State of Louisiana v. Leo Dorsey

STATE OF LOUISIANA * NO. 2020-KA-0029

VERSUS * COURT OF APPEAL

LEO DORSEY * FOURTH CIRCUIT

* STATE OF LOUISIANA

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LEDET, J., CONCURS IN PART AND DISSENTS IN PART WITH
RML
REASONS

I dissent from the majority’s conclusion that the evidence in this case is

sufficient to support Mr. Dorsey’s conviction for obstruction of justice.

Obstruction of justice under La. R.S. 14:130.1(A)(1) is a specific-intent crime. To

support a conviction, the State must prove more than the mere removal of evidence

from a crime scene; the State must also prove that such removal was done with

“the specific intent of distorting the results of any criminal investigation or

proceeding that may reasonably prove relevant to a criminal investigation or

proceeding.” La. R.S. 14:130.1(A)(1).

As Mr. Dorsey points out, his conviction for obstruction of justice rests, in

part, on circumstantial evidence. I agree with the majority that the circumstantial

evidence in this case was sufficient to permit a rational juror to infer that Mr.

Dorsey removed the firearm from the crime scene with the specific intent of

distorting the results of the subsequent police investigation. In my view, however,

the evidence was also sufficient to permit a rational juror to conclude that Mr.

Dorsey had a different reason for—some other intent in—taking the firearm with

him when he left the scene. Thus, the question this case presents is whether, when

circumstantial evidence presents two reasonable hypotheses—one of guilt and one

1

of innocence—the circumstantial evidence is sufficient to support a verdict of

guilt.

This question is unequivocally answered by La. R.S. 15:438, which provides

that “[t]he rule as to circumstantial evidence is: assuming every fact to be proved

that the evidence tends to prove, in order to convict, it must exclude every

reasonable hypothesis of innocence.” Under the plain language of the statute,

whenever the evidence supports a reasonable hypothesis of innocence, the

evidence is insufficient to support a conviction.1

Nonetheless, the Louisiana Supreme Court has construed La. R.S. 15:438

differently. Enacted in 1928, the statute has never been amended. For decades, the

Louisiana Supreme Court gave the statute its plain meaning and regarded La. R.S.

15:438 as a guarantee and as a standard of review entirely separate from the

requirements of due process.

For example, in In State v. Shapiro, 431 So.2d 372, 384-85 (La. 1982) (on

reh’g), the Louisiana Supreme Court explained as follows:

In Jackson v. Virginia, 443 U.S. 307 99 S.Ct. 2781, 61 L.Ed.2d
560 (1979), the United States Supreme Court held that the Fourteenth
Amendment’s due process guarantee required that a state criminal
conviction be based on proof sufficient for any rational trier of fact,
viewing the evidence in the light most favorable to the prosecution, to
find the essential elements of the crime charged beyond a reasonable
doubt. Reasonable doubt may be overcome by circumstantial
evidence, thus fulfilling the requirements of due process. However,
federal due process standards do not require that circumstantial
evidence exclude every hypothesis other than guilt.

1
A jurisprudential exception to this rule exists. When a defendant has presented a particular
hypothesis of innocence to the jury and the jury has nonetheless convicted the defendant, the
defendant will not be allowed to reargue that hypothesis on appeal. See State v. Captville, 448
So. 2d 676, 680 (La. 1984) (holding that, “[w]hen a case involves circumstantial evidence, and
the jury reasonably rejects the hypothesis of innocence presented by the defendant’s own
testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis
which raises a reasonable doubt”). The rationale for this exception is that the jury, in rejecting
the defendant’s hypothesis of innocence, has made a credibility determination that is
unreviewable on appeal. In this case, however, the record on appeal, which contains neither
opening statements nor closing arguments, does not establish that the defendant argued any
particular hypothesis of innocence to the jury. Thus, this court is free—and, indeed, obliged—to
consider any reasonable hypothesis of innocence supported by the evidence, or the lack thereof.
2

Circumstantial evidence in Louisiana criminal convictions is
held to a higher standard. R.S. 15:438 provides:

The rule as to circumstantial evidence is: assuming
every fact to be proved that the evidence tends to prove,
in order to convict, it must exclude every reasonable
hypothesis of innocence.

