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TYLER v. COMMONWEALTH OF VIRGINIA (59916)


TYLER v. COMMONWEALTH OF
VIRGINIA


June 6, 1997
Record No. 961873

WILLIAM L. TYLER

v.

COMMONWEALTH OF VIRGINIA

OPINION BY SENIOR JUSTICE RICHARD H. POFF
FROM THE COURT OF APPEALS OF VIRGINIA

Present: Carrico, C.J., Compton, Stephenson, Lacy, Hassell,
and Keenan, JJ., and Poff, Senior Justice


The dispositive issue framed in this appeal from convictions
of statutory burglary and grand larceny is whether the evidence
was sufficient to identify the appellant as the criminal agent.

Convicted of both offenses in a bench trial conducted in the
Circuit Court of the City of Alexandria, William Lee Tyler was
sentenced to serve ten years in prison for each conviction. The
two terms were fixed to run concurrently with five of the ten
years suspended during good behavior. Finding "no reasonable
hypothesis of innocence flowed from the evidence before the trial
court", Tyler v. Commonwealth, 22 Va. App. 480, 486,
471 S.E.2d 772, 774 (1996), the Court of Appeals affirmed the
convictions, and we awarded Tyler this appeal.

Roger Wall, owner of Granny’s Place Too, a discount children’s
clothing and toy store, testified that he closed the store about
2:15 p.m. on Saturday, September 4, 1993. Responding to a call
that "[t]here had been a break-in", he returned to the
store the next morning at 9:30 to find the plate-glass window
situated just above the sidewalk shattered and 86 pieces of
children’s clothing missing from a display rack. He estimated the
value of the clothing at "$4,400 and some-odd, retail."
Wall denied that Tyler had been "an employee of [his] store" or had "any business or reason to be in or at
[his] store." Asked on cross-examination if he had found
"glass both on the inside of the store and on the
street", Wall replied, "Well, not on the street, on the
sidewalk."

Cleveland Ratcliffe, an "evidence technician" with
the Alexandria Police Department, identified exhibits 1A through
1F, photographic copies of latent fingerprints, as those he had
"collected" from glass sections found "at the base
of the point of entry". "Most of the lifts
obtained," he said, "were fingerprints on both sides,
as if someone had picked it up like this and set it aside."
Asked on cross-examination whether those pieces of glass were
"found on the inside or the outside of the store",
Ratcliffe replied: "It was found at the base of the window.
Actually some was leaning on the inside and some was on the
outside." He acknowledged that the six exhibits did not
disclose "which pieces were which".

Ratcliffe delivered the fingerprints for analysis to Wanda Sue
McCall, the department’s latent print examiner. McCall testified
that she had compared them to a "known ink print of William
Lee Tyler"; that she "was able to count at least 75
points [of identification]"; and that she was "[o]ne
hundred percent positive" that the prints reflected in the
six exhibits were those left by Tyler. Five of the six revealed
fingerprints on opposite sides of the pieces of glass recovered.
Shown one of these exhibits, the witness identified the
defendant’s right thumb print on one side and his right index
print on the other.

Tyler’s motion to strike the Commonwealth’s evidence was
denied, and the defendant rested. The trial judge found that
defense counsel’s theories concerning the fingerprint evidence
were "pure hypothesis and speculation" raising "no
reasonable doubt" of Tyler’s guilt. A pre-sentence report
was filed, sealed, and incorporated in the record. The trial
judge entered final judgment, and the defendant perfected his
appeal.

Here, as in the courts below, Tyler maintains that the
fingerprint evidence was the only evidence adduced against him,
that the Commonwealth’s evidence failed to exclude reasonable
hypotheses of innocence and, therefore, that the evidence was
insufficient to prove that he had broken the window and stolen
the clothing. Specifically, Tyler contends on brief as follows:

Although the defense is not required to explain why any
one might innocently pick up and set aside broken glass,
potential explanations flowed naturally from the
circumstances of this case. For example, broken glass was
shown to have been scattered across a city sidewalk on a
summer weekend: any pedestrian (drunk, sober, or naturally
clumsy) might have fallen amidst the broken glass and needed
to clear space in order to arise by pushing off against the
ground. Anyone walking barefoot on such a summer day might
have picked up the glass in order to avoid the broken glass -
or to avoid the necessity of detouring onto the hot tarmac of
a city street. Even idle curiosity could innocently and
plausibly explain why someone would have picked up broken
glass lying on a city sidewalk in front of a store with an
eye-catching, broken window. In any of these instances, the
base of the window would seem to be the most logical place to
set the glass fragments down again.

Concerning the several hypotheses Tyler posits,[1] we look to the
principles of law defined and applied in Avent v. Commonwealth,
209 Va. 474, 164 S.E.2d 655 (1968), and its progeny.

The facts and circumstances in Avent were similar to
those at bar. Avent was convicted in a bench trial of statutory
burglary involving larceny of 176 pieces of clothing stored in a
warehouse. One of his fingerprints had been lifted from one piece
of glass found on basement steps located inside the warehouse
below a window broken to gain access to the building. Indeed, the
only incriminating circumstance in Avent absent here was
that the broken window in Avent, located seven feet above
ground level, was generally inaccessible to a pedestrian. Yet, as
in the present case, the evidence showed that the defendant had
no employment or other relationship justifying his presence in or
around the premises.

