IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: APRIL 18, 2019 NOT TO BE PUBLISHED
2017-SC-000558-MR
DESHON W. DORSEY APPELLANT
ON APPEAL FROM JEFFERSON CIRCUIT COURT V. HONORABLE SUSAN SCHULTZ GIBSON, JUDGE NO. 14-CR-003330
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Deshon Dorsey, appeals from a judgment of the Jefferson
Circuit Court convicting him for the murder of Porcia Mills and sentencing him
to forty years in prison. He contends that the trial court erred by: 1) permitting
the introduction of gruesome autopsy and cumulative crime scene
photographs; 2) failing to dismiss a juror for cause; and 3) admitting Facebook
posts into evidence, the sole purpose of which was to show his bad character.
Finding no reversible error, we affirm the judgment of the Jefferson Circuit
Court.
FACTUAL AND PROCEDURAL BACKGROUND
Deshon Dorsey and Porcia Mills began a romantic relationship in 2014.
Shortly afterward Dorsey began living with Porcia and her toddler, Zaden. By
the latter part of 2014, Dorsey started seeing Audreanna, an ex-girlfriend from high school. When Porcia learned of Dorsey and Audreanna’s relationship, she
told Dorsey to move out.
Dorsey returned to the apartment early on December 11, 2014, to wash
his clothes and organize his belongings so they could be moved later that day.
Porcia, who usually left early for work and to take Zaden to day care, was still
at the apartment. According to Dorsey, Porcia told him that she was upset
about his relationship with Audreanna and then she hit him.
The evidence at trial was that Dorsey cut or stabbed Porcia at least 47
times with a knife. Dorsey testified that he had no memory of these acts or of
moving Porcia’s body from the couch to where he left her on the floor. He also
testified that his memory returned when he cut his left arm multiple times with
the intent to kill himself.
Dorsey left the apartment to get medical supplies for his arm by 11:30
a.m. Later in the day Dorsey communicated over Facebook that he had failed
everybody and that everyone would find out with time how he had let them
down. Porcia was found deceased the next day when the police responded to a
“child left alone” call.1
Porcia’s body was discovered face up and nude; a shirt covered her face.
She had suffered sharp force injuries from the top of her head to her lower
back.2 Six individually fatal stab wounds were on her back and sides,
1 Zaden was found locked in a bedroom. 2 As described by the medical examiner, some of wounds were “incised wounds” which are longer than they are deep, often not lethal. Stab wounds, in comparison,
2 penetrating her lungs, spleen, and neck, injuring her vertebrae and severing
the carotid artery, jugular, and thyroid. Most of the back wounds were
inflicted while Porcia was either facedown or seated. She also had abrasions
on each areola and under her breasts; Dorsey’s saliva was found on her right
breast.
Porcia did not sustain any defensive wounds but did sustain blunt force
injuries on her right knuckles and her left eye. The medical examiner could
not opine when she died but indicated the carotid artery and jugular vein
injuries would have taken several minutes to less than an hour to cause death
from bleeding. According to a crime scene technician’s testimony, blood stains
were found in nearly every room of the apartment.
Dorsey was arrested on December 13, 2014, and admitted killing Porcia.
His trial defense was that he suffered from post-traumatic stress disorder
(PTSD) as a result of his military service. He testified that he blacked out at
the point of stabbing Porcia, that he could not see anything, but he felt hot, in
danger, struggling, like someone was choking him, and he lost control except
are deeper than they are long, usually lethal because they are deep enough to cut a large blood vessel or organ. Porcia suffered wounds on the top of her head, her face, her right eye, and her lower back that penetrated a rib. The left fated wounds involved entry at her shoulder/neck region, causing injury to her vertebrae and severing the carotid artery, jugular, and thyroid; her shoulder blade and left rib, penetrating the left upper lobe of the lung; and her shoulder blade, penetrating a rib and the left upper lobe of the lung. The right fatal wounds involved entry at the right back region, penetrating a couple of ribs and the upper lobe of the lung; and the right shoulder blade, penetrating the right upper lobe of the lung. The sixth fatal entry was on her lower back, penetrating her left lower lung lobe and spleen.
3 for the ability to react. The defense and prosecution experts disagreed as to
whether Dorsey suffered from PTSD.
Having been instructed on intentional murder and first-degree
manslaughter under extreme emotional disturbance (EED), the jury found
Dorsey guilty of murder.3 The trial court sentenced Dorsey to serve forty years
in prison in accordance with the jury’s recommendation, and this appeal
followed.
