State v. Dorsey
| Decision Date | 22 February 2005 |
| Docket Number | No. 25867.,25867. |
| Citation | 156 S.W.3d 791 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Willekis Bakari DORSEY, Defendant-Appellant, |
| Court | Missouri Court of Appeals |
George W. Gilmore, Jr., Sikeston, MO, for Appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Lisa M. Kennedy, Asst. Atty. Gen., Jefferson City, MO, for Respondent.
A jury found Willekis Dorsey ("Defendant") guilty of first degree murder and armed criminal action. See § 565.020.1; § 571.015.1 The trial court sentenced Defendant to concurrent terms of life imprisonment without parole and eight-years imprisonment, respectively. Defendant appeals, presenting four points for decision. The first three points challenge evidentiary rulings by the trial court; the fourth point seeks plain error review of statements made during the State's closing argument. Defendant also filed a motion requesting this Court to remand the case so Defendant can file another motion for new trial based on newly-discovered evidence. We deny the motion to remand and affirm Defendant's convictions.
Defendant does not challenge the sufficiency of the evidence to sustain his convictions. In this appeal, we consider the facts and all reasonable inferences derived therefrom in a light most favorable to the verdict, and we reject all contrary evidence and inferences. State v. Cravens, 132 S.W.3d 919, 921 (Mo.App.2004); State v. Campbell, 122 S.W.3d 736, 737 (Mo.App.2004). Viewed from that perspective, the favorable evidence supporting the State's case against Defendant is set out below.
Defendant, Earl Brown ("Brown"), Hershal Wiley ("Wiley"), Tyrone Sheron ("Tyrone") and Michael Sheron ("Michael") had been acquainted with one another since elementary school.2 In the summer of 1999, Brown was 15; Defendant was 17 or 18; Wiley was 17; Tyrone was 21 or 22; and Michael was 25. Brown was the only one of the group who had attended school during the 1998-99 term, but he dropped out after the school year was completed. During the summer of 1999, he began to spend time with Defendant and "started running the streets." Defendant, Brown, Wiley, Tyrone and Michael "[s]tarted running around and selling drugs." Tyrone supplied the drugs that the others sold.
May 28, 2000 was a Sunday. That evening, Defendant and Brown returned to Sikeston, Missouri, after spending the Memorial Day weekend in Memphis, Tennessee, with three girls. Defendant and Brown went looking for Michael and found him at a local mini-mart. Michael was standing beside a Lexus automobile owned by Don Prude ("Victim"). Victim was a drug dealer from Blytheville, Arkansas. Michael and Victim were talking. When Defendant and Brown arrived, Defendant got out of his vehicle and also spoke to Victim. Victim left, and Michael and Defendant talked for a little while. Everyone then left the mini-mart parking lot.
Later that evening, Defendant and Brown met Michael at his house and went for a ride together. Michael said he had gotten 4.5 ounces of crack cocaine from Victim and did not want to give it back.
On Monday, May 29th, Defendant and Brown went riding around together. During the ride, Defendant asked Brown if he wanted to make some money by participating in killing Victim and keeping his drugs. Brown said he would. Victim came to the home of Tyrone's mother that day while Defendant and Brown were there. Victim tried to purchase marijuana from Defendant.
Later that evening, Defendant and Brown went to a meeting at Michael's house. Six persons were present for this meeting: Defendant, Brown, Michael, Tyrone, Reggie Wilkens, and Sean Clay. Michael said he had Victim's drugs and he wanted to keep them, so they needed to kill Victim. He offered all of the others a chance to participate in the murder in exchange for some of the drugs. Defendant said he would kill Victim, and Michael gave Defendant a 9mm Beretta Model 92FS handgun to use for that purpose. This firearm, which had been stolen a few months earlier, was a special model with very distinctive and unusual features. The gun had the seals of different branches of the military on the slide, and the hammer, trigger and screws were gold-colored. The plan was simply to kill Victim when he came to pick up his drugs. The drugs were divided that evening between Brown, Defendant, Michael and Sean Clay. Defendant received 1.5 ounces of Victim's crack cocaine for agreeing to kill him.
After the meeting, Defendant and Brown went outside to wait for Victim. When he arrived, however, he had a girl in the car with him. Defendant and Brown did not carry out the murder then because the girl was present. Defendant and Brown went back inside the house, and the group discussed killing Victim the next day. The new plan was for Brown to lure Victim to Haywood City, Missouri. Defendant and Wiley were going to follow Victim and kill him there. Michael and Tyrone said they needed Wiley to drive because he was the only one of the group who had a driver's license.
