Argued
November 15, 2018
Procedural
History
Information,
in the first case, charging the defendant with the crime of
criminal possession of a firearm, and information, in the
second case, charging the defendant with the crime of
criminal trespass in the third degree, brought to the
Superior Court in the judicial district of Stamford-Norwalk,
geographical area number twenty, where the cases were
consolidated; thereafter, the state filed a substitute
information charging the defendant with the crimes of
criminal possession of a pistol or revolver and criminal
trespass in the third degree; subsequently, the matter was
tried to the jury before Hernandez, J.;
thereafter, the court denied the defendant's motion for a
judgment of acquittal as to the count of criminal possession
of a pistol or revolver; verdicts and judgments of guilty,
from which the defendant appealed in part to this court.
Affirmed.
Erica
A. Barber, assigned counsel, with whom, on the brief, was
Allison M. Near, for the appellant (defendant).
Nancy
L. Walker, assistant state's attorney, with whom, on the
brief, were Richard J. Colangelo, Jr., state's attorney,
and Suzanne M. Vieux, supervisory assistant state's
attorney, for the appellee (state).
Lavine, Bright and Harper, Js.
OPINION
LAVINE, J.
The
defendant, Andre Dawson, appeals from the judgment of
conviction, rendered after a jury trial, of criminal
possession of a pistol or revolver in violation of General
Statutes § 53a-217c (a) (1).[1] On appeal, the defendant
claims that (1) there was insufficient evidence that he was
in possession of a pistol or revolver (gun), and (2) he was
deprived of a fair trial by the prosecutor's final
argument in which the prosecutor allegedly (a) misstated the
law of constructive possession and (b) mischaracterized the
DNA evidence presented at trial.[2] We affirm the judgment of
the trial court.
On the
basis of the evidence presented at trial, the jury reasonably
could have found the following facts. At approximately 9:35
p.m. on August 10, 2014, Police Officers Kyle Lipeika,
Stephen Cowf, and Michael Pugliese (officers) were patrolling
Washington Village, a housing complex in Norwalk. The
officers were members of the Street Crimes Task Force within
the Special Services Division (task force) of the Norwalk
Police Department (department).[3] They had entered
Washington Village from Day Street and walked through an
alley that led to a courtyard between buildings 104 and 304.
Lipeika was shining a flashlight in order for people in the
courtyard to see the officers approaching. Lipeika and Cowf
were wearing uniforms with yellow letters identifying them as
police. When the officers entered the courtyard, they saw
benches, a picnic table, a cement retaining wall,
[4]
bushes, a playground, and six individuals.[5]
The
defendant, Kason Sumpter, and Altolane Jackson were seated at
the picnic table near a corner formed by the cement walls of
a planter. The defendant was seated with his back to the
cement wall containing the bushes. See footnote 4 of this
opinion. Brian Elmore first walked away from the officers,
but turned back and sat at the picnic table.[6] To establish
rapport with the individuals sitting at the table, the
officers engaged them in conversation. As was their practice,
the officers scanned the area for firearms and narcotics that
the individuals may have tried to conceal.[7] As Cowf and
Pugliese conversed with the individuals at the picnic table,
Lipeika stepped onto the wall behind the defendant and
immediately saw in plain view a gun lying in the corner by
the bushes.
According
to Lipeika, the gun looked like it had been placed there just
before he discovered it because the gun was resting on top of
leaves, was not covered with dirt or debris, except a twig,
and appeared to be free of rust and dust. Jackson and Kason
Sumpter were seated closest to the gun, two or three feet
away from it. The defendant was seated four to five feet away
from the gun. None of the officers who testified had seen the
defendant touch the gun.
When
Lipeika discovered the gun, he drew his weapon and ordered
the six individuals in the courtyard to show their hands.
