Edmund George Zagorski was convicted in 1984
of the first degree premeditated murders of John Dale Dotson and Jimmy
The evidence at trial was that petitioner lured the
two men into a wooded area in Robertson County under the pretense of a
drug deal. Once there, petitioner shot both men and slit their
throats, taking a substantial sum of money they had brought to
STATE v. ZAGORSKI
701 S.W.2d 808 (1985)
STATE of Tennessee, Appellee,
Edmund George ZAGORSKI, Appellant.
Supreme Court of Tennessee, at Nashville.
November 25, 1985.
James E. Walton, Larry D. Wilks,
Springfield, for appellant.
Kymberly Lynn Anne Hattaway, Asst. Atty. Gen., Nashville, for appellee,
W.J. Michael Cody, Atty. Gen. and Reporter, of counsel
COOPER, Chief Justice.
The defendant, Edmund George
Zagorski, has appealed his convictions for murder in the first degree
for the killing of John Dale Dotson and Jimmy Porter, and the
resulting two sentences of death. He questions the sufficiency of the
convicting evidence and the evidence supporting the aggravating
circumstances found by the jury, and rulings by the trial court on
pretrial motions, on voir dire, on the admission of evidence, and on
objections to argument by the state in the sentencing phase of the
trial. Defendant also insists that the Tennessee Death Penalty Act is
After consideration of the several
issues and of the entire record, we are of the opinion that no
reversible error was committed in the trial, that the verdicts and
sentences are sustained by the evidence, and that the sentences of
death under the
circumstances of this case are in no way arbitrary or disproportionate.
We therefore affirm the convictions and the sentences of death.
The evidence shows that on April 5, 1983, the defendant first appeared
at the Lakeland Trout farm in Bucksnort in Hickman County, Tennessee.
The Trout Farm was managed by defendant's friend, Jimmy Blackwell. The
defendant, calling himself "Jesse Lee Hardin," claimed to have been
working as a mercenary in Honduras and El Salvador. He was wearing
camouflage clothing, and was carrying a survival knife, an HK 91 .308
semi-automatic rifle and other weapons and survival gear. Although he
claimed to have made as much as $100.00 a day as a mercenary,
defendant did not seem to have any money.
During his stay at the trout farm,
defendant met John Dale Dotson and his wife Marsha. Dotson and
defendant arranged a marijuana purchase involving them and a third man,
Jimmy Porter, who lived in nearby Dickson, Tennessee. According to
Marsha Dotson, Porter was to pay $23,000.00 for one hundred pounds of
marijuana defendant would arrange to have dropped from an airplane
into the woods. Dotson was to receive $10,000.00 from Porter for his
part of the deal. (Zagorski in a statement to investigating officers
stated that the sale was to be of 200 pounds of marijuana at $150.00
per pound). The date of the transaction was to be April 23, 1983.
At about midnight, on April 21,
1983, an airplane flew very low over the Trout Farm. Zagorski, who was
with Blackwell, commented "It's here," and left. Zagorski later told
Dotson the marijuana had arrived and was in the woods with a man
called Dave; that Dotson and no more than two other men were to meet
Zagorski, who would be on foot, at 6:00 p.m. at Spot, Tennessee, which
was within walking distance of the Trout Farm. Zagorski also told
Dotson to come armed.
On the afternoon of April 23, 1983,
Porter and Dotson were together at the Eastside Tavern in Dickson,
Tennessee. There Porter showed the tavern operator a bank bag
containing cash and a .357 Magnum pistol. Dotson and Porter left the
tavern in Porter's red Datsun pick-up at about 4:30 p.m. They were
never seen alive again.
Also on April 23, 1983, Zagorski
left the trout farm, taking his gear. He had been heard to tell Dotson
that he would meet him at 6:00 p.m. on the road "up behind Spot." At
around 5:30 p.m., Blackwell and his girlfriend heard gunshots from the
general area where the defendant had walked into the woods. According
to Blackwell, it was not unusual to hear gunshots on a daily basis in
that part of Hickman County because of the frequency of deer hunting
in the area.