Additional facts pertinent to the claims raised in Dorsey’s appeal are set
forth below.
ANALYSIS Dorsey claims the trial court erred by 1) permitting into evidence
gruesome autopsy photographs and cumulative crime scene photographs, 2)
not excusing for cause a juror who was not able to consider his EED defense,,
and 3) permitting the Commonwealth to introduce social media posts which
were prohibited under Kentucky Rule of Evidence (KRE) 404(b). We address
each claim in turn.
3 The evidence of a possible sexual assault included the abrasions on and under Porcia’s breasts; Dorsey’s saliva on Porcia’s right breast; his bloody footprint on the closet door at the foot of Porcia’s body; and the crime scene photographs. The Commonwealth did not introduce other sexual assault evidence and did not further pursue this line of evidence.
4 1) The trial court did not err in admitting the autopsy and crime scene photographs.
Dorsey contends the trial court abused its discretion by permitting the
Commonwealth to introduce gruesome autopsy4 and crime scene photographs
into evidence over his objection. He argues that the autopsy photographs and
the multiple crime scene photographs of Portia’s body and the blood path
around the couch are clearly cumulative to the medical examiner’s wound
chart, the crime scene video, the mapping diagrams and the testimony in this
case in which the cause of death and manner of death are uncontested.
At trial, the Commonwealth presented testimony from and visual
evidence through a medical examiner, crime scene technicians, and a first
responder. The visual evidence included 16 photos from the autopsy and 76
photos from the crime scene comprised of photos with and without evidence
markers showing the living room; multiple views of Porcia’s body as found and
rolled over; the closet door at the foot of Porcia’s body which displayed Dorsey’s
bloody footprint; the kitchen; the bathroom; the second bedroom; men’s pants;
two knives; and a knife blade and handle.5 The Commonwealth also
introduced a 15-minute crime scene video; a wound diagram depicting the
injuries to Porcia’s body and face; and 18 crime scene mapping diagrams.
4 As the trial court reviewed the photos, defense counsel stated that his use of the term “gruesome” was derived from caselaw. 5 The approximately 100 digital photos displayed on the courtroom screen during the introduction of the 76 hard copy photos were not introduced into evidence.
5 During trial Dorsey maintained his pretrial general objection to all
photos,6 but also moved to exclude specific photos as more prejudicial than
probative, cumulative, and having content available from other sources.
Fifteen (15) autopsy7 and twenty-four (24) crime scene photos depicting Porcia
and the blood path are at issue. We first consider the autopsy photographs.
Autopsy photos
Dorsey specifically objected to the admission of autopsy photos showing
Portia’s front and back torso, photos of her face, and photos of her scalp. The
trial court allowed entry of all the photos except for three, which were excluded
as cumulative and/or more prejudicial than probative. Of these three, as the
trial court noted, one was a “quite graphic” carotid artery photo, and another
was a photo for which related testimony would be more probative.
The nine torso photos admitted into evidence depicted Porcia’s back torso
and nape wounds, which the medical examiner enumerated 1-16; lower back
wound, enumerated 17; left front shoulder wounds; front chest area under her
left breast showing an abdomen wound; front chest area under her right breast
showing the same abdomen wound; right breast closeup of the areola; left
breast closeup of the areola; and right breast and side area (introduced as part
of a collective photo exhibit depicting damage to Porcia’s shirt). The other
6 Dorsey’s pretrial motion to exclude all autopsy and crime scene photos of Porcia’s body was continued until trial. 7 Nineteen autopsy photos were reviewed by the trial court and three were excluded. Although Dorsey objected generally to all the autopsy photos, of the sixteen photos admitted into evidence, Dorsey notes specific objections to all of the autopsy photos except for the photo of Porcia’s knuckles.
6 photos showed wounds on Porcia’s head, before and after being shaved; face;
right side of her face, with eye and side wounds enumerated 20-29; right eye
with lid wounds; and right eye with Porcia’s eyeball exposed through lid
wounds.
Dorsey cites Hall v. Commonwealth, 468 S.W.3d 814, 823 (Ky. 2015), to
support his argument that while the trial court excluded a handful of photos, it
abused its discretion in allowing the introduction of the multitude of
cumulative gruesome photographs. He insists the photographs only served to
inflame the jury and cause undue prejudice to Dorsey.
In Hall, the defendant, who admitted shooting and killing two victims,
claimed that he acted under temporary insanity or under extreme emotional
disturbance. Id. at 818-19. At trial, Hall objected to the entry of 28 of 43
crime scene and autopsy photographs. Id. at 820. This Court concluded that
the trial court erroneously admitted all 43 photos as a group without
considering the probative value of each of the contested photos individually.
