State v. Dawson

340 Conn. 136

263 A.3d 779

STATE of Connecticut

v.Andre DAWSON

SC 20361

Supreme Court of Connecticut.

Argued February 17, 2021

Officially released August 13, 2021^*

Erica A. Barber, assigned counsel, for the appellant (defendant).

Nancy L. Walker, assistant state's attorney, with whom, on the brief, were Paul J. Ferencek, state's attorney, and Nadia Prinz, former assistant state's attorney, for the appellee (state).

Robinson, C. J., and McDonald, D'Auria, Kahn, Ecker and Keller, Js.

KELLER, J.

The defendant, Andre Dawson, appeals¹ from the judgment of the Appellate Court affirming his conviction, rendered following a jury trial, of criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c.² The defendant claims that the Appellate Court incorrectly concluded that the state had adduced sufficient evidence at trial to support his conviction. We agree and, accordingly, reverse in part the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the following relevant facts and procedural history. "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[selves] 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 without bushes. ... 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.⁸ None of the officers who testified [at trial] 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 [DNA] sample .... None of them claimed 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 [they] found a handgun in the bushes in the area [where he] 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 [either] touched them directly, [or his DNA became present on them] through a secondary transfer or ... 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 vary 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.⁹ The defendant is African-American.

"A warrant was issued for the defendant's arrest on September 25, 2014.... 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 violation of General Statutes § 53a-109 (a) (1).... [Following a trial] [t]he jury found the defendant guilty of both charges." (Citation omitted; footnote added; footnotes in original; footnote omitted.) State v. Dawson , 188 Conn. App. 532, 536–41, 205 A.3d 662 (2019). The court sentenced the defendant to a term of ten years of imprisonment, two years of which were a mandatory minimum, on the conviction of criminal possession of a pistol or revolver, and a term of three months of imprisonment on the conviction of criminal trespass in the third degree, with the sentences to run consecutively, for a total effective sentence of ten years and three months of imprisonment. Id., 541, 205 A.3d 662. Thereafter, the defendant appealed to the Appellate Court.

On appeal to the Appellate Court, the defendant claimed, inter alia, 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." Id. The Appellate Court rejected the defendant's claim, concluding that "there was sufficient circumstantial evidence [from] which the jury reasonably could have inferred that the defendant was in possession of the gun when he entered the courtyard, that he put it near the bushes when the police arrived so that it would not be found on his person, and that he intended to retrieve the gun when the police left." Id. at 555–56, 205 A.3d 662. Specifically, the court reasoned that, because "the gun was found in plain view and appeared to have been placed near the bushes recently," the jury 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." Id. at 546, 205 A.3d 662. The court further reasoned that the jury reasonably could have found, on the basis of Lipeika's testimony, that "the defendant quickly put the gun on the wall near the bushes to avoid being found with it" when the police arrived because, "when individuals who have a gun in their possession become aware of a police presence, they try to ‘discard ... or stash’...