On May 6, 1983, the badly decomposed bodies of Porter and Dotson were
discovered in a secluded, wooded area near I-65 in Robertson County.
The men had been shot in the chest and abdomen and their throats had
A search of the area turned up a
military snake-bite kit, a knife scabbard (later identified as
Zagorski's), a case for "Red Specs" glasses (the type worn by Zagorski),
six flares, three size "C" Duracel flashlight batteries and an ink pen.
Officers also found a .308 cartridge on the ground between the bodies
of the victims. Ballistic tests showed that the cartridge had been
fired from Zagorski's HK 91 semi-automatic rifle.
An autopsy was performed on the bodies of the victims, but due to the
advanced stage of decomposition, the time of death of the victims
could not be fixed with any degree of certitude. The pathologist
stated that the time of death could be any time from a week to a month
prior to the time the autopsies were performed. The pathologist also
testified that he could not determine whether the victims were shot or
cut first, but that the actual cause of death of each of the victims
was the gunshot wounds. According to the pathologist, neither Porter
nor Dotson would have died immediately upon being shot, but they would
have lived five to seven minutes. The record further shows that at the
time of death, Porter had a blood alcohol level of .10 and Dotson had
a blood alcohol level of .25.
Johnny Baggett, who found the bodies,
testified that a week to ten days before at around 7:00 or 8:00 p.m.,
he had heard gunshots in the area. When questioned closer about the
gunshots, he fixed the time at around April 25 or 26, 1983.
At about that time, Zagorski showed
up at the home of Rodney Bruce in Ironton, Ohio, driving Porter's
Datson truck. He also had with him the deceased men's coveralls and
Porter's .357 Magnum pistol. While in Ironton, Zagorski spent large
sums of cash on survival gear, weapons, horses, a four-wheel drive
pick-up, and a motorcycle. At one point he showed Bruce what he said
was $25,000.00 in cash. He first claimed he had earned the money
working off-shore and later said he had earned it working as a
mercenary in South America. He also said he had made a "quick"
$10,000.00 in Nashville. Zagorski also told Bruce and an army surplus
dealer that he had lost his knife scabbard.
On May 26, 1983, Zagorski, armed and wearing a bullet-proof vest, was
apprehended by Ohio law enforcement officers after a shoot-out in
which Zagorski rammed a police car and shot a special deputy five
times. Over $9,000.00 in cash was found in Zagorski's fatigue jacket
Zagorski gave different versions of
his role in the killings of Dotson and Porter. When he spoke with
police on June 1, 1983, he told them that he and another mercenary in
their own vehicle had met Dotson and Porter near Spot. Two other
mercenaries in a third vehicle had joined them as they drove up I-40.
When they stopped on I-65 in Robertson County, the other mercenaries
took Zagorski's rifle, silencer and gear and went into the woods with
Dotson and Porter. Zagorski was instructed to drive Porter's pick-up
to a Welcome Center at the Kentucky border and watch for law
enforcement officers. Thirty to forty-five minutes later the other
mercenaries met him, gave him $5,000.00 and Porter's .357 Magnum and
returned his rifle and gear. Zagorski then left in Porter's pick-up
since, he said, it was not unusual to trade cars in a drug deal.
In statements made on July 27 and August 1, 1983, Zagorski claimed he
was hired to kill Porter but that Dotson's death was a mistake. He
also said that two other men had been hired to kill Porter, that the
deaths occurred in Humphreys County and that the bodies were put in
plastic bags and carried to Robertson County. Zagorski never admitted
killing the men and refused to tell the identities of the other men he
claimed were involved. Zagorski told some visitors at the jail that he
had only been at the killings to "blow away" FBI agents.
The defense proof was directed
toward showing that the killings did not occur in Robertson County.
One witness, Ruby Winters, testified that at about 4:00 p.m. on April
23, 1983, she had heard loud music and four shots coming in a wooded
area near Spot. Another witness testified as to how the HK 91 rifle
fired and how far cartridges were expelled from the gun. This was in
contradiction to testimony of state witnesses on the issue.
The jury found from the evidence that the defendant was guilty of
murder in the first degree in killing John Dotson and Jimmy Porter.