Pugliese and Cowf detained the individuals and moved them
away from the gun. Lipeika radioed for more officers and
guarded the gun until the scene was secured. The additional
officers photographed the scene and the gun. Then Lipeika put
on a new pair of rubber gloves and seized the loaded gun in
accordance with department procedures. He removed the
ammunition from the gun, a revolver with a two inch barrel,
and took the ammunition and the gun to the police station.
Days
later, at Lipeika's request, the defendant, Kason
Sumpter, Jackson, and Elmore went to the police station; each
of them voluntarily provided a sample of his DNA. None of
them claimed that the gun was his. The defendant also
provided a written statement in which he stated that he
‘‘walked through Washington Village to Water
Street, stopped to talk when officers came through and found
a handgun in the bushes in the area [where] I was
talking.''
Jackson,
too, provided a written statement and testified at trial that
he was in the Washington Village courtyard when the defendant
walked through and stopped to talk. He also stated that ten
minutes later someone said ‘‘police, ''
and everyone looked up. Jackson did not see the defendant
with a gun, and he did not see the defendant walk toward the
bushes where the gun was found. Jackson confirmed that the
gun did not belong to him.
On
August 28, 2014, Arthur Weisgerber, a lieutenant in the
department, tested the gun for latent fingerprints but did
not find any suitable for identification. Thereafter, he used
swabs to collect DNA from the gun and the ammunition that
Lipeika had removed from the gun. He placed the swabs in an
envelope. In addition, Weisgerber fired the gun and
determined that it was operable. The swabs and the DNA
samples provided by the defendant, Kason Sumpter, Jackson,
and Elmore, were delivered to the state forensics laboratory
(laboratory), where Melanie Russell, a forensic science
examiner, conducted DNA analyses of the materials. Russell
provided expert testimony at trial.
The
laboratory has procedures to protect DNA samples and evidence
from contamination. It also prescribes how laboratory
analysis of DNA is to be conducted. The DNA that Weisgerber
swabbed from the gun and ammunition is touch DNA because it
was deposited on the gun or ammunition when someone touched
them directly, through a secondary transfer or through
aerosolization, that is, coughing or sneezing. Touch DNA
comes from skin cells left behind when a person touches an
object. The quantity and quality of touch DNA varies
according to the character of the object's surface, i.e.,
rough or smooth, and the length of time the DNA has been on
the object. DNA degrades with time due to environmental
factors, such as heat and moisture. Degradation makes it
difficult to amplify the DNA and, in some cases, even to
detect DNA.
The
quantity of DNA on the swabs was small, and the DNA was
partially degraded. Nonetheless, Russell was able to extract
a DNA solution of 7.16 picograms per microliter from the
swabs. Although she was able to amplify a sample of about
seventy picograms of DNA, 1000 picograms is the ideal amount
for DNA analysis. A low yield sample will provide a DNA
profile but usually not a full profile. Russell was able to
generate a partial profile and obtained results at seven out
of fifteen loci tested. The profile Russell obtained from the
gun and ammunition consisted of a mixture of DNA, signifying
the presence of more than one person's DNA. She was able
to compare the DNA from the swabs with the samples provided
by the defendant, Kason Sumpter, Elmore and Jackson in a
scientifically accurate way and to obtain scientifically
viable and accurate results. Her analysis eliminated Kason
Sumpter, Elmore, and Jackson as possible contributors to the
DNA profile she developed from the swabs. The defendant,
however, could not be eliminated as a contributor. The
expected frequency of individuals who could not be eliminated
as a contributor to the DNA profile is approximately one in
1.5 million in the African-American population, one in 3.5
million in the Caucasian population, and one in 930, 000 in
the Hispanic population.[8] The defendant is African-American.
A
warrant was issued for the defendant's arrest on
September 25, 2014. He was charged in separate informations
with criminal possession of a firearm in violation of General
Statutes § 53a-217[9] and criminal trespass in the third
degree in violation of General Statutes § 53a-109 (a)
(1). The informations were consolidated for trial.
