Brown v. State
| Citation | 475 P.3d 689 |
| Decision Date | 25 September 2020 |
| Docket Number | No. 121,160,121,160 |
| Parties | George Lowell BROWN II, Appellant, v. STATE of Kansas, Appellee. |
| Court | Court of Appeals of Kansas |
Kristen B. Patty, of Wichita, for appellant.
Michael K. Henson, deputy county attorney, and Derek Schmidt, attorney general, for appellee.
Before Warner, P.J., Standridge and Gardner, JJ.
Following a jury trial, George Lowell Brown II was convicted of one count of aggravated indecent liberties with a child and one count of lewd and lascivious behavior. The district court sentenced Brown to life in prison with a mandatory minimum term of 25 years. On appeal, the Kansas Supreme Court affirmed his convictions and his life sentence. Brown later filed a timely first K.S.A. 60-1507 motion alleging various claims, including one of ineffective assistance of counsel. The district court summarily denied Brown's first motion, a finding which this court affirmed on appeal. More than a year later, Brown filed an untimely second 60-1507 motion, alleging that both his trial counsel and direct appeal counsel were ineffective for various reasons. The district court appointed counsel to represent Brown and held an evidentiary hearing. Following the hearing, the district court denied Brown's second motion as successive and untimely and alternatively denied Brown's motion on the merits. Brown filed a motion to alter or amend the district court's ruling and, after another hearing, the district court denied that motion. Brown now appeals the dismissal of his second 60-1507 motion, specifically alleging that he established exceptional circumstances for the district court to entertain his successive motion and that he established manifest injustice to warrant extension of the one-year filing deadline. For the reasons stated below, we affirm the district court's ruling because its findings were supported by substantial competent evidence and it correctly found that Brown's second 60-1507 motion was successive and untimely.
The facts of the underlying criminal case are largely irrelevant in this appeal. However, any facts that are necessary to the analysis will be included where needed. Further details about the underlying criminal case are extensively summarized in State v. Brown , 295 Kan. 181, 185-87, 284 P.3d 977 (2012) ( Brown I ).
On October 7, 2009, a jury convicted Brown of one count of aggravated indecent liberties with a child and one count of lewd and lascivious behavior. In November 2009, the district court sentenced Brown to life in prison and ordered him to serve a mandatory minimum term of 25 years pursuant to Jessica's Law—also known as the "hard 25." On direct appeal, the Kansas Supreme Court affirmed Brown's convictions and his life sentence, finding, among other things, that (1) there were no alternative means issues within the aggravated indecent liberties and lewd and lascivious behavior charges, (2) the district court did not abuse its discretion in allowing the State to reopen its case-in-chief to present limited testimony as to Brown's age, and (3) certain comments by the prosecutor during jury selection and closing arguments constituted error but the error was harmless. See Brown I , 295 Kan. at 202-03, 210, 211-15, 284 P.3d 977. The Kansas Supreme Court issued its mandate on September 17, 2012.
Brown filed a timely first pro se motion under K.S.A. 60-1507 on June 28, 2013. In this first 60-1507 motion, Brown argued that the district court deprived him of his right to due process by allowing the State to reopen its case-in-chief at trial and that his trial counsel was ineffective for failing to preserve his right to prepare an adequate defense. The district court summarily denied Brown's motion on July 16, 2013. Brown appealed the ruling and argued for the first time on appeal that his direct appeal counsel was deficient by only raising two of the seven factors courts must consider in deciding whether to allow a party to reopen its case-in-chief at trial. See Brown v. State , No. 110,644, 2014 WL 2871400, at *2-3 (Kan. App. 2014) (unpublished opinion) ( Brown II ). In June 2014, this court rejected Brown's new argument on appeal and affirmed the district court's summary dismissal. Brown II , 2014 WL 2871400, at *2-3.
