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State v. Dean

Supreme Court of Kansas

October 25, 2019

State of Kansas, Appellee,
v.
Marquel D. Dean, Appellant.

         SYLLABUS BY THE COURT

         1. An appellant has the burden to furnish a record that affirmatively shows prejudicial error, and without such a record, an appellate court presumes the actions of the district court were proper.

         2. A district court is not legally required to instruct the jury to view with caution the testimony of a noninformant witness who is testifying in exchange for benefits from the State.

         3. To grant a motion for new trial based on newly discovered evidence, a district court must determine that (1) the defendant has met the burden of establishing that the newly proffered evidence could not, with reasonable diligence, have been produced at trial, and (2) the evidence is of such materiality that it would be likely to produce a different result upon retrial.

         4. On these facts, gang affiliation evidence was relevant to prove the disputed facts of identity, motive, and premeditation; it was probative to explain otherwise inexplicable events surrounding the murder; and it was not unduly prejudicial because the district court gave a proper limiting instruction.

          Appeal from Sedgwick District Court; Jeffrey Syrios, judge. Affirmed.

          Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, argued the cause and was on the brief for appellant.

          Julie A. Koon, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

          OPINION

          Stegall, J.

         This case arises from a retaliatory gang shooting in Sedgwick County. Marquel D. Dean, a member of the Crips, walked into a party with another Crip, and the two shot and killed a member of the Bloods. Their bullets also injured four bystanders. Dean was convicted of premeditated murder, four aggravated batteries, and criminal possession of a firearm. On direct appeal, Dean challenges: (1) the denial of his motion for mistrial based on juror misconduct; (2) the failure to instruct the jury to view with caution the testimony of a witness for benefits; (3) the denial of his motion for new trial based on newly discovered evidence; (4) the sufficiency of the evidence; and (5) the admission of gang affiliation evidence. He also claims cumulative error denied him the right to a fair trial. Holding there was no error, we affirm.

         Factual and Procedural Background

         In June 2013, Montreal Rambo, a member of the Crips gang, was shot in the leg while he was standing outside a restaurant in Wichita. Rambo's leg had to be amputated and from then on he used a wheelchair. The word on the street was that a member of the Bloods gang named James Gary, also known as "Bird," had shot Rambo.

         About a month later, Chamay Ross, Gary's girlfriend, went out to a bar named the Drunken Monkee with her cousin, Ashley Thomas. At that time, Thomas was in a relationship with Dean, a Crip known as "Crush Tre" or "C-3." Many Crips were at the Drunken Monkee that night, including Rambo and Dean, who were close friends.

         After the bar closed about 2 a.m., Ross and Thomas went to a large party in the garage of a building. Gary typically attended parties at this location, along with other Bloods. The party had about 100 attendees, and it spilled out of the garage into the parking lot. After the two women arrived, Ross spotted Gary and brought him a drink. She recalled that Gary was easy to find in a crowd because he was tall. Gary told her to leave because the Crips were coming, but she stayed. Meanwhile, Thomas kept using Ross' phone to call someone-who turned out to be Dean.

         Around 3 a.m., Dean and Shane Landrum, a Crip known as "Tall Can," walked into the party together. Gary told a Bloods member next to him, "There go Crush Tre and Tall Can." When Dean and Landrum got close to Gary, shots were fired. Gary was hit four times and later died. Another burst of shots sprayed the crowd from the same direction, injuring Thomas and three others. As Dean ran away, a Folk Tru Boy gang member named Davorious Holloman shot back at him.

         Generally, the Bloods wear red and the Crips wear blue. But Ross, along with several other witnesses, saw Dean walk into the crowd wearing a red outfit. One witness testified that Dean was wearing a plaid shirt when he first arrived but was wearing a red shirt when he approached Gary. She recalled that Gary took a "fighting position" but was not holding a gun. She said Dean shot Gary from a few feet away.

         Several witnesses reported that "C-3" was the shooter or that the shooter was wearing red. Travis Rogers, a Bloods member, shook Gary's hand moments before the initial shots were fired. Rogers was shot twice in the stomach and found lying next to Gary. Rogers told a bystander that "C-3" shot him. He later testified that Dean also shot Gary.

         The eyewitness and ballistic evidence revealed that three guns were fired at the party that night. Witnesses reported that Dean and Landrum fired toward Gary, and Holloman shot back while they fled. No guns were found at the scene, but law enforcement later obtained Holloman's gun in a separate case, and it matched some of the shell casings found at the scene. The bullets recovered from the victims did not come from Holloman's gun.

         Dean fled the state and was apprehended in Texas. The State charged him with premeditated murder for killing Gary; four counts of aggravated battery for shooting the bystanders; and one count of criminal possession of a firearm.

         The most contested witness at trial was Charles Steele, Gary's close friend and Bloods associate. At the time of trial, Steele was in federal custody for bank robbery. Steele admitted that he had pled guilty in the federal case and was hoping to get a reduced sentence for testifying at Dean's trial.

         Steele explained that the rivalry between the Bloods and the Crips escalated after Rambo was shot. At the garage party, Steele was standing near Gary when the shooting started. Steele recalled that someone saw the Crips coming and tapped Gary. But, Steele testified, "[b]efore [Gary] could even try to turn and run . . . C-3 already ran and was shooting," and Holloman returned fire. Steele recalled that Dean was dressed in red when he shot Gary.

         The jury convicted Dean of premeditated murder, four aggravated batteries, and criminal possession of a firearm. The district court imposed a hard 25 life sentence for premeditated murder and a consecutive 257-month sentence for the remaining crimes.

         On appeal directly to this court, Dean argues the district court erred when it failed to declare a mistrial after a juror took notes outside of court; refused to instruct the jury to view with caution the testimony of a witness for benefits; and denied his motion for new trial based on newly discovered evidence about Steele's plea deal. Dean also claims the evidence of premeditation was insufficient; the evidence of gang affiliation was inadmissible; and cumulative error denied him the right to a fair trial. We exercise jurisdiction over Dean's appeal because he received a life sentence for premeditated murder. See K.S.A. 2018 Supp. 22-3601(b)(3).

         Analysis

         On his mistrial claim, Dean failed to designate a record that shows prejudicial error.

         Dean claims the district court erred when it denied his motion for mistrial after a juror committed prejudicial misconduct. A district court judge may order a mistrial when "[p]rejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution." K.S.A. 22- 3423(1)(c). Under K.S.A. 22-3423(1)(c), a district court must engage in a two-step analysis:

"First, the trial court must decide if '"there is some fundamental failure of the proceeding."' If so, in the second step of the analysis, the trial court must assess whether it is possible to continue the trial without an 'injustice.' This means . . . that if there is prejudicial conduct, the trial court must determine if the damaging effect can be removed or mitigated by an admonition or instruction to the jury. If not, the trial court must determine whether the degree of prejudice results in an ...

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