State v. Dorsey

• Decision Date: 21 October 2011
• Docket Number: No. 2010–KA–0216.,2010–KA–0216.
• Citation: 74 So.3d 603
• Parties: STATE of Louisiana v. Felton Dejuan DORSEY.
• Court: Louisiana Supreme Court

74 So.3d 603

STATE of Louisiana

v.Felton Dejuan DORSEY.

No. 2010–KA–0216.

Supreme Court of Louisiana.

Sept. 7, 2011.Rehearing Denied Oct. 21, 2011.

Capital Appeals Project, Sarah Lynn Ottinger, Cecelia Trenticosta, Blythe Taplin, G. Benjamin Cohen, for Appellant.

James D. Caldwell, Attorney General, Charles Rex Scott, District Attorney, Suzanne Lynn Morelock Owen, Jonathan Dhu Thompson, Brady Dennis O'Callaghan, Assistant District Attorneys, for Appellee.

Anna Arceneaux, Counsel for American Civil Liberties Union (Amicus Curiae).KIMBALL, C.J.

[2010-0216 (La. 1] On May 17, 2006, Felton Dejuan Dorsey and Randy Wilson were indicted by a Caddo Parish grand jury for the first degree murder of Joe Prock and attempted first degree murder of Bobbie Prock. The state subsequently dismissed the latter charge against both by amendment. On May 18, 2006, the state gave notice of its intention to seek the death penalty at Dorsey's (hereinafter “defendant”) trial, alleging five aggravating factors. On May 4, 2009, the state filed an amended notice of intent to seek the death penalty, reducing the alleged aggravating factors to the following three: (1) defendant was engaged in the perpetration or attempted perpetration of aggravated rape, aggravated kidnapping, aggravated burglary, aggravated arson, aggravated escape, armed robbery or simple robbery; (2) defendant knowingly created a risk of death or bodily harm to more than one person; and (3) defendant offered, has been offered, has given, or has received anything of value for the commission of the offense. In the week proceeding trial, Wilson entered a plea agreement with the state, agreeing to testify at defendant's trial in exchange for pleading guilty to murder, thereby avoiding a [2010-0216 (La. 2] capital murder trial, and receiving a sentence of life imprisonment without benefit of probation, parole, or suspension of sentence.

The district court appointed the Caddo Parish Public Defender's Office to represent Dorsey and attorney Alan Golden was assigned to the case. Jury voir dire began on May 11, 2009, and was completed on May 18, 2009. Defendant exercised all twelve of his peremptory challenges, while the state only exercised eleven. The defense asserted a Batson challenge, alleging the state used peremptory challenges to strike five of the seven black prospective jurors who remained after death qualification.¹ Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The district court initially ordered the state to provide race neutral reasons for striking the jurors and the state objected, arguing statistics alone could not provide prima facie evidence of purposeful discrimination. The state further asserted it consistently used peremptory challenges to eliminate all prospective jurors, regardless of race, who rated themselves a “four” or higher on the state's five-point scale, indicating a preference in favor of imposing a life sentence. After hearing the state's response, the district court found the defense had not made a prima facie case of racial discrimination and set aside its previous order. The racial composition of the jury was eleven whites and one black.

Trial began on May 19, 2009, and was completed on May 26, 2009. The jury deliberated for forty-five minutes before unanimously finding defendant guilty of first degree murder. At trial, the state presented thirty-eight witnesses and the defense chose not to present any witnesses. The penalty phase began on May 27, 2009, and concluded on May 28, 2009, during which the state presented eight witnesses, including two former coworkers of the victim, the victim's wife, mother, brother, and daughter, and two additional witnesses to establish [2010-0216 (La. 3] defendant's five prior felony convictions. The defense presented three witnesses during the penalty phase, including a mitigation investigator, a social worker who compiled defendant's social history, and an expert psychologist. At the conclusion of the penalty phase, the jury recommended defendant be sentenced to death.

After denying defendant's Motion for New Trial, the district court sentenced him on July 7, 2009, to die by lethal injection. Defendant's Motion for Appeal was granted and on July 28, 2009, the Capital Appeals Project was appointed to represent him. Defendant now appeals his conviction and death sentence, under La. Const. art. V, § 5(D). In his appeal, defendant asserts twenty-six assignments of error, the most significant of which will be addressed in this opinion. After a thorough review of the law and evidence, we find none of the assignments of error constitute reversible error and therefore, we affirm defendant's conviction and sentence.