Subsequently, the state filed an amended long form
information charging the defendant with criminal possession
of a pistol or revolver in violation of § 53a-217c and
criminal trespass in the third degree in violation of §
53a-109 (a) (1). At the conclusion of the state's
case-in-chief, the defendant moved for a judgment of
acquittal on the charge of criminal possession of a pistol or
revolver. The court denied the motion for a judgment of
acquittal. The jury found the defendant guilty of both
charges. The court sentenced the defendant to consecutive
terms of ten years imprisonment, two years being a mandatory
minimum, on the conviction of criminal possession of a pistol
or revolver, and three months imprisonment on the conviction
of criminal trespass in the third degree, for a total
effective sentence of ten years and three months to serve.
Thereafter, the defendant appealed.
I
The
defendant claims that there was insufficient evidence to
convict him of criminal possession of a pistol or revolver
because there was insufficient evidence of his knowledge of
the gun and no evidence to prove his dominion or control over
it.[10] We disagree.
The
defendant was charged, in part, with violation of §
53a-217c, which provides in relevant part: ‘‘(a)
A person is guilty of criminal possession of a pistol or
revolver when such person possesses a pistol or revolver . .
. and (1) has been convicted of a felony . . .
.''[11] General Statutes § 53a-3 (2)
defines ‘‘possess'' as ‘‘to
have physical possession or otherwise to exercise dominion or
control over tangible property . . . .'' Because the
gun was not found on the defendant's person, the state
prosecuted the subject charge under the theory of
constructive possession.
‘‘There
are two types of possession, actual possession and
constructive possession. . . . Actual possession requires the
defendant to have had direct physical contact with the
[gun].'' (Citation omitted; internal quotation marks
omitted.) State v. Johnson, 137 Conn.App. 733, 740,
49 A.3d 1046 (2012), rev'd in part on other grounds, 316
Conn. 34, 111 A.3d 447, and aff'd, 316 Conn. 45, 111 A.3d
436 (2015). ‘‘Where . . . the [gun is] not found
on the defendant's person, the state must proceed on the
theory of constructive possession, that is, possession
without direct physical contact. . . . Where the defendant is
not in exclusive possession of the premises where the [gun
is] found, it may not be inferred that [the defendant] knew
of the presence of the [gun] and had control of [it], unless
there are other incriminating statements or circumstances
tending to buttress such an inference.'' (Internal
quotation marks omitted.) State v. Winfrey, 302
Conn. 195, 210-11, 24 A.3d 1218 (2011). ‘‘The
essence of exercising control is not the manifestation of an
act of control but instead it is the act of being in a
position of control coupled with the requisite mental intent.
In our criminal statutes involving possession, this control
must be exercised intentionally and with knowledge of the
character of the controlled object.'' State v.
Hill, 201 Conn. 505, 516, 523 A.2d 1252 (1986).
‘‘[T]o
mitigate the possibility that innocent persons might be
prosecuted for . . . possessory offenses . . . it is
essential that the state's evidence include more than
just a temporal and spatial nexus between the defendant and
the contraband.'' (Internal quotation marks omitted.)
State v. Bowens, 118 Conn.App. 112, 121, 982 A.2d
1089 (2009), cert. denied, 295 Conn. 902, 988 A.2d 878
(2010). ‘‘[M]ere proximity to a gun is not alone
sufficient to establish constructive possession, evidence of
some other factor-including connection with a gun, proof of
motive, a gesture implying control, evasive conduct, or a
statement indicating involvement in an enterprise-coupled
with proximity may suffice.'' (Internal quotation
marks omitted.) Id., 125.
The
standard of review for sufficiency of the evidence claims is
well known. ‘‘A defendant who asserts an
insufficiency of the evidence claim bears an arduous
burden.'' State v. Hopkins, 62 Conn.App.
665, 669-70, 772 A.2d 657 (2001). ‘‘In reviewing
a sufficiency [of the evidence] claim, we apply a two part
test. First, we construe the evidence in the light most
favorable to sustaining the verdict. Second, we determine
whether upon the facts so construed and the inferences
reasonably drawn therefrom the jury reasonably could have
concluded that the cumulative force of the evidence
established guilt beyond a reasonable doubt.''