The Louisiana legislature has, through this statute, provided greater
protection against erroneous convictions based on circumstantial
evidence than is provided by the Fourteenth Amendment. There is a
possibility that the quality of evidence supporting a conviction would
satisfy Jackson v. Virginia, supra, but would not satisfy the
requirement of R.S. 15:438.

Shapiro, 431 So.2d at 383-84 (internal citations, quotations marks, and alterations

omitted).

Thus, the Louisiana Supreme Court unequivocally reaffirmed what it had

long held:

In all cases where an essential element of the crime is not
proven by direct evidence, La. R.S. 15:438 applies. As an evidentiary
rule, it restrains the factfinder in the first instance, as well as the
reviewer on appeal, to accept as proven all that the evidence tends to
prove and then to convict only if every reasonable hypothesis of
innocence is excluded. Whether circumstantial evidence excludes
every reasonable hypothesis of innocence presents a question of law.
State v. Hammontree, 363 So.2d 1364 at 1373 (La. 1978); State v.
Schwander, 345 So.2d 1173 at 1175 (La. 1977); State v. Smith, 339
So.2d 829 at 833 (La. 1976). In applying La. R.S. 15:438, all the facts
that the evidence variously tends to prove on both sides are to be
considered, disregarding any choice by the factfinder favorable to the
prosecution. The reviewer as a matter of law can affirm the conviction
only if the reasonable hypothesis is one favorable to the state and
there is no extant reasonable hypothesis of innocence.

Id. at 384.2

2
Indeed, in reaffirming this principle, the Louisiana Supreme Court expressly rejected as follows
the holding it would later adopt:

While, at an earlier time in State v. Austin, 399 So.2d 158 (La.1981), we
expressed the Jackson constitutional standard and the circumstantial evidence rule
of La. R.S. 15:438 in tandem, we more recently qualified that expression in State
v. Graham, 422 So.2d 123 at 129 (La.1982), as follows:

[A] merger does not appear to promote clarity but could
lead to a distortion of the standards. A combination of the rules
may incorrectly imply that, when all of the evidence of the
defendant’s guilt is circumstantial, due process requires more than
evidence which would satisfy any rational juror of proof of guilt
3

Despite the clarity of this jurisprudence, subsequent cases have purported to

clarify it by attempting to harmonize the statutory protections of La. R.S. 15:348

with the constitutional guarantees of due process.3 The result has been the dilution

of the greater statutory protection afforded by La. R.S. 15:438.4 Cf. Julie Schmidt

Chauvin, “For It Must Seem Their Guilt”: Diluting Reasonable Doubt by

Rejecting the Reasonable Hypothesis of Innocence Standard, 53 LOY. L. REV. 217,

219 (2007) (observing that “[r]ejecting the reasonable hypothesis of innocence

standard and implementing inadequate methods of review has resulted in a dilution

of the now constitutionally required beyond a reasonable doubt standard of

proof”).

beyond a reasonable doubt. On the other hand, an in-tandem
articulation may seem improperly to diminish the requirement of
the circumstantial evidence rule by implying that, in a close case,
this court will defer to the jury’s finding rather than follow its own
determination of whether there is a reasonable hypothesis of
innocence. Although in many instances separate and dual
applications of the rules will yield the same result, out of an
abundance of caution we will proceed to apply each standard
separately, as it was given to us by the framers. (Emphasis
provided).

