United States v. Daniel Jackson Talbert ( 1983 )

PER CURIAM:

Talbert appeals from his conviction of first degree murder after a jury trial. Tal-bert’s principal claim on appeal is that the evidence produced against him at trial was insufficient to sustain his conviction. Because we conclude that the evidence was sufficient to support the jury’s verdict of guilt, the conviction must be affirmed.

FACTS

A. Background

On August 4, 1980, the body of Paul Nornes was discovered in an abandoned bowling alley on the grounds of the Brent-wood Veterans Administration Psychiatric Hospital in Los Angeles, California. The coroner determined that Nornes had died from severe head injuries apparently inflicted during a beating. On April 21,1981, Talbert was indicted for the murder of Nornes on a government reservation in violation of 18 U.S.C. § lili (1964).¹ After a five-day trial followed by five days of deliberation, the jury returned a verdict of guilty. The district court denied both Tal-bert’s motion for judgment of acquittal made after conclusion of the government’s case, and his renewed motion for judgment of acquittal made after return of the verdict. On September 14, 1981, Talbert was sentenced to life imprisonment.

B. Relationship of Nornes and Talbert

Nornes and Talbert were patients at the Brentwood psychiatric facility during overlapping time periods in 1980. Nornes was discharged from the facility on July 17, 1980, Talbert on July 16, 1980.² After his discharge, Nornes continued to reside on the hospital grounds without official consent. Sometime before his death, Nornes took up residence in a bowling ball storage room located inside the abandoned bowling alley building. After his discharge, Talbert continued to regularly frequent the patients’ gathering places on hospital grounds.

Nornes supported himself by selling marijuana to the psychiatric patients who resided at the hospital. Talbert was among those known to have dealings with Nornes. While Nornes made no secret of his marijuana transactions and was generally known to have money and marijuana with him, he was secretive about where he lived. Talbert had helped Nornes carry a mattress to the storage room and was therefore one of the few who knew that NQjrnes lived in the abandoned bowling alley.

One witness testified that he overheard appellant and Nornes plan a “ripoff” of a “marijuana plantation” in the San Bernar-dino mountains. Another witness testified that he heard appellant say, apparently as a joke, that he would not mind “bumping Nornes on the head to get his marijuana.”

One week before Nornes’ death, several witnesses observed his taking $650 from his money belt and giving it to Talbert; Tal-bert was to use the money to make a marijuana purchase for Nornes. On Friday, August 1, Talbert was seen on the grounds looking for Nornes. He told two witnesses that he was looking for Nornes to pay back the money he had stolen from him (presumably the $650). Talbert reportedly said, “I am going to pay him back as soon as I get my hands on him.”

C. The Murder Scenario

Nornes’ body was discovered in the bowling ball room by a hospital employee at approximately 3:00 p.m. on Monday, August 4th. Nornes was found face down on the floor, his feet and legs resting on a mattress, his body clad only in a tee shirt. Nornes’ money belt lay open and empty on the mattress. A bowling pin stood on the floor three feet from the body. Expert testimony revealed that the pin was the kind of instrument that caused Nornes’ fatal head injuries. Blood stains found on the pin were identified as being of the same type as Nornes’ blood. Further, Talbert’s right thumbprint was discovered on the neck of the bowling pin, positioned so as to have enabled him to grip the pin by its throat and turn it upside down as a club. No other bowling pins were found in the storage room, although similar pins were discovered seventy-five feet away in the adjacent bowling alley portion of the building.

The coroner testified that Nornes died sometime during the twenty-four hour period beginning at 6:30 a.m. on Sunday, August 3rd, and ending at 6:30 a.m. on Monday, August 4th. Talbert offered alibi evidence that he was out of town during part of this time. Rebuttal evidence established that Talbert’s timetable left approximately two to four hours unaccounted for on the day of August 3rd during which Talbert was probably in the Los Angeles area and could have come to the Brentwood vicinity. The evidence also showed that Talbert was concerned about money.

ANALYSIS

A defendant is entitled to a judgment of acquittal if the evidence produced against him is insufficient to sustain a conviction. Fed.R.Crim.P. 29(a). We review the evidence produced against Talbert in the light most favorable to the government to determine whether substantial relevant evidence was produced from which the jury could reasonably have found Talbert guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); United States v. Miller, 688 F.2d 652, 663 (9th Cir.1982). Circumstantial evidence is sufficient to sustain a conviction, and the government’s evidence need not exclude every reasonable hypothesis consistent with innocence. Miller, supra, 688 F.2d at 663, citing United States v. Federico, 658 F.2d 1337, 1343 (9th Cir.1981).

The appellant argues that the circumstantial evidence produced against him does not permit a rational inference of guilt. He seeks to characterize this case as one in which the only evidence supporting the jury’s verdict is the thumbprint on the murder weapon.

