Commonwealth v. DorseyCommonwealth v. Dorsey
Homicide. Controlled Substances. Resisting Arrest. Self-Defense. Practice, Criminal, Assistance of counsel, New trial, Capital case. Evidence, Self-defense, Expert opinion, Prior violent conduct, Prior misconduct. Mental Health.
Indictments found and returned in the Superior Court Department on June 29, 2015.
The cases were tried before John S. Ferrara, J., and a motion for a new trial, filed on July 11, 2024, was heard by David M. Hodge, J.
Edward B. Gaffney for the defendant.
David L. Sheppard-Brick, Assistant District Attorney, for the Commonwealth.
KAFKER, J. A jury convicted the defendant, Van Leon Dorsey, Jr., of murder in the first degree on the theory of deliberate premeditation for the death of Monique Vanzant (victim), who was fatally stabbed in the apartment where she and
The defendant makes four claims of ineffective assistance of counsel, which he contends require a new trial. He claims that trial counsel unreasonably ended his investigation into the defendant‘s posttraumatic stress disorder (PTSD), which the defendant argues would have supported an additional substantial defense, or a finding, “at worst,” of murder in the second degree. The defendant also argues counsel failed to adequately investigate the victim‘s violent history, which would have supported an Adjutant defense. See Commonwealth v. Adjutant, 443 Mass. 649 (2005). The defendant further claims that trial counsel failed to introduce evidence of the victim‘s drug usage immediately prior to her death and failed to introduce expert testimony on the defendant‘s defensive hand wound that would have further corroborated his testimony that he acted in self-defense. Finally, the defendant argues that we should reduce his conviction to murder in the second degree pursuant to
1. Background.
We begin by reciting the facts that the jury could have found and then summarize the evidence submitted in support of the defendant‘s motion for a new trial, reserving certain facts for later discussion.
a. The Commonwealth‘s case at trial.
In May 2015, the defendant and the victim were dating and had been living together for several months in an apartment on the third floor of a three-story home in Springfield. The victim had a five year old daughter with Corey Benjamin. While the victim attended school to become a medical assistant, Corey‘s family -- including his sister, Sheterika Benjamin; Corey and Sheterika‘s mother, Sandra Turner; and Sandra‘s husband, Donald Turner -- would take care of the child.1 Sheterika lived at Sandra‘s house with her children, her nieces, and Sandra and Donald.
Sheterika and Sandra then drove to the victim and defendant‘s apartment building, which took about five minutes. Sheterika continued to call the victim on the way, but her calls went to voicemail each time. Once they arrived, Sheterika found the victim‘s body lying inside the apartment building‘s entrance, which prevented the front door from opening completely. She tried to grab the victim‘s arm, but it slipped out of her grasp because it was covered in blood. Sandra called 911 while Sheterika stuck her head inside the doorway and called for the defendant. The defendant came down the stairs, but when
Sheterika and Sandra waited on the porch of the apartment building until several police officers and first responders arrived at around 7:30 P.M. One first responder testified that he saw the defendant looking outside at the group through a third-story window, and he would periodically appear and disappear from view. A police officer eventually forced the apartment building‘s door open, and he observed the victim lying on the floor with no vital signs. The entryway floor was covered in blood. There were bloody footprints on the stairs leading away from the victim and bloodstains covering the stairs and walls leading up the staircase to the third-floor apartment. Inside the apartment, there were bloodstains in the living room and in the kitchen.
A forensic scientist at the State police crime laboratory collected blood samples from the scene of the crime. At trial, she opined that the spatter and “cast off” pattern of bloodstains throughout the front doorway area of the third-floor apartment and the staircase were consistent with blood being released from an object or a person in motion traveling downward, and that the bloodstains on the living room wall near
Two officers used the staircase at the back of the building to enter the third-floor apartment through an open door. They found the defendant lying face down on a couch with his hands under his body. Both the defendant and the couch were covered in blood. The officers repeatedly instructed the defendant to get on the floor and to show his hands, and after the fifth command to do so, the defendant slid off the couch and complied. The defendant struggled as the officers tried to handcuff him, and another officer entered the apartment through the front door and assisted. Pepper spray was deployed, and the officers eventually placed handcuffs and leg shackles on the defendant. The same forensic scientist also collected blood samples from the defendant at the scene of the crime.
