Dorman v. State, 4444

CourtSupreme Court of Alaska (US)
Citation622 P.2d 448
Docket NumberNo. 4444,4444
PartiesJohn G. DORMAN, Appellant, v. STATE of Alaska, Appellee.
Decision Date23 January 1981

A. Lee Peterson, Anchorage, for appellant.

Leonard M. Linton, Asst. Dist. Atty., Larry R. Weeks, Dist. Atty., Anchorage, and Avrum M. Gross, Atty. Gen., Juneau, for appellee.



RABINOWITZ, Chief Justice.

John G. Dorman appeals his conviction of the second degree murder of Arthur E. Sutherland. Dorman advances several specifications of error concerning his motions for acquittal and for a new trial, improper argument to the jury by the prosecutor, introduction of evidence of prior crimes, and certain jury instructions. On the basis of the improper argument point, we reverse the conviction and remand for a new trial.

The investigation of this case began on May 14, 1977, with the discovery of a body, later identified as that of Sutherland, in water off the edge of Old Seward Highway. The body was wrapped in visqueen which was wired shut at one end, and it was clad only in blue jeans and a greenish blue wool shirt. No shoes or underwear were found at the scene, but jewelry and Sutherland's driver's license were on the body. Samples of hair were taken from the body and from the visqueen.

The body was in an advanced stage of decomposition, but an autopsy determined the cause of death to be a gunshot wound in the neck. Entrance and exit wounds from a bullet were also found in the victim's arm, but only a fragment of a bullet was found in the body. The pathologist expressed the opinion that the neck and arm wounds were caused by two separate shots. Gravel-like material was imbedded in the body's back. The pathologist could not determine the time of death, but his testimony established that the state of the body indicated that it had warmed and thawed after lying in a snow bank for at least one month, and possibly several months.

Police were led to suspect that John Dorman was connected with the death by a confidential informant. Dorman was also implicated by Mary Masidonski, who testified that she had been living with Sutherland prior to his disappearance on October 20, 1976.

A careful investigation of the house in which Dorman and his girlfriend, Terry Thomas, were living at the time of Sutherland's disappearance revealed several items of physical evidence which tended to incriminate Dorman in the alleged murder. The police lab technician found small amounts of what she concluded was dried blood on the floor of the basement. Fingerprints of Dorman's, encrusted with what was apparently the same substance, were found on a pair of shears belonging to him and on a door to the tool room in the basement. Wire of the same type as that with which the visqueen holding the body had been closed was found attached to the ceiling of the basement of Dorman's house. Some of the ceiling wire had been cut away, and the total length of the wires used to tie the visqueen was slightly less than the length of the wire missing from the ceiling. The wires found with the body and those from the basement ceiling had been cut with a shear-type wire cutter with serrated jaws having teeth spaced .18 to .2 inches apart. The stained, fingerprinted shears identified as Dorman's were of this type. Carpet-like fibers were found on the victim's clothing which had microscopic characteristics identical to those of fibers found on the floor of the basement. A carpet of similar color, which was on the stairs to the basement when Dorman moved in, was missing after he moved out. Animal hairs were found on the victim's clothing and the visqueen, and animal hairs of similar characteristics were found in the basement. Both sets of animal hairs were similar to samples taken from a dog belonging to Dorman's girlfriend, which was being kept in the house at the time of the victim's disappearance. Additionally, two hairs matching the head hair of the victim were found in the basement. Testimony at trial indicated that there had been a roll of visqueen in the garage of the house and that clothing and perishable food were left in the house by Dorman after his departure.

Dorman admitted that the victim came to the house on the date of his disappearance, 1 and at trial no one testified to seeing the victim after this visit. Dorman also admitted that he moved with his girlfriend to Valdez on the date the victim disappeared, although Dorman's and other testimony indicated that this move had been planned in order for Dorman to begin a job in an illegal gambling establishment in Valdez. Dorman testified that he had left some possessions in the house with the intention of returning to get them if the job in Valdez worked out. Dorman stated that he and the victim were friends and that he had no idea how Sutherland had been killed.

