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Dorsey v. State - 74 So. 3d 521 (Fla. Dist. Ct. App. 2011)


The crime of second-degree murder is defined as the unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, § 782.04, Fla. Stat. (2006). An act is imminently dangerous to another and evinces a depraved mind if it is an act or series of acts that: (1) a person of ordinary judgment would know is reasonably certain to kill or do serious bodily injury to another; (2) is done from ill will, hatred, spite or an evil intent; and (3) is of such a nature that the act itself indicates an indifference to human life. An impulsive overreaction to an attack or injury is itself insufficient to prove ill will, hatred, spite, or evil intent. Although exceptions exist, the crime of second-degree murder is normally committed by a person who knows the victim and has had time to develop a level of enmity toward the victim. Moreover, hatred, spite, evil intent, or ill will usually require more than an instant to develop. 


Defendant John Dorsey was charged by indictment with first degree murder for the shooting death of Stephen "Bo" Bunting and second degree murder for the shooting death of John Lott. At trial in Florida state court, the evidence established that Dorsey attended a large "keg" party, where most of the guests were high school students or had recently finished high school. During the party, Bunting and Lott approached Dorsey, who was either sitting on the hood of his SUV or leaning against the vehicle. Lott was angry that someone had bumped him earlier while walking past him. Lott and Bunting, along with Lott's brother and several of their friends, formed a group which surrounded Dorsey in a half-circle. A short time before the confrontation, Dorsey had armed himself with a gun in the midst of an apparently unrelated dispute with other individuals regarding a keg. After Dorsey was punched, he quickly pulled out his gun, shot Lott once and shot Bunting once. Lott and Bunting were, at most, two or three feet away from Dorsey, and both died from the single shots. After the shootings, Dorsey jumped into his vehicle and drove away. Dorsey was convicted of two counts of second-degree murder under § 782.04, Fla. Stat. (2006), possession of a firearm by a convicted felon, and carrying a concealed firearm. He appealed the convictions.


Was it proper to convict Dorsey of second degree murder?




The appellate court affirmed the convictions for the weapons charges but found that the evidence was insufficient to sustain convictions for second-degree murder. Instead, the evidence established an impulsive overreaction to an attack, which warranted convictions for manslaughter. Although a jury reasonably could have found that Dorsey's use of a gun was excessive, thereby negating a finding of self-defense, no evidence was presented that Dorsey acted out of ill will, hatred, spite, or an evil intent. The trial court erred in instructing the jury on the justifiable use of deadly force, specifically regarding the duty to retreat under the Stand Your Ground law. Accordingly, Dorsey's convictions for second-degree murder were reversed and remanded for a retrial on manslaughter charges.

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