Id. at 827. Furthermore, in light of alternative evidence, such as less gruesome
photos, extensive lay and expert witness testimony, and the crime scene video,
the low probity gruesome photos were not needed to prove the substance of the
crime. Id. at 825. Dorsey appears to view Hall as authority for excluding from
the jury’s consideration autopsy photos which substantively document a
heinous act when the Commonwealth has available and successfully admits
other forms of evidence such as employed in Hall.
7 Hall provides explicit direction to the trial court for applying KRE 403
when admitting gruesome photographs. “[I]n all cases in which visual media
showing gruesome or repulsive depictions of victims are sought to be
introduced over objection, as with all other types of evidence, the trial court
must conduct the Rule 403 balancing test to determine the admissibility of the
proffered evidence.” Id. at 823. Furthermore, “[w]hen there is already
overwhelming evidence tending to prove a particular fact, any additional
evidence introduced to prove the same fact necessarily has lower probative
worth, regardless of how much persuasive force it might otherwise have by
itself.” Id. at 824. Consequently, “the judge must consider the photographs
within the full evidentiary context of the case, giving due regard to other
evidence admitted as well as evidentiary alternatives, so as to ascertain each
item’s ‘marginal’ or ‘incremental’ probative worth for purposes of weighing that
value against the risk of prejudice posed by the evidence.” Id. Although
“graphic evidence of a gruesome crime will typically be relevant and have
probative value that is not substantially outweighed by the inflammatory
effects of the evidence,” when multiple gruesome photos are introduced, the
probative worth of each additional gruesome photo declines and the
inflammatory and prejudicial effect of the images as a whole increases. Id. at
825-26.
Dorsey asserts that the facts of his case are comparable to Hall. As in
Hall, the only issue was Dorsey’s state of mind, not whether he committed the
crime or that Porcia died from multiple stab wounds. Dorsey notes that the
8 jury heard from and saw visual media from the first responder who broke down
the apartment door and found Porcia; the crime scene technician who
described the location of Porcia’s body and other evidentiary items; the crime
scene technician who recovered Dorsey’s footprint from the closet door; the
crime scene technician who attended the autopsy; the medical examiner who
documented fatal and non-fatal wounds; and the crime scene technician who
described Porcia’s body as found, especially her clean, bloodless feet and the
blood path. Dorsey maintains that given the nature of this extensive, specific
testimony, all the photographs were not needed.
Dorsey argues particularly that because the medical examiner’s
uncontested testimony proved the stab wounds, the autopsy photographs did
not “move the ball”8 toward proving that fact. He also contrasts the autopsy
photos in his case to those in Holbrook v. Commonwealth, 525 S.W.3d 73, 85
(Ky. 2017), and the crime scene and autopsy photos in Ragland v.
Commonwealth, 476 S.W.3d 236, 248 (Ky. 2015), cases in which this Court
determined that the trial court did not abuse its discretion by introducing the
challenged photos because the probative value of photos substantially
outweighed their prejudicial effect. In both cases, the victims’ bodies were in a
8 The “advanc[ing] the ball” analogy is used in Hall, 468 S.W.3d at 824, discussing the trial court’s evidentiary gatekeeping role to prohibit “needless presentation of cumulative evidence” under KRE 403. “When there is already overwhelming evidence tending to prove a particular fact, any additional evidence introduced to prove the same fact necessarily has lower probative worth .... The additional evidence does not appreciably ‘advance the ball’ toward proving that fact.” Id.
9 state of decomposition when found, and the KRE 403 review noted,
respectively, the lack of and insufficient evidentiary alternatives to the photos.
In Holbrook, 525 S.W.3d at 85, the victim’s corpse was in an advanced
state of decomposition and the trial court performed the KRE 403 balancing
test for each proffered photograph. This Court noted that because “there was
no crime scene video introduced into evidence—the proffered [autopsy] photos
were the only way to demonstrate to the jury how [the victim’s] body was
found, weighed down [in a pond] to prevent its discovery, and how it was
recovered by the authorities.” Id. In Ragland, 476 S.W.3d at 248, this Court
recognized that the autopsy photos
were much more probative of the nature of the fatal injuries than other evidentiary alternatives, which included the medical examiner's rudimentary sketches diagramming the locations and relative sizes of [the victim’s] various injuries, the medical examiner’s bare oral testimony, periodic glimpses of [the victim’s] corpse seen on a video of the crime scene, and blood-spatter evidence in the closet showing six distinct impacts.
