Dossett v. State

• Citation: 216 S.W.3d 7
• Decision Date: 23 August 2006
• Docket Number: No. 04-05-00119-CR.,04-05-00119-CR.
• Parties: Mike Edgar DOSSETT, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas

216 S.W.3d 7

Mike Edgar DOSSETT, Appellant, v. The STATE of Texas, Appellee.

No. 04-05-00119-CR.

Court of Appeals of Texas, San Antonio.

August 23, 2006.

Rehearing Overruled October 4, 2006.

Discretionary Review Refused February 28, 2007.

Kerrisa J. Chelkowski, Law Office of Kerrisa Chelkowski, San Antonio, for appellant.

Daniel Thornberry, Asst. Crim. Dist. Atty., San Antonio, for appellee.

Sitting: SARAH B. DUNCAN, Justice, KAREN ANGELINI, Justice, PHYLIS J. SPEEDLIN, Justice.

OPINION

Opinion by PHYLIS J. SPEEDLIN, Justice.

Mike Edgar Dossett appeals his murder conviction. The court assessed a sentence of 40 years imprisonment, as recommended by the jury. On appeal, Dossett argues that: (1) the evidence is legally and factually insufficient to support his conviction; (2) the trial court erred by admitting DNA evidence; (3) the court erred by admitting his oral statements regarding a dream; (4) the court erred by admitting "other crimes" evidence during the guilt/innocence phase; and (5) the court erred by denying his motion for a mistrial based on a comment on his right to remain silent. We affirm the trial court's judgment.

BACKGROUND AND PROCEDURAL HISTORY

The following statement of the case is based on the trial testimony. On June 6, 1983, Rachel Kosub, a 32 year old, 5' 1", 132 pound woman with mid-length brown hair, who was the secretary/office manager for Sandra Murphy Interiors, was found murdered inside the office building on Randolph Boulevard near the northeastern city limits of San Antonio. Kosub's body was found at approximately 9:30 p.m., after her family became worried. She had been sexually assaulted and strangled with her pantyhose. Her mostly nude body was found lying face down at the bottom of a staircase with a banister. Her dress was ripped open, pulled up over her buttocks and pulled down over her arms, her panties were missing, and her wrists were crossed behind her back with remnants of adhesive and marks indicating that she had been bound. Her pantyhose had been removed, and one leg of her hose had been cleanly cut off with a sharp instrument like a knife and used as a ligature which was tightly knotted around her neck. There were no defensive wounds on her body, and no signs of a struggle. The doors and windows to the building were locked and there was no sign of forced entry. Nothing was missing from the office, and Kosub's jewelry was still on her body. Kosub's last known contact with anyone was her 10:30 a.m. phone call to one of the interior designers to inquire about a ceiling fan catalog for a male customer who was there in the office.

On June 7, 1983, Dr. Susanna Dana, the assistant medical examiner, conducted the autopsy and created a sexual assault kit by taking oral, rectal and vaginal samples from Kosub, along with hair and fingernail clippings. She stated she usually makes two to three swabs, and between two and four slides, for each area. She retained one set of slides to stain for her own use, and sealed the swabs and the unstained slides inside the kit in separate containers. Dr. Dana found "abundant sperm" on the vaginal smear slide, some of which had tails indicating a fairly fresh deposit "within hours;" some sperm were also found on the rectal slide. Kosub's cause of death was determined to be strangulation by ligature. Based on the extent of rigor mortis and the pattern of lividity, her time of death was estimated to be between 10:00 a.m. and noon, and certainly before 5:00 p.m. According to standard procedure, Dr. Dana forwarded the sexual assault kit from the office of the Medical Examiner ("ME") to the San Antonio Police Department's Crime Lab where Jane Nellis performed a serology analysis on the samples and confirmed the presence of sperm. In 1983, DNA analysis was not being conducted.

In May 1984, based on a tip that Mike Dossett matched a composite sketch of the suspect in an aggravated robbery and attempted sexual assault committed in Live Oak, a community adjacent to the northeastern San Antonio city limits, Officer Gary Hopper and Chief Mark Jackley interviewed Dossett. After Dossett had waived his Miranda rights and completed his written confession to the Live Oak offense, and while he was waiting to speak with a Universal City officer about an aggravated sexual assault committed in Universal City, Dossett asked to speak with his wife and told Officer Hopper that he would then tell him about a dream that had been bothering him for about a year. After Dossett spoke with his wife, he told Hopper about a dream in which he was standing by the banister on a staircase in an office building and looking down at a nude woman laying dead at the bottom of the stairs with her buttocks in the air and her skirt over her face.¹ Recognizing the dream's description as matching the interior of Sandra Murphy Interiors, Officer Hopper felt the dream might be connected to the unsolved Kosub murder on nearby Randolph Boulevard. Hopper contacted the San Antonio Police Department and later transported Dossett to the police station for an interview on the Kosub case. The SAPD investigation into Dossett did not uncover any evidence linking him to Kosub's murder, other than his statements about the Banister Dream, and the Kosub investigation stalled.

