BY THE COURT
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.
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.
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.
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
from Sedgwick District Court; Jeffrey Syrios, judge.
F.A. Maughan, of Maughan Law Group LC, of Wichita, argued the
cause and was on the brief for appellant.
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.
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.
and Procedural Background
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.
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.
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.
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
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.
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
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.
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.
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
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.
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
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.
his mistrial claim, Dean failed to designate a record that
shows prejudicial error.
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