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Dorsey v. United States

Court of Appeals of Columbia District

February 23, 2017

JAMES J. DORSEY, Appellant,

          Argued September 28, 2016

         Appeal from the Superior Court of the District of Columbia CF3-9678-13 Hon. Anita Josey-Herring, Trial Judge.

          Cecily E. Baskir for appellant.

          L. Jackson Thomas II, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney, and Elizabeth Trosman, John P. Mannarino and William Schurmann, Assistant United States Attorneys, were on the brief, for appellee.

          BEFORE: Blackburne-Rigsby, Thompson, and McLeese, Associate Judges.


         This case came to be heard on the transcript of record and the briefs filed, and was argued by counsel. On consideration whereof, and as set forth in the opinion filed this date, it is now hereby

         ORDERED and ADJUDGED that the judgment of the Superior Court is affirmed.

          Thompson, Associate Judge.

         A jury convicted appellant James J. Dorsey of unlawful possession of a firearm ("UPF"), possession of an unregistered firearm ("UF"), and unlawful possession of ammunition ("UA"). He seeks reversal of his convictions on the grounds that there was insufficient evidence for jurors to find beyond a reasonable doubt that he possessed the firearm and ammunition in question, and that the government's delay in disclosing information favorable to his defense violated his right to due process. Appellant also argues that the trial court abused its discretion when it failed to afford the defense a mid-trial continuance to obtain its own DNA expert. Finally, appellant argues that it was error for the trial judge - who acknowledged that she otherwise "would not have given [appellant] three years in jail" - to impose a three-year mandatory minimum sentence for the UPF charge, based on the court's determination that appellant had a prior conviction for a crime of violence, without the jury having so found. We affirm.


         The evidence at trial established that on June 7, 2013, several members of the Metropolitan Police Department ("MPD") executed a search warrant of an apartment located at 4701 Alabama Avenue, S.E.[1] Among the eight or so officers present were Officer Robert Ranck, Detective Anthony Campanalle, [2] and Officer Mark Allen Dega. Officer Ranck testified that as the officers, who were all wearing vests that said "police, " approached the residence, they observed appellant and two women standing on the balcony of the apartment. Appellant reacted by "enter[ing] into the apartment." "Less than a minute" later, after knocking on the apartment door and announcing their presence, the officers used a battering ram to force entry into the apartment unit. Officer Ranck testified that appellant and four other individuals, including two adult females, one juvenile male (who was in a back bedroom located about fifteen feet from the apartment's kitchen), [3] and a female child, were inside the apartment (or on the balcony). Detective Campanalle testified that, as the officers made entry into the apartment, he saw appellant "exiting the kitchen area . . . ."[4]

         Officer Dega testified that during the search, one of the officers found a .357 Magnum revolver located on the top shelf inside a cabinet in the apartment's kitchen. Officer Dega, a crime scene technician, testified that after photographing the gun on the shelf, he retrieved the gun, placed it on a kitchen countertop to photograph it, and thereafter placed the gun in a paper bag for transmission to the police station.

         The government's evidence at trial also included the testimony of DNA analyst Andrea Borchardt-Gardner. Borchardt-Gardner testified that from the biological material collected from a swab of the gun, she was able to develop a partial DNA profile (i.e., eight of the fifteen locations that would constitute a full profile) that was from a single male contributor.[5] Borchardt-Gardner testified that she compared that profile with appellant's DNA profile and found that "every allele [she] detected in the evidence sample was consistent with [appellant]." She concluded that appellant could not be excluded as a possible contributor of the partial DNA profile recovered from the gun. Based on a statistical analysis, she determined that the probability of randomly selecting another individual unrelated to appellant with the same partial DNA profile as the one recovered from the gun was one in 290 billion in the U.S. Caucasian population, one in eleven billion in the U.S. African-American population, and one in 52 billion in the U.S. Hispanic population. Borchardt-Gardner also testified that, while she had read a scholarly article about the secondary transfer of skin cell DNA (e.g., the transfer of DNA from skin cells present on an object to another object when the two objects touch), she had never encountered such a transfer in her own experience (as a supervising and senior DNA forensic analyst). She further testified that "[n]obody has the same DNA except for identical twins" and that a "son would share 50 percent of [his father's] DNA."

         After the jury found appellant guilty on all three counts, the court sentenced him to the three-year mandatory minimum sentence described in D.C. Code § 22-4503 (b)(1) (2012 Repl.), based on his 1999 conviction in Maryland for first-degree assault.


         Appellant contends that the evidence was insufficient to prove beyond a reasonable doubt that he possessed the gun found in the kitchen cabinet or its ammunition. When reviewing an insufficiency-of-the-evidence claim, we view the evidence in the "light most favorable to the government, drawing all reasonable inferences in the government's favor, and giving deference to the jury's right to determine credibility and weight." Rollerson v. United States, 127 A.3d 1220, 1232 (D.C. 2015) (quoting Blakeney v. United States, 653 A.2d 365, 369 n.3 (D.C. 1995)). "An appellant making a claim of evidentiary insufficiency bears the heavy burden of showing that the prosecution offered no evidence upon which a reasonable mind could find guilt beyond a reasonable doubt." Schools v. United States, 84 A.3d 503, 508 (D.C. 2013) (internal quotation marks omitted) (quoting Olafisoye v. United States, 857 A.2d 1078, 1086 (D.C. 2004)).