Implicit in the verdicts was a finding by the jury that the killings
occurred in Robertson County, Tennessee. In a separate proceeding, and
based upon the testimony introduced during the guilt phase of the
trial, the jury imposed the sentence of death on the defendant for
each killing on its finding (1) that the murders were committed by the
defendant while he was engaged in committing robbery of the victims,
(2) that the murders were especially heinous, atrocious or cruel in
that they involved torture or depravity of mind, and (3) that there
was no mitigating circumstance sufficiently substantial to outweigh
the statutory aggravating circumstances found by the jury.
A number of issues that have a
bearing on the overriding issue of the convicting evidence are raised
by the defendant. The defendant insists the trial court committed
prejudicial error in admitting in evidence statements given by the
defendant to police officers. The defendant argues that he was
questioned after having asked for an attorney and that he was coerced
into making statements by the circumstances of his confinement and his
physical and mental condition. We find no merit in these arguments.
The statements of Zagorski in question were those of June 1, July 27,
and August 1, 1983. Zagorski consistently denied that he had killed
the victims, but in each of the statements, though differing in
details, Zagorski implicated himself in the killings. For example, in
the June 1 statement, Zagorski placed the killing site in Robertson
County and himself at the Kentucky-Tennessee border keeping a lookout
for police authorities. The later statements had the victims meeting
their death in Hickman County, with Zagorski present but not taking
part in the killings.
Zagorski also talked with police officers on May 27, 1983. The
statement was not used in the trial, but is important as Zagorski then
stated he was not going "to make no statements or answer any question,"
and finally saying "[l]ike I said, I guess I really should talk to a
Zagorski having asked for a lawyer,
it becomes important to determine whether later statements were
initiated by Zagorski and whether there was a knowing and intelligent
waiver by him of his request for an attorney to be present at any
interrogation. See Smith v. Illinois, 469 U.S. ___, 105 S.Ct.
490, 492-93, 83 L.Ed.2d 488 (1984); Edwards v. Arizona,451 U.S.
477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).
With this in mind as we viewed the evidence, we concluded that the
evidence supports the trial court's finding that the defendant
initiated the interrogations, that he was not subject to any coercive
action on the part of the state, and that he knowingly and
intelligently waived his right to have counsel present during the
interrogations. Further, we are of the opinion that even if there had
been an Edwards violation, error in admitting the statements in
evidence was harmless beyond a reasonable doubt in view of the
overwhelming evidence of guilt in this case. See United States v.
Webb,755 F.2d 382, 392 (5th Cir.1985) (applying harmless error
analysis to Edwards violation).
Defendant also insists that the trial judge erred in failing to
suppress physical evidence taken from the property of a private
citizen in Ohio. The record shows that prior to the shoot-out with
Ohio officers, defendant had been staying in a barn on property owned
by Steven Boggs. On hearing of the shoot-out, Boggs telephoned the
chief investigator of the Lawrence County, Ohio Sheriff's Department
and told him that property belonging to the defendant was at the Boggs'
place and that he was going to "get rid of" it unless someone came
On responding to the telephone call,
the investigator found that Boggs had removed the property from the
barn where Zagorski had been staying and had placed it in the driveway.
The investigator inventoried the property, which included the
defendant's HK 91 .308 rifle, and seized it after giving Boggs a
receipt. Defendant argues that the officer conducted an unlawful
warrantless search and seizure of his property.
Fourth Amendment protection is
inapplicable to a search or seizure effected by a private individual
not acting as an agent of the government or with the participation or
knowledge of any government official. United States v. Jacobsen,466
U.S. 109, 104 S.Ct. 1652, 1656-57, 80 L.Ed.2d 85 (1984); Burdeau v.
McDowell,256 U.S. 465, 41 S.Ct. 574, 65 L.Ed.2d 1048 (1921);
Hughes v. State, 176 Tenn. 330, 141 S.W.2d 477, 479 (1940). See
Search and Seizure, § 1.6
(1978). The search and seizure of the defendant's personal property in
this case was effected by a private individual with no connection to
any government agency.
