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Dorsey v. State3/8/2005
Opinion Vote: REVERSED AND REMANDED.
Ellis and Hardwick, JJ., concur.
Opinion:
John Dorsey appeals the motion court's denial of his Rule 29.15 motion for post-conviction relief following an evidentiary hearing. Because we find that Dorsey's retained trial counsel rendered constitutionally ineffective assistance, the judgment is reversed.
Factual and Procedural Background
Appellant John Dorsey was originally charged with ten crimes: kidnapping, sexual abuse, attempted forcible rape, forcible sodomy, first degree robbery, and five corresponding counts of armed criminal action. He entered a "not guilty" plea as to all counts. He was tried before a jury, and the following transpired:
The victim testified that on the evening of the crime, she was on her way to her cousin's house in Kansas City when she ended up on a dead-end street and soon became lost. She stopped to ask for directions from three men on the street. Dorsey approached the driver's side of the car, pulled a butcher knife out of his pocket, and ordered her to let him in the car. Dorsey walked around the front of the car and got in on the passenger side. He asked the victim for money, and when she stated that she had none, he ordered her to drive to a remote location. He then forced her at knife point to perform oral sex on him. Dorsey then ordered her out of the car, after which he started the car and drove off. The victim then reported to police a car-jacking and the taking of the car. DNA testing established that a semen stain on the victim's clothing came from Dorsey.
Dorsey was represented by retained counsel. Dorsey testified in his own defense. He testified that the victim actually stopped to ask about getting some drugs, and he told her that he could get her some. He said she voluntarily let him in the car. He said they negotiated about the drugs, and as a part of that the victim voluntarily agreed to a sex act. He said he provided some cocaine in return for the sex act. He acknowledged that he drove off in the car, but said that the victim had "rented" him the car. He acknowledged later selling the car to someone else for crack cocaine. Dorsey denied wielding a knife or any other weapon during the encounter.
Dorsey acknowledged telling the victim during the sex act, when she acted like she might stop, "Damn, you've got me f---- d up. Go on and do this or you could get f----d up." He said that he "didn't do anything to make her do [the sex act], but that probably said something should not have said at the time."
In closing argument, defense counsel told the jury that he believed they would convict Dorsey of forcible sodomy because "[Dorsey] admitted to doing that, folks." Counsel then recommended that the jury sentence him to seven years on that charge. He asked that the jury acquit Dorsey of the other charges. He also concluded his argument by literally asking the jury to return a verdict of guilty on the sodomy charge. "I'm going to ask you to return a verdict of guilty on the sodomy count for seven years. . . ." He asked that the jury find Dorsey not guilty of the other charges.
The case was submitted to the jury. During the first day of deliberations, the jurors discussed the matter of the victim getting lost. Apparently, there was some concern about the credibility of the victim's comments as to how she encountered Dorsey. The next morning, one of the jurors surreptitiously traveled to the crime scene to investigate the victim's story about getting lost. That juror also got lost in the same area. When he returned to deliberations that day, he informed the other jurors of his trip and of the fact that he,
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