The Commonwealth counters that Dorsey’s case is not like Hall in key
ways. For example, in contrast to Hall, even though the Commonwealth moved
to admit several photos in one group as an exhibit, the trial court examined
each of the photos individually prior to their admission and weighed the
probative value against the danger of undue prejudice. Furthermore, the trial
court explained in advance of trial that when judging admissibility of a scene
photo or autopsy photo, “each photograph should show something that
another photograph does not,” and as to autopsy photographs, “there is a level
of intrusion into the body where those photographs, unless you are a student
10 of anatomy or medical doctor are going to be pretty meaningless to a jury. And
the more graphic they are, . . . [the] more justification ... is needed to get
those in.” Consequently, not only did the trial court express the proper
weighing of gruesome photos but it plainly followed Hall’s directive to weigh
each photo individually.
As often noted, “[t]he Commonwealth has a right to prove its case to the
jury even when the defendant pleads guilty.” Gall v. Commonwealth, 607
S.W.2d 97, 107 (Ky. 1980), overruled on other grounds* by Payne v.
Commonwealth, 623 S.W.2d 867 (Ky. 1981). Although the victim’s wounds are
certainly unpleasant to view, the various photos are relevant to show the
nature of the numerous injuries Dorsey inflicted on Porcia. The
Commonwealth correctly points out that a single photo could not encompass
all of Porcia’s wounds. “The defendant is not entitled to erase the ugly
[pictures] and substitute words in their place.” Id. Or stated another way, “the
defendant may not stipulate away the parts of the case that he does not want
the jury to see.” Barnett v. Commonwealth, 979 S.W.2d 98, 103 (Ky. 1998)
(citation omitted). “In order for a jury to be able to size up a case fairly ... it
must be allowed to gain a reasonable perspective, and that [is often] best done
by permitting it to see an unadulterated picture.” Gall, 607 S.W.2d at 107.
The challenged photos, relevant and highly probative of the nature of
Porcia’s injuries, were properly used by the Commonwealth to meet its burden
of proving the crime beyond a reasonable doubt as long as KRE 403 is
satisfied. Hall, 468 S.W.3d at 825. A review of the record establishes the trial
11 court weighed the prejudicial effect of each of the photos against its probative
value within the full evidentiary context of the case, id. at 823, 824, and
excluded some photos based upon their graphic nature, cumulativeness, or the
availability of other more probative evidence.
Although Dorsey complains that other evidentiary alternatives were
sufficient to prove the manner of Porcia’s death, as long as the evidence is not
highly inflammatory and prejudicial, the Commonwealth will not be compelled
to rely on evidentiary alternatives. Ratliff v. Commonwealth, 194 S.W.3d 258,
271 (Ky. 2006). We do not agree with Dorsey that Hall, Holbrook, and Ragland
lead to the conclusion that the trial court abused its discretion when admitting
the autopsy photos rather than requiring the Commonwealth to rely on
alternative evidence. The trial court performed the KRE 403 balancing test and
considered evidentiary alternatives as directed by Hall. Furthermore, as to all
three cited cases, the photos and other evidentiary alternatives at issue are
most like those in Ragland. There we stated,
With the exception of the evidence of decomposition apparent in the images . . . , the photos do not contain any particularly repulsive or otherwise noteworthy imagery to distinguish them from other similarly grisly images of deceased victims routinely admitted to prove the corpus delicti or for some other purpose. [The photos are not] so exceptionally gruesome and inflammatory that their exclusion should be required in spite of the general rule favoring inclusion, particularly in light of their substantial probative worth.
476 S.W.3d at 249.
Dorsey states that Porcia’s back torso and nape wounds and her face
wounds are the most gruesome of the autopsy photos. However, when
12 comparing these photos to the Hall photos, we note that a photograph is not
gruesome or gory because it is unpleasant to view. For example, in Hall, the
photos consisted of graphic images showing a gunshot victim’s hand exploded
by a bullet with the mangled bloody remains consisting of the fingers
positioned unnaturally, pointing in multiple directions; the gunshot wound to
the same victim’s head, a dark red void approximately four inches wide without
scalp and hair, with a pool of bright crimson blood extending several feet from
the head wound; and the closeup of pieces of blood and soft tissue ranging in
size from a couple millimeters to a couple inches in various locations on the
porch, in the yard, and on an interior wall of the house. Id. at 821. Many of
the photographs objected to in Hall contained details aside from depicting the
victim, details which may have worsened the photograph’s impact on the
viewer. Here, in contrast, although many of the back and nape wounds are
elongated and some are rather jagged and tissue is exposed, the autopsy
photos presented these wounds, the face wounds, and other wounds in a
clinical manner and did not depict other details rendering the photos gory or
gruesome.