In 1995, after Kosub's daughter inquired about the status of the investigation, Detective Tim Britt reviewed the case file and renewed the investigation. He again interviewed Dossett and obtained samples of his blood, hair and saliva for DNA analysis. Britt deposited the samples at the Bexar County crime lab, which was located in the same medical center building as the Medical Examiner's office. Britt later requested that Dossett's samples be subjected to DNA analysis and compared to the samples in the Kosub sexual assault kit. Britt was informed by a lab serologist that he could not find the Kosub sexual assault kit, and therefore could not do a comparison. After speaking with Officer Hopper, Britt re-interviewed Dossett and inquired about the Banister Dream. Dossett initially stated he "did not really remember" the dream any more, but he agreed that he "probably" told that dream to Hopper. After more discussions, Britt obtained two written statements from Dossett about the Banister Dream. In one statement, Dossett described the dream as seeing himself standing by a banister and seeing a dead "girl laying naked all tied up;" he could not see her face; from the staircase he could look out a window. In the other written statement, Dossett further describes the view looking out the window, stating he could see out to the parking lot and could see bushes along the property line; he recalled the sun was out and it was not night; the staircase banister was plain and made of wood. Dossett states that he has had lots of dreams, and admits that "back then there was a part of me that I couldn't control, like part of me is evil. I could've had a dual personality." Dossett admitted being inside the interior design business one time around February or March 1983 to ask about a sponsorship for his baseball or softball team; he thought the secretary was there when he met with the owner. Dossett denied sexually assaulting and killing Kosub, however, and the investigation again grew cold.

In 2002, Detective George Saidler, who was assigned to the SAPD "cold case" squad, began reviewing and re-investigating the Kosub case. In 2003, over the span of several months, Detective Saidler inquired at the Bexar County Criminal Investigation Laboratory ("CIL")² about the Kosub sexual assault kit. When he was informed that the kit could not be found at the CIL, Saidler went to the Medical Examiner's offices where, by chance, he ran into the Chief Medical Examiner, Dr. Vincent DiMaio, who had been there since 1981. Upon being asked about the Kosub kit, Dr. DiMaio easily located the kit in the Toxicology Department's freezer. Saidler observed Dr. DiMaio remove the Kosub kit and saw that it was sealed. The kit was submitted to the CIL for DNA testing on April 17, 2003. The 20-year old samples in the kit were degraded, with mold, fungus, and bacteria present. However, sufficient genetic material was present to create a DNA profile and DNA analysis was completed on the swabs. Male DNA present on the vaginal swab "matched" Dossett's DNA—99.9 % of all other individuals were excluded as the donor. Dossett was indicted for Kosub's murder twenty years after it occurred.

At trial, Dr. Dana testified about the presence of sperm on Kosub's vaginal swab, as documented in her autopsy report, and Garon Foster, the CIL serologist, testified about the DNA evidence showing that Dossett could not be excluded as the donor of the male sperm on the vaginal swab. Foster stated that the presence of mold and bacteria on the samples did not alter the DNA profiles, but simply had consumed part of the genetic material. Dr. Dana stated that the presence of mold on the samples did not necessarily mean there was a lapse in protocol because she had seen mold grow even in properly maintained freezers. Officer Hopper was permitted to testify to Dossett's oral statements to him in 1984 about the Banister Dream, and Dossett's two written statements about the dream given in 1995 to Detective Britt were admitted into evidence. Sandra Murphy described the physical layout of the interior and outside property of the design business, which was similar to Dossett's dream, and testified that Dossett had been at the business three times—once before Kosub's murder regarding a little league sponsorship, and twice after her murder looking at carpet and seeking a job. Finally, "other similar crimes" evidence was admitted showing that Dossett had committed the aggravated sexual assaults of Linda Feeley and Mary Jane Chisholm in October 1983 and May 1984 while each was working alone in a small office building in the same area as the Kosub murder scene.

In response, Dossett presented expert...