Dorsey, Henry Demond
PD-1475-15
| Tex. App. | Nov 20, 2015Background
- December 9, 2012: a shooting after an after-hours club fight killed Timothy Powell; surveillance video and eyewitnesses linked Henry Dorsey to the shooter; no gun, DNA, or fingerprints were recovered.
- Dorsey was indicted for murder, convicted by a jury, and sentenced to 55 years with a deadly-weapon finding; appeal followed and the Fourteenth Court of Appeals affirmed.
- At trial an assistant medical examiner (Dr. Auzalone) who supervised and co-signed the autopsy report testified; the actual autopsy fellow did not testify. The State admitted autopsy photographs (the written autopsy report was not admitted).
- Defense objected under the Confrontation Clause to admission of the autopsy report/photographs and to testimony by a supervisor who did not perform the autopsy; the trial court overruled objections and admitted the photographs and live testimony.
- During polling, one juror’s response was not recorded and one name was miscalled; defense did not object at trial. At punishment phase, defense presented no mitigation witnesses and counsel stated he chose not to put on a punishment case.
Issues
| Issue | Plaintiff's Argument (Dorsey) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Confrontation Clause — admission of autopsy evidence and testimony | Trial court violated Confrontation Clause by admitting autopsy report/photographs and letting supervisor testify instead of the fellow who performed the autopsy | Autopsy report was not admitted; photographs are non-testimonial; assistant ME testified to her own observations and review; no timely objection to live testimony | Affirmed: no Confrontation violation; photos non-testimonial and testimony did not admit testimonial hearsay |
| Ineffective assistance at punishment — failure to present mitigation | Counsel was constitutionally ineffective for resting without calling mitigation witnesses or presenting mitigating evidence | Record shows no proof mitigation witnesses existed or were available; strategic choices are presumed reasonable; no showing of prejudice | Affirmed: claim fails on record — no showing of available mitigation or prejudice |
| Verdict unanimity / jury polling irregularity | Polling was inconclusive (two jurors did not affirm); under Art. 37.05 court should have sent jury out again | Miscall of a non-juror name occurred; twelve jurors were polled and each (but one) answered; record does not show a negative answer; defense forfeited complaint by not objecting | Affirmed: appellant forfeited complaint; record does not show a juror answered negatively; no Article 37.05 violation |
Key Cases Cited
- Crawford v. Washington, 541 U.S. 36 (Confrontation Clause governs testimonial out-of-court statements)
- Melendez-Diaz v. Massachusetts, 557 U.S. 305 (Confrontation Clause does not require every participant in testing to testify)
- Strickland v. Washington, 466 U.S. 688 (two-prong test for ineffective assistance of counsel)
- Rompilla v. Beard, 545 U.S. 374 (counsel must investigate available mitigation material)
- Williams v. Taylor, 529 U.S. 362 (failure to investigate and present mitigation can be prejudicial)
- Herrera v. State, 367 S.W.3d 762 (Tex. App.—Houston [14th Dist.] 2012) (autopsy photograph not testimonial)
- Wood v. State, 299 S.W.3d 200 (Tex. App.—Austin 2009) (autopsy photograph non-testimonial precedent used by court)
- McCarty v. State, 257 S.W.3d 238 (standards for reviewing trial court evidentiary rulings)