FACTS

On April 1, 2006, seventy-nine-year-old Bobbie Prock (hereinafter “Ms. Prock”) was the victim of a home invasion. At trial, she testified that sometime after 12:00 p.m. on April 1, her dog alerted her to the presence of a white car and two black males standing in the driveway of her rural home in Greenwood, Louisiana, which is near Shreveport. The two men were dressed alike in dark pants, white t-shirts, and black jackets. They asked Ms. Prock whether the car in the driveway, which belonged to her son, Joe Prock, was for sale. Ms. Prock responded that it was not for sale, but because they were insistent, she wrote down her son's phone number for them. Ms. Prock testified that when she cracked open the screen door, the taller man pulled out a gun and pointed it at her. Ms. Prock screamed and attempted to fight, but both men grabbed her and pulled her back inside the house. Although she continued to struggle, Ms. Prock ceased when the taller man put the gun to her neck.

[2010-0216 (La. 4] Once inside, the men placed Ms. Prock in a chair, taped her wrists to the arm of the chair, and put a blanket over her head before ransacking her home. Because of the blanket, Ms. Prock could only see their lower legs and the bottom portions of some of her larger possessions as the two men carried property out of her home and loaded it into her Mercury Grand Marquis and defendant's Chevy Caprice. According to Ms. Prock, the men became hurried and she realized there was someone else with them, whose voice she recognized as that of her son, Joe. The men forced Joe onto the floor, but Ms. Prock could only see his torso and the two men kneeling beside him, demanding to know why Joe had returned. Ms. Prock heard Joe moan followed by several loud noises, which she thought were muffled gunshots, after which Joe was silent. She then saw flames as the two men set Joe on fire and asked each other “are you ready?” before they fled. Ms. Prock struggled and was able to free herself from the chair and flag down a passing motorist after realizing that her car was gone. ²

Firefighter and paramedic Russell Barnes and Dr. Anthony Stuart both testified that Ms. Prock had first and second degree burns on her knees, back, hands, and face. According to Dr. Marcus McFarland, Coroner of Caddo Parish, Joe died of multiple blunt force head trauma with thermal injuries, or burns. John Prock, Joe's older brother and volunteer fireman, described his efforts to combat the fire and his discovery of Joe's burning body. John Prock noticed the fire had multiple points of origin, which included Joe. His observation was confirmed by Deputy State Fire Marshall Jim Alexander, who testified as an expert that the fire was deliberately set. Paramedic Jason Johnson and fire captain Tim Thames both testified they removed Joe from inside the home and extinguished his burning corpse.

[2010-0216 (La. 5] Dr. Frank Peretti, an expert in forensic pathology, performed Joe's autopsy at the Arkansas State Crime Lab, which performs autopsies for northern Louisiana parishes. Dr. Peretti testified Joe's wrists were bound with electrical cord and his upper body had thermal injuries. Joe had soot in his nose, mouth and larynx, but it did not extend into his lungs. There were also at least nine separate impact sites on Joe's head. Dr. Peretti testified some of the impact sites had prominent patterns to them, indicating a specific object was used to inflict them. Although many of the wounds were altered as a result of the fire, Dr. Peretti identified an inverted “U-shaped” injury on Joe's head, which indicated it was inflicted by the butt of a gun. Dr. Peretti testified the handle of the gun found at the home of Tyise Walker, defendant's girlfriend at the time of the invasion, has a “U-shape,” consistent with Joe's injury. Joe also suffered several skull fractures that drove bone into the brain, indicating great force was used. According to Dr. Peretti, these wounds are consistent with having been inflicted by a firearm. Dr. Peretti further testified the head wounds were fatal and Joe could have survived for only a few minutes.

A week after the attack, detectives presented Ms. Prock with a photographic lineup. Ms. Prock was drawn to defendant's eyes, but she was unable to make a positive identification. During cross-examination, Ms. Prock conceded she had consistently maintained that the taller of the two attackers drew the gun, ³ but on redirect she emphasized the two men acted in concert. Detective Scoggins confirmed Ms. Prock had reported that the taller of the two men held the gun to her neck and did most of the talking, but Scoggins noted it was common for eye witnesses to be mistaken about height.

At trial, several witnesses described the course of the investigation and how defendant and Wilson were identified as the perpetrators. Deputy Martha Bryant testified the 911 call was received on April 1, 2006, at 3:38 p.m. Lieutenant [2010-0216 (La. 6] William Rehack of the Caddo Parish Sheriff's Office was dispatched to secure the crime scene and begin the investigation. Scott Calvert of the Shreveport Fire Department advised deputies on the scene that he had passed by Ms. Prock's home around 3:00 p.m. that day and saw Ms....