PEOPLE v. VERA

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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Daniel Campos VERA, Defendant and Appellant.

No. 2056.

Decided: March 03, 1976

George Bumanglag, Visalia, for defendant-appellant. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Arnold O. Overoye, Willard F. Jones and William G. Prahl, Deputy Attys. Gen., Sacramento, for plaintiff-respondent.

OPINION

During the early morning hours of February 7, 1974, an intruder broke into the Yettem Learning Center, a school for trainable mentally retarded children in Tulare County, and, among other things, removed a typewriter, an adding machine, a camera, a record player and a toaster. Then, the intruder set fire to the building; he went into the shop area, placed some paper upon the floor and, after removing several one-gallon cans of plaint thinner from a shelf, poured the liquid over the paper and around the floor and ignited a fire.

Later, the police found a film strip viewer, a ‘Joe Namath’ popcorn popper and a deep fat fryer just inside the front door of the center. The fryer contained latent fingerprints on the bottom and on a side near the bottom; the latent fingerprints were lifted by Sergeant Vernon Hensley of the Tulare County Sheriff's office and were placed upon a card. The police also found fresh tire marks outside of the center near one of the exterior walls.

On March 7, 1974, an information was filed in the Superior Court of Tulare County charging appellant with the burning of a public building in violation of section 448a of the Penal Code; in a second count appellant was charged with burglary in the second degree in violation of section 459 of the Penal Code. Thereafter, appellant entered pleas of not guilty to both charges, and the cause was set for jury trial.

At the trial, Sergeant Hensley testified that the latent fingerprints found upon the bottom of the deep fat fryer were made by appellant's right ring finger and his right index finger; he said that the latent fingerprints on the side near the bottom were made by appellant's right thumb. In addition, it was established that appellant never had been in the Yettem Center prior to the night of the crime, and that seven months earlier he was involved in the burglary and attempted arson of another school in Tulare County. It also was established that the tire tracks found outside the center belonged to an automobile owned by Richard Zayes, and that on the night of the fire appellant was at a party at Zayes' residence and that during the party someone borrowed Zayes' automobile without his permission.

At the conclusion of the trial, the jury returned verdicts finding appellant guilty on both counts. Appellant has appealed, challenging the fingerprint evidence; prior to trial, appellant made a common-law motion to suppress the evidence of the rusults of the comparisons made between a known set of his fingerprints and the latent fingerprints found upon the deep fat fryer; the motion was denied. Appellant also preserved his objection to this fingerprint evidence at the commencement of the trial.

Appellant complains because Sergeant Hensley, who lifted the latent fingerprints from the deep fat fryer, admitted that he made no attempt to preserve the latent fingerprints in place or to photograph the appliance while the latent fingerprints still were upon it; the sergeant also admitted that it is possible to lift latent fingerprints more than once if they are found upon a shiny, smooth-surfaced object, like the exterior of the deep fat fryer, and that they can be preserved in place if they are covered with transparent cellophane tape. Appellant also complains because the police did not seize the fryer and place it in an evidence locker; the appliance was lost when a salvage company cleaned up the center. He insists that the police omissions amounted to a wilful, though nonmalicious, destruction of evidence and that under the rationale of People v. Hitch (1974) 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361, the results of the fingerprint comparisons should have been suppressed.

In Hitch, the California Supreme Court was concerned with the results of a breathalyzer test in a case where the test ampoule and the reference ampoule had not been preserved. The court stated:

‘. . . we hold that, where, as here, such evidence cannot be disclosed because of its intentional but nonmalicious destruction by the investigative officials, sanctions shall in the future be imposed for such nonpreservation and nondisclosure unless the prosecution can show that the governmental agencies involved have established, enforced and attempted in good faith to adhere to rigorous and systematic procedures designed to preserve the test ampoule and its contents and the reference ampoule used in such chemical test. The prosecution shall bear the burden of demonstrating that such duty to preserve the ampoules and their contents has been fulfilled. If the prosecution meets its burden and makes the required showing, then the results of the breathalyzer test shall be admissible in evidence, even though the ampoules and their contents have been lost. If the prosecution fails to meet its burden then the court shall apply sanctions for nondisclosure. Finally we hold that in such latter event due process shall not require a dismissal of the action but shall require merely that the results of the breathalyzer test be excluded from evidence. [Footnotes omitted.]’ (Supra, 12 Cal.3d at pp. 652–653, 117 Cal.Rptr. at p. 17, 527 P.2d at p. 369.)

In reply, the Attorney General suggests that there was no duty to preserve in this case because appellant failed to demonstrate that there was a reasonable possibility that the preservation of the latent fingerprints in place or the production of the deep fat fryer on which the latent fingerprints were found would provide favorable information on the issue of guilt or innocence. He argues that the in place preservation of latent fingerprints and the production of the article on which the incriminating fingerprint evidence is discovered are not necessary so long as the procedures actually employed by the person who lifted the fingerprints and made the comparisons ‘. . . are sufficient to verify the accuracy of the evidence sought to be admitted.’ Stated in another manner, the Attorney General asserts that the Hitch holding is limited to evidence which has a reasonable possibility of constituting favorable evidence on the issue of guilt or innocence and does not apply to objects on which fingerprints are found because once a fingerprint has been lifted and placed upon a card, its authenticity always can be retested.

