Opinion
No. 108,105.
2013-05-17
Charles E. BROWN, Appellant, v. STATE of Kansas, Appellee.
Appeal from Wyandotte District Court; J. DEXTER BURDETTE, judge. Opinion filed May 17, 2013. Affirmed. Quentin John Boone, of Law Office of Quentin John Boone, of Kansas City, for appellant. Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; J. DEXTER BURDETTE, judge. Opinion filed May 17, 2013. Affirmed.
Quentin John Boone, of Law Office of Quentin John Boone, of Kansas City, for appellant. Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., ARNOLD–BURGER and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
This is Charles Brown's third appeal to this court on his various motions for postconviction relief. In this latest appeal, Brown claims the district court erred in failing to grant an evidentiary hearing on his allegations of prosecutorial misconduct and ineffective assistance of counsel in his K.S.A. 60–1507 motion.
The facts and procedural history in Brown's underlying criminal case and subsequent postconviction appeals have been well documented by our court, and we incorporate by reference our prior panel's recitation of these facts in Brown v. State, No. 102,423, 2010 WL 4393937 (Kan.App.2010) (unpublished opinion)( Brown III ).
For unexplained reasons, approximately 3 weeks after the district court denied Brown's second 60–1507 motion, and after Brown filed his notice of appeal in Brown III, the State filed an “Additional Response to Petitioner's Motion for Relief Pursuant to K.S.A. 60–1507.” In its response, the State acknowledged there was a report by Detective Kenneth Allen in the case file indicating that Professor David Frayer had identified the items in State's Exhibits 18 and 19 as an animal bone and a piece of wood.
No doubt as a result of the State's surprise pleading, Brown filed a motion to stay his appeal “in light of the new evidence” reflected in the State's additional response and noted he had not yet docketed his appeal. Brown also contemporaneously filed a motion for reconsideration pursuant to K.S.A. 60–260, arguing the State's admission that Frayer identified the items depicted in State's Exhibits 18 and 19 as nonhuman bones was proof that the State presented false, prejudicial evidence at trial.
After our court's ruling in Brown III, the same judge who presided over Brown's trial and posttrial motions considered Brown's K.S.A 60–260 motion to reconsider. Addressing the merits, the district court found that State's Exhibits 18 and 19 did not rise to the level of exculpatory evidence and did not disprove any probative material fact. Further, the court found the State's file was open for review by defense counsel, and he reviewed the file on at least two occasions before trial. Nothing in the record indicated that defense counsel was not aware of the Allen report, and Brown admitted that he knew Exhibits 18 and 19 were animal (ham) bones he fed to his dog. Moreover, the court found no prejudice due to the overwhelming evidence of Brown's guilt. After a thorough review, the district court found “all of the pleadings, files and records of the case conclusively show that [Brown] is entitled to no relief.”
When a district court summarily denies a motion under K.S.A. 60–1507, the appellate court reviews the matter independently to determine whether the motions, files, and records of the case conclusively establish that the movant is not entitled to any relief. Trotter v. State, 288 Kan. 112, 132, 200 P.3d 1236 (2009). We have reviewed the matter independently and, for the reasons stated by the district court in its memorandum opinion, find that the motions, files, and records of the case conclusively establish that Brown is not entitled to any relief. Thus, we affirm the district court's denial of Brown's motion pursuant to Supreme Court Rule 7.042(b)(5) (2012 Kan. Ct. R. Annot. 63).
Affirmed under Rule 7.042(b)(5).