Opinion
111,161.
04-10-2015
STATE of Kansas, Appellee, v. Robert L. BROWN, Jr., Appellant.
Gerald E. Wells, of Jerry Wells Attorney–at–Law, of Lawrence, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Gerald E. Wells, of Jerry Wells Attorney–at–Law, of Lawrence, for appellant.
Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., POWELL, J., and MERLIN G. WHEELER, District Judge, assigned.
MEMORANDUM OPINION
PER CURIAM.
A jury convicted Robert L. Brown, Jr. of one count of attempted murder in the first degree and one count of aggravated robbery. Brown now appeals, arguing we should reverse his convictions because: (1) the State engaged in prosecutorial misconduct during closing arguments; (2) the State did not present sufficient evidence to convict him of aggravated robbery and attempted murder in the first degree; and (3) the district court abused its discretion when it denied Brown's motion for a new trial. Finding no reversible error, we affirm Brown's convictions.
Factual and Procedural Background
The victim in this case, Rochelle Chatfield Andrews (the parties refer to her as Chatfield so we will do the same), is a veteran who served in the Persian Gulf War. In 2012, Chatfield was receiving Veterans Affairs benefits in addition to social security disability payments amounting to approximately $4,000 per month which she apparently converted to cash and kept in her home.
Between April and June of 2012, Chatfield was looking to buy a home. She retained real estate agent Lou Ann Thoms with Coldwell Banker to assist her and viewed various properties for sale, ultimately deciding to purchase a house located on Granthurst Street, in Topeka, Kansas. While Chatfield had enough cash to cover the $15,000 down payment, she required a home loan to buy the house. Chatfield met with a bank employee concerning her home loan.
After listening in on Chatfield's conversation with the bank employee, Brown approached Chatfield and introduced himself while she was conducting her business at the bank. He told Chatfield he dealt in real estate and gave Chatfield his card that read “Real Estate Agent, Coldwell Banker.” Later, as Chatfield left the bank, Brown was waiting for her by her car. He gave Chatfield his phone number. However, Chatfield told Brown she already had a house she was set on buying and left.
Brown continued to contact Chatfield with respect to viewing and buying other houses. Chatfield, apparently believing Brown was actually a real estate agent with Coldwell Banker, agreed to meet Brown the afternoon of June 15, 2012, to finalize the purchase of the home on Granthurst Street. Brown had told Chatfield that he and Thoms, Chatfield's current real estate agent, had agreed to let Brown handle her home purchase. Chatfield's understanding was that she was going to meet with Brown to close on the Granthurst house that night and was to bring the down payment with her in order to finish the sale.
Chatfield carried approximately $20,000 in cash that afternoon. She placed $15,000 in her pocket for the down payment, rolled in increments of $5,000. The remainder of the money was in her purse. She also wore jewelry: a diamond cross, a gold cross, a gold necklace, diamond earrings, rings, bracelets, and a watch.
At Brown's suggestion, Chatfield initially met him at the Elks Club, a restaurant on 14th Street and Madison. Immediately after meeting there, Brown and Chatfield took two separate cars to the house on Granthurst Street. There, Brown was unable to retrieve the key from the exterior lockbox to open the house. Chatfield did not find this suspicious because Thoms had also been unable to retrieve the key on a prior occasion.
Brown and Chatfield drove back separately to the Elks Club and went inside. Brown ordered dinner and drinks for both of them; Chatfield did not drink any alcohol at dinner. Brown confirmed with Chatfield that she was carrying the cash for the down payment. Although Chatfield had already decided to buy the house on Granthurst Street, Brown convinced Chatfield to come with him to see another house.
Again driving in two separate cars, Chatfield followed Brown. Unbeknownst to Chatfield, Brown was actually leading her to his own house. On the way, Brown stopped at a liquor store; Chatfield waited in her car. Once they arrived at Brown's house, Chatfield parked on the street and placed her purse in the trunk. She carried $15,000, still separated into three rolls, in her coat pocket. Chatfield observed another man enter the house and, after speaking with Brown for approximately 1 minute, exit out the back door. Chatfield did not see this man again. Following a tour of the house, Chatfield told Brown she was still only interested in buying the house on Granthurst Street. At this time Brown noticed Chatfield was no longer carrying her purse and asked whether Chatfield was still carrying the cash for the down payment; Chatfield answered that she was.