The defendant also insists the
officers were required to obtain a warrant before testing the HK 91
rifle taken from the Boggs' property. Defendant argues that the
testing was a significant expansion beyond the scope of the private
search under Walter v. United States,447 U.S. 649, 100 S.Ct.
2395, 65 L.Ed.2d 410 (1980), in which the majority of the Court set
forth the standard that the legality of the governmental search must
be tested by the scope of the antecedent private search. Under the
analysis used in United States v. Jacobsen,466 U.S. 109, 104
S.Ct. 1652, 1661-1662, 80 L.Ed.2d 85 (1984), to determine the legality
of a field test of suspected contraband discovered by a private search,
the subsequent testing of Zagorski's rifle did not compromise any
further legitimate interest in privacy on the part of the defendant
and the testing was not a search under the Fourth Amendment.
In three separate issues the
defendant argues that the prejudicial nature of the testimony of
several witnesses concerning defendant's stay in Ohio and the
circumstances of his capture outweighed the testimony's probative
value on the issue of flight, and should therefore have been excluded.
The trial court admitted evidence of Zagorski's spending sprees, his
possession of the victim's property, and incriminating statements made
by Zagorski while in Ohio. He also admitted evidence that defendant,
at the time of his capture, had deliberately rammed a police car and
opened fire on the officers inside, one of whom he shot five times,
and of Zagorski's statement as he was handcuffed. It is this latter
testimony that defendant primarily directs his argument of prejudice
outweighing the probative value of the evidence.
A defendant's flight and attempts to
evade arrest are relevant as circumstances from which, when considered
with the other facts and circumstances in evidence, a jury can
properly draw an inference of guilt. Sotka v. State,503 S.W.2d
212, 221 (Tenn. Crim. App. 1972). Circumstances surrounding a
defendant's arrest, even though they may show the commission of
another crime, are admissible if they have probative value in
establishing guilt. State v. Scott,687 S.W.2d 592, 593 (Mo. App.
In admitting testimony concerning
the shoot-out and arrest, the trial court instructed the State to
limit testimony to those facts directly probative of the flight and
showing defendant's desperation. The court also instructed the jury to
consider the testimony only on the issue of flight. We see nothing in
the record to indicate that either the State or the jury ignored the
court's instructions. Further, we are of the opinion that the
probative value of the testimony was not outweighed by any potentially
The defendant also contends that the
trial court committed prejudicial error in admitting into evidence
photographs of the victims as they were found lying in the woods.
Defendant argues that there was no need for the photographs to be
admitted in evidence in view of the testimony of the pathologist and
the expressed willingness of defendant to stipulate to the fact that
the victims were dead and to facts stated in the autopsy report.
Defendant also insists that the prejudicial effect of the photographs
outweighs their probative value.
The photographs in question are not
gruesome or horrifying, though they show that the bodies are blackened
from decomposition. Further, the photographs show more than the
physiological causes of death, which is the primary import of the
pathologist's testimony and the autopsy report. The photographs show
the scene where the bodies were found and show the manner in which the
bodies were lying and in which the clothing and personal items of the
victims had been disturbed. This information is relevant to a
resolution of the issues of venue, felony murder, premeditation,
and intent, all being issues material to a decision in this case.
The defendant also takes issue with the exclusion by the trial judge
of the testimony of Marsha Dotson and former Sheriff Atkinson giving
their opinion as to where the killings occurred. In both instances the
trial judge properly sustained the State's objections to this
testimony, since defendant was seeking opinion testimony from lay
witnesses on an ultimate issue of fact which the jurors were as
competent as the witnesses to determine. See State v. Workman,667
S.W.2d 44, 51 (Tenn. 1984).
On considering the evidence properly before the jury in this case, we
are convinced that it is sufficient for a rational trial of fact to
find beyond a reasonable doubt that the defendant killed John Dotson
and Jimmy Porter in Robertson County during the course of a robbery.
We are also of the opinion that the finding by the jury that the
murders were "especially heinous, atrocious or cruel" is in accord
with the evidence. See State v. Williams,690 S.W.2d 517, 529-30
(Tenn. 1985). Although the victims died from gunshot wounds, the
defendant also slit their throats, leaving them to bleed to death in
the woods. This evinces depravity of mind and is a form of torture.