(Internal quotation marks omitted.) State v.
Abraham, 64 Conn.App. 384, 400, 780 A.2d 223, cert.
denied, 258 Conn. 917, 782 A.2d 1246 (2001).
‘‘It
is within the province of the jury to draw reasonable and
logical inferences from the facts proven. . . . The jury may
draw reasonable inferences based on other inferences drawn
from the evidence presented. . . . Our review is a fact based
inquiry limited to determining whether the inferences drawn
by the jury are so unreasonable as to be
unjustifiable.'' (Internal quotation marks omitted.)
State v. Bradley, 60 Conn.App. 534, 540, 760 A.2d
520, cert. denied, 255 Conn. 921, 763 A.2d 1042 (2000).
‘‘The trier [of fact] may draw whatever
inferences from the evidence or facts established by the
evidence it deems to be reasonable and logical. . . . This
does not require that each subordinate conclusion established
by or inferred from the evidence, or even from other
inferences, be proved beyond a reasonable doubt . . .
.'' (Internal quotation marks omitted.) State v.
Fagan, 280 Conn. 69, 80, 905 A.2d 1101 (2006), cert.
denied, 549 U.S. 1269, 127 S.Ct. 1491, 167 L.Ed.2d 236
(2007). ‘‘[T]his court has held that a jury's
factual inferences that support a guilty verdict need only be
reasonable.'' (Internal quotation marks omitted.)
State v. Hector M., 148 Conn.App. 378, 384, 85 A.3d
1188, cert. denied, 311 Conn. 936, 88 A.3d 550 (2014).
As our
Supreme Court has often noted, ‘‘proof beyond a
reasonable doubt does not mean proof beyond all possible
doubt . . . nor does proof beyond a reasonable doubt require
acceptance of every hypothesis of innocence posed by the
defendant that, had it been found credible by the trier,
would have resulted in an acquittal. . . . Furthermore, [i]n
[our] process of review, it does not diminish the probative
force of the evidence that it consists, in whole or in part,
of evidence that is circumstantial rather than direct. . . .
It is not one fact, but the cumulative impact of a multitude
of facts which establishes guilt in a case involving
substantial circumstantial evidence. . . . Indeed, direct
evidence of the accused's state of mind is rarely
available. . . . Therefore, intent is often inferred from
conduct . . . and from the cumulative effect of the
circumstantial evidence and the rational inferences drawn
therefrom.'' (Internal quotation marks omitted.)
State v. Robert S., 179 Conn.App. 831, 835-36, 181
A.3d 568, cert. denied, 328 Conn. 933, 183 A.3d 1174 (2018),
citing State v. Fagan, supra, 280 Conn. 79-81.
In the
present case, there is no dispute that the defendant did not
have the gun on his person at the time Lipeika discovered it
in the courtyard of Washington Village on August 10, 2014,
and that he was not in exclusive possession of the courtyard
where Lipeika found the gun. The state, therefore, was
required to establish that the defendant was in constructive
possession of the gun. To prove constructive possession under
§ 53a-217c (a) (1), the state had to present evidence
beyond a reasonable doubt that the defendant had knowledge of
the gun and intended to exercise dominion or control over it.
See State v. Hernandez, 254 Conn. 659, 669, 759 A.2d
79 (2000); State v. Davis, 84 Conn.App. 505, 510,
854 A.2d 67, cert. denied, 271 Conn. 922, 859 A.2d 581
(2004). The defendant argues on appeal that although the gun
was found near him and his DNA was found on it, his proximity
to it and the presence of his DNA on the gun and ammunition
are not sufficient evidence to prove that he had knowledge of
the gun, knew of its presence or exercised dominion or
control over it. In particular, the defendant argues that the
presence of his DNA on the gun merely means that at some
unknown time and under unknown circumstances his DNA was
transferred to the gun, but that is insufficient to support a
finding that he knew of the gun's presence.
