State v. Dunn ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 124,086
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
WADE A. DUNN,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; BRUCE C. BROWN, judge. Opinion filed July 1, 2022.
Affirmed.
Ryan J. Eddinger, of Kansas Appellate Defender Office, for appellant.
Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before HILL, P.J., COBLE, J., and PATRICK D. MCANANY, S.J.
PER CURIAM: In this appeal Wade A. Dunn seeks a reversal of his conviction for
attempted second-degree murder because the trial judge failed to instruct the jury on the
lesser included crime of attempted voluntary manslaughter. In our review we conclude
that instructing the jury on this lesser included crime would not have been appropriate
and, therefore, we affirm Dunn's conviction.
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FACTUAL AND PROCEDURAL HISTORY
The events leading to Dunn's conviction occurred when the victim, Sarah
Chadwick, had put a laundry basket in her car. As she turned around to return to her
house, she heard someone approach her from behind. She turned around and was
confronted by a man—later identified as Dunn—standing there holding a knife. The man
repeatedly stabbed Chadwick while she pleaded with him to stop and attempted to defend
herself. Dunn said nothing, but he eventually stopped and ran away. Chadwick was
transported to the hospital in critical condition but survived the attack after several
surgeries.
Through the use of various surveillance videos and the recovery of items of
physical evidence, the police were able to identify Dunn as Chadwick's assailant. One of
the surveillance videos from a neighbor across the street showed Dunn walking down the
street and looking around before crouching behind Chadwick's car and then running
towards Chadwick. Dunn was arrested and charged with attempted first-degree murder
and aggravated battery.
At trial Dunn's defense centered on his claims of voluntary intoxication and the
lack of premeditation. To that end, he called Jason Waters to testify. Waters worked for
the city supervising a street cleaning team. He testified that he saw Dunn walking in the
street on the morning of the attack and Dunn seemed nervous or "on something [like]
drugs."
Dunn testified in his own defense. He said he had been using methamphetamine
the night before the attack and felt like he was still under the influence the following
morning. He also had smoked two joints of K2, a synthetic marijuana product, that
morning. He had a knife with him because he is "a natural paranoid" and "wanted some
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self-defense." He said he bought the knife at Wal-Mart the week before specifically for
defensive purposes.
Dunn said that on the morning of the attack he was walking around in an old
neighborhood where an ex-girlfriend lived and that he smoked another K2 joint as he
walked along. He recalled feeling "cool" and then suddenly his "body got real heavy, like
it felt like a weight on top of me." According to Dunn he could not remember seeing
Chadwick or any of the attack, just that he suddenly found himself running away with a
knife in his hand and covered in blood. Dunn said he never met Chadwick and had no
plan to attack her.
The neighbor's surveillance video showing Dunn crouching behind Chadwick's car
and turning and running towards Chadwick was introduced into evidence, filling in for
the jury events that occurred immediately before the attack.
After Dunn was arrested, he was interviewed by a local television news reporter.
He admitted at trial that he told the reporter that Chadwick "looked up and backed away"
before the attack, that he felt threatened by something Chadwick did that "set [him] off,"
and that he must have attacked her because of a perceived threat. But he testified that he
did not remember whether that was an actual recollection of the events or the product of
videos, incident reports, and news articles he had seen.
Without objection, the jury instructions included the following:
Instruction No. 4:
"The defendant is charged in Count 1 with an attempt to commit Murder in the
First Degree. The defendant pleads not guilty.
"To establish this charge, each of the following claims must be proved:
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"1. That defendant performed an overt act toward the commission of Murder
in the First Degree;
"2. That defendant did so with the intent to commit Murder in the First
Degree;
"3. The Defendant failed to complete commission of Murder in the First
Degree;
"4. That this act occurred on or about the 23rd day of September 2019, in
Sedgwick County, Kansas.
"An overt act necessarily must extend beyond mere preparations made by the
accused and must sufficiently approach consummation of the offense to stand either as
the first or subsequent step in a direct movement toward the completed offense. Mere
preparation is insufficient to constitute an overt act.
