State will argue that Danny Queen’s conviction in Eudora murder shouldn’t be overturned for speedy trial issues

photo by: Sara Shepherd/Journal-World File Photo

In this Journal-World file photo from Oct. 9, 2018, Danny W. Queen appears in Douglas County District Court next to one of his appointed attorneys, Joshua Seiden.

The Kansas Court of Appeals ruled in July that it was “obligated” to reverse a Eudora man’s murder conviction and vacate a nearly 19-year prison sentence because his trial started three days late.

But on Tuesday, the Douglas County district attorney’s office will ask the Kansas Supreme Court to reverse that decision and keep Danny W. Queen, 39, behind bars. The state also says the circumstances of the case are unlike any before it, making it “ripe” for the court’s consideration.

Queen’s appellate attorney, however, argues that even if the court disagrees that his client’s right to a speedy trial was violated, he should get a new trial based on errors in his first.

The Kansas Supreme Court agreed on Oct. 19 to review the case, court records show. If the justices were to uphold the appellate court’s decision, Queen could not be retried.

As the case stands, Queen’s earliest possible release from prison is June 27, 2033, according to Kansas Department of Corrections records. He is currently in custody at Norton Correctional Facility.

Background

On Aug. 1, 2018, a jury convicted Queen of second-degree murder for fatally shooting Bo M. Hopson, 32, of Eudora, while Hopson was working as a security guard at D-Dubs Bar and Grill.

Queen had been drinking heavily in the early morning hours of June 24, 2017, the Journal-World reported. He was kicked out of the bar, then scuffled with other bar patrons before being lifted onto a trailer in the parking lot to calm down. Hopson stood nearby and offered to help Queen find a ride home.

Instead of accepting, Queen pulled a handgun from his pocket and shot Hopson twice. Hopson was expected to pull through, but he died the next day following complications after surgery.

photo by: Contributed Photo

Bo M. Hopson

Queen had described on the witness stand how, after he was kicked out of the bar and “thrown” onto the trailer, he blacked out; as he came to, he was foggy, but he heard a man say, “I want to stomp on this guy’s head.” He said he felt that it was a serious threat, so he grabbed his gun and fired at the man walking toward him — Hopson, who suffered one gunshot wound to his chest and one to his arm.

Queen then pointed the gun at two other men and pulled the trigger, but the gun misfired, according to trial testimony. Jurors also found Queen guilty of attempted second-degree murder and attempted voluntary manslaughter, the Journal-World reported.

In January 2019, Queen was sentenced to 226 months in prison, the Journal-World reported.

‘Ripe’ for review

Queen was being held in the Douglas County Jail on a $1 million cash or surety bond pending his trial. Under Kansas law, prosecutors have 150 days to bring a case to trial after an in-custody defendant is arraigned; otherwise, “such person shall be entitled to be discharged from further liability to be tried for the crime charged,” the statute reads.

Assistant District Attorney Kate Duncan Butler wrote in a petition asking the Kansas Supreme Court to review the Court of Appeals decision that many factors weighed into Queen’s jury trial beginning on day 153. The unique circumstances of the case “make present an issue of first impression that is ripe for this court’s consideration,” she wrote.

In setting Queen’s trial date, now-retired Douglas County District Court Judge Peggy Kittel mistakenly believed that April 30, rather than March 30, was the speedy trial deadline; former Chief Assistant District Attorney Amy McGowan mistakenly agreed. Queen’s defense counsel, Dakota Loomis and Joshua Seiden, agreed to set the trial for April 2; the morning trial was set to begin, they filed a motion to dismiss the case for speedy trial violations, which the judge denied.

But previous cases have dealt with issues of parties requesting continuances, Butler wrote; in this case, neither side did so.

“The State is unaware of any cases where, as here, the district court scheduled the trial outside the relevant statutory period at arraignment,” Butler wrote. “The State is similarly unaware of any existing precedent where the district court originated a mistake of fact that the State endorsed.”

Butler, citing past court cases, wrote that there are many reasons for the speedy trial statute, including to prevent oppressive pretrial incarceration, minimize anxiety and limit the possibilities that a long delay would impair the defendant’s ability to defend himself. She wrote that those purposes are important, and that in this case they were clearly served.

“There is no evidence that Queen suffered especially harsh anxiety in that time or that evidence decayed or disappeared over a single weekend,” Butler wrote. She also noted that after the judge denied the motion to dismiss, defense counsel requested a continuance.

In response, Queen’s appellate counsel, Peter Maharry, disputed the idea that the speedy trial statute was one that the Kansas Supreme Court needed to clarify.

“There is no way to read the language of the statute to impute ‘close to’ or ‘within the spirit,'” he wrote. “The statute says 150 days.”

He also wrote that the record shows there were five other matters set for jury trial after Queen’s arraignment, which shows that “the district court could have timely tried Danny, but failed to do so.”

Other issues

Because the Court of Appeals reversed Queen’s conviction for the speedy trial issue, it did not consider the other issues that Maharry raised in the appeal.

In a cross-petition for review, Maharry wrote that “Even if this Court finds his statutory speedy trial rights were not violated, which they were, Danny was denied a fair trial warranting reversal for a new trial.”

The other issues Maharry raises are:

• Jury instructions: Queen had requested that the jury be instructed on lesser offenses, including reckless second-degree murder, voluntary manslaughter and involuntary manslaughter.

“The question is whether there was an intent to kill, or just an intent to shoot,” Maharry wrote, noting that when Queen testified at his trial, he said he did not have any intent to kill but instead to “stop a threat.” Maharry wrote that the jurors were instructed on self-defense, but that would have required them to find that Queen believed deadly force was necessary in the circumstances. The evidence could have shown instead that the force was excessive or reckless, Maharry wrote.

• Expert testimony: A medical expert whom defense counsel had retained to explain medical records to the jury was not allowed to testify because her testimony was not disclosed to the prosecutor before the trial; therefore, Queen could not present a full defense, Maharry wrote.

Hearsay: The court had allowed a friend of Hopson’s to testify about what he told her in the hospital before he died. The statements “showed an unprovoked attack and painted Bo as only seeking to help,” Maharry wrote. “Those statements were untouchable and were highly damaging to Danny’s defense of self-defense.”

The Kansas Supreme Court will hear oral arguments in the case at 11 a.m. Tuesday. The hearing will be livestreamed on the court’s YouTube page. Visit youtube.com and search for “Kansas Supreme Court” to find the channel.

Contact Mackenzie Clark

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