Shapiro, supra, at 384-85.
3
See State v. Mack, 13-1311 (La. 5/7/14), 144 So.3d 983 (observing that, in State v. Wright, 445
So.2d 1198, 1201 (La. 1984), the court stated that, notwithstanding its prior jurisprudence,
“ultimately, all evidence, both direct and circumstantial, must be sufficient under Jackson to
satisfy a rational juror that the defendant is guilty beyond a reasonable doubt” and that “the rule
of La. R.S. 15:438 does not supplant Jackson’s objective test of evidentiary sufficiency from the
point of view of a hypothetical rational trier of fact, although it does provide an evidentiary
guideline for the jury when considering circumstantial evidence and facilitates appellate review
of whether a rational juror could have found a defendant guilty beyond a reasonable doubt”)
(internal quotation marks and alterations omitted).
4
For several reasons, the wisdom of this rejection of the greater statutory protection afforded by
La. R.S. 15:438 may reasonably be questioned. First, it is contrary to La. C.C. art. 9, which
provides that “[w]hen a law is clear and unambiguous and its application does not lead to absurd
consequences, the law shall be applied as written and no further interpretation may be made in
search of the intent of the legislature.” Second, even assuming La. R.S. 15:438 suffered from
some ambiguity that would permit construction beyond its plain language, the current
construction is contrary to the rule of lenity, which requires that any ambiguity in criminal
statutes be construed in favor of the accused. See State v. Carr, 99-2209, p. 4 (La. 5/26/00), 761
So.2d 1271, 1274 (observing that “[i]t is a well-established tenet of statutory construction that
criminal statutes are subject to strict construction under the rule of lenity”). Third, even if the
rule of lenity did not require such a construction, the jurisprudence should defer to the
Legislature’s policy decision to afford criminal defendants heightened protection from wrongful
conviction in marginal cases based on circumstantial evidence.
4

In any event, the Louisiana Supreme Court’s present jurisprudence has

focused on the comparative reasonableness of the hypotheses of innocence and

guilt. When the hypothesis of innocence is at least as reasonable as the hypothesis

of guilt, the Louisiana Supreme Court has found that a rational juror should have

entertained a reasonable doubt as to the defendant’s guilt.5 See, e.g., State v. Quinn,

19-0647 (La. 9/9/20), ___ So.3d ___, 2020 WL 5406137 (per curiam) (finding

that, where the victim died of asphyxiation and the circumstantial evidence

supported reasonable hypotheses that such asphyxiation could have been caused by

suicide, by accident, or by murder, the evidence was insufficient to support the

defendant’s conviction for murder). Applying this standard, the Louisiana Supreme

Court has cautioned that “[a]lthough the circumstantial evidence rule may not

establish a stricter standard of review than the more general reasonable juror’s

reasonable doubt formula, it emphasizes the need for careful observance of the

usual standard, and provides a helpful methodology for its implementation in cases

which hinge on the evaluation of circumstantial evidence.” State v. Chism, 436

So.2d 464, 470 (La. 1983).

In my view, the circumstantial evidence in this case established an

hypothesis of innocence at least as reasonable as the majority’s hypothesis of guilt.

Mr. Dorsey entered into a bet with the victims, the object of which was his firearm.

When Mr. Dorsey lost the bet, to avoid relinquishing his firearm, he shot the

5
In practice, it is true that, in cases where the defendant’s hypothesis of innocence turned on
whether he had committed the actus reus, the Louisiana Supreme Court has been reluctant to
second-guess the jury’s verdict. The two cases relied on by the majority—State v. Hoang, 17-
0100 (La. 3/26/19), 282 So.3d 189, and State v. Mack, 13-1311 (La. 5/7/14), 144 So.3d 983—
belong to this category of cases. See also, e.g., State v. Mayeux, 19-00369 (La. 1/29/20), ___
So.3d ___; State v. Crawford, 14-2153 (La. 11/16/16), 218 So.3d 13; State v. Oliphant, 13-2973
(La. 2/21/14), 133 So.3d 1255. By contrast, however, in cases where the hypothesis of innocence
turned not on whether the defendant committed the actus reus but instead on whether the
defendant had the required mens rea, the court has been more willing to find that a rational juror
should necessarily have entertained a reasonable doubt. See, e.g., State v. Jacobs, 504 So.2d 817
(La. 1987); see also State v. Dorsey, 10-0216, p. 43 (La. 9/7/11), 74 So. 3d 603, 633
(emphasizing that “the question before th[e] Court [was] not whether the evidence was legally
sufficient to prove specific intent, but whether it was legally sufficient to prove defendant’s
identity as the perpetrator”).
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victims. Thereafter, Mr. Dorsey did not linger. He did not collect the shell casings

