Miles v. State, s. AQ-457

• Decision Date: 11 October 1984
• Docket Number: Nos. AQ-457,AR-3,s. AQ-457
• Citation: 10 Fla. L. Weekly 887,466 So.2d 239
• Parties: 10 Fla. L. Weekly 887 Jerry MILES, Appellant, v. STATE of Florida, Appellee. Willie Mac HAMPTON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 239

466 So.2d 239

10 Fla. L. Weekly 887

Jerry MILES, Appellant, v. STATE of Florida, Appellee.

Willie Mac HAMPTON, Appellant, v. STATE of Florida, Appellee.

Nos. AQ-457, AR-3.

District Court of Appeal of Florida First District.

Oct. 11, 1984.

Rehearing Denied April 9, 1985.

John Lewis Allbritton, Pensacola, for appellant Jerry Miles.

Michael E. Allen, Public Defender, Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant Willie Mac Hampton.

Jim Smith, Atty. Gen. and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for appellee.

PER CURIAM.

Miles and Hampton were tried and convicted of burglary and grand theft. Both appellants contend that fingerprint evidence, the sole evidence relied upon by the State to identify them as the criminals, was legally insufficient to support their convictions.

The law is clear that, where fingerprint evidence is relied upon to establish that the defendant committed the crime, the circumstances must be such that the print could have been made only at the time the crime was committed. Tirko v. State, 138 So.2d 388, 389 (Fla.3d DCA 1962). "Where the sole evidence linking a defendant to the crime is fingerprints found in a place or on a thing accessible to the general public and there is no other evidence to show that the prints were made at the time of the crime, see, e.g., Williams v. State, 247 So.2d 425 (Fla.1971), courts must conclude that a defendant is entitled to a judgment of acquittal." Sorey v. State, 419 So.2d 810, 812 (Fla.3d DCA 1982).

One set of latent fingerprints was the evidence presented by the State to establish that appellant Miles was a co-perpetrator of the crimes charged. These fingerprints were found on a thing accessible to the general public, to-wit: the interior framing of the broken store window, but the fingerprints were pointed downward on the interior side of the framing which held the glass in place. The location and direction of the fingerprints indicate that they were made after the window was broken. Placement of the prints by Miles while a shopper or otherwise lawfully inside the store was not a reasonable hypothesis since (1) the prints were located about shoulder height and were pointing downward; (2) there was a twelve-inch-wide ledge running directly underneath the window; and (3) the window itself, if unbroken, would have hindered a person in placing his hand and arm in the position necessary to make the prints. Thus, a reasonable jury could find beyond a reasonable doubt that the fingerprints of appellant Miles were made at the time the crime was committed.

Three sets of latent fingerprints constitute the State's evidence to establish that appellant Hampton was the co-perpetrator of the crimes charged. One set of prints was located outside the point of entry. The other two sets were located inside the point of entry. Unlike the location and direction of his co-defendant's fingerprints, the location and direction of Hampton's prints are such that the prints could have been made before the commission of the crime. The bench was accessible to the general public, and it is foreseeable that a person sitting on the bench could have rested his left palm in two different places on it. In Ivey v. State, 176 So.2d 611 (Fla.3d DCA 1965), the only evidence to prove the identity of the defendant was a fingerprint on a glass jalousie from the front door of the store building. The court held the evidence insufficient, stating (Ivey, supra at page 612):

The State concedes that this case is governed by the principle set forth in Tirko v. State, Fla.App.1962, 138 So.2d 388, that fingerprint evidence must meet the requirement that the circumstances must be such that the print could have been made only at the time the crime was committed. This requirement was not met in this case because the print was in a public place and the record does not preclude that it might have been placed there some time before the crime.

The defect is not cured by the fact that the appellant stated to a policeman that he had never been in Florida City where the building was located nor is it cured by the testimony of the owner that he had never seen the appellant there.

Similarly, in the instant case, the State has not established that Hampton's fingerprints could have been made only at the time the crime was committed. Although the prints on the bench are consistent with someone placing his hands on the bench as he crawled through the broken window, they are also consistent with someone merely sitting, with his palm resting on the bench. Hampton's print found on the aluminum frame of the window is indeed consistent with someone touching or grasping the frame as he crawled through the window. However, it is also consistent with someone window-shopping and placing his hand upon the frame. Accordingly, we reverse Hampton's conviction, since he was entitled to a judgment of acquittal. In view of this decision, we need not reach Hampton's other points on appeal.

The conviction of appellant Miles is AFFIRMED. The conviction of appellant Hampton is REVERSED.

ERVIN, C.J., and BOOTH and WENTWORTH, JJ., concur.

ON MOTION FOR REHEARING

PER CURIAM.

The state's motion for rehearing implies that our opinion filed October 11, 1984, reversing appellant Hampton's conviction, is inconsistent with the supreme court's opinion in Rose v. State, 425 So.2d 521 (Fla.1982), cert. denied, 461 U.S. 909, 103 S.Ct. 1883, 76 L.Ed.2d 812 (1983). Our opinion stated that the location of the fingerprints, accessible to the public, was not evidence establishing that the prints could have only been made at the time the crime was committed. The...