Caseflicks

District Court of Appeal of Florida • 2011

Dorsey v. State

74 So. 3d 521 | 2011 Fla. App. LEXIS 16361

Full access

Unlock the video and quiz

The written brief is free to read below. Subscribe to watch the video explainer and take the quiz.

Create an account Log in

Takeaway

In short, this case holds that a sudden, excessive response to an attack may amount to manslaughter without proving the malice required for second-degree murder, and that a felon unlawfully carrying a gun is not entitled to an unqualified Stand Your Ground instruction.

Background

John Dorsey attended a large high-school keg party in August 2006. After an earlier, unrelated dispute, he armed himself with a gun. Later, John Lott and Stephen “Bo” Bunting approached Dorsey near his SUV with several friends. The group formed a half-circle around Dorsey. Lott, who was heavily intoxicated, exchanged insults with Dorsey and then punched him hard in the face. Bunting encouraged the confrontation. Dorsey fell back against his vehicle, immediately drew his gun, and shot Lott in the chest and Bunting in the abdomen. Both men died.

The State charged Dorsey with first-degree murder for Bunting’s death, second-degree murder for Lott’s death, possession of a firearm by a convicted felon, and carrying a concealed firearm. The jury convicted him of second-degree murder for both deaths and of both weapons offenses. Dorsey moved for judgments of acquittal on the murder counts, arguing that the evidence showed, at most, manslaughter arising from an impulsive reaction to an attack. The trial court denied those motions. It also gave a Stand Your Ground instruction despite Dorsey’s objection and refused his proposed instruction explaining the traditional duty to retreat when a person is engaged in unlawful activity.

Issues

Issue #1

Whether the evidence was sufficient to support Dorsey’s convictions for second-degree murder.

Holding

No. The evidence supported manslaughter, but not second-degree murder, because it showed an impulsive overreaction to an immediate attack rather than a depraved mind.

Reasoning

Second-degree murder requires an act that is imminently dangerous and that evinces a depraved mind regardless of human life. A depraved mind requires not only conduct reasonably certain to cause death or serious injury and indifference to human life, but also ill will, hatred, spite, or evil intent. On review of the denial of a judgment of acquittal, the court viewed the evidence in the light most favorable to the State and asked whether a rational jury could find each element beyond a reasonable doubt.

Florida law distinguishes a defendant’s excessive or unreasonable response to an attack from the malice required for second-degree murder. A jury may reject self-defense when a defendant uses disproportionate deadly force, but an impulsive overreaction to a sudden assault ordinarily establishes manslaughter rather than the ill will, hatred, spite, or evil intent necessary for second-degree murder.

Here, Dorsey was backed against his SUV and confronted by several men. Lott, who was heavily intoxicated, punched Dorsey hard after an exchange of words, while Bunting encouraged the fight. Dorsey drew his gun and fired immediately afterward, when the victims were only a few feet away. Although the jury could conclude that shooting the men was excessive and unjustified, the State presented no evidence of a prior grudge, ongoing dispute, or developed enmity between Dorsey and either victim.

Dorsey’s alleged smirk and apparent lack of fear before the confrontation could not supply proof beyond a reasonable doubt that he acted from a depraved mind. The shootings occurred only after Lott attacked him. Like the defendants in prior Florida cases who used excessive force after being attacked, Dorsey acted in an impulsive response to a confrontation, not out of the malice required for second-degree murder. The trial court therefore should have granted acquittal on the murder charges insofar as they exceeded manslaughter.

Issue #2

Whether the trial court erred by giving a Stand Your Ground instruction without also explaining the duty to retreat applicable to a defendant engaged in unlawful activity.

Holding

Yes. Because Dorsey was unlawfully possessing a firearm as a convicted felon, he was engaged in unlawful activity and was not entitled to an unqualified no-duty-to-retreat instruction under the Stand Your Ground statute.

Reasoning

Florida’s Stand Your Ground statute eliminates the duty to retreat only for a person who is not engaged in unlawful activity and who is attacked in a place where he or she has a right to be. Before the 2005 statute, the common law generally required a person to use reasonable means to avoid danger, including retreat, before using deadly force, unless retreat would be futile or would increase the person’s danger.

Dorsey objected to the standard Stand Your Ground instruction because he was a convicted felon carrying a concealed firearm. The court held that possession of a firearm by a convicted felon is “unlawful activity” within the meaning of the statute. Thus, whatever uncertainty might exist at the margins of that phrase, Dorsey could not invoke the statute’s categorical no-duty-to-retreat rule.

The standard instruction did not explain what retreat rule applied if the jury found that Dorsey was engaged in unlawful activity. Dorsey’s requested instruction correctly stated the relevant common-law principle: deadly force could be justified if he faced imminent danger of death or great bodily harm and retreat would have increased his danger. The instruction was supported by the evidence, was not misleading, and was necessary to present his theory of defense adequately.

The court could either have omitted the Stand Your Ground instruction and used the pre-2005 retreat instruction, or it could have given the standard instruction together with Dorsey’s requested explanation of the common-law duty to retreat. By giving the statutory no-duty-to-retreat instruction over Dorsey’s objection without the requested clarification, the trial court denied him a proper instruction on self-defense. That error required a new trial on the lesser offense of manslaughter.