Dorsey v. State

• Decision Date: 24 March 2015
• Docket Number: No. A14A1893.,A14A1893.
• Citation: 331 Ga.App. 486,771 S.E.2d 167
• Parties: DORSEY v. The STATE.
• Court: Georgia Court of Appeals

331 Ga.App. 486

771 S.E.2d 167

DORSEY

v.The STATE.

No. A14A1893.

Court of Appeals of Georgia.

March 24, 2015.

Sheueli Cindy Wang, for Appellant.

Joshua Daniel Morrison, Paul L. Howard Jr., Lori Lee Canfield, for Appellee.

Opinion

McFADDEN, Judge.

Markell Dorsey and four co-defendants were tried jointly before a jury for murder and other offenses related to the shooting death of Ron Strozier. After the trial, Dorsey was convicted of voluntary manslaughter, conspiracy to commit aggravated assault, conspiracy to commit criminal damage to property, possession of a firearm by a convicted felon, and possession of a firearm during the commission of a felony and theft by receiving stolen property. Dorsey appeals, challenging the sufficiency of the evidence, the sentencing on both conspiracy counts, the denial of a motion to sever, the denial of a mistrial after impermissible character testimony, and the effectiveness of his trial counsel. However, there was sufficient evidence to support the verdict; any error in sentencing on the conspiracy counts was harmless; there was no abuse of discretion in the denial of a severance; the trial court properly struck the improper character testimony and gave a curative jury instruction, rather than granting a mistrial; and there has been no showing that trial counsel's performance was both deficient and prejudicial. Accordingly, we affirm.

1. Sufficiency of the evidence.

Dorsey argues that there was insufficient evidence to support his voluntary manslaughter conviction because the state did not prove that any of the co-defendants shot Strozier. However, in a separate appeal, the Georgia Supreme Court found sufficient evidence to affirm the convictions of co-defendant Michael Grissom, noting that “[t]he relevant events arose out of a feud between Grissom's friend and co-defendant Markell Dorsey, and Dorsey's associates, on the one side, and an individual known only as ‘D–Bone,’ and D–Bone's associates, on the other.” Grissom v. State, 296 Ga. 406, 768 S.E.2d 494 (2015). Pursuant to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the Court determined that the evidence, viewed in the light most favorable to the verdicts, showed the following facts.

[T]he feud commenced with a physical altercation on July 31, 2005, between Dorsey and D–Bone[, identified at trial by the name Darian Jackson,] over comments D–Bone made about a man referred to as “Tay–Tay.” Evidence was presented that Tay–Tay's real name was Dontavious Pettway. In the initial altercation, Dorsey was roundly beaten and, in order to exact revenge, Dorsey and co-defendant Rico Sims traveled from the Chastain West apartment complex where they were staying to an apartment complex located next door, known as Buckingham Court, where D– Bone lived. Dorsey challenged D–Bone and his associates to another fight. Sims was wearing a bullet-proof vest and wielding an assault rifle. During this exchange, D–Bone and others, including Ron Strozier, disarmed Sims and took his weapon and vest. Later that day, D–Bone was overheard talking on the phone to someone who told D–Bone “y'all better tool up.”

The following day, August 1, Grissom, Dorsey, and Sims were at the Chastain West home of a friend where Grissom told William Edwards he planned on shooting up D–Bone's car. A wooded vacant parcel of land separated the Chastain West complex from the Buckingham Court complex, and testimony established that trails ran through the woods and that the woods were known to be a place where drugs were sold and used. Later that evening, Grissom was seen leaving the woods moments after a loud shot rang out that sounded like a shotgun blast. In statements to police, Grissom and several of his co-defendants[, including Dorsey,] admitted they were in the woods around the time of the shotgun blast, but denied they were involved. Strozier's body was located in the woods the morning of August 2. An autopsy determined he had died from wounds

to his neck and torso caused by buckshot from a shotgun blast, and the testimony established that the window of time for Strozier's death encompassed the time at which the shot was heard. A shotgun was recovered during the investigation of these events, and Grissom admitted to police that he had been in possession of the shotgun and stated he obtained it from his cousin Dontavious Pettway, but Grissom denied he had used it. Edwards, who had known Grissom for several years at the time of the shooting and was familiar with his voice, overheard Grissom on the phone with Sims the day after Strozier was shot to death, telling Sims he had “shot someone in the head.”

