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The People v. Kevin Wayne Dunigan


May 9, 2011


(Super. Ct. No. 09F01221)

The opinion of the court was delivered by: Robie , J.

P. v. Dunigan



California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Kevin Wayne Dunigan killed Gary Veirs after Veirs punched him for swearing at Veirs's girlfriend when she rejected Dunigan's advances. Dunigan killed Veirs by "gutt[ing]" him, i.e., "insert[ing a knife] in [Veirs's] side [and] ripp[ing] him open from one side to another." Based on this evidence, a jury found defendant guilty of first degree murder while personally using a dangerous and deadly weapon.

Sentenced to prison for 26 years to life following a trial in which he represented himself, defendant appeals and raises the following two contentions: (1) the court erred in failing to order a competency hearing; and (2) the People presented insufficient evidence the murder was premeditated and deliberate. Disagreeing, we affirm.


One August evening in 1995, Marie Morrissette was leaving her house on Stockton Boulevard in Sacramento when a man (later identified as defendant) approached her and said, "'Hey baby, what's up?'" Morrissette "put [her] hand up . . . to let him know not to talk to [her]" and then "kept on walking." Defendant responded in a loud voice, "'Well, fuck you then, bitch.'"

Just then, Morrissette's boyfriend, Veirs, came out of the house and told defendant, "'Don't talk like that to my old lady.'" There was an "instant [fist] fight." Veirs swung at defendant, defendant swung back, and within "seconds" the two were on the ground with Veirs on top. Defendant reached for a knife that was on his left side by his pants. The knife was about a foot long and "seemed . . . really sharp." Defendant pulled it out of its sheath. Morrissette yelled to Veirs, "'Babe, he's got a knife.'" She tried unsuccessfully to kick the knife out of defendant's hand. Veirs tried to "get up off him," but defendant was already stabbing him. Defendant "gutted him" by inserting the knife in his side and "ripp[ing] him open from one side to another."

Morrissette ran inside the house and called 911. Veirs followed her inside and was "bleeding everywhere." An ambulance took Veirs to the hospital. Veirs died from stab wounds to his chest.

Defendant was implicated in Veirs's murder in December 2008 after foreign DNA taken from Veirs's fingernails matched defendant's DNA.



The Court Did Not Abuse Its Discretion

In Failing To Order A Competency Hearing

Defendant contends the trial court violated his right to due process by failing to order a competency hearing because there was substantial evidence he was incapable of defending himself in a rational manner. As we explain, the court did not abuse its discretion because while defendant's testimony and argument were bizarre at times, he presented a coherent defense that either he was not the murderer or the crime was nothing more than involuntary manslaughter.

"A person cannot be tried or adjudged to punishment while that person is mentally incompetent." (Pen. Code, § 1367, subd. (a).) "A defendant is mentally incompetent . . . if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner." (Ibid.)

"As a matter of due process, the trial court is required to conduct a [competency hearing] whenever substantial evidence of incompetence has been introduced." (People v. Frye (1998) 18 Cal.4th 894, 951-952.) "Evidence which raises merely a suspicion of lack of present sanity but which does not purport to state facts of a present lack of ability through mental illness to participate rationally in a trial is held not to be substantial evidence of lack of present sanity." (People v. Stiltner (1982) 132 Cal.App.3d 216, 222.) "[M]ore is required to raise a doubt than mere bizarre actions . . . or bizarre statements." (People v. Laudermilk (1967) 67 Cal.2d 272, 285.) "The court's decision whether to grant a competency hearing is reviewed under an abuse of discretion standard." (People v. Ramos (2004) 34 Cal.4th 494, 507.) "When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479.)

Here, while defendant's testimony and argument was punctuated with bizarre statements and theories, he still was able to present a rational defense while acting as his own attorney, including filing pretrial motions, examining witnesses, presenting his own witnesses, and arguing in a coherent manner to the jury that he was not guilty of first degree murder. We explain.

Some of defendant's testimony was bizarre and a few theories he presented to the jury were irrational. For example, defendant testified that although "[i]t might sound odd to you [the jurors], this is a conspiracy to the highest levels." The conspiracy went all the way up the White House. He was "the one who told Bush to do the military buildup in Iraq" and wrote a letter to President Obama advising him how to win the war in Afghanistan.*fn1 To prove the conspiracy against him, defendant relied on Veirs's autopsy photographs. According to defendant, the wounds in the photographs were actually from bullet holes made to look like they were inflicted by a knife. "[T]hese holes in [Veirs's] body look[] like they came from a gun. They look like they actually took a scalpel and shaved the skin around the outside of the bullet wound just to expand it to make it look like it came from a knife." Defendant repeated some of these bizarre themes in closing argument, including that there was a conspiracy against him and the alleged knife wounds were really bullet holes.