Rarely does a trial court abuse its discretion under KRE 403 by
admitting gruesome photos when a heinous crime is at issue. Hall, 468 S.W.3d
at 827. As in Ragland, we conclude the challenged photos in this case are
typical of routinely admitted crime victim photos and in light of their probative
value, we find no basis for excluding them. The challenged photos were much
more probative of the nature of Porcia’s fatal injuries when compared to other
13 evidentiary alternatives. Furthermore, we do not consider the photos
cumulative when the jury was presented with the autopsy photographs on one
courtroom screen while the medical examiner noted the corresponding injuries
on the wound diagram displayed on another screen. This format allowed the
jury to see a fuller perspective of the nature of the violent crime committed.
Even within themselves, the photos were not duplicative or otherwise
needlessly cumulative. In short, we do not find that the trial court’s decision to
admit the autopsy photos was arbitrary, unreasonable, unfair, or unsupported
by sound legal principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.
1999).
Scene photos
Dorsey also complains about the cumulativeness of the crime scene
photos. He specifically objected to 26 scene photos being redundant of Porcia’s
body at the scene and the blood path around the chaise part of the couch.
After reviewing the photos individually, the trial court excluded two
photographs as cumulative.9
Dorsey identifies ten crime scene video segments which show the images
that were objected to in hard copy photographs — Porcia’s face-up nude body
with her face covered by a t-shirt, seen from multiple points of view and
including closeup images of the wounds on her abdomen, under her breasts
9 Upon the trial court’s direction to pare down the number of photos, the Commonwealth selected approximately 75 photos out of the approximately 800 crime scene photographs from the small apartment.
14 and neck, and showing her genitalia and torso and her ripped underwear on
her right leg; and the blood path around the chaise end of the couch. Citing
Baumia v. Commonwealth, 402 S.W.3d 530, 542 (Ky. 2013), the
Commonwealth contends the crime scene video was relevant because it offered
a more accurate depiction of the crime scene than the technician’s testimony
alone could provide.
Similar to his arguments regarding the autopsy photographs, Dorsey
argues that the crime scene technician’s testimony explaining the photos, given
uncontested testimony that Porcia was stabbed to death in her apartment, did
not advance proving the fact Porcia died in her apartment from the stab
wounds. Dorsey specifically supports his argument that the crime scene
photographs were cumulative by noting that when describing the photos
displayed on a courtroom screen, the crime scene technician made comments
such as “nothing new here,” “another look,” or “next” when viewing multiple
images of the blood path, Porcia’s body, a saturation stain, a pool of dried
blood, Porcia’s feet, and her body after placement of evidence markers. The
Commonwealth counters that beyond showing the commission and violence of
the crime, the photographs were also used to counteract Dorsey’s “temporary
state of mind” EED defense; the photos were relevant to illustrate the amount
of time it took for the attack and all subsequent events which allegedly
occurred during Dorsey’s “blackout.”
Upon viewing some of the photos, particularly numerous photos of the
victim’s feet, Dorsey’s argument appears to have merit. However, the
15 Commonwealth states the multiple perspectives of the feet were relevant to the
technician’s testimony and, further, the lack of blood on Porcia’s feet was
significant to its case, indicating Porcia was not walking on the blood-covered
floor. Upon reviewing the crime scene technician’s testimony describing the
photos, we conclude the technician provided appropriate context and reasons
for the multiple photos.
Clearly, the needless presentation of relevant cumulative evidence is
discouraged — in part to prevent waste of time.10 While some of the photos
introduced may appear cumulative, cumulativeness on its own is harmless
error. See Combs v. Commonwealth, 965 S.W.2d 161, 165 (Ky. 1998).
Cumulative evidence is not harmless, however, when undue prejudice
outweighs the incremental probity of the cumulative evidence. Hall, 468
S.W.3d at 824 (citations omitted). Determining whether the probative value of
the challenged photos is substantially outweighed by undue prejudice is a task
within the sound discretion of the trial judge. Cook v. Commonwealth, 129
S.W.3d 351, 361 (Ky. 2004); Barnett, 979 S.W.2d at 103 (“In making a KRE
403 ruling, a trial court must consider three factors: the probative worth of the
evidence, the probability that the evidence will cause undue prejudice, and
whether the harmful effects substantially outweigh the probative worth.”).
