State Of Mo. v. Dorsey

• Court: Missouri Supreme Court
• Writing for the Court: RICHARD B. TEITELMAN
• Citation: State v. Dorsey, 318 S.W.3d 648 (Mo. 2010)
• Decision Date: 31 August 2010
• Docket Number: No. SC 89833.,SC 89833.
• Parties: STATE of Missouri, Respondent,v.Brian Joseph DORSEY, Appellant.

318 S.W.3d 648

STATE of Missouri, Respondent,v.Brian Joseph DORSEY, Appellant.

No. SC 89833.

Supreme Court of Missouri En Banc.

July 16, 2010.

Rehearing Denied Aug. 31, 2010.

COPYRIGHT MATERIAL OMITTED

Janet M. Thompson, Public Defender's Office, Columbia, for appellant.

Shaun J. Mackelprang, Robert Ahsens, Atty. General's Office, Jefferson City, for respondent.

RICHARD B. TEITELMAN, Judge.

Brian J. Dorsey pleaded guilty to two counts of first-degree murder, section 565.020, RSMo 2000.¹ The jury assessed sentences of death for each murder, and the trial court sentenced Dorsey accordingly. This Court has exclusive jurisdiction. Mo. Const. art. V, sec. 3. The judgment is affirmed.

FACTS

On December 23, 2006, Brian Dorsey called his cousin, Sarah Bonnie, to borrow money to pay two drug dealers who were in his apartment. Sarah's husband Ben called his friend, Darin Carel, and told him that he needed help getting the people to leave Dorsey's apartment. Sarah and Ben drove to Dorsey's apartment. After the two drug dealers left the apartment, Dorsey went with Sarah and Ben to their home, where they were joined by Carel and several others. Sarah, Ben, Dorsey and Sarah's four-year old niece, Jade, stayed at Sarah and Ben's home.

At some point after Sarah and Ben went to bed, Dorsey took a single-shot shotgun from the garage and fatally shot Sarah in the jaw from a distance of approximately 12 inches. Dorsey emptied the chamber, re-loaded the gun, pressed it against Ben's right ear and shot. Ben died. Dorsey then engaged in sexual intercourse with Sarah's body.

After killing Sarah and Ben, Dorsey took Sarah's social security card from a wallet and scattered the contents of the wallet next to her body. He stole various items of personal property from the home and poured bleach on Sarah's torso, genitals and thighs. Dorsey left the home in Sarah's vehicle, drove to Jefferson City and met with a woman from whom he had borrowed money to buy drugs. Dorsey tried to pay the woman with items later determined to belong to Sarah and Ben.

On the afternoon of December 24, Sarah's parents went to check on Sarah and Ben because they did not show up for a family gathering. They went inside and found four-year-old Jade sitting on the couch watching television. Jade told her grandparents that she had tried to awaken Sarah all morning but “she won't wake up.” Sarah's parents called for Sarah and knocked on the bedroom door. There was no response. The door was locked, so Sarah's father forced the door open. He saw Sarah and Ben on the bed. After Sarah's father confirmed that Sarah and Ben were dead, he left the home with Jade and Sarah's mother and contacted the police.

The ensuing investigation confirmed that Sarah and Ben both died from single gunshot wounds to the head. Police discovered the “pour marks” over Sarah's torso and genitals where Dorsey had poured what appeared to be bleach. Additionally, testing revealed that that sperm cells recovered from Sarah's body contained DNA consistent with Dorsey and men from a common paternal lineage. This eliminated Ben as a source of the sperm. Statistical analysis revealed that the DNA profile would not be expected to occur in more than .23 percent of the Caucasian population.

On December 26, Dorsey surrendered to police and admitted that he was “the right guy concerning the deaths of [Sarah and Ben].” Dorsey was charged with two counts of first-degree murder. In March 2008, Dorsey pleaded guilty to both counts. Following a separate penalty phase trial, the jury assessed sentences of death for each murder, and the trial court sentenced Dorsey accordingly. Dorsey raises seven points on appeal.

ANALYSIS

I. Instructional error

In his second, sixth and seventh points on appeal, Dorsey argues the trial court improperly instructed the jury.

Instruction No. 10

In his second point on appeal, Dorsey argues that the trial court plainly erred in submitting Instruction No. 10 based on MAI-CR 3d 314.46. Instruction 10 stated as follows:

As to Count I and Count II, you are not compelled to fix death as the punishment even if you do not find the existence of facts and circumstances in mitigation of punishment sufficient to outweigh the facts and circumstances in aggravation of punishment. You must consider all the evidence in deciding whether to assess and declare the punishment at death. Whether that is to be your final decision rests with you.

Dorsey argues that the reference to Count I and Count II was improper because it instructed the jury to consider evidence as to both counts in deciding the punishment for each individual count and, therefore, “allowed the jury to sentence [him] to death on each count based on evidence applicable to the other count.”