A fingerprint is the imprint of the ridges found upon the inner surface of the last joint of the finger or thumb which has been left upon the surface of an object by the moisture discharged through the pores of the skin; once the imprint has been lifted and preserved, it is an exact image of the original and is readily available for other experts to examine and compare so that the validity of an expert opinion that the fingerprint was left by the accused can be tested. (See Moenssens, Fingerprint Techniques (1971) chs. 2 and 4, pp. 27–29, 111.) In this sense, the lifted, latent fingerprint is the only evidence which is comparable to the ampoules used in a breathalyzer test and which must be preserved under the Hitch rationale.

Nevertheless, the place where a latent fingerprint is discovered is an incriminating circumstance; without proof of the place where it is found, a defendant's latent fingerprint has no evidentiary value. (Cf. Evid.Code, §§ 140, 600, subd. (b); Jefferson, Cal.Evidence Benchbook (1972) Principles of Relevancy, § 19.1, p. 215.) Accordingly, we reject the Attorney General's superficial suggestion that the preservation of latent fingerprints in place and the production of the object on which latent fingerprints are found never ‘[are] . . . necessary so long as the procedures employed [in lifting the fingerprints and in making comparisons] are sufficient to verify the accuracy of the evidence sought to be admitted.’ Fingerprint evidence can be manufactured. In addition, fingerprints can be forged or planted; unfortunately, such things have happened. As Andre A. Moenssens, a noted police authority and expert on the subject, explains in his test:

‘It is conceded that a fingerprint expert could easily manipulate fingerprint evidence in such a way as to ‘frame’ an individual for a crime. As a man trained in the field, he could without great difficulty obtain a latent impression from a suspect who has been questioned or arrested, since the very presence of the suspect on police premises would assure that he leaves latent impressions in areas or on objects which the technician could have seen him handle. The technician could then just as easily develop the latent print and lift it, them claim to have found and lifted the latent print at a crime scene. He could back up his claim by leaving the cellophane lift on the surface where he alleges he found it or by placing it on a latent print transfer card with appropriate annotations on the card as to the origin of the latent.' (Moenssens, Fingerprint Techniques (1971) Comparison of Fingerprints, ch. 10, p. 292–293.)

Even so, appellant cannot prevail in this appeal. The Hitch court was not concerned with the malicious destruction or the fraudulent manufacturing of evidence. As the Attorney General points out, the rule announced in that case embraces only the intentional, but nonmalicious, failure by police and prosecuting authorities to preserve material evidence which has a reasonable possibility of providing favorable information to the accused on the issue of guilt or innocence. (People v. Hitch, supra, 12 Cal.3d 641, 649, 117 Cal.Rptr. 9, 527 P.2d 361.) In fact, as the high court suggested, when there is proof that evidence was destroyed maliciously or manufactured, dismissal of the prosecution, not mere suppression of the evidence, ‘may well be the proper sanction.’ (People v. Hitch, supra, 12 Cal.3d at p. 653, fns. 6 and 7, 117 Cal.Rptr. at p. 18, 527 P.2d at p. 370.)

In the case at bench, appellant did not, nor does he now, challenge the authenticity of the fingerprints in question. Neither did he challenge the withness' ability to lift fingerprints from objects on which they were found. His sole defense was that he did not break into the Yettem Learning Center or touch the deep fat fryer. What appellant really is saying is that Sergent Hensley could not have lifted appellant's latent fingerprints from the appliance found at the scene of the crime as the officer testified. Therefore, to the extent that appellant claims that he was deprived of the opportunity to disprove that his latent fingerprints came from the object found at the scene of the crime, ‘. . . the essence of [his] claim is not the [nonmalicious] destruction of evidence, but rather the [officer's] lack of credibility’; appellant was not denied any material evidence. (Wimberly v. Superior Court (Mar. 19, 1976) 16 Cal.3d 557, 573, 128 Cal.Rptr. 641, 652, 547 P.2d 417, 428.*

* L.A. 30458, Multilith Opinion, page 25.

