BRIAN J. DORSEY, Appellant,
STATE OF MISSOURI, Respondent
Modified on the Court's own motion December 23, 2014.
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APPEAL FROM THE CIRCUIT COURT OF BOONE COUNTY. The Honorable Christine Carpenter, Judge.
Dorsey was represented by Kent Denzel of the public defender's office in Columbia.
The state was represented by Shaun J. Mackelprang of the attorney general's office in Jefferson City.
Brian J. Dorsey appeals the judgment overruling his motion for post-conviction relief, pursuant to Rule 24.035 and Rule 29.15, from his 2008 convictions and sentences for two counts of first-degree murder. Because Mr. Dorsey was sentenced to death on each count, this Court has jurisdiction. Mo. Const. art. V, sec. 10. On appeal, Mr. Dorsey claims that the motion court erred in overruling his claims that he received ineffective assistance from his trial counsel and that the state failed to disclose exculpatory evidence. This Court affirms the motion court's judgment.
Factual and Procedural Background
On December 23, 2006, Brian J. Dorsey's family was concerned that he was in trouble because of money he owed to drug dealers. He had called several family members asking to borrow money because there were two drug dealers in his apartment and he needed help. Mr. Dorsey's cousin, Sarah Bonnie, Sarah's husband Ben, and two others went to Mr. Dorsey's apartment. The two drug dealers left Mr. Dorsey's apartment when his family arrived. The Bonnies then took Mr. Dorsey to their home, where they spent the evening drinking and playing pool in the Bonnies' " shop" with other family members and Darin Carel, a family friend. A shotgun had to be moved off the pool table before they could play pool. During the evening, Mr. Dorsey drank seven to ten beers.
After everyone except Mr. Dorsey and Mr. Carel had left, the Bonnies went to bed. After Mr. Carel left, Mr. Dorsey found a bottle of vodka and drank some of it. He then retrieved the single-shot, 20-guage shotgun from the Bonnies' shop and fatally shot the Bonnies while they were in their bed. He then had sexual intercourse with Sarah's body. Afterward, he poured bleach on Sarah's torso and genital area and stole several items from the house, including Sarah's vehicle. Mr. Dorsey used some of the property to pay a debt for money he borrowed for drugs from Patricia Cannella and tried selling other stolen items, including the shotgun, to various people throughout the night. He was driving a white car, which he said was his, and the property he was trying to sell was in the car. He was heavily intoxicated and had the bottle of vodka with him.
The next day, Sarah's parents became worried when the Bonnies did not show up for a family gathering. They went over to the Bonnies' house and found their four-year-old daughter, who told them that her parents had been locked in the bedroom all day. When Sarah's parents were able to get into the locked bedroom, they found the Bonnies dead.
A sexual assault kit was used to collect evidence from Sarah's body, and the vaginal swabs taken were sent to the Missouri State Highway Patrol crime laboratory for testing. A presumptive test indicated a possible, but unconfirmed, presence of sperm cells. A full autosomal DNA profile
was then created from the swab. The profile was consistent with Sarah's DNA, indicating she was the sole source of the DNA, and eliminated Mr. Dorsey as the source of the autosomal DNA. An extraction was then performed to target DNA on any Y chromosomes in the sample because only males have Y chromosomes. The Y-chromosome profile eliminated Ben and Mr. Carel, who had been at the Bonnies' house on the night of the murders, as the source of the DNA. It did not eliminate Mr. Dorsey as the source, however.
On December 26, Mr. Dorsey surrendered to police and admitted that he was " the right guy concerning the deaths of the Bonnies." Sarah's social security card was found in Mr. Dorsey's back pocket. Later that day, police found Sarah's car with some of the Bonnies' property still inside and the shotgun in the trunk. Ms. Cannella identified many of the items in the car as those Mr. Dorsey had been trying to sell on the morning of December 24. Mr. Dorsey was charged with two counts of first-degree murder. Chris Slusher and Scott McBride were hired by the office of the Missouri State Public Defender to represent Mr. Dorsey on these charges for a flat fee. Mr. Slusher was primarily responsible for investigating and preparing mitigation evidence, while Mr. McBride was primarily responsible for reviewing the DNA evidence.