About an hour after the shotgun blast was heard, Grissom, armed with a .357 magnum handgun, traveled to Buckingham Court with Dorsey, Sims, and others in two separate cars, both of which had been stolen. A shootout between the two rival groups ensued, and Grissom admitted in his statement to police that he fired at least two shots from his handgun during this exchange. Grissom also admitted that after the car in which he was riding crashed into a fire hydrant he dropped his handgun and fled the scene. Law enforcement later recovered the gun inside the crashed car. Christina Green, an eyewitness to the shootout, heard multiple gunshots and saw three or four individuals fleeing through the woods. Green ran across the street to avoid the gunfire.

Grissom, supra at 408, 768 S.E.2d 494.

In addition to the foregoing, the evidence showed that Dorsey was present when the plan to retaliate against D–Bone was made, that he was present when there were discussions about seeking out Strozier, that he admitted entering the woods on the night in question for the purpose of shooting at D–Bone and his truck, that he was in the woods with Grissom and others when Strozier was shot, that he fled from the scene of the shooting, and that he later abandoned the stolen car with the suspected murder weapon in it.

In arguing that the state failed to prove that any of the co-defendants shot Strozier, Dorsey points to inconsistencies in the evidence. But as the Supreme Court explained, “[r]esolving evidentiary conflicts and inconsistencies and assessing witness credibility are the province of the fact finder, not the appellate court.” Grissom, supra at 408(1), 768 S.E.2d 494 (citation and punctuation omitted). In this case, “the evidence presented at trial, as summarized above, was sufficient to support the verdict.” Id.

2. Sentences on conspiracy counts.

Citing Braverman v. United States, 317 U.S. 49, 63 S.Ct. 99, 87 L.Ed. 23 (1942), Dorsey contends that the trial court erred in sentencing him separately on the two conspiracy counts because the evidence only showed a single conspiracy. Indeed, “[u]nder principles enunciated in Braverman [, supra at 53 ], 63 S.Ct. 99, whether the object of a single agreement is to commit one or many crimes, it is in either case the agreement that constitutes the conspiracy, and if there is only one agreement there can be only one conspiracy. [Cit.]” Price v. State, 247 Ga. 58, 60, 273 S.E.2d 854 (1981). The state counters that the evidence showed that there were two separate agreements, not just one, and thus Braverman is inapplicable. However, we need not resolve that issue because even if we assume error in the sentencing of Dorsey on both conspiracy counts, the error was harmless.

Our Supreme Court has adopted the rule of “cases exemplified by Stephens v. United States, 347 F.2d 722 (5th Cir.1965) (4) [which] hold that an improper conviction on multiple counts of a conspiracy indictment is harmless error where the defendant's sentence is within legal limits for conviction of a single conspiracy.” Price, supra at 61, n. 5, 273 S.E.2d 854. Here, the trial court imposed a total sentence of ten years for the two conspiracy offenses, sentencing Dorsey to serve five years for conspiracy to commit aggravated assault with a deadly weapon and another five years for conspiracy to commit criminal damage to property in the first degree.

That sentence was within the legal limits for conviction of a single conspiracy. “A person convicted of the offense of criminal conspiracy to commit a felony shall be punished by imprisonment for not less than one year nor more than one-half the maximum period of time for which he could have been sentenced if he had been convicted of the crime conspired to have been committed.”

OCGA § 16–4–8. The maximum period of time for which Dorsey could have been sentenced if he had been convicted of the aggravated assault that was the underlying subject of one of the conspiracy counts is 20 years. See former OCGA § 16–5–21(b)¹ (person convicted of aggravated assault shall be punished by imprisonment for not less than one nor more than 20 years). Thus, the maximum sentence for conspiracy to commit aggravated assault is one-half of that 20 years, or ten years. Because the total sentence imposed for both conspiracy offenses was ten years, the sentence was within the legal limits for a person convicted of a single conspiracy to commit aggravated assault, and therefore any error in sentencing Dorsey for both conspiracy charges was harmless. Price, supra.

3. Motion to sever.

Dorsey claims that the trial court erred in failing to sever his trial from that of Grissom because they presented antagonistic defenses and he was unable to fully present his statement to police which implicated Grissom as the shooter. The claim is without merit.

“In a capital case in which the death penalty is not sought, a trial court's decision not to sever the trials of co-indictees is reviewed for abuse of discretion, and the movant must make a clear showing that the joint trial was prejudicial and resulted in a denial of due process. The existence of antagonistic defenses alone is insufficient to require the severance of a joint trial.” Barge v. State, 294 Ga. 567, 570(3), 755 S.E.2d 166 (2014) (citations and punctuation omitted).

While Dorsey claims he and Grissom...