S05A0897. DORSEY v. THE STATE.
S05A0897
Supreme Court of Georgia
DECIDED JUNE 30, 2005.
(615 SE2d 512)
THOMPSON, Justice.
Judgment reversed. All the Justices concur.
DECIDED JUNE 30, 2005.
Savage, Turner, Pinson & Karsman, Robert B. Turner, Kathryn H. Pinckney, for appellant.
Adam S. Poppell III, Fletcher Farrington, Douglas W. Alexander, for appellees.
S05A0897. DORSEY v. THE STATE.
(615 SE2d 512)
THOMPSON, Justice.
Sidney Dorsey, a former Sheriff of DeKalb County, Georgia, was convicted of malice murder, two counts of violating the Georgia Racketeer Influenced and Corrupt Organizations Act (“RICO“), violation of oath by a public officer, and theft by taking in violation of duties as a public officer (eight counts), in connection with the shooting death of his newly elected successor in office, Derwin Brown.1 On appeal, Dorsey primarily challenges his murder conviction on the basis that the State‘s theory of the case was materially misleading and erroneous, and he asserts that the RICO convictions
Viewed in a light most favorable to the verdict, the evidence established that from 1996 to 2000, Sidney Dorsey served as Sheriff of DeKalb County. In 2000 Dorsey ran for re-election, but was forced into a run-off, and was subsequently defeated by opponent Derwin Brown. During the campaign, Brown had begun an investigation to uncover corruption that Dorsey had allegedly engaged in during his tenure as sheriff.
In August 2000, after Dorsey was defeated in the election, he met with Shirley McMichael, a bondsperson with whom Dorsey was involved in an extra-marital affair. Dorsey told McMichael that Brown would never assume office as sheriff, that a special election would be held in January, and that Dorsey would be re-elected sheriff. Dorsey placed his hand in the shape of a gun up to his temple to signal Brown‘s shooting. Shortly after Dorsey lost the run-off election, he likewise told DeKalb County Chief Deputy Clarence Mosely that Brown “would never assume the office,” that an interim sheriff would be appointed, and that there would be a special election that Dorsey would ultimately win.
Thereafter, Dorsey summoned Patrick Cuffy to his home. Cuffy was a former employee of Dorsey‘s private security firm, Security Investigations Division (“SID“), and he had been hired by Dorsey to work in the internal affairs division of the DeKalb County Sheriff‘s Department. At that meeting, Dorsey handed Cuffy a written note which read, “Kill Derwin Brown.”2 When Cuffy declined to do the deed alone, Dorsey proposed that he solicit the help of three other former SID employees, Melvin Walker, David Ramsey, and Paul Skyers, to carry out the plot. Cuffy met with the other three and told them that Dorsey had requested their participation. They all agreed, and in consideration they received Dorsey‘s promise that if he were to regain his position as sheriff, each would be given the position they desired in the sheriff‘s department. Dorsey promised Cuffy that he would “speedily promote [him] through the ranks” and place him in charge of the community relations division.
Cuffy was the go-between who would meet with Dorsey and relay instructions back to the others. The four men conducted surveillance in preparation for the murder. Skyers provided the murder weapon: a Tech 9 millimeter semi-automatic handgun which was modified with a homemade silencer. It was decided that Walker would be the shooter. Over the course of three months they met regularly at night
Dorsey helped protect the murder team from detection. On one occasion, Cuffy parked his sheriff‘s vehicle at an elementary school near Brown‘s home and left the vehicle unattended. Around midnight, DeKalb law enforcement officers observed the vehicle and became suspicious because they had seen the same car parked there the previous night. At that point, another vehicle containing several occupants drove up to the school and Cuffy got out. The officers approached Cuffy and asked him for identification. Cuffy replied that he was working on a special assignment for the DeKalb County Sheriff. When Cuffy could not produce identification, he placed a call to Dorsey on his cell phone and handed the phone to the officer. Dorsey informed the officer that Cuffy was working on undercover surveillance for the sheriff‘s office. As a result of the information provided by Dorsey, the officers released Cuffy.