"The elements of the completed crime of Murder in the First Degree are as
follows:
"1. The defendant intentionally killed Sarah Chadwick.
"2. The killing was done with premeditation.
"3. This act occurred on or about the 23rd day of September 2019, in
Sedgwick County, Kansas."
Instruction No. 5:
"The offense of Attempted First Degree Murder with which defendant is charged
includes the lesser offense of Attempted Second Degree Murder. You may find the
defendant guilty of Attempted First Degree Murder, Attempted Second Degree Murder,
or not guilty. When there is a reasonable doubt as to which of two or more offenses
defendant is guilty, he may be convicted of the lesser offense only, provided the lesser
offense has been proven beyond a reasonable doubt. Your Presiding Juror should mark
the appropriate verdict."
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Instruction No. 6:
"If you do not agree that the defendant is guilty of Attempted Murder in the First
Degree, you should then consider the lesser included offense of Attempted Murder in the
Second Degree.
"To establish this charge, each of the following claims must be proved:
"1. That the defendant performed an overt act toward the commission of the crime of
murder in the second degree.
"2. That the defendant did so with the intent to commit the crime of murder in the
second degree.
"3. That the defendant failed to complete commission of the crime of murder in the
second degree; and
"4. That this act occurred on or about the 23rd day of September 2019, in Sedgwick
County, Kansas.
"The elements of the completed crime of Murder in the Second Degree are as follows:
"1. The defendant intentionally killed a human being.
"2. This act occurred on or about the 23rd day of September 2019, in Sedgwick
County, Kansas."
Instruction No. 10:
"Evidence of voluntary intoxication may be considered in determining whether
such intoxication impaired the defendant's mental faculties to the extent that he was
incapable of forming the necessary intent to form premeditation as set forth in instruction
number 4 with regard to attempted first degree murder; or the necessary intent to kill as
set forth in instruction 4 and 6 with regard to attempted first-degree murder and/or
attempted second degree murder."
The jury ultimately found Dunn guilty of the lesser included offense of attempted
second-degree intentional murder and guilty of aggravated battery. The court imposed
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prison sentences of 247 months for attempted second-degree murder and a consecutive 43
months for aggravated battery.
ANALYSIS
Dunn appeals, contending that the trial court erred in not instructing the jury on
the lesser included crime of attempted voluntary manslaughter as defined by K.S.A. 2019
Supp. 21-5404(a)(2), otherwise known as imperfect self-defense voluntary manslaughter.
Because Dunn did not request this instruction at trial, we apply the clear error
standard. Under this standard Dunn must first show that failing to give this lesser
included instruction was erroneous. Then, to show prejudicial error, Dunn must firmly
convince us that the jury would have reached a different verdict if an instruction on the
lesser included crime of attempted voluntary manslaughter had been given. See State v.
Williams, 295 Kan. 506, 523-24, 286 P.3d 195 (2012). We only reach the prejudice
element if the trial court erred in failing to give an instruction on attempted voluntary
manslaughter.
When considering whether the trial court erred in failing to give an instruction on
a lesser included crime, we consider whether the instruction was both factually and
legally appropriate. In doing so we have unlimited review over the entire record. State v.
Holley, 313 Kan. 249, 254, 485 P.3d 614 (2021).
An Instruction on Attempted Voluntary Manslaughter was Legally Appropriate
Voluntary manslaughter is a lesser degree of first-degree murder and therefore
constitutes a lesser included offense. State v. Pulliam, 308 Kan. 1354, 1362, 430 P.3d 39(2018) (noting the "five degrees of homicide" include "[i]n descending magnitude, . . .
capital murder, first-degree murder, second-degree murder, voluntary manslaughter, and
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involuntary manslaughter"). Under K.S.A. 2021 Supp. 21-5301(a), an attempt is "any
overt act toward the perpetration of a crime done by a person who intends to commit such
crime but fails in the perpetration thereof or is prevented or intercepted in executing such
crime." Having instructed the jury on the charged crime of attempted first-degree murder,
an instruction on the lesser included crime of attempted voluntary manslaughter would
have been legally appropriate. See State v. Gentry, 310 Kan. 715, 733, 449 P.3d 429(2019).
