State v. Brady

• Decision Date: 08 November 1965
• Docket Number: No. 1,CA-CR,1
• Citation: 2 Ariz.App. 210,407 P.2d 399
• Parties: The STATE of Arizona, Appellee, v. Troy Gene BRADY, Appellant. 12.
• Court: Arizona Court of Appeals

Page 399

407 P.2d 399

2 Ariz.App. 210

The STATE of Arizona, Appellee, v. Troy Gene BRADY, Appellant.

No. 1 CA-CR 12.

Court of Appeals of Arizona.

Nov. 8, 1965.

Review Denied Dec. 28, 1965.

W. T. Choisser, Phoenix, for appellant.

Darrell F. Smith, Atty. Gen., by Gary K. Nelson, Asst. Atty. Gen., for appellee.

DONOFRIO, Judge.

The Appellant, Troy Gene Brady, hereinafter also referred to as defendant, was charged with the crime of Burglary, a felony, without any designation as to the degree of said crime and found guilty by a jury. He was sentenced to serve a term in prison of not less than four years and six months and not more than five years. He appeals assigning several errors which he claims the trial court committed.

Briefly, the facts show that the residence of the Gerald Porch family in Glendale, Arizona, was burglarized while they were in Oregon during the summer of 1963. Certain valuable articles consisting of such things as a television set, tape recorder, typewriter, movie camera, projector, jewelry, papers, guns, etc. were stolen from the home. Entrance was made by removing the screen and prying open the steel casement of the kitchen window. No one other than the owner had keys to the house except Mr. Porch's sister who kept them with her in her purse at all times.

Fingerprints were taken from a file cabinet inside the home which had been removed from its place of keeping in the house and rifled, and left in the house which had been ransacked. A matching by the F.B.I. of these fingerprints with those taken of the appellant at the time of his booking established that the prints were identical. Evidence showed that the Porches never had the defendant inside the house. Mrs. Porch also testified she bought the cabinet new; that it had never been taken outside the house since they lived there; and that she cleaned the cabinet before she left for the summer.

The Defendant's first assignment of error is to the admission in evidence of State's Exhibits 2 and 3, fingerprint cards, for the reason that no foundation was laid for their admission. The exhibits represented fingerprints lifted by Mr. Bergmann, fingerprint officer of the Glendale Police Department, from the file cabinet. Mr. Bergmann did not personally send the prints to the F.B.I. in Washington for comparison but relied upon Officer Eldridge of the investigating department to do so. At the trial Bergmann identified the prints as the ones he had taken. Mr. Eldridge was not called as a witness.

Defendant asserts that the prosecution's failure to show a chain of custody of the fingerprints sent to the F.B.I. renders them inadmissible. We cannot agree. This type of evidence need only be properly indentified before its admission.

Officer Bergmann testified he lifted the fingerprints from the file cabinet in the house and placed them on the exhibits 2 and 3. These exhibits were identified and shown to be in the same condition. His pertinent testimony in this regard is as follows:

'Q. Are these Exhibits 2 and 3 in substantially the same condition as they were when you lifted them and made up the exhibits?

A. Yes, sir.

'Q. There has been no alteration of them?

A. There has been no alterations to them at all.'

The exhibits were identified by the F.B.I. expert as the ones he used in making his comparison with the defendant's fingerprints. As to defendant's fingerprints Mr. Bergmann testified he took them on the usual cards furnished by the F.B.I. when he booked defendant. These prints he personally mailed to the F.B.I. and are marked as Exhibit 4. To complete the picture of the F.B.I.'s use of these exhibits we cite the following testimony of its expert, Mr. Bonebrake:

'My examination showed that on this lift, which is Exhibit No. 2, that there are four latent fingerprints of value; and on the life which is Exhibit No. 3, there is also four latent fingerprints of value; and that I then compared these eight latent fingerprints of value with the fingerprints appearing on the fingerprint card, bearing the name of Troy Gene Brady, which is Exhibit No. 4, and it is my opinion that the four latent fingerprints on Exhibit 2, and the four latent fingerprints of Exhibit 3, were made by the same fingers that made the left index, left middle, left ring and left little fingerprints appearing on the fingerprint card, which is Exhibit 4.'

We find the exhibits were properly identified and adequate foundation laid for their admission in evidence. An exhibit is admissible, so far as identity is concerned, where it has been identified as being the same object about which the testimony was given and when it is stated to be in the same condition as at the time of the occurrence in question, and it is not necessary to negative the possibility of an opportunity for tampering with an exhibit nor to trace its custody by placing each custodian upon the witness stand. Witt Ice & Gas Co. v. Bedway, 72 Ariz. 152, 231 P.2d 952 (1951); State v. Price, 76 Ariz. 385, 265 P.2d 444 (1954).

Defendant next contends that the evidence is insufficient upon which to base a conviction. The basis of this contention is that the only evidence offered connecting defendant with the crime was his fingerprints discovered in the home. Again we cannot agree.

The crime of burglary was established by showing that a house which had been locked for the summer had a steel casement window pried open by an unauthorized person who gained entrance and after ransacking the place stole several items. He left his fingerprints on an article which had been previously cleaned which had been taken from its location in the house and rifled. Although the evidence is wholly circumstantial it does not reasonably admit of an inference that the fingerprints which tie the defendant with the crime came there innocently.

This case is distinguishable from the cases cited by appellant involving the principle that mere presence of the fingerprints at the scene of a crime is insufficient to establish guilt because of its additional facts. In the instant case the evidence showed that the fingerprints of defendant were not found in a place and under circumstances where they could have been reasonably made at a time other than the time of the commission of the offense. It is well established in our state that a crime may be proven by circumstantial evidence alone, and that fingerprints are a means of positive identification by which a defendant may be linked with the commission of the offense. Moon v. State, 22 Ariz. 418, 198 P. 288, 16 A.L.R. 362 (1921).

In the Moon case defendant's fingerprints were found on the porcelain slab of the cash register which had been removed from the counter to the floor in a burglary. Our Supreme Court in distinguishing that case from one where fingerprints had been found in a public place where it was possible for the accused to have placed them there innocently, said:

'But it cannot be said of this defendant that his presence at the cash register, as necessarily found by the jury, was consistent with any hypothesis of his innocence. The cash register was not in a public place. It had been removed and placed on the floor in an effort to rifle it. There were no finger prints other than the alleged finger prints of the defendant upon the porcelain slab. The facts of the two cases are entirely different.' 22 Ariz. 426, 198 P. 291.

The same would apply in this case.

We next consider the assignment that the court erred in failing to instruct and submit verdicts to the jury on the degrees of burglary.

From the inception of the complaint to the rendition of the verdict no mention was made as to the degrees of burglary. Nor did the court touch upon it in its instructions. There was no evidence as to the time of the day or night the crime may have been committed. There was some evidence that a light was left turned on in one of the rooms by whoever entered but there was...