Dorsey v. State, No. S05A0897.

• Decision Date: 30 June 2005
• Docket Number: No. S05A0897.
• Citation: 615 S.E.2d 512
• Parties: DORSEY v. The STATE.
• Court: Georgia Supreme Court

615 S.E.2d 512

DORSEY v. The STATE.

No. S05A0897.

Supreme Court of Georgia.

June 30, 2005.

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Brian Steel, The Steel Law Firm, P.C., Donald F. Samuel, Garland, Samuel & Loeb, P.C. Atlanta, for Appellant.

John E. Floyd, Bondurant, Mixson & Elmore, LLP, Atlanta, Gwendolyn Rebecca Keyes, D.A., Thurbert E. Baker, A.G., Department of Law, Barbara Blaine Conroy, Deputy A.D.A. Paula Khristian Smith, A.A.G, Department of Law, for Appellee.

THOMPSON, Justice.

Sidney Dorsey, a former Sheriff of DeKalb County, Georgia, was convicted of malice murder, two counts of violating the Georgia Racketeering Influenced and Corrupt Organizations Act ("RICO"), violation of oath by a public officer, and theft by taking in violation of duties as a public officer (eight counts), in connection with the shooting death of his newly elected successor in office, Derwin Brown.¹ On appeal, Dorsey primarily challenges his murder conviction on the basis that the State's theory of the case was materially misleading and erroneous, and he asserts that the RICO convictions should be set aside for a variety of reasons. Finding no error, we affirm.

Viewed in a light most favorable to the verdict, the evidence established that from 1996 to 2000, Sidney Dorsey served as Sheriff of DeKalb County. In 2000 Dorsey ran for re-election, but was forced into a run-off, and was subsequently defeated by opponent Derwin Brown. During the campaign, Brown had begun an investigation to uncover corruption that Dorsey had allegedly engaged in during his tenure as sheriff.

In August 2000, after Dorsey was defeated in the election, he met with Shirley McMichael, a bondsperson with whom Dorsey was involved in an extra-marital affair. Dorsey told McMichael that Brown would never assume office as sheriff, that a special election would be held in January, and that Dorsey would be re-elected sheriff. Dorsey placed his hand in the shape of a gun up to his temple to signal Brown's shooting. Shortly after Dorsey lost the run-off election, he likewise told DeKalb County Chief Deputy Clarence Mosely that Brown "would never assume the office," that an interim sheriff would be appointed, and that there would be a special election that Dorsey would ultimately win.

Thereafter, Dorsey summoned Patrick Cuffy to his home. Cuffy was a former employee of Dorsey's private security firm, Security Investigations Division ("SID"), and he had been hired by Dorsey to work in the internal affairs division of the DeKalb County Sheriff's Department. At that meeting, Dorsey handed Cuffy a written note which read, "Kill Derwin Brown."² When Cuffy declined to do the deed alone, Dorsey proposed that he solicit the help of three other former SID employees, Melvin Walker, David Ramsey, and Paul Skyers, to carry out the plot. Cuffy met with the other three and told them that Dorsey had requested their participation. They all agreed, and in consideration they received Dorsey's promise that if he were to regain his position as sheriff, each would be given the position they desired in the sheriff's department. Dorsey promised Cuffy that he would "speedily promote [him] through the ranks" and place him in charge of the community relations division. Cuffy was the go-between who would meet with Dorsey and relay instructions back to the others.

The four men conducted surveillance in preparation for the murder. Skyers provided the murder weapon: a Tech 9 millimeter semi-automatic handgun which was modified with a homemade silencer. It was decided that Walker would be the shooter. Over the course of three months they met regularly at night near Brown's home with the intention of killing Brown at any time that he was vulnerable.

Dorsey helped protect the murder team from detection. On one occasion, Cuffy parked his sheriff's vehicle at an elementary school near Brown's home and left the vehicle unattended. Around midnight, DeKalb law enforcement officers observed the vehicle and became suspicious because they had seen the same car parked there the previous night. At that point, another vehicle containing several occupants drove up to the school and Cuffy got out. The officers approached Cuffy and asked him for identification. Cuffy replied that he was working on a special assignment for the DeKalb County Sheriff. When Cuffy could not produce identification, he placed a call to Dorsey on his cell phone and handed the phone to the officer. Dorsey informed the officer that Cuffy was working on undercover surveillance for the sheriff's office. As a result of the information provided by Dorsey, the officers released Cuffy.

