Brunson v. State

Per Curiam. Appellant, Cedric Ray Brunson, was tried on March 17, 1969 in the Criminal Court of Baltimore by a jury, Judge Solomon Liss presiding, for daytime housebreaking. The jury found appellant guilty and he was sentenced to six years under the supervision of the Department of Correctional Services. Appellant presents three questions on appeal.

They are: 1. Was there sufficient evidence to convict appellant of daytime housebreaking? 2. Should the State be bound by Rule 728, Discovery and Inspection? 3. Did the trial judge err in refusing a defense motion for mistrial ? ³ I Appellant does not challenge the State’s proof of the corpus delicti of the crime of daytime housebreaking.

Appellant challenges as insufficient the quantum, of proof of his criminal agency. At trial the only evidence connecting appellant to the crime was two fingerprints, positively identified as appellant’s. The prints were found on the door of the house which had been broken into. One was found on the inside of the door and one was found on the outside of the door.

The Court of Appeals in McNeil v. State, 227 Md. 298 , 176 A. 2d 338 , stated the rule as to fingerprints: “It is generally recognized that fingerprint evidence found at the scene of a crime 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.” This Court further referred to the statment in McNeil in Lawless v. State, 3 Md. App. 652 , 241 A. 2d 155 , when Judge Orth, speaking for the Court, stated: “From the cases considered, we think it clear that the ‘fingerprint 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 ⁴ 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, 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 McNeil does not compel the State to negative every conceivable possibility that an accused, shown to be at the scene of a crime by his fingerprint, was present other than at the time of the commission of the crime.

The fingerprint evidence, as we construe it, need be coupled only ‘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’ (emphasis added). The rule does not require under all circumstances in every case that the State affirmatively and conclusively prove that the accused could not have been there other than a time when the crime was committed. Thus, in view of the other circumstances, it may not be necessary for the State to produce evidence by each person who may have authority or apparent ability to admit an accused to the premises lawfully, that he did not authorize that person to enter the premises.” In addition to the Lawless case, this Court has considered a dozen other cases dealing with fingerprints as part of, or the sole proof of, the criminal agency of the defendant. Each case must be considered on its own facts.

Contrast Musgrove v. State, 3 Md. App. 54 , 237 A. 2d 804 and Gray v. State, 4 Md. App. 155 , 241 A. 2d 725 ⁵ with Hannah v. State, 3 Md. App. 325 , 239 A. 2d 124 and Thomas v. State, 1 Md. App. 528 , 231 A. 2d 915 . Applying the threefold test we enunciated in Lawless to the instant