The
state acknowledges that because the defendant was not in
exclusive control of the courtyard, the jury could not infer
properly from that circumstance that the defendant knew of
the gun's presence without incriminating statements or
other circumstances to buttress the inference. See State
v. Butler, 296 Conn. 62, 78, 993 A.2d 970 (2010). The
state, however, contends that there were four circumstances
that established a nexus between the defendant and the gun
and permitted the jury reasonably to infer that the defendant
knew of the gun's presence, that he was in a position to
exercise dominion or control over it, and that he intended to
do so. See State v. Hill, supra, 201 Conn. 516. We
agree with the state.
First,
the state notes that the gun was found in plain view and
appeared to have been placed near the bushes recently. The
jury, therefore, reasonably could have inferred that the
person who put the gun near the bushes did not abandon it and
leave the courtyard but, instead, was one of the six
individuals in the courtyard when the officers arrived. In
response, the defendant argues that the gun was not in plain
view because Lipeika needed a flashlight to see
it.[12] The defendant's argument lacks
merit. The police were patrolling the courtyard pursuant to
the department's agreement with the housing authority.
The officers needed artificial light both to be seen as they
approached the courtyard and to see what was in the
courtyard. The gun was lying on a wall in a public space, and
it was dark. The gun was in the open and uncovered, and,
therefore, it was in plain view. It clearly would have been
visible in daylight. Under the circumstances, there is no
difference between Lipeika's using a flashlight and
turning on a light in a dark room. Furthermore, the
state's argument is not that the location of the gun is
evidence that the defendant saw it there. Instead, the
state's argument is that the location of the uncovered
gun near the bushes close to the defendant supports the
inference that the defendant had placed the gun there. Thus,
the lighting conditions at the time were immaterial.
Second,
the state points out that Lipeika was shining his flashlight
when the officers walked through the alley into the
courtyard. In his statement to the police, Jackson stated
that someone saw the light and called out
‘‘police, '' causing individuals in the
courtyard to look up. According to Lipeika, when individuals
who have a gun in their possession become aware of a police
presence, they try to ‘‘discard . . . or
stash'' the gun so that they will not be detected
with it. The state, therefore, argues that it was reasonable
for the jury to infer that the defendant quickly put the gun
on the wall near the bushes to avoid being found with it. The
jury reasonably could have inferred from the evidence that
the defendant, whom it knew to be a convicted felon, was
motivated to ‘‘stash'' the gun because he
is not entitled to possess a gun.
Third,
the state cites Lipeika's testimony that, when
individuals with a gun seek to ‘‘discard . . . or
stash'' it, they put the gun in a place close enough
to be ‘‘accessible'' to them. In this
instance, the gun was four to five feet from the defendant,
who was sitting at a picnic table next to the wall and
bushes.
Fourth,
the defendant was the only person at the picnic table who
could not be eliminated as a contributor to the DNA profile
found on the gun and ammunition. The chance that a random
individual, someone other than the defendant, could have
contributed to the DNA was one in 1.5 million in the
African-American population. On the basis of these four
circumstances, the state argues that the jury reasonably
could have inferred that the defendant knew of the gun's
presence and could have exercised dominion or control over
it, and intended to do so. Although none of the factors alone
is direct evidence of the defendant's knowledge of the
gun's presence or his intent to possess it, the
cumulative force of the circumstantial evidence was
sufficient for the jury reasonably to infer that the
defendant knew of the gun and was in constructive possession
of it. ‘‘Where a group of facts [is] relied upon
for proof of an element of the crime it is [the] cumulative
impact [of those facts] that is to be weighed in deciding
whether the standard of proof beyond a reasonable doubt has
been met and each individual fact need not be proved in
accordance with that standard.'' (Internal quotation
marks omitted.) State v. McDonough, 205 Conn. 352,
355, 533 A.2d 857 (1987), cert. denied, 485 U.S. 906, 108
S.Ct. 1079, 99 L.Ed.2d 238 (1988). Evidence of the
defendant's DNA on the gun and ammunition, plus his
proximity to the gun, leads to a reasonable inference that
the defendant once had the gun on his person and intended to
do so again when the police left the courtyard.