In the apartment, officers found a broken knife handle and blade on the couch where the defendant was lying; the victim‘s Samsung cell phone underneath a couch cushion; and two small plastic bags containing phencyclidine, also known as PCP, on a built-in hutch in the living room.2 There was also a partially
The officers eventually led the defendant, who was walking “on his own power,” down the apartment building‘s back staircase. As the defendant descended the stairs, he repeatedly jerked his body away from the officer walking behind him. At the bottom of the stairs, an officer noticed that the defendant had a small cut on his hand and called for a paramedic to treat the wound. The defendant was cooperative while being treated and escorted to the police cruiser.
The defendant was thereafter transported to the Springfield police station. While a criminalist took sample swabs of the fluids and blood on the defendant‘s body, the defendant began to shake for about fifteen seconds. An officer testified that the defendant‘s behavior did not appear to be a seizure,4 but the defendant was placed on his side into the recovery position as a precaution. Someone then called for an ambulance to transport the defendant to a hospital. While waiting for the ambulance, the defendant resumed behaving normally.
Officers drove the defendant to the police station, which took about five minutes. Upon arriving, the defendant no longer walked on his own and officers had to carry him into the booking area. The defendant was informed that he was being audio and visually recorded. Throughout the booking process, the defendant was hunched over, appearing unable to stand on his own.
b. The defendant‘s case at trial.
The defendant admitted to killing the victim, but trial counsel argued that the defendant acted in self-defense, albeit with excessive force, and was therefore guilty only of voluntary manslaughter. Trial counsel also argued that the defendant lacked the requisite intent for murder in the first degree because the defendant was under the influence of PCP.
The defendant‘s first witness was Dr. Alison Fife, a psychiatrist hired by the Commonwealth to evaluate the
The defendant then testified on his own behalf. He explained that he began the day of the victim‘s death with a job interview and then eventually returned to his apartment. That evening, he and the victim were smoking marijuana and PCP together. At some point, the defendant received a telephone call from Stephanie Lopez, his ex-girlfriend and the mother of his child. He took the call in another room while the victim went into the kitchen. The defendant was upset by the call with Lopez, which concerned money for their child, but he testified that he was not angry. The victim then came out of the kitchen and was angry at the defendant because she believed he was cheating on her with Lopez. The defendant testified that in response, he began to leave the apartment when he suddenly looked over his shoulder and saw the victim standing with a knife in her hand. He then “grabbed her wrist and the knife at
On cross-examination, the Commonwealth established that the defendant did not tell Fife that he was attacked by the victim or that he stabbed her in self-defense. Nor did he tell this to Dr. Robert Joss, who was hired by the defense. Rather, he told them he did not remember anything that occurred after his job interview.
c. Evidence presented in the defendant‘s motion for a new trial.
In this consolidated appeal, the defendant raises four claims of ineffective assistance of counsel. First, he claims trial counsel failed to adequately investigate his PTSD, which would have supported the theory that he lacked the requisite intent for murder in the first degree based on the theory of premeditation. In his motion for a new trial, the defendant provided the opinion of Dr. Seth Pitman, who evaluated the defendant in April and May 2024, nine years after the victim‘s death. Pitman opined that at the time of the victim‘s death, the defendant was suffering from PTSD, which arose from a prior
The defendant‘s three remaining claims each relate to trial counsel‘s alleged failure to adequately investigate and argue his theory of self-defense and that the victim was the first aggressor. The defendant alleges trial counsel failed to adequately investigate the victim‘s history of violent conduct. His motion for a new trial included an affidavit from Lopez, who attested that she had a physical altercation with the victim in 2014 because the victim was jealous of Lopez‘s prior relationship with the defendant. Similarly, the defendant presented an affidavit from Alyssa Orwat, a mutual friend of the defendant and the victim, who stated that she witnessed at least one altercation between the defendant and the victim in which the victim was the aggressor. Additionally, the defendant himself provided an affidavit in which he attested to additional incidents of the victim‘s alleged violent conduct.
Next, the defendant contends trial counsel failed to introduce evidence that the victim was under the influence of PCP immediately before the attack. The defendant‘s motion provided evidence, which was available at the time of trial, that the victim had PCP in her bloodstream at the time of her
Finally, the defendant claims trial counsel failed to introduce evidence corroborating the defendant‘s claim that the laceration on his palm was a defensive wound. The defendant provided the opinion of Dr. Richard Ma, a hospital-based physician and primary care provider with expertise in internal medicine, who examined photographs of the laceration on the defendant‘s hand and related medical records and opined that it was consistent with a defensive wound.
