Patrick Diontrey Dorsey v. State of Indiana

Indianapolis, IN - Criminal Defense lawyer represented defendant with a motion for mistrial.

On November 4, 2019, at approximately 10:00 a.m., Dorsey robbed a CVS

pharmacy in Dyer, Indiana, while armed with a handgun. While CVS

employee Jonah Kamp worked at the cash register, Dorsey approached the

counter. While Kamp was assisting a customer, she noted that Dorsey was

wearing a winter coat with the hood drawn tightly around his head. Dorsey was

also chewing on the draw strings of his coat. Dorsey's behavior struck Kamp as

odd. Tr. Vol. 2, p. 223.

[4] When it was his turn to make a purchase, Dorsey placed two candy bars in

front the register. Kamp rang up the purchase and told Dorsey what he owed.

Dorsey said, "Nah. Listen, you're gonna open up that drawer.” Tr. Vol. 2, p.

204. After Kamp refused to open the drawer, Dorsey raised his shirt and

showed Kamp that he had a silver handgun in the waistband of his pants.

Kamp still refused to open the drawer and told Dorsey a manager would have

to open it. But after Dorsey aimed the gun at Kamp and threatened her, she

complied with his demand to open the drawer. Kamp emptied the drawer and

gave Dorsey approximately $300. Dorsey took the money and exited the store.

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[5] Customer Evie Hepworth witnessed the robbery and called 911. Hepworth's

fiancée, Geena Locicero waited for Hepworth in the parking lot. Locicero saw

Dorsey exit the store and watched a black Chrysler 300 leave the parking lot.

She noted the vehicle's distinctive platinum grill. Tr. Vol. 3, p. 70.

[6] Law enforcement officers arrived to investigate the robbery and Dyer Police

Officer Ryan Boss assisted with the investigation. Three days before the

robbery, Officer Boss conducted a traffic stop of a black Chrysler 300. The car

was registered to Dorsey, who had been a passenger in the vehicle that day.

Officer Boss reviewed surveillance footage from the inside and outside of the

CVS store which captured images of the suspect. Officer Boss recognized

Dorsey from the images. Tr. Vol. 4, p. 174. The day after the robbery, Kamp

identified Dorsey from a six-person photo array.

[7] On November 7, 2019, the State charged Dorsey with Level 3 felony armed

robbery. The State later amended the charging information to include the

allegation that Dorsey was a habitual offender. A four-day jury trial

commenced on March 22, 2021. The central issue at trial was Dorsey's

identification as the robber.

[8] A few days before trial, Hepworth met with the prosecutors and looked at a

photo array. Hepworth stated that the man who had robbed the CVS might be

the individual shown in either photo number four or photo number five, but she

was unable to pick one individual from the photo array. Tr. Vol. 4, pp. 120–21.

Dorsey was the individual depicted in one of the photos. The State did not

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disclose Hepworth's selection of Dorsey and another individual from the photo

array to defense counsel.

[9] On the first day of trial, during Kamp's testimony, the trial court recessed the

proceedings for a lunch break. Kamp was distraught when she left the

courtroom. Hepworth and Locicero followed her into a restroom. Dianne

Dorsey, the defendant's wife, followed the group of women into the restroom.

Kamp was anxious and upset and the other women attempted to console her.

Dianne did not disclose her relationship to Dorsey.

[10] Shortly thereafter, Hepworth, Locicero, Kamp, Kamp's husband, and Dianne

went to a nearby restaurant for lunch where they sat outside together. Kamp's

testimony resumed after lunch, and then the State presented testimony of three

witnesses who were at or near the CVS during the robbery: Hepworth,

Locicero, and another CVS customer, Flora Salinas.

[11] On the second day of trial, defense counsel informed the trial court that Kamp,

Hepworth, and Locicero had lunch together on the first day of trial. Defense

counsel stated that Dianne overheard Kamp discussing her cross-examination

and Dorsey's physical description with the other witnesses. Dianne also

informed counsel that Hepworth mentioned she was unable to identify Dorsey

from a photo array. Dorsey moved for a mistrial, alleging that Kamp,

Hepworth, and Locicero had violated the court's witness separation order and

that the State had committed a Brady violation.

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[12] The trial court held a hearing on the motion for mistrial. Dianne testified that,

during lunch, Kamp told Dianne, Hepworth, and Locicero that she felt that

defense counsel implied that her identification of Dorsey was based on his race.