Defendant's actions were an infliction of gratuitous violence, and
needless mutiliation of victims who were already helpless from fatal
wounds which indicate a depraved state of mind at the time of the
killings. We are also of the opinion that the evidence justifies the
jury's finding that there was no mitigating circumstance which would
outweigh the statutory aggravating circumstances found by the jury.
Further, we find that the death
penalty is not disproportionate to the penalty imposed in similar
cases of first degree murder where the victim was robbed while armed.
State v. Laney,654 S.W.2d 383 (Tenn. 1983); or drinking,
State v. Campbell,664 S.W.2d 281 (Tenn. 1984). See also State
v. Morris,641 S.W.2d 883 (Tenn. 1982) for a similar first degree
murder by a defendant, who had gained his victim's trust, then killed
and robbed him.
Defendant also raised a number of
issues involving the voir dire. The record shows that the trial
judge elected to have prospective jurors examined in groups of three
and later six to speed up selection. Whenever any juror indicated he
had been exposed to publicity, formed an opinion, or possessed
potentially prejudicial knowledge or information, he was examined
separately. Defendant insists that the limited group examination of
jurors was improper that there should have been individual voir
dire, that two jurors were improperly excused for cause, citing
Witherspoon v. Illinois,391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d
776 (1968), and that comments and questions by the trial court and the
prosecutor during voir dire were contra to later jury
instructions and misled the jury. We have carefully considered each of
the contentions and have found them to be without merit. No prejudice
could or did result from examining prospective jurors in small,
controlled groups in the manner described above. The two jurors
excused for cause made it clear that they would vote against the
imposition of the death penalty, no matter what the circumstances of
the case were, which is what Witherspoon requires for juror
disqualification. We have read the examination of prospective jurors
by the court and the prosecution, of which the defendant complains,
and find nothing misleading or improper in the questions. The
questions and comments were part of ascertaining if jurors could
accept the law's mandate that both life and death are appropriate
punishments for first degree murder, depending on the circumstances
proven. None of the comments or questions could have prejudiced the
Defendant also insists that he was
entitled to two separate juries, one to decide guilt, the other
sentence, on the theory that a so-called "death qualified" jury is
skewed toward a finding of guilt, contravening the defendant's right
to a fair and impartial jury composed of the cross-section of the
community. This theory was
rejected in State v. McKay,680 S.W.2d 447, 450, 453-455 (Tenn.
1984), and we find no basis in the record to change our view of the
During voir dire, Mrs. Dotson
and Mrs. Porter were allowed to be present in the courtroom despite
defendant's request they be excluded. There is no indication in the
record that their presence was disruptive or affected the jurors. They
heard no testimony, and there is no showing that statements by the
parties as to their theories of the case affected either woman's
testimony. Exclusion of witnesses from the courtroom is a decision
within the discretion of the trial judge which will not be reversed
absent an abuse of discretion to the prejudice of the complaining
party. State v. Henderson, 220 Tenn. 701, 423 S.W.2d 489, 491
(1968); Nance v. State, 210 Tenn. 328, 358 S.W.2d 327, 330
(1962). No such abuse of discretion is shown in this case.
Next, defendant contends that
Assistant District Attorney General Gay should have been disqualified
from participating in the trial as it was obvious that he was a
potential witness (DR 5-102), having participated in the June 1
interrogation, and had made pre-trial statements to the media
concerning the evidence in the case contrary to Disciplinary Rule
7-107(B)(3) and (6). There was no violation of DR 5-102. The State
informed the trial court that it did not need to or intend to call Gay
as a witness, and he was not called. While some statements made by Gay
to the media may have bordered on a violation of DR 7-107(B), recusal
from participation in the trial is not a necessary discipline, and
failure to disqualify Gay did not prejudice the defendant in any
The defendant also insists that the
trial judge should have ordered a change in venue, citing pre-trial
publicity and resulting excitement in the community. The matter of a
change of venue addresses itself to the sound judicial discretion of
the trial judge and his decision must be respected absent a showing of
abuse of discretion. Rippy v. State,550 S.W.2d 636, 638 (Tenn.