On December 15, 2000, a few months after Brown won the election and shortly before taking office, Dorsey instructed Cuffy that the shooting “had to be done that evening.” The four men met at Cuffy‘s home, and then drove together to a wooded area near Brown‘s home, which they had staked out during their surveillance. Skyers remained with the car while the others positioned themselves in wait for Brown to return home. As Brown exited his car and was walking along the driveway of his DeKalb County home, he was shot 12 times and killed. The four perpetrators drove to Cuffy‘s home where they dismantled the murder weapon; Skyers subsequently tossed it in a drain in Gwinnett County. Within weeks of the murder, Skyers met with Dorsey who asked if the police “were still harassing” him. Skyers told Dorsey that he was in need of money, and Dorsey handed him $1,000 in cash.
After Brown‘s death, the investigation into Dorsey‘s misconduct as sheriff intensified. When Cuffy was later arrested on an unrelated charge, he cooperated with the authorities and named Dorsey as the mastermind behind Brown‘s killing. Skyers also assisted in the police investigation and led officers to the murder weapon.3 Dorsey was charged in a 53-page indictment with murder, and other crimes stemming from his corruption in office.
The trial evidence revealed an ongoing pattern of theft of services of county personnel, and the unauthorized use of county vehicles and gasoline for personal profit and convenience throughout the entire
A jury found Dorsey guilty of malice murder, violations of the Georgia RICO Act (two counts), violation of oath by public officer, and theft by taking in violation of duties as a public officer (eight counts).
The Murder Count
1. Dorsey asserts the murder conviction cannot stand because the State misled the jury when it theorized that Dorsey killed Brown to prevent Brown from investigating and uncovering Dorsey‘s corruption. In this regard, Dorsey posits that he could not have engaged in any corrupt activities because he had sole discretion to allocate the funds and resources of the sheriff‘s office. Assuming without deciding that this assertion was properly raised below, see Jones v. State, 268 Ga. 12, 15 (5) (483 SE2d 871) (1997), we find the argument to be wholly without merit. It was incumbent upon Dorsey to protect county property from injury and waste; he was not empowered to use the sheriff‘s department as if it were his own personal domain.
The evidence was sufficient for a rational trier of fact to have found Dorsey guilty beyond a reasonable doubt of malice murder under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
The RICO Counts
2. In several enumerations of error, Dorsey submits that the trial court erred in denying his various motions to quash the RICO counts of the indictment, and that his convictions for those offenses are insupportable as a matter of law.
The trial court determined that Dorsey‘s motions to quash were properly characterized as general demurrers. When analyzing a general demurrer, the question is whether a defendant can admit to the conduct and still be innocent of the crime. State v. Eubanks, 239 Ga. 483 (238 SE2d 38) (1977); Drewry v. State, 201 Ga. App. 674 (1) (a) (411 SE2d 898) (1991).
To sustain its burden on the RICO charge, the State was required to show that [defendant] violated
(a) It is unlawful for any person, through a pattern of racketeering activity or proceeds derived therefrom, to acquire or maintain, directly or indirectly, any interest in or control of any enterprise, real property, or personal property of any nature, including money.
(b) It is unlawful for any person employed by or associated with any enterprise to conduct or participate in, directly or indirectly, such enterprise through a pattern of racketeering activity. [Cit.]
A person participates in a pattern of racketeering activity when he or she engages in at least two acts of racketeering activity in furtherance of one or more incidents, schemes, or transactions that have the same or similar intents, results, accomplices, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated incidents.
OCGA § 16-14-3 (8) (A) .
(Punctuation omitted.) Saxon v. State, 266 Ga. App. 547, 551 (1) (597 SE2d 608) (2004). “Racketeering activity’ means to commit, to attempt to commit, or to solicit, coerce, or intimidate another person to commit any crime which is chargeable by indictment” under certain specified categories of laws.
In Dorsey‘s case, two RICO counts were submitted to the jury. These counts alleged: (1) that through a pattern of racketeering activity, Dorsey did “acquire and maintain... interest in or control of... personal property” (
In denying the general demurrers to the RICO counts, the trial court properly determined that the numerous predicate acts alleged in the indictment reveal an interrelated pattern of activity by and through the sheriff‘s office during Dorsey‘s tenure.