2. Procedural history.
On June 29, 2015, the defendant was indicted on one count of murder in the first degree (count one); one count of resisting arrest (count two); one count of unlawful possession of PCP, a class B substance, as a subsequent offender (count three); and one count of cultivation of marijuana, a class D substance, as a subsequent offender (count four). A jury trial began on March 11, 2020, but resulted in a mistrial due to the COVID-19 pandemic.6 On June 14, 2021, a second jury trial on the same charges began, with the defendant having new trial counsel. On June 21, 2021, the jury convicted
The defendant appealed from his convictions and subsequently filed a motion for a new trial. The motion judge, who was not the trial judge, denied the defendant‘s motion for a new trial after a nonevidentiary hearing. The defendant‘s appeal from that order was consolidated with his direct appeal before this court, pursuant to
3. Discussion.
a. Standards of review.
“Because the motion judge did not preside over the trial or conduct an evidentiary hearing,” we review the denial of the motion for a new trial de novo. Commonwealth v. Mazza, 484 Mass. 539, 547 (2020). See Commonwealth v. Hernandez, 481 Mass. 189, 195 (2019) (“As the motion judge was not the trial judge, and as the motion judge conducted a nonevidentiary hearing, we are in ‘as good a position as the
“In the review of cases involving murder in the first degree, ‘[r]ather than evaluating an ineffective assistance claim under the traditional standard of Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), . . . we apply the standard of
b. The defendant‘s potential PTSD.
Joss was hired by the defense prior to trial in 2017 to evaluate the defendant‘s mental state at the time of the victim‘s death. Joss concluded that although the defendant had not been diagnosed with PTSD, “[t]here [was] evidence for a diagnosis of [PTSD].” Trial counsel then hired Dr. Tammy Jones to interview the defendant regarding his PTSD. Although Jones provided no written findings, trial counsel stated in his affidavit submitted with the motion for a new trial that, after meeting with Jones, “the conclusion had been that [the defendant] had never been officially diagnosed or treated for PTSD. I then concluded that I would not be able to use PTSD in support of [the defendant‘s] defense at trial . . . .” The defendant argues that trial counsel‘s decision not to continue investigating the defendant‘s PTSD was manifestly unreasonable because trial counsel already knew, based on Joss‘s findings, that the defendant did not have a PTSD diagnosis. Thus, because the absence of a PTSD diagnosis does not indicate whether the defendant was suffering from PTSD at the time of the victim‘s death, the defendant claims that trial counsel prematurely abandoned his inquiry into the defendant‘s PTSD.
“Trial counsel must conduct a reasonable investigation into possible defenses, even if counsel ultimately does not pursue
We conclude that the defendant has failed to meet his burden to prove that trial counsel was ineffective on the ground of inadequate investigation of the defendant‘s PTSD. The record shows that counsel did engage an expert, Jones, specifically to inquire into the defendant‘s PTSD. Because Jones provided no written findings, the only information about Jones‘s conclusions is the two sentences in trial counsel‘s affidavit stating that Jones determined the defendant had not been diagnosed with PTSD, which led trial counsel to conclude that PTSD was not available to support the defendant‘s defense at trial. There are thus significant gaps in trial counsel‘s affidavit, because it is not clear what specifically Jones said for trial counsel to arrive
c. The victim‘s history of violent conduct.