         To sustain a conviction for UPF, the evidence "must show that 1) the defendant had been convicted of a felony and 2) that he owned or kept a firearm, or that he had a firearm in his possession or under his control." Hammond v. United States, 77 A.3d 964, 969 (D.C. 2013) (internal quotation marks omitted). To support a conviction for UF, the evidence "must show 1) that the defendant knowingly possessed a firearm; and 2) that firearm had not been registered as required by law." Id. (internal quotation marks omitted). In general, to support a conviction for UA, the evidence must show that that the defendant possessed ammunition without having the necessary registration for a firearm. D.C. Code § 7-2506.0l (a)(3) (2012 Repl.). A weapon can be actually or constructively possessed. See Gorbey v. United States, 54 A.3d 668, 700 (D.C. 2012). "Constructive possession of a weapon requires proof that a defendant (1) knew of the weapon's location; (2) had the ability to exercise dominion and control over it; and (3) intended to exercise such dominion and control." Id. (internal quotation marks omitted). "The government may establish these elements by either direct or circumstantial evidence." Id. (internal quotation marks omitted). Evidence showing defendant's "connection with a gun" or "evasive conduct . . . coupled with proximity may suffice" to establish constructive possession. United States v. Alexander, 331 F.3d 116, 127 (D.C. Cir. 2003) (internal quotation marks omitted).

         In this case, a number of factors support an inference that appellant constructively possessed the gun. First, although there was no evidence that appellant resided in the apartment, [6] the government's evidence was that, of those present in the apartment at the time police officers entered, appellant was the only one seen exiting and in close proximity to the kitchen where the gun was found. Second, Officer Ranck testified that appellant immediately left the balcony when he saw the police officers approaching. The jury could infer that this was evasive conduct by appellant consistent with a consciousness that he needed to ensure that any contraband was off his person or hidden. See Alexander, 331 F.3d at 127 ("[E]vasive conduct . . . coupled with proximity [to an item] may suffice" to prove constructive possession of the item.). Third, the sketch of the apartment's layout that was entered into evidence as Government Exhibit 14 showed that (as the prosecutor told the jury in his opening statement) there was "only one way in and one way out" of the kitchen, meaning that appellant did not simply pass through the kitchen on his way to another area of the apartment. From this, the jury could infer that appellant purposefully went into the kitchen after seeing the police officers approaching the apartment building. Most important, at every location in the partial DNA profile derived from a swab of the gun, there was a match with appellant's DNA profile - a "connection" between appellant and the gun. Id. (explaining that evidence showing defendant's "connection with a gun . . . coupled with proximity may suffice" to prove constructive possession). Borchardt-Gardner's testimony suggested that there was a low probability that appellant's DNA got on the gun by secondary transfer; there was, per her statistical analysis, a miniscule probability that any person unrelated to appellant would have the same DNA partial profile as the one from the gun; her analysis indicated that there was a single contributor to the DNA found on the gun (i.e., there was no other DNA on the gun to suggest that anyone else had handled it) and that the single contributor was male; there was no evidence that the only other male found in the apartment was related to appellant, and thus no evidence that his profile would be similar to appellant's; and in any event, the other male's profile would not have been identical to appellant's, because he was a juvenile and thus could not have been appellant's identical twin.

         Citing Borchardt-Gardner's testimony that DNA that has been deposited on an item may "break down to the point where we may be unable to detect it" and that the expert's analysis could not indicate when appellant's DNA was deposited on the gun, appellant emphasizes that the absence of any other contributor's DNA on the gun does not mean that no one else possessed the gun or came in contact with it more recently than appellant. Appellant also emphasizes Officer Dega's testimony that he placed the gun on a kitchen counter to photograph it and argues that the possibility that there was a secondary transfer to the gun of appellant's DNA present on the counter necessitates reasonable doubt about whether appellant ever had contact with the gun.[7] But to prove beyond a reasonable doubt that appellant possessed the gun on the day of the search, the government was not required to "negate 'every possible inference of innocence, '" and it was not necessary that the evidence "'compel a finding of guilt.'" Rollerson, 127 A.3d at 1232 (quoting Timberlake v. United States, 758 A.2d 978, 980 (D.C. 2000)). We are satisfied that the evidence as a whole, viewed in the light most favorable to the government, permitted the jury to infer beyond a reasonable doubt that appellant knew of the gun's location and had the ability and intent to exercise dominion and control over the gun before the officers burst into the apartment.


         Appellant's next claim is that the government's "cryptic" disclosure, on the day before jury selection began, of the name and number of a case in which an important government witness was involved, and the court's subsequent refusal to grant a continuance to allow the defense to investigate the matter further, amounted to a violation of appellant's constitutional due process rights under Brady v. Maryland, 373 U.S. 83 (1963). The background is as follows.