On December 15, 2000, a few months after Brown won the election and shortly before taking office, Dorsey instructed Cuffy that the shooting "had to be done that evening." The four men met at Cuffy's home, and then drove together to a wooded area near Brown's home, which they had staked out during their surveillance. Skyers remained with the car while the others positioned themselves in wait for Brown to return home. As Brown exited his car and was walking along the driveway of his DeKalb County home, he was shot 12 times and killed. The four perpetrators drove to Cuffy's home where they dismantled the murder weapon; Skyers subsequently tossed it in a drain in Gwinnett County. Within weeks of the murder, Skyers met with Dorsey who asked if the police "were still harassing" him. Skyers told Dorsey that he was in need of money, and Dorsey handed him $1,000 in cash.

After Brown's death, the investigation into Dorsey's misconduct as sheriff intensified. When Cuffy was later arrested on an unrelated charge, he cooperated with the authorities and named Dorsey as the mastermind behind Brown's killing. Skyers also assisted in the police investigation and led officers to the murder weapon.³ Dorsey was charged in a 53-page indictment with murder, and other crimes stemming from his corruption in office.

The trial evidence revealed an ongoing pattern of theft of services of county personnel, and the unauthorized use of county vehicles and gasoline for personal profit and convenience throughout the entire course of Dorsey's term as sheriff. Dorsey regularly instructed DeKalb County deputy sheriffs to chauffeur him and his family members to various locations for personal benefit, unrelated to the county's business. These included the daily assignment of picking up Dorsey's children from school, an "everyday activity" which occurred during Dorsey's "entire term" as sheriff. These personal activities generally took place during the employee's normal work hours, and the employee received his regular salary from the county. If the employee was working outside normal work hours, he generally received overtime compensation or was compensated by paid time off. Dorsey repeatedly directed sheriff's employees to repair and maintain his personal family vehicles. In addition, sheriff's employees were required to drive to Chattanooga, Tennessee, and Statesboro, Georgia, on several occasions to assist Dorsey's children with automobile repairs. Dorsey directed a deputy sheriff to accompany him and his family on a four-day trip to Disneyworld. The deputy was paid his regular salary by the county during that time. Dorsey regularly used the services of an in-house lawyer employed by the sheriff's office to provide personal legal services for himself, his family, and his friends. These services were performed during the employee's regular work day, and the employee received his regular county salary as compensation. Dorsey regularly used on-duty deputies to staff his private security firm. Likewise, these employees received their county salary for performing personal chores for Dorsey.

A jury found Dorsey guilty of malice murder, violations of the Georgia RICO Act (two counts), violation of oath by public officer, and theft by taking in violation of duties as a public officer (eight counts).

The Murder Count

1. Dorsey asserts the murder conviction cannot stand because the State misled the jury when it theorized that Dorsey killed Brown to prevent Brown from investigating and uncovering Dorsey's corruption. In this regard, Dorsey posits that he could not have engaged in any corrupt activities because he had sole discretion to allocate the funds and resources of the sheriff's office. Assuming without deciding that this assertion was properly raised below, see Jones v. State, 268 Ga. 12, 15(5), 483 S.E.2d 871 (1997), we find the argument to be wholly without merit. It was incumbent upon Dorsey to protect county property from injury and waste; he was not empowered to use the sheriff's department as if it were his own personal domain. OCGA § 36-9-8 (duty of sheriff to preserve county property from injury or waste); OCGA §§ 15-16-10(a)(8) (sheriff must perform duties imposed by law); 15-16-19(b) (sheriff shall receive no compensation except annual salary fixed by law); Johnson v. U.S. Fidelity, etc., 93 Ga.App. 336, 340, 91 S.E.2d 779 (1956) (duties of deputies defined by statute — beyond that, sheriff has no authority over them). See generally Board of Commrs. of Dougherty County v. Saba, 278 Ga. 176(1), 598 S.E.2d 437 (2004) (decision of constitutional officer as to how to spend funds allocated to office falls to the officer in the exercise of his duties). Thus, evidence of corruption in the sheriff's office was relevant and admissible, and the prosecution was well within bounds when it theorized that that evidence was the motive for Brown's murder. See Wall v. State, 153 Ga. 309(1), 112 S.E. 142 (1922) (evidence of motive is always relevant and admissible); Sterling v. State, 89 Ga. 807, 15 S.E. 743 (1892) (prosecutor may advance any theory as to motive which is not absolutely inconsistent with the facts). We also note that the allegations of motive were not limited to theft. The indictment alleged that Dorsey solicited Brown's murder "in an effort both to prevent...