Chatfield and Brown then sat down in the living room. Brown lit a marijuana joint and made drinks for himself and Chatfield. He spilled one of the drinks on her. Brown left the living room after Chatfield declined the marijuana and the drink. Another man, described as short with dark skin, entered the living room and asked Chatfield if she knew where Brown was. Chatfield told him she did not know, and the man exited the house out the back door. Chatfield did not see this man again.
Brown returned to the living room with two more drinks. Chatfield asked Brown to use the bathroom and told him she was getting ready to leave. Brown asked Chatfield whether she was going to give him the cash for the down payment. Chatfield told him she would give him the money but only after getting the paperwork finalized for the purchase of the home on Granthurst Street. Chatfield again asked Brown to use the restroom.
The bathroom was located on the second floor of the house. As Chatfield began climbing the stairs, Brown stood beside her to her left and handed her some paper towels. Immediately after taking the paper towels, Chatfield felt something hit her in the back of her head. She fell backwards, and Brown immediately got on top of her and attacked her. Brown repeatedly punched Chatfield in her face and chest until she lost consciousness.
Chatfield regained consciousness some time later and discovered she no longer had her jewelry or the $15,000 she had brought into the house. Chatfield's shirt was pulled up and her pants were pulled down. Then she heard Brown say, “I thought I killed you, bitch.” Chatfield looked up and saw Brown over her holding a gun pointed to her head. Chatfield pushed the gun away and stood up.
Chatfield begin moving toward the front exit of the house, and as she reached the front door, Chatfield looked over her right shoulder and saw Brown behind her with a long-barreled shotgun pointed toward her. After Chatfield again looked back at Brown, Brown shot her in the face. At trial, Chatfield described that “[her] whole face collapsed,” and that “[i]t just blew [her] face off.”
Despite the gunshot wound, Chatfield managed to exit the house and made it down the driveway to her car. Sara Herrin, a neighbor, was apparently alerted by the sound of gunfire and observed Chatfield through the window of her own house; she testified that Chatfield fell to the ground on Brown's driveway and scooted herself toward her car. Herrin observed Chatfield's car drive away.
Denise Bartlett was driving her taxi when she watched Chatfield's car speed on 37th Street, slow down, and come to a complete stop. Bartlett was able to observe Chatfield in the car; at trial, she testified that Chatfield “looked very injured from her nose down.” Bartlett dialed 911 from her cell phone. Angelina Young was leaving the Sonic on 37th and Topeka Boulevard between 9:30 and 10 p .m. when she encountered Bartlett and Chatfield. Young opened Chatfield's car door and observed a lot of blood. Young also dialed 911. The dispatcher asked Young how many times Chatfield had been shot; Young relayed the question to Chatfield, who held up two fingers in response. Young applied pressure to Chatfield's face with a towel until the ambulance arrived. Chatfield remembered talking to Bartlett and Young and testified that she explained to them that Brown had shot her.
Officer Sara Sieve was dispatched to 3721 South Topeka Boulevard in reference to the shooting. She arrived on the scene at 9:57 p.m. Chatfield had already been placed in the ambulance, and Sieve, immediately after arriving on the scene, entered the ambulance to ride with Chatfield. Because Chatfield was unable to speak, Sieve handed Chatfield a notepad and asked her to write down what happened. In reference to who shot her, Chatfield wrote the name “Robert.” Chatfield also indicated to Sieve that the person who shot her was African–American. Finally, Chatfield conveyed that the contact information of the person who shot her was in the center console of her car. Sieve relayed this information back to the officers at the scene. Sieve eventually got a clear look at Chatfields injury and described that “[h]er whole lower face was completely gone.”
Back at Chatfield's car, the officers located a business card in the center console containing Brown's name and phone number. Using the phone number, the officers obtained Brown's address through dispatch. Within 30 minutes the officers set up a perimeter around Brown's house that prevented anyone from entering or leaving the property unseen. The officers observed what appeared to be a shotgun blast through Brown's front door, shattered glass on Brown's front door, and blood on the front steps and driveway. There were also facial tissue and bone fragments on the front porch and front door.
