State v. Dean

1

State of Kansas, Appellee, v. Daquan Dean, Appellant.

No. 126,132

Court of Appeals of Kansas

December 6, 2024

NOT DESIGNATED FOR PUBLICATION

Submitted without oral argument.

Appeal from Reno District Court; TRISH ROSE, judge.

Peter Maharry, of Kansas Appellate Defender Office, for appellant.

Andrew R. Davidson, deputy district attorney, Thomas Stanton district attorney, and Kris W. Kobach, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., GREEN and HILL, JJ.

MEMORANDUM OPINION

PER CURIAM

Daquan Dean appeals from his convictions for three counts of battery of a law enforcement officer, in violation of K.S.A 21-5413(c)(3)(A). Dean contends that the district court erred by giving an incomplete jury instruction on the defense of involuntary intoxication. Also, Dean argues that because constitutional protection of a speedy trial attached when he became an accused, the State violated his due process rights by taking well over seven years to bring him to trial. Because the district court did not err in instructing the jury and because Dean caused the bulk of the delay for his trial, we affirm his convictions.

FACTS

On July 1, 2015, Dean was in the infirmary at Hutchinson Correctional Facility (HCF). Registered nurse Jerry Schmidt was assigned to work in the infirmary. Schmidt testified that Dean was not in good health and had been under observation for possible psychotic behavior and self-harm for two days. Schmidt stated that Dean was subdued when he saw Dean. Dr. Larry Bumguardner, D.O., the medical director at HCF, testified that Dean showed up at the infirmary catatonic, not talking or responding to verbal commands. Bumguardner also stated that he believed that Dean was under the influence of a synthetic cannabinoid called K-2 and the appropriate treatment was to let the drug pass through his system.

During Schmidt's shift, he observed Dean once every half hour. At approximately 8:30 p.m., Schmidt saw that Dean was unresponsive. Schmidt tried speaking to Dean through a food service port in the door and through the intercom, but Dean did not respond. Dean had stripped naked and wrapped himself in a thin mattress.

Corrections Officer Tammy Vanbuskirk testified that she had been observing Dean on her monitor all day. That day, "[h]e was just laying there like a lump on a log." But Schmidt and Vanbuskirk became concerned about Dean's well-being because he showed no movement at all. Schmidt testified that any movement would have eliminated the need to check on Dean explaining, "If I seen [sic] a big toe move we would never have gone in."

But because Dean was not moving, Vanbuskirk opened the cell and they went in to make sure Dean was okay. Schmidt shook Dean and then saw Dean open one eye. Schmidt started to back up but Dean "popped up and started swinging." Vanbuskirk tried to stop Dean with pepper spray, to no effect.

Schmidt testified that Dean did not say a word to him during the attack. Schmidt tried to protect himself by blocking the blows. Dean lowered his head and rammed Schmidt against the wall. From there, they fell into the shower area of the isolation room.

While Dean was on top of Schmidt, he tried to gouge Schmidt's eyes out with his thumbs. Schmidt received scratches and gouge marks to his eyes. Schmidt tried to defend himself by reaching for Dean's eyes, which caused Dean to holler at him. Dean apparently was shouting something to the effect of "they're trying to kill me." Bumguardner heard the commotion and went to the isolation room to try to help Schmidt. While Dean had Schmidt pinned, Dean bit Schmidt on the cheek and would not let go until security pulled him off.

The bite to Schmidt's face caused lacerations requiring stitches and dura bond to repair the injuries. Because it was a human bite wound, Schmidt needed a round of antibiotics and antiviral medications. An ambulance took Schmidt to the hospital, where medical staff were able to save both of Schmidt's eyes. Schmidt had scars from this attack or, in his words, "[m]y modeling career was over." Schmidt typically wore contact lenses "religiously," but he could not wear them for three months while his eyes healed.

On May 31, 2017, the State charged Dean with three counts of battery of a law enforcement officer, listing the victims as Schmidt, Vanbuskirk, and Bumguardner. The State tried to transport Dean to court on September 13, 2017, but he could not travel due to illness. The preliminary hearing was on April 2, 2018, and Dean was arraigned on May 11, 2018. The district court ordered a pretrial conference for June 22, 2018.