(a) For a host of reasons, Dorsey argues that the Category One theft racketeering acts as charged in the indictment should have been quashed by the trial court, and, therefore, cannot support the RICO convictions. Pretermitting that question, we are persuaded that both RICO counts are supported beyond a reasonable doubt by at least two other crimes charged as predicate offenses. “Evidence of two predicate acts will sustain the RICO conviction... [where] the evidence authorized the jury to find that [defendant] committed at least two predicate acts... [w]e need not consider the remaining predicate acts charged.” Jones v. State, 252 Ga. App. 332, 333 (1) (556 SE2d 238) (2001). This is true even where certain predicate offenses were improperly charged in the indictment; if two remaining predicate offenses were proven beyond a reasonable doubt, the proof was sufficient to support a RICO conviction. Bethune v. State, 198 Ga. App. 490 (1) (402 SE2d 276) (1991). Accord Thompson v. State, 211 Ga. App. 887 (1) (b) (440 SE2d 670) (1994) (unnecessary for appellate court to address possible defects in certain alleged predicate acts where removal of those acts leaves numerous other predicate acts which properly support RICO conviction). See also Mosley v. State, 253 Ga. App. 710, 712 (1) (560 SE2d 305) (2002) (“RICO conviction requires proof that a defendant has committed two or more offenses of the kind included in the RICO statute; it does not require the State to prove all of the alleged predicate offenses“). Even with the removal of the Category One predicate theft acts, Dorsey‘s two RICO convictions are overwhelmingly supported.5 Bethune, supra; Thompson, supra.
(b) Dorsey also asserts that the State failed to offer evidence that he acquired personal property and money “through a pattern of racketeering.” It is sufficient that the predicate acts be related to each other and that one or more of the acts which form the pattern result in the defendant acquiring or maintaining the prohibited control. See Caldwell, supra at 402 (1). “Here, there is a clear connection between the enterprise the Sheriff‘s Office and the predicate acts committed by Sheriff [Dorsey].... The offenses were a part of a scheme to use the Sheriff‘s Office for illicit profit-making activities.” United States v. Welch, 656 F2d 1039, 1062 (5th Cir. Tex. 1981) (interpreting the same provision, “through a pattern of racketeering activity,” contained in the federal statute).
(c) Dorsey challenges the Category Five predicate offenses, each concerning an “act... involving murder.” The basis for the challenge is that a preparatory act, which standing alone may not be criminal, cannot constitute a RICO predicate. Georgia‘s RICO statute, however, belies that claim. While racketeering activity must have a crime as its objective,
(d) Dorsey submits that an alleged predicate act must be stricken if it does not directly facilitate the applicable RICO offense. Under this analysis, for example, any act alleged as a predicate offense to
(e) As stated previously, proof of two but separate related acts is sufficient to establish a pattern of racketeering activity. Bethune, supra.
(f) We reject Dorsey‘s merger argument. The two RICO offenses contain different elements and require independent proof of each element. Nor is merger required for any of the other reasons asserted.
3. Dorsey also asserts that the trial court erred in denying his motions for directed verdict of acquittal with regard to the substantive counts of theft by taking in violation of his duties as a public officer,
Dorsey argued below and reasserts on appeal that the prosecution failed to prove a theft from the county because: (1) the deputies who were doing Dorsey‘s bidding were not county employees but were employed by the sheriff‘s office; (2) Dorsey had unfettered discretion to assign deputies; and (3) the sheriff had sole discretion to decide how to spend the funds allocated by the county. Thus, if Dorsey was stealing, “he was only stealing from himself.” These arguments are specious at best. Dorsey‘s conduct was “so far outside the realm of acceptable police behavior,” Poole v. State, 262 Ga. 718, 719 (425 SE2d 655) (1993), that any rational trier of fact could have found proof beyond a reasonable doubt of the eight counts of theft by taking in violation of Dorsey‘s duties as a public officer. Jackson v. Virginia, supra.
Jury Instructions
4. Dorsey submits that the trial court failed to administer proper jury instructions.
(a) The trial court did not err in failing to instruct the jury that property taken by a public officer in breach of his duties is punishable as a felony.
(b) Dorsey asserts the trial court should have charged the jury that an affirmative defense to a prosecution for theft arises if defendant “[a]cted under an honest claim of right to the property or service involved or under a right to acquire or dispose of it as he did.”