The defendant’s thumbprint on what was almost certainly the murder weapon is, of course, highly incriminating. This court has held that fingerprint evidence, if sufficiently probative, may by itself support a conviction. See United States v. Crenshaw, 698 F.2d 1060, 1064 (9th Cir.1983); United States v. Scott, 452 F.2d 660, 662 (9th Cir. 1971). Appellant argues, however, that the fingerprint evidence is not sufficient in this case because the government did not prove that the imprint could only have been made at the time of the crime. Appellant was one of the few who knew where Nornes lived, and he had access to the room. The thumbprint might have been placed on the bowling pin, appellant suggests, when he helped Nornes move his mattress into the bowling ball storage room, or at some other time prior to the murder. Appellant relies on cases such as Borum v. United States, 380 F.2d 595 (D.C.Cir.1967) and People v. Donahue, 50 Ill.App.3d 392, 8 Ill.Dec. 472, 365 N.E.2d 710 (1977), in which courts have held that fingerprint evidence at the scene of the crime will not alone support a conviction if there is a reasonable possibility that the prints could have been placed there innocently.

The difficulty with appellant’s position, however, is that the evidence here indicates that it was extremely unlikely that appellant had innocently touched the bowling pin at an earlier time. Although there were over one hundred bowling pins in the building, they were not stored in or near the storage room where Nornes slept. Instead, they were stored seventy-five feet away in a separate area of the building. Witnesses who examined the other bowling pins after Nornes’ death testified that they were dirty and dusty and appeared undisturbed. Further, there was no evidence that Nornes kept a pin in his room. One witness testified that on August 2, the day before Nornes’ death, he was looking for Nornes to buy some marijuana. He peered into Nornes’ room through a window and saw neither Nornes nor the bowling pin.

From the evidence, the jury reasonably could have concluded that there was never a bowling pin in Nornes’ room until the time of the murder. It is theoretically possible that at some time prior to the murder, appellant wandered near the bowling pins, seventy-five feet from Nornes’ room, and by coincidence innocently touched the one pin out of the hundred that the murderer would later pick up and use as his murder weapon. That theoretical possibility, however, could have been rejected by a reasonable jury as too remote.

Furthermore, this is not a “fingerprints only” case. Appellant knew the victim and the jury reasonably could have concluded that the two men had a history of drug transactions. Appellant knew that Nornes kept large sums of money in his money belt. The jury heard testimony concerning appellant’s “joke” that he would not mind “bumping Nornes on the head” as well as his ambiguous remark later that he would “pay Nornes back when [he] got [his] hands on him.” Finally, appellant’s alibi defense failed to account for a two-to-four hour period in the late afternoon and evening of August 3, when he was almost certainly in Los Angeles and could have gone to the hospital grounds and killed Nornes.

Thus, this case is wholly unlike those cases in which only fingerprint evidence links a defendant to the crime. For example, in Borum, supra, upon which appellant heavily relies, the only evidence supporting the defendant’s conviction for housebreaking was testimony that his fingerprints were found on the glass jars from which the victim’s coin collection was stolen. The D.C. Circuit reversed, because an expert had testified that the prints could have been two years old and because there was no evidence to support the inference that the prints were left during the commission of the crime. As other circuit courts have stated, the holding in Borum and its progeny only is applicable in situations where there is no additional circumstantial evidence linking the defendant to the crime. See United States v. Harris, 530 F.2d 576, 579 (4th Cir.1976); United States v. Roust-io, 455 F.2d 366, 370 (7th Cir.1972); United States v. Scarpellino, 431 F.2d 475, 478 (8th Cir.1970). We therefore conclude that the district court properly denied the defendant’s motion for judgment of acquittal at the conclusion of all evidence.

We also conclude that the evidence was sufficient to support the jury’s finding of premeditation and that the district court therefore properly denied the defendant’s motion for judgment of acquittal made after return of the verdict. If the jury determined that the killer picked up the murder weapon and carried it back seventy-five feet to Nornes’ room, its finding of premeditation was justified. See Hemphill v. United States, 402 F.2d 187, 189-91 (D.C.Cir. 1968) (time to walk up stairs consistent with finding that killing was product of deliberation, when motive was shown).

Affirmed.

1 . This section provides, inter alia:

(a) Murder is the unlawful killing of a human being with malice aforethought. Every murder perpetrated by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing; or committed in the perpetration of, or attempt to perpetrate, any arson, rape, burglary, or robbery; . or perpetrated from a premeditated design unlawfully and maliciously to effect the death of any human being other than him who is killed, is murder in the first degree. Any other murder is murder in the second degree.

2 . Nornes had entered the psychiatric facility as an in-patient on March 3, 1980. He previously had been admitted for two months commencing August 29, 1979. Talbert had entered the facility on March 16, 1980.