Tr. Vol. 4, pp. 12–13. Dianne claimed that Kamp discussed her description of

Dorsey's jacket and his physical description. Id. at 14–18. Finally, Dianne

testified that Hepworth discussed the photo array she had been shown a few

days before trial and that she had been unable to select a photo of the robber. Id.

at 19-20.

[13] Kamp testified that she did not discuss any of her testimony while in the

courthouse restroom. Id. at 42–43. Kamp said that Dianne claimed the State

subpoenaed her to testify because she was in the CVS parking lot on the day of

the robbery. Id. at 46–47. Kamp disputed Dianne's claim that she discussed her

testimony with the other witnesses while they had lunch on the first day of trial.

Id. at 47–49. Kamp had no recollection of Hepworth discussing a photo array.

Id. at 55.

[14] Hepworth testified that they did not discuss Kamp's testimony in the restroom

on the first day of trial. Id. at 102–03. She stated that Dianne, whom they did

not know, included herself in their conversation and invited herself to lunch. Id.

at 110. Hepworth stated that Kamp did not discuss her testimony at lunch but

noted that Dianne repeatedly tried to discuss the suspect's identity with them.

Id. at 112–13, 115. Locicero's testimony was consistent with both Hepworth's

and Kamp's testimonies. Id. at 135, 140–41.

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[15] Hepworth also testified that, a few days before trial, she had agreed to look at a

photo array. Id. at 120. Hepworth picked Dorsey's photo and another

unidentified man's photo from the array. She told the prosecutors that she

could not be certain which of the two men was the robber. Id. at 121.

[16] The State also introduced a jail phone call between Dorsey and Dianne that

occurred at approximately 6:20 p.m. on the first day of trial. Tr. Vol. 4, p. 93;

Ex. Vol. State's Ex. 32. During the phone call, Dorsey shared details about the

trial testimony with Dianne. Particularly, the two discussed whether various

witnesses had been able to identify him as the robber. Dorsey told Dianne that

Hepworth testified that the prosecutors showed her a photo array three days

before trial but that she had been unable to identify Dorsey as the suspect in

court. Much of the testimony Dianne claimed had been discussed among the

witnesses during lunch was also discussed by Dorsey during the phone call. At

the end of the call, Dorsey asked Dianne to call him back on another account.

No other phone calls were entered into evidence.

[17] After considering the evidence, the trial court denied Dorsey's motion for

mistrial. The trial court concluded that the information Dianne obtained and

relayed to defense counsel could have been obtained through the phone call

with Dorsey or during other conversations with him. Id. at 162. The court also

concluded that Hepworth's and Locicero's testimony at trial was not influenced

by the testimony of any other witness but was based solely on their own

recollection of the events during and after the robbery and was therefore

credible. Id. Finally, as to the alleged Brady violation, the court concluded that

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Hepworth's selection of the two photos in the array, one of which depicted

Dorsey, was "arguably incriminating” and did not rise to the level of a Brady

violation that would warrant granting the motion for mistrial. Id. at 162–63.

[18] The jury found Dorsey guilty as charged. Thereafter, Dorsey pleaded guilty to

being a habitual offender. The trial court ordered Dorsey to serve a fourteenyear sentence in the Department of Correction and enhanced his sentence by an

additional fourteen years due to the habitual offender adjudication. Dorsey now

appeals.

Standard of Review

[19] Dorsey appeals the trial court's denial of his motion for mistrial. We review the

trial court's decision to grant or deny a motion for a mistrial for an abuse of

discretion. Isom v. State, 31 N.E.3d 469, 480 (Ind. 2015). "A mistrial is an

extreme remedy that is only justified when other remedial measures are

insufficient to rectify the situation.” Id. at 481 (alteration and quotation marks

omitted).

Separation of Witnesses

[20] Dorsey argues that his motion for mistrial should have been granted because

Kamp, Hepworth, and Locicero violated the trial court's witness separation

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order. Dorsey claims that Kamp's discussion of her testimony with the other

witnesses necessarily influenced their testimonies as to the robber's identity.1

[21] "The primary purpose of a separation of witnesses order is to prevent witnesses

from gaining knowledge from the testimony of other witnesses and adjusting

their testimony accordingly.” Morell v. State, 933 N.E.2d 484, 489 (Ind. Ct. App.