Other evidence which tended to negate Dorman's involvement in the murder was presented. One friend of Dorman's testified to visiting Dorman at his house on the suspected day of the murder and noticing nothing out of the ordinary. 2 The main part of the bullet which wounded the victim's arm has never been located, despite a thorough search of Dorman's house. It was argued that the gravel-like material imbedded in the back of the body made it unlikely that the murder had been committed indoors and the body immediately wrapped in visqueen. It was also argued that the fact that the body had bare feet and wore no underwear indicated the possibility of a murder closer to Sutherland's residence prior to his having dressed to go out. Mary Masidonski's recollection of what Sutherland had been wearing when he left his house was inconsistent with the clothing found on the body. Mary Masidonski and an acquaintance of the victim who was allegedly involved in the cocaine business left the state together within two weeks of Sutherland's disappearance, after giving his personal belongings away. Another of Sutherland's acquaintances left his residence next door to Sutherland's residence one or two days after the disappearance, according to Masidonski. Dorman testified that he had given a key to his house to Sutherland, and tracks in the snow at the back of the house and near the garage were observed by the rental manager of the house after Dorman had left for Valdez. The first snow of that year did not fall until after Dorman left. Dorman did not object to the landlord's agent entering the house, cleaning it, and boxing up personal possessions as a result of Dorman's eventual failure to pay rent after leaving for Valdez.

Dorman was arrested on November 29, 1977. Without objection by defense counsel, the arresting officer testified at trial that from the time of the arrest to the time Dorman was given a Miranda warning, a period of about eight minutes, Dorman asked no questions. Defense counsel later objected unsuccessfully to testimony regarding Dorman's reactions to subsequent accusations by the police officers, but the court stated to the prosecutor that it would allow no comment on Dorman's silence in that context. During closing argument, the prosecutor referred to Dorman's silence immediately following the arrest.

Mary Masidonski testified, over defense counsel's objection, about Sutherland's business as a cocaine dealer. Without further objection, she told of Dorman's purchase of cocaine from Sutherland. On cross-examination Masidonski admitted to heavy use of cocaine herself during the time she lived with Sutherland. Dorman later admitted to buying cocaine for his personal use from Sutherland, but maintained that he had not been involved in the drug business. On the basis of this evidence and a photograph of Dorman preparing cocaine for use, the prosecuting attorney suggested during closing argument that the drug business was a motive for Dorman to kill Sutherland.

At appropriate times during and after the trial, the defense moved for judgment of acquittal and, in the alternative, for a new trial. The grounds asserted included insufficiency of evidence to support the verdict, improper comments by the prosecutor to the jury, newly discovered evidence, and inadequacy of the state's investigation. The new evidence claimed by the defense was an affidavit from William A. Vaughan, an acquaintance of both Dorman and Sutherland, stating his knowledge of a planned confrontation on the day of the disappearance between Sutherland and a cocaine dealer who had swindled him. The defense also claimed that the state had failed to follow up leads on other suspects that were implicated by Mary Masidonski's testimony. These motions were all denied by the superior court.

I. Denial of Motion for Acquittal.

Dorman submits that the evidence against him was insufficient to sustain his conviction, and that the superior court therefore should have granted his motion for acquittal pursuant to Criminal Rule 29. 3 The standard to be applied in Alaska by a trial court in ruling on a motion for acquittal was repeated in Des Jardins v. State, 551 P.2d 181, 184 (Alaska 1976), quoting Gray v. State, 463 P.2d 897, 905 (Alaska 1970):

(T)he judge must take the view of the evidence and the inferences therefrom most favorable to the state. If the court determines that fair-minded men in the exercise of reasonable judgment could differ on the question of whether guilt has been established beyond a reasonable doubt, then the case must be submitted to the jury. (footnote omitted)

This test "applies in cases where the evidence is direct and in cases based on evidence which is wholly circumstantial." Des Jardins v. State, 551 P.2d 181, 184 (Alaska 1976). Upon review, this court "will consider only those facts in the record most favorable to the prosecution and such reasonable inferences as a jury may have drawn from them." Martin v. City of Fairbanks, 456 P.2d 462, 464 (Alaska 1969). The question on review is, then, "whether the finding of guilt is supported by substantial...

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