However, we do not agree with the Attorney General's sweeping suggestion that the place where a latent fingerprint is found never can fall within the perimeters of the Hitch opinion. The preservation of evidence rule so well articulated by Mr. Justice Sullivan in the Hitch opinion is not a new or startling pronouncement; the rule finds its genesis in earlier federal and state decisions adhering to the fundamental principle that due process requires the prosection to disclose all material evidence favorable to the accused whether such evidence relates directly to the issue of guilt of can lead the defense to favorable evidence. (Giglio v. United States (1972) 405 U.S. 150, 153–154, 92 S.Ct. 793, 766, 31 L.Ed.2d 104; United States v. Augenblick (1969) 393 U.S. 348, 355–356, 89 S.Ct. 528, 533, 21 L.Ed.2d 537; Giles v. Maryland (1967) 386 U.S. 66, 74, 87 S.Ct. 793, 797, 17 L.Ed.2d 737; Brady v. Maryland (1963) 373 U.S. 83, 87, 83 S.Ct. 1194, 1196–1197, 10 L.Ed.2d 215; Killian v. United States (1961) 368 U.S. 231, 242, 82 S.Ct. 302, 308, 7 L.Ed.2d 256; United States v. Bryant, (1971) 142 U.S.App.D.C. 132, 439 F.2d 642, 650–651; Levin v. Clark (1967) 133 U.S.App.D.C. 6, 408 F.2d 1209, 1212; In re Ferguson (1971) 5 Cal.3d 525, 533, 96 Cal.Rptr. 594, 487 P.2d 1234; Covington v. Municipal Court (1969) 273 Cal.App.2d 470, 476, 78 Cal.Rptr. 563.) As the court explained in United States v. Bryant, supra, 142 U.S.App.D.C. 132, 439 F.2d 642, 651, the duty of disclosure is operative as a duty of preservation because otherwise diclosure might be avoided by destroying vital evidence before the prosecution begins or before the defendant hears of its existence.

In Bryant (cited with approval in People v. Hitch, supra, 12 Cal.3d at pp. 648, 650, 651–652, 654, 117 Cal.Rptr. 9, 527 P.2d 361), police authorities destroyed tape recordings of critical conversations allegedly occurring between the defendants and the narcotics agent who allegedly purchased heroin from the defendants. The court pointed out that the credibility of the agent was the key to the conviction and that while he may have testified in the utmost good faith, there was a possibility that he forgot some of the details or could not accurately reconstruct what went on. The court then concluded that if the taped conversations had been preserved, there would have been a reasonable possibility that they would have provided favorable information on the issue of guilt or innocence; the tape recordings might have clarified the context in which certain remarks were made or corrected other matters of emphasis and degree in the agent's testimony. (United States v. Bryant, supra, 142 U.S.App.D.C. 132, 439 F.2d 642, 645–646.)

Likewise, in the case of fingerprint evidence, there may be circumstances where the photographing or preservation of latent fingerprints in place, or at least the preservation of the object on which they were discovered, would have the possibility of supplying favorable information on the issue of guilt. For example, in his text, Andre Moenssens states that by using a ‘transferring medium’ an undeveloped latent fingerprint can be lifted from one place and transferred to another where it is left to be discovered by unsuspecting police authorities. The expert further states that leaving the latent print on the surface of the object on which it is found, or at least preserving the object from which it was lifted, could provide favorable evidence to negate the occurrence of a ‘transfer forgery.'1 (See Moenssens, Fingerprint Techniques (1971) Comparison of Fingerprints, ch. 10, pp. 289–292.)

This is not such a case. Here no evidence was presented to show that appellant's fingerprints could have been planted upon the deep fat fryer so that later they could be discovered by unsuspecting police authorities. Nor was any evidence presented to show how appellant's fingerprints could have been placed upon the object where they were found without appellant touching the appliance. Appellant merely implied that the sergeant's testimony as to where he found the latent fingerprints was a fabrication, and there is no affirmative evidence to support the implication. (Wimberly v. Superior Court, supra, 16 Cal.3d 557, 574, fn. 10, 128 Cal.Rptr. 641, 652, 547 P.2d 417, 428.* ) On the contrary, the fingerprint testimony was corroborated by other evidence; tire tracks from the automobile to which appellant had access were found near the school building; also, appellant earlier had broken into another school and attempted to start a fire.

The judgment is affirmed.

FOOTNOTES

1.  According to Mr. Moenssens, the transferred fingerprint would appear weak, and the quality of the print would be poor; due to the construction of the fingers, the hand and the arm it would be impossible or highly improbable to leave fingerprints in certain given positions on the surface of an object; and foreign particles from the ‘transferring medium’ could be transferred to the surface of the object on which the transferred fingerprint had been placed. (See Moenssens, Fingerprint Techniques (1971) Comparison of Fingerprints, ch. 10, pp. 289–291.) Accordingly, the expert admonishes:‘If latent prints are to be lifted from a surface, a photograph of the latent print on the object itself must be made before lifting, . . . [I]f the object bearing the print is small or movable, it should be preserved as well, . . .’ (Moenssens, Fingerprint Techniques (1971) Comparison of Fingerprints, ch. 10, p. 271; see also Id., Latent Prints, ch. 4, p. 112.)

FOOTNOTE.  L.A. 30458, Multilith Opinion, page 26, footnote 10.

GARGANO, Acting Presiding Justice.

FRANSON and THOMPSON**, JJ., concur.

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