Sergeant Ron Ekis approached the front door of the house and knocked. No lights were on in the house, and no one answered the door. Two hours later, Brown exited the house through the front door. Ekis took Brown into custody without incident. The officers searched Brown and found a cell phone and a 12–gauge shotgun shell in one of his pockets.
Next, the officers obtained and executed a search warrant for Brown's house. The officers did not find Chatfield's cash or jewelry. However, the officers found a black pump shotgun in Brown's bedroom. The shotgun was later swabbed for DNA evidence, yielding inconclusive results with respect to whether Brown was the shooter. The shotgun was not dusted for fingerprints. The officers also found numerous boxes of shotgun shells and ammunition, as well as four spent shotgun shell casings on the floor. There were holes in a lamp shade in the living room caused by a shotgun blast as well as holes in one of the walls in the hallway going upstairs caused by a shotgun blast.
Officers interviewed Chatfield in the hospital a couple of days later. Chatfield consistently maintained Brown was the one who shot her, Brown was the only other person in the house at the time of the shooting, and she had carried roughly $18,000 with her at Brown's house that night.
While Brown was in jail, a detective listened to phone calls between Brown and others and learned that a trailer had been moved from Brown's house to another address on Southeast Wisconsin Street following the shooting. The officers identified the trailer and executed a search warrant on June 18. The officers did not find any of Chatfield's belongings or money.
Brown was charged with one count of attempted murder in the first degree and one count of aggravated robbery; a jury convicted him on both charges. Brown subsequently filed a motion for a new trial, alleging the State had failed to provide all exculpatory evidence and that there had been insufficient evidence to support each conviction. The district court denied Brown's motion and sentenced him to 247 months in prison.
Brown timely appeals.
Did the Prosecutor's Comments During Closing Arguments Constitute Prosecutorial Misconduct?
Brown first contends that the prosecutor's use of the phrase “we know” during closing arguments constitutes reversible prosecutorial misconduct because the prosecutor was discussing evidence that was not uncontroverted. The State counters that each time the prosecutor used the phrase “we know,” the prosecutor was referring to evidence that was uncontroverted or was using the phrase to make a reasonable inference based on uncontroverted evidence.
A claim of prosecutorial misconduct based on comments made during closing arguments that are not evidence will be reviewed on appeal even when a contemporaneous objection was not made at trial. See State v. Armstrong, 299 Kan. 405, 416, 324 P.3d 1052 (2014). Our review of an allegation of prosecutorial misconduct involving improper comments to the jury requires a two-step analysis. First, we must determine whether the prosecutor's comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. Second, if misconduct is found, our duty is to determine whether the improper comments compel reversal; that is, “whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial.” 299 Kan. at 416.
In the second step of the two-step analysis, we consider three factors: “ ‘(1) whether the misconduct was gross and flagrant; (2) whether [the misconduct] was motivated by prosecutorial ill will; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of jurors.’ “ State v. Williams, 299 Kan. 509, 540, 324 P.3d 1078 (2014). No single factor individually controls. State v. Marshall, 294 Kan. 850, 857, 281 P.3d 1112 (2012).
“Before the third factor can ever override the first two factors, [we] must be able to say that the State can meet the harmlessness tests of both K.S.A. 60–261 and Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, reh. denied 386 U.S. 987 (1967).... [Under the constitutional harmless error test,] ‘the party benefitting from [any prosecutorial misconduct] proves beyond a reasonable doubt that the error ... will not or did not affect the outcome of the trial in light of the entire record, i.e., where there is no reasonable possibility that the error contributed to the verdict.’ [Citation omitted.] [Under the statutory harmless error standard,] the test is whether ‘there is a reasonable probability that the error did or will affect the outcome of the trial in light of the entire record.’ [Citation omitted.]” Williams, 299 Kan. at 541.