10 KRE 403 is entitled “Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time.”
16 Like the autopsy photos, the trial court reviewed the crime scene photos
individually, and during that review, excluded two photos as cumulative. As
pointed out by the Commonwealth, the crime scene evidence was necessary to
refute Dorsey’s “state of mind” EED defense. Upon review, we cannot find the
trial court abused its discretion by concluding that entry of the challenged
crimes scene photos into evidence did not create undue prejudice which
substantially outweighed their probative value.
2) The trial court did not err by declining to grant Dorsey’s request to remove Juror 23 for cause.
Dorsey’s next claim is that the trial court erred in failing to grant his for-
cause juror challenge to Juror 23. According to Dorsey, this error led to
another juror being on the panel who he otherwise would have removed by a
peremptory strike.11
During voir dire, relevant to his EED defense, Dorsey’s counsel asked
potential jurors their opinions as to whether murder can be mitigated by
emotion or rage. One juror, identified as Juror 45, explained that she believed
that people are accountable for their actions and if a person has rage problems,
they should do something about it before it escalates and someone is hurt.
She specifically stated:
I don’t think that as a juror . . . the defendant . . . ought to use rage as something for the jurors to look at. I would not want to do that. Not rage and anger. I just would not want to count
11 Appellant’s counsel complied with the rule established in Gabbard v. Commonwealth, 297 S.W.3d 844, 854 (Ky. 2009), for preserving an alleged error in the failure to grant a challenge for cause. He identified on his strike sheet additional jurors he would have peremptorily struck had he not been compelled to use peremptory strikes to remove Jurors 1 and 23.
17 that into lessening any degree of the charge. ... I don’t believe that at all.
Soon afterward, defense counsel asked another juror, identified as Juror
23, her opinion on rage. The discourse between defense counsel and Juror 23
follows.
Juror 23 I think (inaudible). Counsel: You-you agree? Juror 23: Yes. Murder, whether it’s intended or not (inaudible). Counsel: OK. Juror 23: It’s (inaudible) to shoot somebody. Counsel: You - the emotional state of someone does not matter to you? Juror 23: That’s true. Counsel: What’s the chance that I’m going to change your mind in the next four days? Juror 23: Slim. Counsel: Slim? OK.
The trial court granted Dorsey’s motion to strike Juror 45 for cause, but
not Juror 23. The trial court explained that Juror 45’s response disqualified
her as being unable to consider the EED defense and a conviction under a
manslaughter instruction, stating:
[Juror 45] said rage or anger cannot be used to reduce a charge .... And, if in this case, the extreme emotional disturbance instruction is given, her statements relate directly to that.
That’s different than number 23 . . . both of them were asked in a vacuum. [Juror] 45 just happened to hit on the precise issue. [Juror] 23 did not. ... She [gave] an opinion that emotional state doesn’t matter on a murder, and it frankly might not based on the instruction that may be given. There was no further investigation [by counsel] into anything related to the law, and . . . there was no request to go any further into it.
18 In Sturgeon v. Commonwealth, 521 S.W.3d 189, 193 (Ky. 2017), we
recently explained that RCr 9.36(l)’s12 plain reading requires a prospective
juror to be excused for cause if there is a reasonable ground to believe that he
cannot render a fair and impartial verdict. Dorsey argues that the trial court
erred when denying his for-cause strike of Juror 23 because, when considering
the overall context of her discussion with defense counsel, defense counsel’s
for-cause challenge, and the trial court’s reasoning for denying the strike,
Juror 23, like stricken Juror 45, was unable to consider the EED defense in
this case. Dorsey specifically notes that when Juror 23 stated she felt a
person’s emotional state does not matter in a murder, that constituted a
reasonable ground for believing that she could not render a fair and impartial
verdict.
To determine whether a reasonable ground existed to doubt the challenged juror’s ability to render a fair and impartial verdict, the trial court must weigh the probability of bias or prejudice based on the entirety of the juror’s responses and demeanor. . . . The decision as to whether to strike a prospective juror for cause lies within the sound discretion of the trial court, and unless the action of the trial court is an abuse of discretion or is clearly erroneous, an appellate court will not reverse the trial court’s determination.
Sturgeon, 521 S.W.3d at 196 (internal quotation marks and citations
omitted).
Although portions of the voir dire record reflecting Juror 23’s comments
are inaudible, the trial court made specific findings pertaining to Juror 23’s
12 RCr 9.36(1) states: “When there is reasonable ground to believe that a prospective juror cannot render a fair and impartial verdict on the evidence, that juror shall be excused as not qualified.”