The
defendant argues, citing State v. Payne, 186 Conn.
179, 440 A.2d 280 (1982), that the state cannot rely on the
DNA evidence alone to prove that he knew of the gun's
presence on the wall near the bushes. He compares the
presence of DNA on the gun to fingerprints found on a vehicle
in Payne. ‘‘[A] conviction may not stand
on fingerprint evidence alone unless the prints were found
under such circumstances that they could have only been
impressed at the time the crime was perpetrated.''
Id., 182. In Payne, the defendant's fingerprints
were found on the driver's door of a motor vehicle in
which the victim had been restrained. Id., 181. The victim
was unable to identify the defendant in a photographic array
or at trial. Id. Our Supreme Court reversed the
defendant's conviction because ‘‘[t]he
evidence in the present case does not reasonably exclude the
hypothesis that the defendant's fingerprints were placed
on the car at a time other than during the perpetration of
the crime.'' Id., 184; see also State v.
Mayell, 163 Conn. 419, 426, 311 A.2d 60 (1972) (where
defendant was regularly employed to drive vehicle and
rightfully in it six hours before crime defendant's
fingerprints on rear view mirror of abandoned vehicle were of
no moment unless circumstances were such that fingerprints
only could have been impressed at time of crime).
The
facts of the present case, however, are distinguishable from
both Payne and Mayell. Here, the defendant
not only was at the scene at the time the gun was found, but
he also was in close proximity to it. Others were in close
proximity to the gun too, but the defendant was the only one
of them who was a contributor to the DNA obtained from the
surface of the gun or the ammunition, or both. Moreover, the
defendant had at least two reasons to
‘‘stash'' the gun. The defendant
stipulated to the fact that he was a convicted felon. We
discern that the jury reasonably could have inferred that
because the defendant was trespassing[13] and, more
importantly, because he was a convicted felon, he had
‘‘stashed'' the gun to avoid being found
with the gun on his person.
The
defendant also argues that the DNA evidence is insufficient
due to ‘‘the questionable reliability of a sample
containing only 70 picograms of DNA, when the ideal amount is
1000 picograms of DNA.'' The defendant did not object
to the admission of the DNA evidence at trial, but cites
Russell's testimony regarding problems that are inherent
in testing small samples of DNA. Despite the small sampling,
however, Russell testified that she was able to analyze the
DNA from the gun, and that she obtained scientifically viable
and accurate results that revealed a high likelihood that the
defendant was a contributor to the sample. Her findings were
reviewed by a forensic science examiner in the laboratory and
no problems were identified. Defense counsel vigorously
cross-examined Russell. Although the burden was on the state
to prove its case, the defendant presented no evidence to
contradict Russell's testimony regarding the accuracy of
her analysis.[14]
The
defendant's claim is not that Russell's testimony
regarding the results of her DNA analysis was improperly
admitted. The evidence, therefore, properly was before the
jury to be considered along with the other evidence. The size
of the sample went to the weight of the evidence, not its
admissibility. ‘‘It is axiomatic that it is the
jury's role as the sole trier of the facts to weigh the
conflicting evidence and to determine the credibility of
witnesses. . . . It is the right and duty of the jury to
determine whether to accept or to reject the testimony of a
witness . . . and what weight, if any, to lend to the
testimony of a witness and the evidence presented at
trial.'' (Internal quotation marks omitted.)
State v. Osbourne, 138 Conn.App. 518, 533-34, 53
A.3d 284, cert. denied, 307 Conn. 937, 56 A.3d 716 (2012).
The essence of the defendant's argument is that this
court ...