Prosecutors must not state their personal opinion with respect to the defendant's guilt or innocence, and Supreme Court Rule 3.4(e) (2014 Kan. Ct. R. Annot. 619), prevents a prosecutor's opinion from becoming unsworn, unchecked testimony rather than commentary on the evidence. State v. McHenry, 276 Kan. 513, 523–24, 78 P.3d 403 (2003). Our Supreme Court has declared that a prosecutor's use of the phrase “we know” during closing arguments is not considered an improper expression of personal opinion, however, so long as the prosecutor is only referencing uncontroverted evidence. State v. Corbett, 281 Kan. 294, 315–16, 130 P.3d 1179 (2006).
Specifically, Brown argues the instances of phrases containing the word “we” in the following passages constitute misconduct because they reference pieces of evidence that are not uncontroverted. First, Brown takes issue with this passage from closing arguments:
“Now we start to get a little bit [of an] idea about why. About this real estate thing that he was working on. About luring her over to his house. About trying to get her to party or date or, you know, was it a seduction at some point? It seemed to turn into that, didn't it? Where he's buying her drinks and getting her dinner and taking her back to the house and serving her rum and all those things. Trying to see where that's going to go. We start to get a sense of what's going to happen, what the intent of Robert Brown was at that point.” (Emphasis added.)
The prosecutor appears to make an inference based on the evidence concerning Brown's intent prior to the shooting. The State cites State v. Murray, 285 Kan. 503, 512, 174 P.3d 407 (2008), which stands for the proposition that a prosecutor may draw reasonable inferences from the evidence. However, drawing reasonable inferences from the evidence through the use of a phrase containing the word “we” appears to run counter to Corbett, 281 Kan. at 315–16, which held that a prosecutor may only use the phrase “we know” during closing arguments when referencing uncontroverted evidence. Thus, in light of our duty to follow Supreme Court precedent, State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012), we are compelled to conclude the prosecutor's use of “we” in this context appears to be improper in light of Corbett.
Second, Brown cites the prosecutor's use of “we” in the next passages:
“She continues to go to therapy, she continues to work with law enforcement, and all the while, at every meeting, at every point and time, whenever anybody bothers to ask her exactly what happened and who shot her, she says exactly the same thing, Robert Brown shot me with a shotgun.
“Now, how do we know this is true? Well, we've got her DNA all over the house, right? Her blood and that's her body tissue on that door. It's her tooth that's recovered from the top of that door screen. She's hit with triple aught buckshot from a 12–gauge shotgun one time as she's standing by that screen door. She's hit with triple aught buck shot one time at the screen door, and we know this because the only injury that she has, even as horrific as it is, is to her lower jaw.... She remembers the defendant standing either on that front step or on the bottom of that landing, pointing what looked to her to be a rifle, at her head.... She sees his face with the gun before she says her face collapses and she's blown out the front door.” (Emphasis added.)
Other than quoting this passage, Brown makes no specific argument as to why the prosecutor's use of the word “we” in this context constitutes misconduct. The State nevertheless responds that the evidence that Chatfield saw Brown holding a shotgun pointed at her just before she was shot went uncontroverted at trial. Additionally, the evidence of Chatfleld's bone fragments and body tissue present at the scene was also uncontroverted. We agree with the State that the prosecutor's use of “we” in this instance is not improper.
Third, Brown cites the following passage as containing additional instances of misconduct:
“[Chatfield] doesn't make up anything about that, either. Remember what she says, she can feel somebody tugging at her, she can feel the voices, she can hear the chatter. Remember what happened at the scene, where those two ladies were trying to help her, where they were trying to shake her awake, where they were talking to her, trying to find out what was going on. Where they were talking to 9–1–1 the whole time. Think of all the ways that she could have explained that versus just telling you what she told you, that she could hear chatter and the people pulling at her. We know that's not true. We know that people didn't follow her down. We know that she drove off by herself. We know that Mr. Brown stayed in the house for the rest of the night. How do we know that? Well, when she come[s] struggling out of the house, there's only one car left in the driveway, two other trucks were gone. The police had set up a perimeter within a half an hour. And in that half an hour, that truck never left the driveway. The blood is still pooled right where it would be had she stopped there and put that smear across the front. The blood in the driveway isn't disturbed. There's no blood on the tires where it drove through it. There's no change in where the vehicle was. The vehicle is in the exact same spot that it was when she came stumbling out of the house. And we know that nobody came and went from the house in the two and a half hours that Mr. Brown was sitting there thinking about what to do. He was the only one in the house from the time ... Chatfield was shot, till the time the police officers pulled him out of there at 1:00 o'clock in the morning.” (Emphasis added.)