2010). "Where there has been a violation of a separation order, the trial court,

in the absence of connivance or collusion by the party calling the witness, may

permit the witness to testify.” Id. (citing Heck v. State, 552 N.E.2d 446, 452 (Ind.

1990)). "Even when confronted with a clear violation of a separation order, the

trial court may choose to allow the violating witness to testify.” Id. at 489–90

(citing Jordan v. State, 656 N.E.2d 816, 818 (Ind. 1995)).

[22] The determination of the remedy for any violation of a separation order is

within the discretion of the trial court. Joyner v. State, 736 N.E.2d 232, 244 (Ind.

2000). We will not disturb the trial court's decision on such matters absent a

showing of a clear abuse of discretion. Id.; see also Wisner v. Laney, 984 N.E.2d

1201, 1208 (Ind. 2012) (explaining that our court will not "disturb a trial court's

determination regarding a violation of a separation of witnesses order, absent a

showing of a clear abuse of discretion”).

[1] 1 The witnesses' descriptions of the robber varied. He was described as being between 5 feet, 7 inches and 6

feet in height and weighing anywhere between 250 and 350 pounds.

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[23] It is undisputed that the Hepworth, Kamp, and Locicero spoke in the

courthouse restroom and had lunch together on the first day of trial. It is also

undisputed that Dorsey's wife, Dianne, was present and overheard the

witnesses' conversations. However, all three witnesses denied Dianne's claim

that Kamp discussed her testimony with them. Tr. Vol. 4, pp. 104, 112–13, 135,

140–41. And Hepworth denied Dianne's claim that, while they were eating

lunch, Hepworth discussed looking at a photo array a few days before trial. Id.

at 124–25. Locicero, Kamp, and Kamp's husband also testified that Hepworth

did not say anything about a photo array while they were eating lunch. Id. at

55, 70, 147. Hepworth and Locicero testified that their testimony was truthful

and accurate and not influenced by any other person. Id. at 118, 141.

[24] Dorsey argues that Dianne, who was not present in the courtroom, had no way

to know the content of Kamp's testimony unless Kamp discussed her testimony

with Dianne, Hepworth, and Locicero at lunch during the first day of trial. For

example, Dianne alleged that Kamp, who described herself as "mulatto,” told

them during lunch that she was upset that Dorsey's counsel asked her if the

robber sounded "ghetto.” Tr. Vol. 2, p. 245, Vol. 4 p. 13.

[25] Kamp testified both before and after the lunch break on the first day of trial.

And counsel asked Kamp the question about Dorsey sounding "ghetto” after

lunch on the first day of trial. Tr. Vol. 2 pp. 240, 245. Therefore, Kamp could

not have discussed counsel's question during lunch.

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[26] Dianne spoke to Dorsey via telephone at approximately 6:00 p.m. on the first

day of trial. They discussed Hepworth's and Locicero's testimony, whether the

witnesses were able to identify Dorsey, and Hepworth's testimony that she had

been shown a photo array a few days before trial. Ex. Vol., State's Ex. 32.

Although not every statement Dianne relayed at the mistrial hearing was

discussed between herself and Dorsey during the phone call, from the context of

the recorded phone call, it was reasonable for the trial court to conclude that

Dianne and Dorsey spoke again later that day.

[27] The trial court concluded that there was "no credible evidence of a violation by

the State's witnesses of the order for separation of witnesses” and that Dianne

"could have” obtained her information from Dorsey. Tr. Vol. 4, pp. 161–62.2

It

was within the trial court's discretion to weigh the credibility of the witnesses,

and we will not second guess that determination on appeal.

[28] Moreover, Kamp had identified Dorsey in a photo array the day after the

robbery, and she identified him as the man who robbed the CVS during her

testimony before lunch on the first day of trial. Tr. Vol. 2, pp. 220–21, Ex. Vol.

State's Ex. 2A-2E. Flora Salinas, a CVS customer, was not present at lunch and

identified Dorsey as the man who robbed the CVS. Tr. Vol. 3, p. 8. And Officer

Boss identified Dorsey as the robber from the surveillance images taken from

2 Before lunch, while Dianne, Hepworth and Locicero were in the restroom trying to console Kamp, Kamp

mentioned that defense counsel used a pointer and that she did not like him. Tr. Vol. 4, pp. 126-27. Dorsey

does not claim that these disclosures could have or did influence any other person's testimony.