An Instruction on Attempted Voluntary Manslaughter was not Factually Appropriate
The next step in the analysis is to determine whether an attempted voluntary
manslaughter instruction would have been factually appropriate. Here, a jury instruction
on the lesser included crime of attempted voluntary manslaughter would have been
factually appropriate if, viewing the evidence in the light favoring Dunn, there was
sufficient evidence for a rational fact-finder to find that Dunn was guilty of this lesser
included charge rather than attempted first-degree murder or attempted second-degree
intentional murder. See Holley, 313 Kan. at 255; K.S.A. 2021 Supp. 22-3414(3).
As noted earlier, voluntary manslaughter as defined by K.S.A. 2021 Supp. 21-
5404(a)(2) is known as imperfect self-defense voluntary manslaughter. Kansas law
defines imperfect self-defense voluntary manslaughter as "knowingly killing a human
being . . . upon an unreasonable but honest belief that circumstances existed that justified
use of deadly force under K.S.A. 2021 Supp. 21-5222 . . . ." (Emphasis added.) K.S.A.
2021 Supp. 21-5404(a)(2).
There was no evidence that Dunn had an honest belief that Chadwick's conduct
justified his attack on her as an act of self-defense. According to Dunn, he experienced a
"blackout" and could not remember the moments just before or during the attack. He only
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recalled walking in the neighborhood and using drugs before the attack and then suddenly
realized he was running, holding a knife, and his shirt was covered in blood.
Dunn recalled being interviewed by a news reporter after his arrest. He did not
remember telling the reporter that he believed Chadwick was a threat to him and that her
actions set him off and he had to attack her. According to Dunn, he "must have seen
[Chadwick] as a threat, . . . but I don't remember thinking that." The only actions
attributed to Chadwick in the interview apparently involved her looking up and backing
away. He did not deny making this statement in the news interview, but he did not
remember doing so. His only explanation was that his statements to the reporter were
probably the product of his review of police reports and a video. Dunn having essentially
undermined the statements in the reporter's interview, the record is devoid of any
evidence which, viewed in the light favoring Dunn, supports the notion that at the time of
the attack Dunn had an honest belief that circumstances existed that justified use of
deadly force against Chadwick.
In State v. Roeder, 300 Kan. 901, Syl. ¶ 5, 336 P.3d 831 (2014), our Supreme
Court stated that "[a]n unreasonable but honest belief that circumstances existed that
justified deadly force will not support a claim of imperfect [self-defense] unless the
circumstances, if reasonably believed, would have supported a claim of perfect defense-
of-others under [the prior version of K.S.A. 2021 Supp. 21-5222]." See also State v. Seba,
305 Kan. 185, 208-09, 380 P.3d 209 (2016) (citing Roeder and observing that
"subjectively feeling fear is not sufficient to justify self-defense").
By his own admission, Dunn could only speculate about his thoughts before and
during the attack. The only evidence about what occurred leading up to and during the
attack came from the neighbor's video showing Dunn crouching behind Chadwick's car
and then running towards Chadwick and Chadwick's testimony that Dunn ran up behind
her and began stabbing her after she placed the laundry basket in the car. The record is
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devoid of evidence, even when viewed in the light favoring Dunn, that Chadwick's
actions caused him to believe that he needed to exercise deadly force to defend himself.
There was no evidence that—in the words of the statute—Dunn had an honest belief that
circumstances existed that justified use of deadly force. Therefore, giving a jury
instruction on attempted voluntary manslaughter was not factually appropriate, and the
district court did not err in failing to give it.
Because we conclude that the trial court did not err in failing to give an instruction
on attempted voluntary manslaughter, we need not reach the element of prejudice under
the clear error standard.
Affirmed.
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