The prosecutor again appears to be referencing only uncontroverted evidence. First, one of Brown's neighbors witnessed Chatfield exit Brown's house and drive off alone. Next, the prosecutor uses the fact that the blood pooled under the only remaining truck in the driveway was undisturbed to reason that Brown did not leave his house in the 30 minutes prior to the establishment of the police perimeter around Brown's house. In this case, the prosecutor used the phrase “we know” to explain to the jury the implications of evidence in the record, which we regard as within the wide latitude afforded prosecutors.
Finally, Brown cites this paragraph from closing arguments:
“What else did they focus on? Fingerprints, right? Why didn't you get fingerprints off the gun? What did every detective tell you? We don't do fingerprints on a gun. We haven't done fingerprints on guns in ten years. The feds don't do fingerprints on guns. Why? Because we can't get them off of guns.” (Emphasis added.)
In this example Brown contends the prosecutor attempts to “deputize” the jury, “become[s] as one with the police,” and personally vouches for the actions taken by law enforcement. But we agree with the State that the prosecutor is simply discussing the prior testimony of the detectives regarding fingerprint analysis and its use by the Topeka Police Department. The jury heard multiple instances of testimony explaining that fingerprint analysis was no longer performed on firearms due to the analysis' unreliability.
As explained above, only one of the prosecutor's comments cited by Brown could be considered improper. However, when analyzing the one improper comment under the second step of the prosecutorial misconduct analysis, we consider it harmless.
First, Brown argues that the prosecutor's use of “we” above was gross and flagrant because it was repeated at least 14 times throughout closing arguments. The State counters that although the phrase was repeated, it was not improper in any circumstance. It is proper for a prosecutor to use the phrase “we know” during closing arguments so long as the prosecutor refers to uncontroverted evidence. Corbett, 281 Kan. at 315–16. Because the prosecutor used the phrase “we know” properly through most of closing arguments, the first factor does not weigh in favor of reversal.
With respect to the second factor, Brown relies on the repetitive nature of the prosecutor's comments to convince us the prosecutor displayed ill will. The State argues there is no evidence in the record to indicate the prosecutor acted with ill will or in bad faith. Ill will may be found “when the prosecutor's comments were ‘intentional and not done in good faith.’ [Citation omitted.]” State v. Miller, 284 Kan. 682, 719, 163 P.3d 267 (2007). Here, as the State points out, Brown never objected to the statements containing “we know,” and the district court never admonished the prosecutor for these statements. Accordingly, we find the evidence, when considered in its totality, does not support Brown's claim of ill will on the part of the prosecutor in this case.
Finally, with respect to the third factor, Brown argues that the evidence against him is underwhelming and circumstantial at best. The State responds that the evidence against Brown is substantial and overwhelming due to Chatfield's own eyewitness testimony. We agree with the State. Chatfield testified that Brown shot her. Chatfield, on the night of the shooting, communicated to Sieve through writing that “Robert” had shot her. Moreover, Chatfield was found with a gunshot wound to her face, and her body tissue was found inside Brown's house and on his front porch, corroborating Chatfield's version of events. The evidence, when considered in its totality, does not support Brown's claim.
Because all three factors weigh in favor of the finding that the prosecutor's one improper use of the words “we know” was harmless, we conclude the comment does not require reversal.
Did the State Present Sufficient Evidence to Convict Brown?
Brown's next allegation of error is that the State presented insufficient evidence to convict him of the crimes charged.
When the sufficiency of evidence is challenged in a criminal case, our task is to review all the evidence in the light most favorable to the prosecution, and we must then be convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. Williams, 299 Kan. at 525. In determining whether there is sufficient evidence to support a conviction, we generally will not reweigh the evidence or the credibility of witnesses. 299 Kan. at 525. It is only in rare cases where the testimony is so incredible that no reasonable factfinder could find guilt beyond a reasonable doubt that a guilty verdict will be reversed. State v. Matlock, 233 Kan. 1, 5–6, 660 P.2d 945 (1983).
