Dorsey v. State
| Decision Date | 25 May 2001 |
| Parties | Ethan Eugene DORSEY v. STATE. |
| Court | Alabama Court of Criminal Appeals |
John Gordon Brock, Evergreen; and Robert Christopher King and Jack B. Weaver, Monroeville, for appellant.
William H. Pryor, Jr., atty. gen., and Jeremy W. Armstrong and Beth Jackson Hughes, asst. attys. gen., for appellee.
The appellant, Ethan Eugene Dorsey, was indicted for three counts of capital murder for murdering Richard Cary, Scott Williams, and Timothy Bryan Crane during the course of a robbery; for murdering two or more people pursuant to one scheme or course of conduct; and for murdering an individual who was less than 14 years of age, violations of § 13A-5-40(a)(2), § 13A-5-40(a)(10), and § 13A-5-50(a)(15), Ala.Code 1975. The jury convicted Dorsey of the lesser offenses of felony murder as to Cary and Williams and the lesser offense of robbery. He was convicted of the capital offense of murdering Crane, a 13-year-old. The jury, by a vote of 11 to 1, recommended that Dorsey be sentenced to life imprisonment in the penitentiary without the possibility of parole. The trial court chose not to follow the jury's recommendation and sentenced Dorsey to death by electrocution. See § 13A-5-47, Ala.Code 1975. The trial court sentenced Dorsey to three consecutive terms of life imprisonment for the two counts of felony murder and the robbery count.
The State's evidence tended to show the following: On November 20, 1996, Brad Cary discovered the bodies of his father Richard Cary, Scott Williams, and Timothy Crane at Cary's Grocery store in Brooklyn, Alabama. All three had been shot. An autopsy revealed that Cary died of a shotgun wound to the left side of his chest; Williams died of a .25 caliber gunshot wound to his head; and Crane died of a .22 or .25 caliber gunshot wound to his head. Approximately $300 and a .357 revolver were missing from the store.
Dorsey's codefendant, Calvin Middleton, testified concerning the events of November 20, 1996. He said that he and Dorsey had planned to rob a grocery store in Brooklyn. Dorsey got two guns, sweaters, and gloves from his house. The two parked a rented Dodge Acclaim automobile near an abandoned house east of the store, put on hoods and gloves, and walked to the store. Dorsey was armed with a revolver and Middleton was carrying a shotgun. The two entered the store with their guns drawn. Cary was behind the counter, Williams was at the end of the counter close to the back, and Crane was leaning on the counter near the front door. Middleton thought that Cary was looking for a gun so he told Cary to walk outside. He then told Cary to get on the ground. Cary tried to grab the gun and Middleton shot him in the chest. Middleton testified that he then ran to the car because he got scared. As he was running, he said, he heard two more shots. Dorsey joined him at the car. Middleton stated that Dorsey told him that he had shot the man and boy because the boy started to run. The two then drove to Yolanda Nelson's house in Boykin. Dorsey and Middleton eventually ended up at a nightclub in Opp, where they saw Rodney Brooks.
Brooks corroborated Middleton's testimony. He said that on November 20, 1996, he was riding around with Dorsey and Middleton when Dorsey said that he and Middleton were going to "hit a store" in Brooklyn. He testified that they stopped at Dorsey's house, Dorsey went into the house, and came out carrying a small caliber revolver and a duffel bag. He said that Dorsey asked him if he wanted to accompany them to "hit" the store in Brooklyn. Brooks declined and asked that he be dropped off at 8th Avenue in Andalusia. Brooks also testified that he saw the two at a nightclub in Opp later that same night. He said that Middleton told him that he and Dorsey had "pulled some 187s" when they had hit the store in Brooklyn. He said that this was a slang expression, meaning that they had killed some people.
Brad Cary testified that on November 20, 1996, he was with his mother in their home directly across from Cary's store when he heard several gunshots. He thought that his father, Richard Cary, was shooting at animals. Several moments later he went to the store and saw his father's body. Brad Cary testified that he thought that his father, an avid practical joker, was playing a joke on him so he went back to the house, retrieved a gun, and fired a shot into the air. Brad testified that he then realized that his father and the others had been shot and went for help.
While confined in the Escambia County jail, Dorsey told a fellow inmate, Windell Jordan, that Middleton and he had been involved in a robbery that had "gone bad," and that he had shot a boy and that Middleton had shot one of the men with a shotgun.
A search of the area near the store revealed a twenty-dollar bill and a five-dollar bill in the grass near the pavement off County Road6 — an area consistent with where Middleton said he and Dorsey had parked the car. Two days after the murders a .357 revolver was found about 150 yards from the scene of the robbery-murders in the grass near County Road 6.
Dorsey's defense was that he did not commit the robbery-murders. He attempted to place the blame on Brad Cary.
As with every case involving the death penalty, this Court must review the record for any plain error, i.e., for any defect in the proceedings whether or not it was brought to the attention of the trial court. Rule 45A, Ala.R.App.P., defines this Court's responsibility when reviewing a death-penalty case. This section states:
"In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant."
As this Court stated in Hall v. State, 820 So.2d 113, 121-22 (Ala.Crim.App.1999):
While the failure to object will not preclude this Court from reviewing an issue in this case, it will weigh against any claim of prejudice Dorsey makes on appeal. Dill v. State, 600 So.2d 343 (Ala.Crim.App.1991), aff'd, 600 So.2d 372 (Ala.1992), cert. denied, 507 U.S. 924, 113 S.Ct. 1293, 122 L.Ed.2d 684 (1993).
Dorsey argues that the trial court erred in denying several of his discovery motions.
There is no constitutional right to discovery in a criminal case. Rule 16, Ala.R.Crim.P., provides a defendant a limited right to discovery. In Ex parte Monk, 557 So.2d 832 (Ala.), on remand, 557 So.2d 832 (Ala.1989), the Alabama Supreme Court upheld a trial court's discovery order that directed the State to maintain an "open file" policy because the accused was charged with a capital offense. Since Monk was released this Court has recognized that a defendant charged with a capital offense has the need for "broadened" discovery. See Wilson v. State, 777 So.2d 856 (Ala.Crim.App.1999), aff'd, 777 So.2d 935 (Ala.2000), cert. denied, 531 U.S. 1097, 121 S.Ct. 826, 148 L.Ed.2d 709 (2001); Sneed v. State, 783 So.2d 841 (Ala.Crim.App.1999); Hardy v. State, 804 So.2d 247 (Ala.Crim.App.1999); Pace v. State, 714 So.2d 320 (Ala.Crim.App.1996).
When reviewing a claim that a trial court erred in denying a discovery motion, we must determine whether the trial court abused its discretion. See Minor v. State, 780 So.2d 707 (Ala.Crim.App.1999).
Dorsey argues that the trial court erred in denying his motion to depose the State's expert witnesses.
As this Court stated in Wilson v. State, supra:
Here, Dorsey filed a pretrial motion seeking to depose the State's expert witnesses and to depose individuals who were incarcerated. At a pretrial hearing the State informed the court that Dorsey had already had access to the witnesses and had been furnished with the information pertinent to their testimony and that Dorsey also had been given the opportunity to take the witnesses' statements. The trial court denied the motion, stating that Dorsey failed to show any "compelling or...
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