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the security footage of the CVS robbery. Tr. Vol. 4, pp.174–75. This evidence,

which could not have been tainted by any alleged discussions the witnesses had

at lunch the first day of trial, sufficiently identified Dorsey as the man who

robbed the CVS. Therefore, even if Dorsey had proved that Kamp discussed her

testimony with other witnesses, he would not have been able to establish that he

was placed in a position of grave peril warranting a mistrial. See, e.g., Spinks v.

State, 122 N.E.3d 950, 957 (Ind. Ct. App. 2019).

Brady Violation

[29] Dorsey also argues that his motion for mistrial should have been granted based

on his claim that the State committed a Brady violation. The State has an

affirmative duty to disclose evidence favorable to a criminal defendant. See Kyles

v. Whitely, 514 U.S. 419, 432, (1995) (citing Brady v. Maryland, 373 U.S. 83

(1963)). The Brady Court held that "the suppression by the prosecution of

evidence favorable to an accused upon request violates due process where the

evidence is material either to guilt or to punishment, irrespective of the good

faith or bad faith of the prosecution.” 373 U.S. at 87.

[30] To prevail on a Brady claim, Dorsey must establish: (1) that the prosecution

suppressed evidence; (2) that the evidence was favorable to the defense; and (3)

that the evidence was material to an issue at trial. See Bunch v. State, 964 N.E.2d

274, 297 (Ind. Ct. App. 2012) (citations omitted), trans. denied; Farris v. State,

732 N.E.2d 230, 232–33 (Ind. Ct. App. 2000). Evidence is material only "if

there is a reasonable probability that, had the evidence been disclosed to the

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defense, the result of the proceeding would have been different.” Kyles, 514 U.S.

at 433–34 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985) (opinion of

Blackmun, J.)). A reasonable probability is a probability sufficient to undermine

confidence in the outcome. Farris, 732 N.E.2d at 233.

[31] Dorsey's identity as the robber was a central issue at trial. However, Hepworth

did not provide an in-court identification of Dorsey as the individual who

robbed CVS. Moreover, when Hepworth was shown the photo array three days

before trial, but almost two years after the robbery, she selected two photos

from the photo array as potential suspects because of their darker complexions

and facial features. Tr. Vol. 4, pp. 120–124. Dorsey's photo was one of the two

Hepworth selected. The State did not use the photo array shown to Hepworth

during trial.

[32] Because Hepworth selected Dorsey's photograph, the photo array was arguably

incriminating. Moreover, even if Hepworth's selection of the two photos had

been disclosed to the defense, there is no reasonable probability that the

outcome of the proceeding would have been different. Hepworth was not

confident in her ability to identify the robber from a photo array, especially

because the robbery occurred nearly two years earlier. Tr. Vol. 4, pp. 123–24.

And at trial, Hepworth testified that she did not know whether she would

recognize the robber if she saw him again. Tr. Vol. 3, p. 38. Hepworth had been

standing in line behind Dorsey at the CVS counter and glanced at his face only

a "couple of times.” Id.

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[33] In addition, on direct examination, Hepworth testified that she had been shown

a photo array a few days before trial. Id. at 47. During cross examination,

counsel clarified that Hepworth was not shown a photo array at any other time

during the investigation but did not ask any additional questions about the

photo array.

[34] For all of these reasons, Dorsey cannot establish that the result of this

proceeding would have been different if the State had disclosed Hepworth's

selection of two men from the photo array, particularly given that one of the

photographs selected was Dorsey's. And, as we noted above, the State

presented substantial evidence to prove that Dorsey robbed the CVS. Therefore,

the trial court did not abuse its discretion when it denied Dorsey's motion for

mistrial for the alleged Brady violation.

The trial court did not abuse its discretion when it denied Dorsey’s motion for

mistrial. The trial court’s conclusion that the State’s witnesses did not discuss

Kamp’s testimony at lunch on the first day of trial is supported by sufficient

evidence. And Dorsey cannot establish that he was prejudiced by the State’s

failure to disclose to the defense Hepworth’s identification via a photo array of

Dorsey and another individual as the person who committed the CVS robbery.

Finally, given the overwhelming evidence of Dorsey’s identity as the individual

who robbed the CVS, Dorsey cannot establish that the trial court’s alleged

errors placed him in a position of grave peril warranting a mistrial.