In March 2008, Mr. Dorsey pleaded guilty to both counts. A jury trial was then held for the penalty phase. The jury recommended a sentence of death for each murder, finding both murders were committed while Mr. Dorsey engaged in the commission of another unlawful homicide, committed for the purpose of receiving money or any other thing of monetary value, and involved depravity of mind and manner. The jury also found the murder of Sarah was committed while Mr. Dorsey was engaged in the crime of rape. The trial court sentenced Mr. Dorsey accordingly. This Court affirmed Mr. Dorsey's convictions and sentences. State v. Dorsey, 318 S.W.3d 648 (Mo. banc 2010).
Mr. Dorsey then filed a pro se motion to vacate his convictions and sentences pursuant to Rule 29.15, and appointed counsel filed an amended motion. After a three-day evidentiary hearing, the motion court entered findings and overruled Mr. Dorsey's motion. Mr. Dorsey appeals the denial of post-conviction relief.
Standard of Review
Appellate review of the denial of post-conviction relief is limited to a determination of whether the motion court's findings of fact and conclusions of law are clearly erroneous. Rules 24.035(k) and 29.15(k). " A judgment is clearly erroneous when, in light of the entire record, the court is left with the definite and firm impression that a mistake has been made." Swallow v. State, 398 S.W.3d 1, 3 (Mo. banc 2013). Even if the stated reason for a motion court's ruling is incorrect, this Court will affirm the judgment if it is sustainable on other grounds. Id.
Issues on Appeal
Mr. Dorsey claims the motion court erred in overruling his claims that the state failed to disclose exculpatory DNA evidence and additional CODIS hits of Timothy Kathcart, Brandon Brown, Jeremy Morgan, and Charles Forbes. He also claims the motion court erred in denying his claims that trial counsel were ineffective for not: (1) investigating and presenting evidence of a peak deleted from the autosomal DNA profile that allegedly
would have shown a contributor other than Mr. Dorsey and Sarah to the DNA in the vaginal swab; (2) investigating and presenting evidence to counter the Y-chromosome DNA profile; (3) objecting to the state's implication that a man who matched the Y-chromosome profile was incarcerated at the time of the murders; (4) investigating a diminished capacity defense; (5) investigating and presenting mitigating evidence relating to his state of mind; (6) presenting testimony from Mr. Dorsey's treating physicians; (7) objecting to testimony on the alternative light source as junk science and request a Frye  hearing or, alternatively, countering the testimony; and (8) moving to strike for cause juror Ryan Reddick, who had worked with Ben for six months. Lastly, Mr. Dorsey asserts the motion court erred in overruling his ineffective assistance of counsel claim based on a conflict of interest arising out of the flat-fee arrangement.
Failure to Disclose and Investigate Peaks in Autosomal DNA Profile
Mr. Dorsey asserts the motion court erred in overruling his claim that the state failed to disclose and counsel were ineffective in investigating and presenting exculpatory DNA evidence. Specifically, he argues that the autosomal DNA profile created from the vaginal swab contained a " peak" depicting an allele that excludes Mr. Dorsey from that profile and that the state deleted this peak before providing the DNA evidence in discovery. The peak was inconsistent with the DNA of Sarah and Mr. Dorsey. Mr. Dorsey argues the presence of this peak shows that the autosomal DNA profile depicted DNA from two donors, instead of only Sarah, and that the other donor could not have been Mr. Dorsey. He maintains, therefore, that, the state's failure to disclose this information violated Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), because this deleted peak was exculpatory evidence that proves he did not rape Sarah. In addition to the Brady claim for the state's nondisclosure of this peak, Mr. Dorsey also raises a claim of ineffective assistance of counsel for not investigating the electronic DNA evidence, which would have led to the discovery of the deleted peak.
Mr. Dorsey's Brady and ineffective assistance of counsel claims relating to the deleted peak were not preserved for review. While Mr. Dorsey presented evidence of the peak at the evidentiary hearing, his amended Rule 29.15 motion fails to raise these claims. Claims not raised in a Rule 29.15 motion are waived on appeal. McLaughlin v. State, 378 S.W.3d 328, 340 (Mo. banc 2012). " Pleading defects cannot be remedied by the presentation of evidence and refinement of a claim on appeal." Johnson v. State, 333 S.W.3d 459, 471 (Mo. banc 2011). ...