19 responses. The trial court evaluated Juror 23’s responses in light of the juror’s
knowledge of the facts and understanding of the law, Stopher v.
Commonwealth, 57 S.W.3d 787, 797 (Ky. 2001), noting Juror 23’s response
was made in a vacuum,13 and unlike “doubtful” Juror 45,14 did not specifically
state she could not consider rage or emotion to reduce a charge. Without
more, the trial court determined that Juror 23’s responses and demeanor did
not provide a reasonable ground to believe that she could not render a fair and
impartial verdict. See also Sturgeon, 521 S.W.3d 189, 196 (juror’s vacillations
did not create reasonable ground to doubt his qualifications). Upon review, we
cannot conclude the trial court abused its discretion when it declined to excuse
Juror 23.
3) The trial court did not commit palpable error when allowing the Commonwealth to introduce into evidence the social media posts Dorsey made after Porcia’s death.
Lastly, Dorsey claims that the trial court erred when allowing the
Commonwealth to introduce into evidence his social media posts that he made
after Porcia’s death. Because the specific error he now alleges was not
preserved, he seeks palpable error review pursuant to Kentucky Rule of
Criminal Procedure (RCr) 10.26.
13 Later in voir dire, to help with confusion, the trial court explained that there are some circumstances in which the law will actually allow taking into consideration a defendant’s emotional state. 14 “[A] juror who explicitly admits that he will not or cannot follow the law as contained in the instructions, has by definition identified himself as a “doubtful” juror who must be excused for cause.” Sturgeon, 521 S.W.3d at 194 (citing Ordway v. Commonwealth, 391 S.W.3d 762, 780 (Ky. 2013)).
20 The Commonwealth introduced into evidence Facebook postings Dorsey
made in the hours after killing Porcia. The postings consisted of messages with
Dorsey’s then-girlfriend, Audreanna; three photos including one depicting
Dorsey with another female; and nine photos15 taken during Dorsey’s military
deployment. When the messages with Audreanna were introduced during the
detective’s testimony, Dorsey objected on hearsay and confrontation grounds.
The trial court agreed with the Commonwealth that the messages were relevant
to Dorsey’s state of mind, put at issue by Dorsey’s EED defense, and overruled
the objections. Dorsey’s counsel stated he had no objection to the photos
including the other female, also entered during the detective’s testimony, and
the deployment photos, entered during Dorsey’s testimony.
Citing Rucker v. Commonwealth, 521 S.W.3d 562, 567-70 (Ky. 2017),
Dorsey now argues that introduction of these social media posts into evidence
was error under KRE 404(b). KRE 404(b) does not allow admission of evidence
of other crimes, wrongs, or acts to prove the character of a person in order to
show action in conformity therewith; however, KRE 404(b)(1) does allow entry
of such evidence if it is “offered for some other purpose,” including but not
limited to, proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.
In Rucker, the defendant alleged he accidently killed his girlfriend and,
after realizing she was dead, he was scared and disposed of her body. Id. at
15 The exhibit consisted of 87 pages of photographs, nine were uploaded by Dorsey on December 11 and 12, 2014.
21 566. During trial, over Rucker’s objection, the trial court allowed the
Commonwealth to introduce sexually explicit images of Rucker and
conversations which Rucker exchanged through Facebook after his girlfriend’s
death, agreeing with the Commonwealth that the postings went to Rucker’s
state of mind and that they were not covered by KRE 404(b). Id. at 567.
Upon review, this Court concluded that the Facebook postings were
“acts” subject to analysis under KRE 404(b). Id. We also concluded that the
trial court abused its discretion admitting the postings because the
Commonwealth’s purpose in showing the jury the Facebook postings was
simply to demonstrate that Rucker was a contemptible person of low character;
the postings were not relevant to his state of mind regarding crimes that had
already been committed against his former girlfriend and did not pertain in any
way to the crimes with which he was charged. Id. at 569. Dorsey contends
that as in Rucker, his social media posts were not relevant to his state of mind.
We review the trial court’s decision to enter the social media posts, the
prior bad acts evidence, for an abuse of discretion by considering if the
evidence is relevant for some purpose other than to prove the criminal
disposition of the accused, probative as to the actual commission of the prior
bad act, and not overly prejudicial under KRE 403. Kerr v. Commonwealth,
400 S.W.3d 250, 260-61 (Ky. 2013) (internal quotation marks, alteration, and
citations omitted). In this case, we find no abuse of discretion.