ejected from his gun. He did not destroy the surveillance video that documented

his presence at the residence. He left unharmed witnesses in another room of the

house. He simply left. From this evidence, a rational juror could have inferred that,

in taking the firearm with him, Mr. Dorsey gave no thought to distorting the results

of any criminal investigation or proceeding; he simply refused to part with his

firearm under any circumstances.6

The majority counters that, in his interview with the police, Mr. Dorsey lied

and, in so doing, demonstrated his intent to obstruct the police investigation. There

are several problems with this reasoning. First, under Ramos, no jury has returned

a lawful verdict in this case regarding the second-degree murder of T.T. and the

attempted murder of S.G.; it is therefore inappropriate for this court to make a

factual finding that Mr. Dorsey was lying to the police when he denied his

involvement in those crimes and attempted to offer an exculpatory explanation.

Second, even assuming, arguendo, that Mr. Dorsey is guilty and lied to the police

with the intent to distort the results of the investigation, his intent at that time—

eight days after the murder and while being interrogated police—is not probative

of his intent at the time he left the crime scene. Finally, as previously discussed,

the hypothesis that Mr. Dorsey had the specific intent to distort the results of the

6
The majority suggests that we should not entertain this hypothesis of innocence because Mr.
Dorsey “did not argue that the evidence was insufficient to prove that he acted with the specific
intent to distorting the results of the police investigation.” I disagree for two reasons. First, the
majority is mistaken. In his supplemental brief, Mr. Dorsey recited the law regarding both
specific intent and circumstantial evidence and asserted that “there is no evidence in the record to
prove that appellant Dorsey did anything with the specific intent to obstruct justice.” Second,
even if Mr. Dorsey had not specifically briefed the issue of specific intent, we would still be
obliged to consider the issue. State v. Thacker, 14-0418 (La. 10/24/14), 150 So.3d 296, 297.
observing that “[w]hen the state's case is devoid of evidence of an essential element of the
charged offense, the conviction and sentence must be set aside regardless of how the error is
brought to the attention of the reviewing court” (internal quotation marks omitted); see also State
ex rel. Womack v. Blackburn, 393 So. 2d 1216, 1220 (La. 1981) (Lemmon, J., concurring)
(observing that “if insufficiency can be assigned as error for the first time on appeal, certainly the
court can recognize this constitutional defect on its own . . . because no one should remain in
prison if he has been convicted on insufficient evidence”).
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police investigation when he left the scene is belied by the fact that he left behind

shell casings, video surveillance, and witnesses.

Accordingly, in my view, the circumstantial evidence was sufficient to

support a hypothesis of innocence at least as reasonable as the majority’s

hypothesis of guilt, such that a rational juror should have entertained a reasonable

doubt as to Mr. Dorsey’s guilt. Thus, I would find the evidence insufficient to

support Mr. Dorsey’s conviction for obstruction of justice; and I would enter a

judgment of acquittal on that charge. See State v. Phillips, 412 So.2d 1061, 1063

(La. 1982) (observing that “[w]hen a reviewing court reverses a conviction on the

ground of evidentiary insufficiency, as distinguished from trial error, the double

jeopardy clause of the fifth amendment precludes a second trial and requires the

direction of a judgment of acquittal” and citing Burks v. United States, 437 U.S. 1,

98 S.Ct. 2141, 57 L.Ed.2d 1 (1978)). I, therefore, dissent from the majority’s

decision to affirm Mr. Dorsey’s conviction for obstruction of justice.

In all other respects, I concur in the result reached by the majority opinion.

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