As stated in Avent, the applicable standard of review
provides as follows:

We must review the evidence in this case not with respect to
what action we might have taken, but as to whether the evidence
justified the trial judge, as a trier of the facts, in finding
defendant guilty. It is our duty to regard as true all the
credible evidence favorable to the Commonwealth and all fair
inferences to be drawn therefrom. When such evidence leads to the
conclusion of guilt beyond a reasonable doubt, and excludes every
reasonable hypothesis of innocence, it is sufficient to support a
finding of guilty. This Court will affirm the judgment of the
trial court unless ‘it appears from the evidence that such
judgment is plainly wrong or without evidence to support it.’
Code ? 8-491
[now, Code ? 8.01-680].
Id. at 477, 164 S.E.2d at 657.

Applying that standard in Turner v. Commonwealth, 218
Va. 141, 235 S.E.2d 357 (1977), we said that

while defendant’s fingerprint found at the scene of the
crime may be sufficient under the circumstances to show
defendant was there at some time, nevertheless in
order to show defendant was the criminal agent, such evidence
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. Such ‘other
circumstances,’. . . ’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.’ Those attendant
circumstances may demonstrate the accused was at the scene of
the crime when it was committed. And if such circumstances do
so demonstrate, a rational inference arises that the accused
was the criminal agent. 218 Va. at 146-47, 235 S.E.2d at 360
(citations omitted).

The Commonwealth always bears the burden of proving guilt
beyond a reasonable doubt. When the Commonwealth relies solely
upon fingerprint evidence to identify a criminal agent, it bears
the burden of excluding every reasonable hypothesis of
innocence, that is, those "which flow from the evidence
itself, and not from the imagination of defendant’s
counsel." Id. at 148, 235 S.E.2d at 361. See also
Clagett v. Commonwealth, 252 Va. 79, 93, 472 S.E.2d 263,
271 (1996), cert. denied, ___ U.S. ___, 117 S.Ct.
972 (1997); Goins v. Commonwealth, 251 Va. 442, 467, 470
S.E.2d 114, 130, cert. denied, 519 U.S. ___, 117
S.Ct 222 (1996); Graham v. Commonwealth, 250 Va. 79,
85-86, 459 S.E.2d 97, 100, cert. denied, 516 U.S.
___, 116 S.Ct. 535 (1995); Tuggle v. Commonwealth, 228 Va.
493, 511, 323 S.E.2d 539, 550 (1984), vacated on other grounds,
471 U.S. 1096, aff’d on remand, 230 Va. 90, 334 S.E.2d 838
(1985), cert. denied, 478 U.S. 1010 (1986); Cook
v. Commonwealth
, 226 Va. 427, 433, 309 S.E.2d 325, 329
(1983); Black v. Commonwealth, 222 Va. 838, 841, 284
S.E.2d 608, 609 (1981); Ricks v. Commonwealth, 218 Va.
523, 527, 237 S.E.2d 810, 812 (1977).

We are of opinion that the fingerprint evidence disclosing
Tyler’s presence at the scene of the crime was "coupled with
evidence of other circumstances tending to reasonably
exclude" the defendant’s several hypotheses that his
presence and his handling of the pieces of broken glass were
unrelated to the commission of that crime.

As the record shows, Tyler had never been an employee of the
store and had no "business or reason" to be present
there. As in Avent, that circumstance reinforces the
inference raised by the fingerprint evidence.

Another such circumstance is detailed in the testimony of the
officer who discovered Tyler’s fingerprints on opposite sides of
glass fragments. That discovery supports an inference that the
person who broke the window pulled the fragments out of the
window frame to avoid cuts as he crawled inside the store.

Finally, for any number of reasons, an innocent person might
pick up a piece of glass lying on a sidewalk, examine it, and
discard it. But would such a person pick up the piece of glass,
carry it to a building adjacent to the sidewalk, and lean it
inside or outside against the base of the broken window from
which it fell? If so, is it reasonable to conclude that such a
person would repeat that process with six pieces of broken
glass, leaving the remaining pieces scattered on the sidewalk?

We think not. Applying the standard of review and the
principles defined in consistent precedent, we hold that the
fingerprint evidence adduced here, coupled as it was with
attendant circumstances, was sufficient to support the trial
judge’s finding of fact that Tyler was the criminal agent, and we
will affirm the judgment of the Court of Appeals upholding the
convictions.

Affirmed.

 

FOOTNOTES:

[1] In support of another
hypothesis urged below that the window had been broken from the
inside by the storeowner, Tyler contends that there was no
evidence of glass pieces found inside the building and that the
Court of Appeals erred in declaring otherwise. Obviously, the
Court of Appeals relied upon the reasonable import of Ratcliffe’s
testimony that the pieces containing fingerprints on both the
inside and outside surfaces were found at the base of the window
and that "some was leaning on the inside and some was on the
outside." And McCall identified Tyler as the person who left
those fingerprints.

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