On October 2, 2015—over three years after the Kansas Supreme Court issued its mandate in Brown's direct appeal—Brown filed a second pro se 60-1507 motion. In his memorandum and affidavit in support of the motion, Brown alleged his trial counsel and his direct appeal counsel were ineffective. Brown argued that his trial counsel was ineffective for several different reasons: (1) counsel failed to seek a lesser included crime of aggravated indecent solicitation of a child, (2) counsel failed to object to the investigating deputy's testimony about using "finding words" or RATAC interviewing techniques as improper expert testimony, (3) counsel failed to object to the introduction at trial of the victim's recorded police interview, (4) counsel failed to object to the prosecutor's alleged "consciousness of guilt" closing argument, (5) counsel failed to present an expert witness to testify about child interviewing techniques, (6) counsel failed to file and pursue a motion for judgment of acquittal as to the aggravated indecent liberties conviction, and (7) counsel failed to offer or request a limiting instruction on how prior consistent statements may only be used to corroborate a victim's testimony. Brown argued his direct appeal counsel was ineffective because counsel failed to include the State's consciousness of guilt closing argument in the prosecutorial error argument on direct appeal.
Apparently recognizing that his second K.S.A. 60-1507 motion was procedurally barred as untimely and successive, Brown provided several reasons why the district court should make an exception and consider his motion anyway. Specifically, he claimed (1) he did not have nor could he afford any legal assistance in drafting and filing his previous 60-1507 motion, (2) he was afraid of seeking help from other inmates at his previous prison due to the nature of his conviction, (3) he could not go into protective custody at his previous prison because he would have been denied access to legal materials, (4) the Appellate Defender Office failed to provide him with legal aid resources following his direct appeal after telling him he would receive that information, and (5) he could only safely receive assistance from other inmates and did so once he was transferred to a different facility housing like offenders.
The district court appointed counsel (habeas counsel) to represent Brown and held a full evidentiary hearing on January 21, 2016. Judge James T. Pringle, the same judge who presided over Brown's underlying criminal matter, also presided over this evidentiary hearing. Brown's habeas counsel called him as a witness at the hearing, but Brown testified only about the alleged ineffective assistance of trial counsel in failing to object to the State's introduction at trial of the victim's recorded interview without also introducing the transcript from that interview as required by statute.
After Brown's testimony, habeas counsel emphasized three issues in Brown's second K.S.A. 60-1507 motion as having particular merit. First, Brown's trial counsel failed to object to the introduction of a videotape of the alleged victim's testimony under K.S.A. 22-3433, in part because no written transcript was produced by the State. Habeas counsel argued that Brown was prejudiced by his trial counsel's performance because the lack of an objection prevented the issue from being raised on appeal and because the video contained additional details not testified to by the victim at trial. Second, habeas counsel emphasized trial counsel's failure to object to the State's consciousness of guilt statement in closing argument. Had trial counsel objected to the prosecutor's allegedly improper statement that Brown's demeanor during his interview with police showed that he was guilty of the crimes charged, the issue could have been raised on direct appeal to bolster his other claims of prosecutorial error. Third, habeas counsel emphasized Brown's trial counsel failed to object to the investigating deputy's testimony about her use of the finding words technique with the victim, which habeas counsel asserted is a scientific technique requiring expert testimony. After discussing these three issues, habeas counsel advised the court that Brown was not abandoning the other issues in his second 60-1507 motion; rather, Brown would rely on the arguments presented in his written motion for the other issues not specifically discussed at the evidentiary hearing.
The State presented no additional evidence but rebutted Brown's claims and simultaneously argued that the district court should deny Brown's motion as successive. The State asserted that Brown's ineffective assistance of counsel claims amounted to mere trial errors that should have been raised on direct appeal or in his first 60-1507 motion, and Brown failed to meet his burden to establish exceptional circumstances existed to overcome the successive filing hurdle. The district court took the matter under advisement and informed the parties it would issue a written order.
On March 7, 2016, Judge Pringle issued a lengthy order denying Brown's 60-1507 motion. At the outset, the district court denied Brown's motion as successive because Brown had previously alleged ineffective assistance of counsel in his first 60-1507 motion, and it denied Brown's motion as untimely because Brown failed to establish the requisite manifest injustice to extend the one-year filing deadline. Alternatively, the district court denied Brown's motion on the merits.
Brown's habeas counsel filed a notice of appeal on March 8, 2016. While the matter was pending in this court, Brown filed a pro se motion with the district court to alter or amend the court's order denying his...
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