         In the morning of January 21, 2015, the prosecutor handed appellant's counsel a handwritten note reading, "Officer Campanale Wesby v. DC - Case No. 12-7127[, ] Sept. 2, 2014." The prosecutor told the court that the case number and date corresponded to "a summary judgment" opinion, but the case number and date actually corresponded to Wesby v. District of Columbia (Wesby II), 765 F.3d 13 (D.C. Cir. 2014), cert. granted, 2017 U.S. LEXIS 788 (U.S. Jan. 19, 2017) (No. 15-1485), a decision of the United States Court of Appeals for the District of Columbia. The D.C. Circuit decision affirmed a summary judgment ruling by the United States District Court for the District of Columbia and a subsequent jury-trial verdict in a § 1983/false arrest case. The District Court had found Detective Campanalle, one of the MPD officers named as defendants in the case, liable as a matter of law for the unlawful arrest of twenty-one individuals for unlawful entry. See Wesby v. District of Columbia (Wesby I), 841 F.Supp.2d 20, 49 (D.D.C. 2012). The court reasoned that then-Officer Campanalle was not entitled to qualified immunity from suit because he had arrested individuals for unlawful entry even though (as he acknowledged in his deposition in the case) he had information that they had been invited to the premises. Id. at 28-29, 37-38. The court concluded that Campanalle's belief that he had probable cause for the arrests was "neither bona fide nor reasonable." Id. at 46. Nor, the court found, was there probable cause for the individuals' arrests for disorderly conduct. Id. at 33. When the matter went to trial, the jury assessed damages against Campanalle and another one of the arresting officers. See Wesby II, 765 F.3d at 17.

         During the pre-trial proceeding on January 21 in this case, which commenced after the prosecutor's disclosure, defense counsel told the court that he had only "skim[med]" the (fifty-page) summary judgment ruling, which he had found within forty-five minutes after the prosecutor gave him the case number and date of the D.C. Circuit opinion. Defense counsel was able, however, to give the court the case number of the District Court case and to summarize the summary judgment ruling for the court. Defense counsel's summary was as follows:

It was unlawful arrest. Apparently there was a party and they made some arrests of the individuals at that party and later took them back to the police station where they changed the charge altogether, but it was an arrest for an unlawful entry and the people had permission to be there and more specifically the officer in question, plus two additional officers were specifically found on a motion for summary judgment, so it was a determination by the judge, not by a jury, that the arrest was in fact unlawful and that they were denied their constitutional rights.
[T]he court did find that [Officer Campanalle] knew the circumstances before he made the arrest. He knew that the people who were inside the house had permission from another person who told them that they could be there, but then he still made the arrest anyway and he made that finding and found that he knew those facts before he made that arrest.

         The court agreed to read the summary judgment ruling, and the prosecutor stated that he would call Officer Campanalle to testify the next day at the earliest.

         The court and the parties then moved to a discussion of the voir dire process, and, after a recess, defense counsel made an oral motion to dismiss the case in light of the timing of the government's disclosure of information about the Wesby case and other matters (e.g., Officer Ranck's grand jury testimony, "a different copy of the PD 81" form, and new information that contradicted the PD 163 form), materials that counsel said were "an accumulation of stuff at the last minute." Recognizing that defense counsel was newly appointed and perhaps had not had an opportunity to review all the discovery the government had provided to previous counsel, the court instructed counsel to go through the discovery so that the court could take up the next day any matter that defense counsel thought would impact the defense case. The January 21 proceeding was adjourned for the day at 2:35 p.m.

         The next day, January 22, the trial court told the parties that it had read the District Court's ruling (which the trial court commented was "dense" and "certainly a big thing to sort of drop on somebody at the last minute") and invited defense counsel to address the matter. Defense counsel told the court that he "had a chance to look [the ruling] over" and that "it sort of changes my strategy and changes the way I have been viewing this case . . . ." Telling the court that "what's at issue here is Officer Campanal[l]e is one of the officers who said he saw Mr. Dorsey leaving the kitchen area" and that "those facts in the civil case . . . are getting at issues that I may want to raise or may want to explore even further regarding the pattern and practice of the D.C. Police Department, " counsel said that he wanted the opportunity to view what Officer Campanalle said in the depositions and interrogatories that the court quoted in Wesby.[8] The court responded that "the whole police department is not on trial" and that the defense did not "need all the underlying documents in connection with the civil case[, ]" noting that the defense "wouldn't be entitled to bring in all of th[at] information . . . ." The court told counsel that he could and "should be able" to cross-examine Detective Campanalle using the District Court's finding that Campanalle did not have a legal basis for arresting the Wesby plaintiffs. Remarking that the defense had obtained a copy of the Wesby ruling the previous day and "should be prepared to go forward, " the court said that it could have the government not call Detective Campanalle during the first day of testimony.[9] Defense counsel then told the court that he was "ready to go forward." The court denied the request for a continuance, noting that one of the reasons ...

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