been burglarized. Near Hansen's body, police investigators found three chrome posts--a three-foot post, a six-foot post, and a "turnstile" post--all of which constituted portions of a disassembled turnstile unit. ² Hansen had purchased the turnstile (in assembled or disassembled form) at a hardware store's going out-of-business sale, approximately four months prior to his death. ³ The investigators determined that the assailant used the three-foot post to murder Hansen.

The government's case against Mikes rested exclusively upon the fact that his fingerprints were among those found on the posts that lay adjacent to the victim's body. The officers lifted a total of 46 fingerprints from the area designated as the crime scene. Of the 16 fingerprints that were identifiable, the police determined that six belonged to Mikes and ten did not. Thirty were not sufficiently clear to permit identification of the source. In particular, the government introduced evidence that five "consecutive" prints were found on the three-foot post--the murder weapon. The prosecution's expert testified

                that he identified the first and fourth of the consecutive prints as Mikes' right forefinger and right little finger, respectively.   The remaining three prints on the murder weapon were unidentifiable.   Three of fifteen prints found on the six-foot post, and one of two prints from the "turnstile" post belonged to Mikes.   Other unidentifiable prints were also found on these posts.   None of the prints taken from the fix-it shop area, where the police discovered a number of empty jewelry boxes strewn about, or from the jewelry boxes themselves, or from the stair rail leading to the basement, was identified as Mikes'. 4  In fact, none of the fingerprints found anywhere on the premises except on the posts was identified as Mikes'
                

II. Standard of Review

We review de novo a district court's decision to deny a petition for writ of habeas corpus. Barker v. Estelle, 913 F.2d 1433, 1437 (9th Cir.1990). However, in reviewing the question whether the evidence was sufficient to sustain Mikes' conviction, we, like the district court, must view that evidence in the light most favorable to the government and determine whether on that basis any rational factfinder could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 320, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Newton v. Superior Court of California, 803 F.2d 1051, 1058-59 (9th Cir.1986), cert. denied, 481 U.S. 1070, 107 S.Ct. 2464, 95 L.Ed.2d 873 (1987). A conviction that fails to meet the Jackson standard violates due process and entitles the convicted defendant to habeas relief. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789 ("We hold that in a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 ... the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at trial no rational trier of fact could have found proof beyond a reasonable doubt.") (footnote omitted); Newton, 803 F.2d at 1058. ⁵

III. Analysis

The critical question presented by this case is whether the evidence of Mikes' fingerprints on three posts, one of which was identified as the murder weapon, is sufficient by itself to allow a rational trier of fact to convict him of murder. The prosecution's case rested exclusively on the theory that Mikes' fingerprints were impressed on these objects during the commission of the crime. We have held that fingerprint evidence alone may under certain circumstances support a conviction. United States v. Scott, 452 F.2d 660, 662 (9th Cir.1971). However, in fingerprint-only cases in which the prosecution's theory is based on the premise that the defendant handled certain objects while committing the crime in question, the record must contain sufficient evidence from which the trier of fact could reasonably infer that the fingerprints were in fact impressed at that time and not at some Here, the prosecution introduced no evidence placing the defendant at the scene of the crime--either on the day of the murder or on any other occasion. Nor did the prosecution find any items stolen from the deceased in Mikes' possession. Nor, unlike Scott, the one case in which we upheld a conviction based on fingerprint evidence alone, did the defendant's fingerprints appear on any recovered stolen property. Finally, none of the fingerprints found on any of the objects located in the area actually burglarized, the fix-it shop itself, was identified as Mikes'. The only evidence that the prosecution introduced to tie Mikes to the murder, or the burglary, was his fingerprints found on several posts of a disassembled turnstile--one of which posts served as the murder weapon--bought by the decedent four months prior to his death, and kept in the basement. The issue in this case is whether that fingerprint evidence, standing alone, is sufficiently probative to allow a reasonable juror to conclude beyond a reasonable doubt that Mikes committed the murder. While the government need not exclude all inferences or reasonable hypotheses consistent with innocence, United States v. Miller, 688 F.2d 652, 663 (9th Cir.1982) (citation omitted); Borum v. United States, 380 F.2d 595, 597 (D.C.Cir.1967), the record must contain sufficient probative facts from which a factfinder could reasonably infer a defendant's guilt, under the beyond a reasonable doubt standard. In cases such as the one before us, there must, at the very least, be sufficient evidence in the record to permit the factfinder to determine when the fingerprints were impressed; otherwise, any conviction would be based on pure speculation. Borum, 380 F.2d at 597. Here, the government's theory of the case rests on the premise that Mikes' fingerprints were placed on the posts at the time the crime was committed. Accordingly, we must examine the record to determine whether the fingerprint evidence is sufficiently probative to warrant the conclusion by a reasonable factfinder that the prints were placed on the posts at the time of the murder.

                earlier date.   See United States v. Talbert, 710 F.2d 528, 530-31 (9th Cir.1983);  United States v. Lonsdale, 577 F.2d 923, 926 (5th Cir.1978);  United States v. Van Fossen, 460 F.2d 38, 41 (4th Cir.1972);  Borum v. United States, 380 F.2d 595 (D.C.Cir.1967). 6  In order to meet this standard the prosecution must present evidence sufficient to permit the jury to conclude that the objects on which the fingerprints appear were inaccessible to the defendant prior to the time of the commission of the crime.   See Talbert, 710 F.2d at 530-31. 7
                

The government argues that the posts were inaccessible to the petitioner because they were kept in Hansen's basement, a location from which Hansen excluded the general public, and which Mikes did not have permission to enter. The government's argument falls far short of showing the inaccessibility of the posts to Mikes. Mikes' conviction cannot be upheld unless the record shows that the objects in question were inaccessible to him during the "relevant time." The "relevant time" is defined as the time prior to the commission of the crime during which the defendant reasonably could have placed his fingerprints on the object in question and during which such prints might have remained on that object. We must examine, in each case, the circumstances surrounding the custody or location of the object, as well as its function, the accessibility of the While the prosecution did not offer any evidence regarding the age of the fingerprints found on the posts, the defense expert testified that fingerprints can last indefinitely. This is consistent with the testimony of government experts in other cases. See, e.g., United States v. Corso, 439 F.2d 956, 957 (4th Cir.1971); United States v. Collon, 426 F.2d 939, 941 (6th Cir.1970); Borum, 380 F.2d at 596. Given that the undisputed record shows that fingerprints may last indefinitely, we must next examine the custody, location, and function of the objects involved--i.e., the turnstile posts--to determine whether Mikes' prints, if impressed at an earlier date, reasonably could...