(c) It was not error to refuse to charge the jury that materiality is an essential element of each prong of a false statement and writings offense.7 Bullard v. State, 242 Ga. App. 843, 848 (7) (530 SE2d 265) (2000).
5. Dorsey submits that the trial court erred in refusing to allow him to review jury questionnaires and petit juror information so he could properly investigate a possible issue of juror misconduct on appeal.
Counsel for a convicted defendant is entitled to the list of jurors who served in the case, if the defendant sets forth a sufficient showing to support a reasonable belief that jury misconduct occurred and that further investigation is necessary to provide the court with adequate information to rule on a motion for new trial. See generally People v. Jones, 17 Cal. 4th 279 (70 Cal. Rptr. 2d 793) (1998).
At a post-trial hearing to consider Dorsey‘s request, there was no showing or even any allegation of juror misconduct. Nonetheless, the court offered to give Dorsey‘s counsel redacted questionnaires, eliminating the names and signature pages of the jury members. The judge further offered to furnish relevant identifying information and to hold a qualification hearing upon an adequate showing of a particular juror‘s misconduct. The court refused to grant counsel‘s unsupported request for unredacted questionnaires especially in light of a prior incident during trial when Dorsey copied and concealed on his person a list of pre-qualified jurors’ names, Social Security numbers, and addresses, which was confiscated by a deputy during a search.
After a subsequent hearing on Dorsey‘s motion for new trial, the trial judge concluded that Dorsey failed to provide adequate evidence
6. After conviction, defense counsel requested that Dorsey remain housed in a county facility so as to give counsel access to defendant for purposes of prosecuting his appeal under
7. We have considered Dorsey‘s remaining enumerations of error, and find that they are without merit.
Judgment affirmed. All the Justices concur, except Hunstein, J., not participating.
FLETCHER, Chief Justice, concurring.
I concur with the majority opinion, but write separately to emphasize my opinion that the State has created a dangerous precedent by its choice to utilize such a broad and vague definition of “theft” in its charges against Dorsey. By failing to distinguish those acts which undoubtedly do merit criminal charges from those that occur everyday as a matter of fact in almost any public office, the
The evidence unmistakably shows that Dorsey treated the DeKalb County sheriff‘s office as his own personal fiefdom. Throughout his tenure, Dorsey forced his deputies to foresake their job duties to do his personal bidding, while they were ostensibly working for, and being paid by, the county. Undoubtedly, Dorsey‘s efforts to utilize county employees for his own pecuniary gain, such as staffing county deputies at his private security firm while they were being paid by the county, merits criminal prosecution. In its unbridled zeal to convict Dorsey, however, the State failed to provide any cognizable distinction between those actions which would constitute a legitimate “theft of services” and those of a less egregious character, such as mailing Christmas packages during the holiday season. Plainly, there must be some distinction between the two.
I submit that one clear distinction involves the purpose for which the public employee‘s efforts are used. Where, as was so often the case under Dorsey‘s command, a public employer uses his employees for his personal pecuniary gain, that employer may be prosecuted for a theft of public services.
In addition, where a public employer orders an employee to forsake his employment duties in order to tend to the employer‘s personal affairs, that too may in certain cases constitute a theft of public services. But the RICO statute cannot be so broad as to render it a violation anytime a public employee spends a single minute working on a task related to his employer‘s personal interest. In that case, it may only constitute a valid theft of services where the employer has so usurped the employee‘s time that they are rendered unable to perform the services for which they were hired. In such cases, the scope of the misappropriation of employee time may be the distinguishing feature. As the majority notes, Dorsey‘s conduct in this regard was “so far outside the realm of acceptable police behavior” that it obviously warranted criminal prosecution.
I write separately because I believe the State should recognize some limitation, other than prosecutorial discretion, on its ability to prosecute public officers for the use of their employees’ time. Without such limitations, any public officer risks a politically motivated prosecution merely for asking his assistant to help him with a personal task, even if it allows the employer to dedicate himself more completely to his official duties. That kind of disincentive to public service, and potential for prosecutorial abuse, would have nothing but negative consequences to the quality of our public officers. Because of the numerous egregious acts committed by Dorsey, I concur with the majority opinion affirming Dorsey‘s convictions.