Although the majority of Dorsey’s postings were introduced during the
detective’s testimony, Dorsey contends that it is clear from the
22 Commonwealth’s cross-examination of Dorsey that its purpose in introducing
the postings was to show Dorsey’s callousness in talking to another woman
and spending time uploading to Facebook after killing Porcia, leaving her in a
pool of blood and her toddler son locked in a room, and going about his day as
if nothing had happened. The Commonwealth maintains the messages and
posts went directly to Dorsey’s state of mind at the time.
Kentucky Revised Statute (KRS) 507.020(l)(a) provides that a person is
not guilty of murder when he intentionally causes the death of another person
if “he acted under the influence of extreme emotional disturbance for which
there was a reasonable explanation or excuse, the reasonableness of which is
to be determined from the viewpoint of a person in the defendant's situation
under the circumstances as the defendant believed them to be.” In McClellan v
Commonwealth, 715 S.W.2d 464, 468-69 (Ky. 1986), we defined “extreme
emotional disturbance” as follows:
Extreme emotional disturbance is a temporary state of mind so enraged, inflamed, or disturbed as to overcome one's judgment, and to cause one to act uncontrollably from the impelling force of the extreme emotional disturbance rather than from evil or malicious purposes. It is not a mental disease in itself, and an enraged, inflamed, or disturbed emotional state does not constitute an extreme emotional disturbance unless there is a reasonable explanation or excuse therefor, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under circumstances as defendant believed them to be.
Thus, if the juxy has a reasonable doubt as to whether a defendant was
acting under the influence of extreme emotional disturbance, the jury cannot
find him guilty of murder. Consequently, once the defendant introduces
23 evidence tending to establish EED, in order to obtain a murder conviction, the
Commonwealth must prove the homicidal act was not committed under the
influence of an extreme emotional disturbance. Greene v. Commonwealth, 197
S.W.3d 76, 81 (Ky. 2006). However, the Commonwealth’s affirmative duty to
prove the non-existence of EED is relieved if such proof is already present. Id.
With evidence putting the existence of EED in dispute, the existence of EED
becomes a question for the jury. Benjamin v. Commonwealth, 266 S.W.3d 775,
782 (Ky. 2008) (citation omitted).
Where direct evidence of the defendant’s state of mind is lacking, or is unclear, or is at odds with other evidence that can be deemed substantial, we have held that intent to kill can be inferred from the extent and character of the victim’s injuries and from the defendant’s actions preceding and following the charged offense, but whether a defendant actually has an intent to kill remains a subjective matter, and other inferences are not ruled out.
Malone v. Commonwealth, 364 S.W.3d 121, 131 (Ky. 2012) (internal quotation
marks and citation omitted).
The Commonwealth insists that in rebuttal of Dorsey’s evidence of EED,
it introduced Dorsey’s Facebook postings prior to and after his killing of Porcia
to show his pattern of behavior, i.e., that Dorsey did not care about Porcia and
the murder was not a result of EED. Prior to the murder, Dorsey
communicated to Audreanna that he missed her, he loved her, and he couldn’t
wait to get the promised full body massage. After killing Porcia, he did not
attempt to help her or her son. He instead took Porcia’s car and went for
medical supplies for himself. On the day of the murder, he continued to
message Audreanna about the massage. He also made other Facebook
24 postings about another woman and continued about his day as if nothing had
happened.
Unlike in Rucker, we agree with the Commonwealth and the trial court
that the postings in this case are relevant to Dorsey’s state of mind, and are
thus offered for some purpose other than to prove the criminal disposition of
the accused. Furthermore, the postings are probative as to the actual
commission of the bad acts, and when reviewing the evidence in the light most
favorable to the Commonwealth, Major v. Commonwealth, 177 S.W.3d 700, 707
(Ky. 2005) (citation omitted), not overly prejudicial under KRE 403. Here, with
direct evidence of Dorsey’s state of mind lacking, we find that the trial court
properly admitted the Facebook postings, actions from which Dorsey’s intent to
kill could be inferred. The trial court did not commit palpable error, and
consequently, relief is not available to Dorsey under RCr 10.26.
CONCLUSION
For the reasons stated above, the Jefferson Circuit Court’s judgment is
affirmed.
Minton, C.J.; Hughes, Keller, Lambert, VanMeter, and Wright, JJ.,
sitting. All concur. Buckingham, J., not sitting.
25 COUNSEL FOR APPELLANT:
Daniel T. Goyette Cicely Jaracz Lambert Adam Braunbeck Louisville Metro Public Defender
COUNSEL FOR APPELLEE:
Andy Beshear, Attorney General of Kentucky
Mark Barry Assistant Attorney General