Specifically, Brown argues there was insufficient evidence to convict him of aggravated assault because Chatfield's money and jewelry were never recovered. Brown also suggests that any of the other men Chatfield observed at Brown's house the night of the robbery could have instead been responsible for both attacking and robbing Chatfield. The State responds there is evidence in the record from which the jury could have decided each element of aggravated robbery.
“Aggravated robbery is robbery ... committed by a person who: (1) Is armed with a dangerous weapon; or (2) inflicts bodily harm upon any person in the course of such robbery.” K.S.A.2014 Supp. 21–5420(b)(1), (2). Chatfield testified she brought her jewelry and $15,000 cash into Brown's home and left her purse containing approximately $5,000 in the trunk of her car. She testified that after Brown beat her and caused her to lose consciousness, the cash, the jewelry, and her purse were missing. “A guilty verdict in a criminal case will not be disturbed on appeal if there is substantial evidence even though the evidence is entirely circumstantial.” State v. Scott, 271 Kan. 103, 107, 21 P.3d 516, cert. denied 534 U.S. 1047 (2001). Although Chatfield did not directly observe Brown take her cash and jewelry, there was sufficient circumstantial evidence for a jury to infer that Brown did so while Chatfield was unconscious. Thus, we will not disturb the jury's verdict on the aggravated robbery charge.
Brown also contends that insufficient evidence supports his conviction for attempted murder in the first degree. Specifically, Brown argues no rational jury could have found that he acted with premeditation when he shot Chatfield. “[P]remeditation ... may be inferred from the ... circumstances of a case, provided the inference is a reasonable one.” State v. Morton, 283 Kan. 464, 475, 153 P.3d 532 (2007).
“Our caselaw identifies factors to consider in determining whether the evidence gives rise to an inference of premeditation that include: (1) the nature of the weapon used; (2) lack of provocation; (3) the defendant's conduct before and after the killing; (4) threats and declarations of the defendant before and during the occurrence; and (5) the dealing of lethal blows after the [victim] was felled and rendered helpless.” State v. Qualls, 297 Kan. 61, 66–67, 298 P.3d 311 (2013).
Brown focuses his entire insufficient evidence argument on the third factor: his conduct before and after the attempted killing. Brown states his conduct prior to the attempted killing was “nothing but exemplary.” In particular, he points to the fact that he allowed himself to be seen in public with Chatfield prior to the shooting and rhetorically asks why any rational person would publicly display his intended victim.
Brown, however, ignores other instances of his conduct prior to the shooting that weigh in favor of a finding of premeditation. Chatfield testified that after she awoke from being beaten by Brown to the point of unconsciousness, she heard Brown say, “I thought I killed you, bitch.” Immediately after making this declaration, Brown pointed a gun at Chatfield's head and, shortly after, successfully shot her in the face as she attempted to leave his house. Brown also ignores that he (1) lured Chatfield to his house under false pretenses and (2) confirmed several times before the shooting that Chatfield was carrying a large amount of cash. The facts on the record supporting a finding of premeditation are ample, and we will not disturb the jury's verdict on appeal.
Did the District Court Abuse Its Discretion by Denying Brown's Motion for a New Trial?
Finally, Brown attempts to convince us the district court abused its discretion when it denied his motion for a new trial by incorporating his insufficient evidence arguments. However, a district court abuses its discretion only when its action “ “ ‘(1) is arbitrary, fanciful, or unreasonable (2) is based on an error of law ...; or (3) is based on an error of fact.’ “ [Citations omitted.]” State v. Rodriguez, 295 Kan. 1146, 1156, 289 P.3d 85 (2012). Because we have already found that the State presented sufficient evidence, viewed in the light most favorable to the prosecution, for a jury to convict Brown of aggravated robbery and attempted murder in the first degree, the district court did not, as a matter of law, abuse its discretion when it denied Brown's motion for a new trial.
Affirmed.