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Dorsey v. State3/8/2005
nd failing to make an appropriate presentation with regard to the juror misconduct matter. Counsel's strategy of urging the jury to convict Dorsey of forcible sodomy simply adds to the impression that trial counsel's overall performance was constitutionally ineffective.
We do not mean to suggest that retained trial counsel did not do some things right. After all, Dorsey was acquitted on six of the ten counts against him. Counsel did attempt to undermine the victim's credibility. For instance, counsel did point out to the jury that when the police report was initially made, the only crime mentioned was the car-jacking and the taking of the car, with no allegation of sexual assault made at that point.
The "benchmark" for judging whether counsel is ineffective, however, is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Deck, 68 S.W.3d at 425 (citing Strickland, 466 U.S. at 686). Because of the seriousness of the failure to pursue the juror misconduct issue so as to obtain a new trial, combined with the inappropriate concession that his client wielded a weapon at the time of the sex act, we conclude that the overall performance of counsel undermines our confidence in the verdict. Relief is appropriate. See Gardner, 96 S.W.3d at 132.
Even though there was a verdict of acquittal on many of the charges, we cannot say that there was not a reasonable likelihood of even more acquittals, at least as to charges requiring belief in the use of a weapon. Because we know so little about the dynamics of the jury deliberations and the true effect of the juror misconduct in this case, we have very little basis to say that, had counsel secured a new trial, Dorsey would have done no better in a second trial. Thus, we feel constrained to say that defense counsel's errors and overall performance were such that we cannot be confident in the trial having achieved a just result. See Id. at 133. Because we have a definite and firm impression that a mistake was made in ruling on the post-conviction motion, we reverse the motion court's decision.
Conclusion
Based on the foregoing, the judgment denying the post-conviction motion is reversed. The cause is remanded to the motion court to vacate the convictions and the sentences and to order a new trial.
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