The defendant next contends that trial counsel‘s investigation of the victim‘s history of violent conduct was also inadequate and prejudiced his self-defense claim. Under Adjutant, 443 Mass. at 664, “where the identity of the first aggressor is in dispute and the victim has a history of violence . . . , the trial judge has the discretion to admit evidence of specific acts of prior violent conduct that the victim is reasonably alleged to have initiated, to support the defendant‘s claim of self-defense.” In his affidavit, trial counsel avers that although he looked for “so-called Adjutant evidence” in the victim‘s criminal record, he “did not see anything that [he] felt would be admissible” and thus the jury did not hear any such evidence at trial. The defendant argues that because Adjutant does not require that prior violent conduct result in criminal charges in order to be admissible, and given the importance of evidence corroborating his self-defense claim, it was manifestly unreasonable for trial counsel to limit his investigation for Adjutant evidence to the victim‘s formal criminal record. In the defendant‘s view, such a decision was particularly unreasonable because during the defendant‘s first trial, which ended in a mistrial due to the
Even assuming that trial counsel‘s investigation was inadequate for the reasons offered by the defendant, the defendant has not shown that any such shortfall created a substantial likelihood of a miscarriage of justice. See Noguera, 496 Mass. at 616. First, it is not clear that trial counsel would have presented evidence of the alleged prior incidents of violence even after a more fulsome investigation. See id. at 617 (defendant‘s argument that deficient investigation resulted in substantial likelihood of miscarriage of justice “rests on speculation, because the defendant has not shown that counsel would have introduced these records in evidence at trial even if he had obtained them“). In his affidavit, trial counsel stated that he chose not to present Adjutant evidence in part because he “felt strategically it may not be beneficial in the eyes of the jury.” Any strategic reasons trial counsel had for not offering evidence of prior
Moreover, each of the violent acts described in the defendant‘s motion suffers from significant weaknesses. For example, both Orwat‘s and Lopez‘s credibility are undermined by the fact that they have close relationships with the defendant, and they did not come forward with their allegations of the victim‘s violent conduct until after the defendant had been held before trial for several years and was eventually convicted. See Commonwealth v. Washington, 459 Mass. 32, 41 (2011), quoting Commonwealth v. Hart, 455 Mass. 230, 238 (2009) (although “‘[a] person ordinarily has no legal obligation to provide exculpatory information to the police,’ . . . a witness‘s failure to do so may support ‘a reasonable inference that the exculpatory information is not credible‘” [citation omitted]). Further, despite averring in her affidavit that she “never throw[s] the first punch” and thus the victim likely instigated their physical fight in 2014, Lopez‘s criminal record describes an incident in which she was accused of initiating a fist fight at a bar. Orwat also has several serious felony convictions. See Commonwealth v. Smith, 450 Mass. 395, 407 (2008), cert. denied, 555 U.S. 893 (2008) (“Under
Finally, even if trial counsel had proffered and the trial judge had admitted such evidence despite the foregoing, it is nevertheless unlikely that this evidence would have influenced the jury‘s verdict. See Noguera, 496 Mass. at 622, citing Gibson, 492 Mass. at 568. We agree with the Commonwealth‘s view that it is a stretch to suggest that because the victim had previously engaged in fist fights, she would have attacked the defendant with a large kitchen knife. Although each of the alleged incidents provide some limited support for the defendant‘s claim that the victim was the first aggressor, slapping, punching, and scratching are markedly different from
d. The victim‘s drug usage.
Next, the defendant argues that trial counsel was ineffective for failing to introduce evidence that the victim was under the influence of PCP
More specifically, there was ample evidence introduced at trial of both the victim‘s and the defendant‘s PCP usage: there was evidence of PCP and marijuana in the apartment, including photographs of two burnt blunts on the kitchen table near the victim‘s notebooks; testimony of the crime scene officer, Sergeant James McCoy, that the burnt blunts were consistent with those containing narcotics; and testimony of the defendant that both he and the victim used PCP on the evening of the victim‘s death. Additionally, Fife specifically testified that PCP can cause aggressive behavior. Trial counsel‘s decision not to belabor the victim‘s PCP usage to suggest that she was the first aggressor was thus not manifestly unreasonable because, as the motion judge noted, the evidence cuts both ways: the jury could
e. The defendant‘s hand wound.
Finally, we address the defendant‘s assertion that his trial counsel was ineffective for failing to introduce expert testimony that the laceration on his hand was consistent with a defensive wound. The defendant contends that this failure was prejudicial because it deprived him of critical corroboration of the only physical evidence supporting his self-defense claim. In support of this argument, the defendant submitted a report from Ma, a physician who the defendant claims has “expertise in identifying and treating defensive wounds made with sharp instruments such as knives.” In his report, Ma opined that the injury on the defendant‘s
We note at the outset that the proffer to establish Ma‘s credentials as an expert on defensive wounds was weak at best. Although the record before us demonstrates that Ma worked as a hospital-based physician and primary care provider for many years, apart from conclusory statements in Ma‘s report and appellate counsel‘s affidavit,14 there is little indication that Ma had any experience or training in the area of forensic pathology generally or defensive wounds specifically. Contrast Commonwealth v. Cyr, 425 Mass. 89, 96-97 (1997), S.C., 433 Mass. 617 (2001) (medical examiner qualified to opine on whether injuries were defensive wounds because he “based his opinion on his specialized training” and “his extensive experience in having conducted approximately 3,000 autopsies“).
G. L. c. 278, § 33E .
The defendant seeks a reduction in the murder verdict to a lesser degree of guilt pursuant to our power under
4. Conclusion.
For the foregoing reasons, we affirm the judgments and the order denying the defendant‘s motion for a new trial.
So ordered.