Dean requested continuances and the district court granted his requests on September 4, 2018, October 16, 2018, February 19, 2019, April 16, 2019, May 31, 2019, and July 30, 2019. Part of this delay was because the defense wanted toxicologist Dr. Stephen Thornton to evaluate Dean. The jury trial was set for October 1, 2019, when the State requested a continuance based on Thornton's evaluation. On the new trial date of November 15, 2019, the State dismissed the charges without prejudice because a vital witness was unavailable.

The State refiled the same charges three days later, on November 18, 2019. The State then filed a transport order to bring Dean to court for a first appearance, scheduled for February 25, 2020. Then the district court scheduled a preliminary hearing for May 11, 2020. But this preliminary hearing did not occur as scheduled. In response to the COVID-19 pandemic, the Kansas Supreme Court entered Kansas Supreme Court Administrative Order 2020-PR-016, effective March 18, 2020. This order continued all jury trials in Kansas that had not yet begun and suspended all statutory deadlines and time limitations for bringing a defendant to trial until further notice. The effect was to push Dean's preliminary hearing to December 29, 2021. Dean was arraigned on January 3, 2022.

At a pretrial conference on March 25, 2022, Dean requested a continuance of trial, which was set for the following week. Dean explained that Thornton's toxicology report was the crux of the defense and Thornton was unavailable the week of trial. The State indicated that it was prepared to try the case.

On September 13, 2022, Dean tested positive for COVID-19, and the district court granted his request for a continuance. At a pretrial hearing on October 24, 2022, Dean requested a continuance because his defense required a witness named Joseph Thin Elk who was incarcerated in South Dakota. The district court granted a continuance, and the case went to trial on January 9, 2023.

At trial, Dean asserted the affirmative defense of involuntary intoxication. Thornton testified that he teaches medical toxicology at the University of Kansas Medical Center and is board certified in addiction medicine, emergency medicine, and medical toxicology. He has done studies on the effects of bath salts, which are related to amphetamines and methamphetamine with similar effects. Bath salts cause "a lot of agitation" and "violent paranoia-type of behavior," sometimes with prolonged effects which last for days.

Thornton noted that there was no toxicology report showing what was in Dean's system on July 1, 2015. But he also noted that Dean had no history of psychosis, schizophrenia, or any sort of mental health diagnosis or treatment. Thornton testified that Dean's records were consistent with drug-induced psychosis based on symptoms such as a very high heart rate, being very sweaty, fight or flight motor agitation, and violent paranoia-type behavior.

Thin Elk testified via Zoom from South Dakota State Penitentiary. In 2014, Thin Elk was transferred from South Dakota to HCF and he was at HCF in July 2015. Thin Elk was transferred back to South Dakota in 2021 to serve a life sentence. He testified that he was in the same cell house as Dean at HCF in July 2015. Thin Elk testified that "if he was in my cell house I probably did" give Dean some Hawaiian Punch which contained "[p]robably ice meth." He stated that he mixed drinks and gave them to inmates to test the potency of a drug, typically cut with bath salts, and did not tell his test subjects.

But a corrections officer testified that prison records showed Dean and Thin Elk were held in the same cell block from May 13, 2015, to May 29, 2015. By late June, they were held on separate floors and could not have had contact.

At the end of trial, the district court instructed the jury on the three charges. On Dean's affirmative defense, the district court gave the following instruction: "Intoxication involuntarily produced is a defense if it renders the defendant substantially incapable of knowing or understanding the wrongfulness of his conduct and of conforming his conduct to the requirements of law." The jury found Dean guilty as charged on January 10, 2023. The district court sentenced Dean to 130 months (10 years, 10 months) in prison, followed by 24 months of postrelease supervision.

Dean timely appeals.

ANALYSIS

I. Did the district court commit reversible error in giving the jury an incomplete instruction on involuntary intoxication?

Dean argues that the district court committed reversible error because it did not instruct the jury on the burden of proof for involuntary intoxication. The State argues that the instructions were not clear error because the jury would not have returned a different verdict.

When analyzing jury instruction issues, appellate courts follow a three-step process: (1) determining whether the appellate court can or should review the issue, in other words, whether there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal; (2) considering the merits of the claim to determine whether error occurred...