1977). No abuse of discretion is shown in this case, nor could there
be any prejudice as shown by the voir dire and from the
procedure that permitted individual voir dire whenever it was
determined that a juror had been exposed to pre-trial publicity.
The defendant insists that the trial
court erred in the sentencing phase of the trial in refusing to give
requested instructions on mitigating circumstances and in refusing to
allow the defendant to argue in mitigation of punishment the victims'
participation in a drug deal, defendant's lack of a prior record of
violent criminal activity and the defendant's youth as mitigating
The circumstances set forth in the requested instructions were not in
accord with the evidence, nor were they included in the specifically
delineated statutory mitigating circumstances, Tenn. Code Ann. §
39-2-203(j). The jury could consider them under the "catchall"
provision in the statute which directs them to consider "any
mitigating circumstances which shall include, but not be limited [to
circumstances set out in the statute]." Tenn. Code Ann. § 39-2-203(j).
The court therefore instructed the jury that
Mitigating circumstances are within
your province, if there are any. You have heard the evidence of the
case, and no additional evidence was produced at the sentencing
hearing, so you may consider all the evidence that was presented in
the entire case. The law sets out certain mitigating circumstances
which have no particular applicability in this case, but you're not
limited to those, so you can consider any mitigating circumstances
that in your judgment would comply with the instructions given. [emphasis
No limitation was placed on argument
by defense counsel. To the contrary, the trial judge in a colloquy
with counsel for the State and the defense, stated:
.. I'm going to give the defense great leeway as to whether or not
they would go far afield. You would feel free to object. It would
not be discourteous, and I'd rule on it at that time, but I do not
want to limit them in their argument in a case like this. [emphasis
Under these circumstances, we find
no error in the trial court's rulings on scope of argument of counsel
or in the court's instructions to the jury in the sentencing phase of
In other issues directed to the
sentencing phase of the trial, the defendant challenges the
constitutionality of the death penalty statute, the fact that the
sentencing hearing began late in the afternoon of the fifth day of
trial, and the State's closing argument. We find no merit in these
The several bases of defendant's
challenge to the constitutionality of the Tennessee Death Penalty Act
have been considered and rejected in other cases decided by this court.
The argument that the death penalty is cruel and unusual punishment
was considered and rejected in State v. Dicks,615 S.W.2d 126 (Tenn.
1981). The contention that the underlying felony may not be used as an
aggravating circumstance was rejected in State v. Pritchett,621
S.W.2d 127, 140-141 (Tenn. 1981). Likewise found to be without merit
was the argument that the statute fails to specify which party bears
the burden of proof of establishing that aggravating circumstances out
weigh mitigating circumstances or to provide a standard of proof for
making this determination. State v. Teague,680 S.W.2d 785, 790
(Tenn. 1984). The defendant also contends that Tenn. Code Ann. §
39-2-203(i)(5), ("the murder was especially heinous, atrocious or
cruel") is unconstitutionally vague. This argument was made and
rejected in State v. Pritchett,621 S.W.2d 127, 139.
Defendant insists that he was prejudiced by the fact that the
sentencing hearing began late in the day, arguing that the court,
counsel and jury were exhausted. There is nothing in the record to
indicate this fact, and we note that defense counsel did not voice his
concerns to the court at the time of the sentencing hearing.
As to the closing argument of the prosecution, no objection was made
by counsel at the time of argument. However, we have considered each
statement of the district attorney general in context, and find that
they are within the bounds of propriety and in accord with the
evidence, and that the arguments did not prejudice the defendant or
deprive him of any rights.
The defendant's convictions of first
degree murder and the sentences of death are affirmed. The death
sentences will be carried out as provided by law on March 12, 1986,
unless stayed by appropriate authority. Costs are adjudged against the
I am authorized to state that Mr. Justice Brock concurs in the
affirmance of conviction but dissents from the imposition of the death
penalty for the reasons expressed in his dissent in State of
Tennessee v. Dicks,615 S.W.2d 126, 132 (Tenn. 1981).
FONES, HARBISON and DROWOTA, JJ., concur.
BROCK, J., dissents.
Edmund George Zagorski