On May 30, 2000, Defendant and Brown went to Wiley's house. Defendant explained the plan and told Wiley that all he had to do was drive. He agreed to do so. The three of them drove into Sikeston and sat in a car waiting for Victim to show up. When he did, Defendant told Victim that Brown was a cousin of Michael and Tyrone and would take Victim to his drugs. Brown got in Victim's car and directed Victim to the home of Brown's grandmother, Clara Adams. She lived on Hickory Street in Haywood City. Defendant and Wiley were familiar with the area, and Wiley knew the location of Adams' house.
Once Brown and Victim arrived in Haywood City, they drove to Hickory Street. Brown had Victim drive around the block once to give Defendant and Wiley time to get into position. After circling the block, Brown had Victim stop in front of Adams' house. Brown told Victim the drugs were behind the house. Brown got out of the car and went behind the residence to stall for time while Victim waited in his car. Brown saw Defendant and Wiley drive past, turn around and come back. Wiley stopped his car beside Victim's car. Defendant got out, opened the passenger door of Victim's car, said "I've got your drugs" and then pulled out the 9mm Beretta and fired four shots at Victim. One bullet struck him in the back of the head, killing him. Defendant then wiped the gun off, threw it away and got back in Wiley's car. Meanwhile, Brown ran down a pathway by his grandmother's house and rejoined Defendant and Wiley at another location farther down Hickory Street. After Brown got back in Wiley's car, the three of them returned to Sikeston.
Police arrived to investigate the murder about 15 minutes after it occurred. Two witnesses reported seeing Defendant and Wiley on Hickory Street a few minutes before, and again immediately after, the murder occurred.
Defendant was arrested about two hours after Victim was killed. During a voluntary interview with the police, Defendant admitted that he and Wiley had been in Haywood City and that, around the time Victim was killed, Defendant and Wiley had driven past Victim's Lexus twice while the vehicle was parked on Hickory street. Defendant denied that he was involved in the killing or that he had recently fired a gun. He agreed to submit to a gunshot residue test, which showed that Defendant's hand tested positive for gunshot residue.
On September 4, 2000, some children found a handgun under an abandoned automobile near the location of the murder. The gun was retrieved by a Mr. Hogan, who took it to the police because he thought it might have been used in the homicide. The weapon Hogan gave to the authorities was a 9mm Beretta Model 92FS. The gun had military insignia on the slide, and the hammer, trigger and screws were gold-colored. Ballistics tests showed Victim was killed with this gun.
After Defendant was convicted and sentenced, he appealed. Additional facts are provided below when relevant to our discussion of Defendant's motion for remand and his four points relied on.
The first issue we address is Defendant's motion for remand based upon newly-discovered evidence. The motion arises from the following events.
At Defendant's trial, Brown testified for the State. He had originally been charged with Victim's murder, but the State offered to reduce Brown's charge to conspiracy to murder, with a punishment range of 5-15 years, in exchange for his testimony against Defendant, Wiley, Tyrone and Michael.3 Before Defendant's trial took place, Brown had testified at the earlier trials of Wiley and Tyrone. In all three trials, Brown consistently identified Defendant as the person who shot and killed Victim.4
Defendant was convicted of first degree murder and armed criminal action on August 7, 2003. His motion for new trial was filed on September 2, 2003 within the 25-day time period granted by the trial court. Defendant's request for a new trial was denied on September 24, 2003, at which time the sentences were pronounced and judgment was entered.
On July 12, 2004, Brown executed an affidavit stating Tyrone was the person who actually killed Victim. Brown claimed his testimony about seeing Defendant shoot Victim had been coerced by Scott County police officers. On August 3, 2004, Defendant's counsel took a sworn statement from Brown to obtain additional information concerning his recantation.
On September 24, 2004, Defendant filed a motion requesting this Court to remand the case to the trial court to permit the filing of another motion for new trial based on the newly-discovered evidence contained in Brown's affidavit and sworn statement. Copies of these documents were attached to the motion. The motion alleged that a remand should be ordered because Brown's recantation completely exonerates Defendant of the crimes of murder and armed criminal action. We ordered the motion taken with the case.
Brown's recantation was not presented to the trial court in Defen...
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