Plain error is found when the alleged error “facially establish [es] substantial grounds for believing a manifest injustice or miscarriage of justice occurred.” State v. Salter, 250 S.W.3d 705, 713 (Mo. banc 2008), quoting State v. Baker, 103 S.W.3d 711, 723 (Mo. banc 2003). To demonstrate that an instructional error constitutes plain error, the defendant must show that the trial court “so misdirected or failed to instruct the jury” that the error affected the jury's verdict. Id.

An instruction patterned after MAI-CR3d 314.46 must be given during the penalty phase. The general instructions provide that when there “is more than one count of murder in the first degree where the death penalty is not waived, repeat this series of instructions for each count.” The trial court erred in submitting Instruction No. 10 because the instruction was not repeated for both Count I and Count II. The issue then becomes whether this error so misdirected the jury that it resulted in a manifest injustice.

Although Instruction No. 10 was erroneous, Dorsey was not prejudiced. The jury was instructed properly that, with respect to each murder, it had to find one or more statutory aggravating circumstances beyond a reasonable doubt. The jury further was instructed that, as to each count, it had to determine whether evidence in mitigation of punishment outweighed evidence in aggravation of punishment. Finally, there were two separate verdict-mechanics instructions instructing the jury regarding the decision-making process that had to be applied to both Count I and Count II. When considered in conjunction with the other proper instructions in the case, the fact that Instruction No. 10 referred to both counts simply indicated to the jury that the “consider all the evidence” directive had to be applied to both counts individually. The trial court did not plainly err by submitting Instruction No. 10 to the jury.

Instruction Nos. 7 and 9

Dorsey's sixth point is that the trial court plainly erred in submitting Instruction Nos. 7 and 9 regarding the “weighing step” in which the jury assesses the relative strength of the aggravating and mitigating evidence in the case. Dorsey first asserts that the instructions improperly failed to require the state to prove beyond a reasonable doubt that the evidence in aggravation outweighs the mitigating evidence. The penalty phase instructions in this case required the jury to determine whether there were facts or circumstances in mitigation of punishment that were sufficient to outweigh the facts or circumstances in aggravation of punishment. The court did not instruct the jury that the “weighing step” was subject to the beyond a reasonable doubt burden of proof. Statutory aggravators have to be submitted to the jury and found beyond a reasonable doubt. State v. Whitfield, 107 S.W.3d 253, 258, 259 (Mo. banc 2003). However, the jury's “weighing” of the aggravation and mitigation evidence is not subject to proof beyond a reasonable doubt because it is not a factual finding that increases the potential range of punishment. Zink v. State, 278 S.W.3d 170, 192-193 (Mo. banc 2009). See also State v. Glass, 136 S.W.3d 496, 520-21 (Mo. banc 2004); State v. Gill, 167 S.W.3d 184, 193 (Mo. banc 2005).

Next, Dorsey argues that the trial court erred by not instructing the jury that the state had to prove evidence of unadjudicated bad acts beyond a reasonable doubt. Glass asserts that in State v. Debler, 856 S.W.2d 641 (Mo. banc 1993), this Court noted that unadjudicated bad acts lack the reliability of prior convictions and that there must be some instruction guiding the jury's consideration of that evidence. Debler is distinguishable because the issue there was the lack of notice. Debler does not require the jury to be instructed on what weight to give evidence of unadjudicated criminal acts. Glass, 136 S.W.3d at 517; see also State v. Christeson, 50 S.W.3d 251, 269-70 (Mo. banc 2001); State v. Ervin, 979 S.W.2d 149, 158 (Mo. banc 1998). This Court repeatedly has rejected the claim that the admission in the penalty phase of unadjudicated bad acts violates due process because the state is not required to prove those acts beyond a reasonable doubt. Glass, 136 S.W.3d at 517.

Finally, Dorsey argues that the instructions erroneously placed the burden of proof on him with respect to mitigating evidence. This Court previously has addressed this argument and rejected it. In State v. Johnson, this Court held that the same mitigating evidence instruction at issue in this case does not shift the burden of proof improperly. 284 S.W.3d 561, 588-89 (Mo. banc 2009); see also Kansas v. Marsh, 548 U.S. 163, 170-71, 126 S.Ct. 2516, 165 L.Ed.2d 429 (2006); State v. Taylor, 134 S.W.3d 21, 30 (Mo. banc 2004).

Duplicative Aggravators

Dorsey's last claim of instructional error is that the statutory aggravating circumstances submitted to the jury were duplicative and, therefore, allowed the jury to “double count them.”

With respect to Ben's murder, the jury found three aggravating circumstances:

1. [That] the murder of Benjamin Bonnie was committed while the defendant was engaged in the commission of another unlawful homicide of Sarah Bonnie.

2. [That] the defendant murdered

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