Despite these irrational theories and arguments, defendant still was able to rationally defend himself. At the beginning of court proceedings, the court accepted defendant's waiver of his right to counsel and agreed to let him act as his own attorney. Before doing so, the court stated it had presided over one trial where defendant previously had represented himself and defendant added he had represented himself in two additional trials. Defendant understood he had a right to court-appointed counsel, he was up against a trained prosecutor, he was facing a life prison sentence, he was required to comply with the rules of criminal procedure and evidence, and he was not going to be given any special treatment. This was evidence of defendant's competency. (See People v. Blair (2005) 36 Cal.4th 686, 711.)

Before trial, defendant filed various motions evincing his competency to rationally defend himself. These included a motion to disqualify the trial judge, a motion to obtain discovery, three motions to obtain transcripts of prior proceedings, a motion to set aside the information, and a motion to exclude evidence.

Once trial got underway, defendant cross-examined all prosecution witnesses and called numerous witnesses of his own.

At the end of trial, he coherently argued to the jury that he was not guilty of killing Veirs or, at the very the least, he was not guilty of first degree murder. He began his closing argument with the position that there were "chain of custody" problems with the evidence of the fingernail scrapings, the police illegally seized his blood that they used for DNA testing, and he was left-handed and the knife wounds that killed Veirs were inflicted by somebody who was right-handed. He used this evidence to argue he did not kill Veirs and that if he had, he would have "t[aken] a [plea] deal a long time ago." Later in the argument, he pointed to evidence that the killing was done in the "heat of passion" and with "blind rage" and "anger." The incident went "from an innocent hello, to [defendant] getting stomped and kicked and punched . . . . [¶] That's not no premeditated. That's not no malice. That's being victimized. That's a manslaughter or possibly an involuntary manslaughter just because you're acting incoherent. You're acting on impulse . . . ."

Given this record, the trial court was in the best position to observe defendant's actions and demeanor and did not abuse its discretion by failing to hold a competency hearing.


There Was Sufficient Evidence Of Premeditation And Deliberation To Support Defendant's First Degree Murder Conviction

First degree murder is the intent to kill with premeditation and deliberation. (People v. Chun (2009) 45 Cal.4th 1172, 1181.) Premeditation means "thought over in advance." (People v. Koontz (2002) 27 Cal.4th 1041, 1080.) Deliberation means "careful weighing of considerations in forming a course of action." (Ibid.) Second degree murder is the rash and impulsive killing of another without premeditation and deliberation. (Chun, at p. 1181.) Defendant contends his conviction must be reduced to second degree murder because there was insufficient evidence Veirs's murder was premeditated and deliberated.

The test for first degree murder is "'whether the evidence supports an inference that the killing occurred as the result of pre-existing reflection rather than unconsidered or rash impulse.'" (People v. Bolin (1998) 18 Cal.4th 297, 331-332.) "The process of premeditation and deliberation does not require any extended period of time. 'The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . .'" (People v. Mayfield (1997) 14 Cal.4th 668, 767.)

Here, the evidence supported a conclusion that defendant very quickly decided to kill Veirs before he did so (i.e., premeditation) after weighing the considerations for and against killing Veirs (i.e., deliberation). Although it was trivial, defendant had a reason to kill Veirs. Defendant had been rejected by Veirs's girlfriend when she "put [her] hand up . . . to let him know not to talk to [her]" and then "kept on walking." Defendant's response was a loud "'Well, fuck you then, bitch.'" Defendant was chastised by Veirs, who told him, "'Don't talk like that to my old lady.'" While it was Veirs who threw the first punch, it was defendant who upped the ante by reaching for his knife and pulling it out of its sheath. Defendant then had a moment to reflect on what he was doing when Veirs's girlfriend announced to Veirs that defendant had a knife and tried to kick the knife out of defendant's hand. Finally, defendant's manner of killing Veirs, i.e., not simply by stabbing him, but by "gutt[ing] him" via inserting the knife in his side and "ripp[ing] him open from one side to another" provided additional evidence the murder was the result of careful thought and weighing of considerations rather than unconsidered, rash impulses.


The judgment is affirmed.

We concur: NICHOLSON , Acting P. J. DUARTE , J.

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