State v. Brown
| Decision Date | 29 July 2022 |
| Docket Number | 121,269 |
| Citation | 513 P.3d 1207 |
| Parties | STATE of Kansas, Appellee, v. Thomas Earl BROWN Jr., Appellant. |
| Court | Kansas Supreme Court |
Nicholas David, of The David Law Office LLC, of Lawrence, argued the cause and was on the brief for appellant.
Jodi Litfin, assistant solicitor general, argued the cause, and Derek Schmidt, attorney general, was with her on the brief for appellee.
After a jury convicted Thomas Brown Jr. of first-degree murder and other crimes, he directly appeals, raising three questions:
We presume error on the first issue and find prosecutorial error after analysis of the second issue. We also consider whether those errors individually or cumulatively require us to reverse Brown's conviction and conclude beyond a reasonable doubt the errors would not have affected the jury's verdict. We thus affirm Brown's convictions.
Hours after her marriage to Melvin Ray, Tiffany Davenport-Ray died from gunshot wounds. The shooting happened in the early morning hours as the couple left a postwedding party that they had hosted at the Topeka Elks Club. Ray drove Davenport-Ray's Dodge Charger. While waiting at a stop light, Ray noticed a white SUV behind them. The SUV followed the Charger and later pulled alongside it. Someone in the SUV fired shots into the Charger. Ray hit the brakes and returned fire. The SUV lost control and crashed. Ray then realized Davenport-Ray had been shot and drove to the hospital. An autopsy revealed Davenport-Ray died of a gunshot wound to the head.
Residents near the shooting and police officers patrolling nearby heard several gunshots. Officers immediately drove toward the sound. En route, they learned of an injury accident in the direction they were heading. Nearby residents heard the collision and went outside after the shots stopped. They reported observing two vehicles—one that looked like a Charger and another that was a white SUV. One witness told the officers she saw two people exit and flee the SUV, running toward a nearby auto shop. Her husband also saw two people run toward the auto shop and an adjacent fence and a short time later saw the driver exit the vehicle and run. Another resident realized a bullet hit her home where she lived with her mother and sisters.
One officer who arrived on the scene saw a black male running from the scene. One of the residents identified the man as the driver of the SUV. An officer apprehended the SUV driver, later identified as Awnterio Lowery. Officers searched Lowery and took him to the Law Enforcement Center.
Other officers followed the trail of the two SUV passengers who ran toward the auto body shop. Along the way, they found fresh-looking latex gloves matching gloves found in the SUV. But they did not apprehend the two men. Over time, they developed leads that suggested Brown and Jermel Robbins were the two passengers.
Some leads were developed from forensic testing of evidence found at the scene. The police investigation of the scene revealed bullet holes in the passenger side of the SUV. Officers found a gun, latex gloves, and two cell phones in the SUV—an iPhone and a Samsung. Eventually the police tied Brown and Lowery to the phones, in part through DNA testing and through data stored on the phones.
The DNA testing did not exclude Brown as a contributor to DNA found on the Samsung phone. It also revealed he was a contributor to DNA found on other pieces of evidence, including the latex glove fragments found near the auto shop. The testing of the gloves revealed a major contributor whose profile was consistent with Brown's. Testing of DNA found on parts of the car revealed major contributors whose profiles were consistent with Robbins and Lowery. Brown's DNA was consistent with a minor contribution of DNA on the vehicle's airbag. The forensic scientist who performed the DNA testing testified that her laboratory does not provide identity statements. In other words, she would not say whether the DNA sample is a match but would instead state whether test results excluded a particular individual and then provide a probability for those individuals not excluded. The probability figures associated with evidence tend to reveal a low probability that anyone other than Lowery, Robbins, or Brown could have been the source of DNA found on one or more items of evidence. In other words, each was identified as a major contributor to DNA found on evidence.
The police also obtained the phone records of the iPhone and Samsung found in the SUV. Investigators determined the iPhone belonged to Lowery and Brown had used the Samsung. They learned that Dina Sanchez bought a phone for Brown to use, but it was not a Samsung. But the phone number assigned to the phone Sanchez gave Brown was later assigned to the Samsung found in the SUV. Sanchez testified Brown paid the bills and had exclusive use of the phone. Investigators found two sources of DNA on the Samsung phone: Lowery and Brown. The phone also stored pictures of Brown and his family and friends. Phone company records showed about 2,000 contacts between Brown and people known to Brown in the time Brown used the phone and 762 contacts between Brown and friends or family members in the week before Davenport-Ray's homicide.
At trial, the State presented evidence obtained from the cell phones found in the SUV and from carrier records, including call records, text messages, and location data. Several witnesses presented cell tower location data that the State used to establish where Brown's and Lowery's phones were at various times. Those records include a call from Brown to Lowery in the evening before the shooting. Lowery did not answer the call, and Brown then texted Lowery, "Man cuz, don't spin me, NEED you right now." Lowery replied, "Was good." Brown asked, "Where you at?" Lowery answered, "30 minutes." Evidence of the carrier's records and the location of cell towers revealed communications between the iPhone and Samsung and that the phones were near each other for about an hour before Davenport-Ray's homicide. Both phones were also near the Elks Club and the scene of Davenport-Ray's death.
That same night Brown and his former long-time girlfriend texted. The former girlfriend said, "Good luck tonight, we'll always have some things in common." She rejected the State's contention she was talking about the murder and said she was talking about her stepchildren with Brown. She also texted Brown, "Let me know if I need to do anything," although she did not recall sending the text. Brown replied,
Other evidence also connected Brown, Robbins, and Lowery to the shooting. Weeks after Davenport-Ray's death, Robbins was shot and killed. At the time of his death, Robbins had an old bullet wound on his right outer thigh that would point to a bullet striking him if he had been sitting in the back passenger seat of a vehicle. Robbins had told his sister he incurred the leg wound while sitting in the back of an SUV.
Acting on a tip, officers questioned Tashara Yeargin, who lived near the scene of Davenport-Ray's shooting. Yeargin's statements to officers about events the night Davenport-Ray died varied. At first, she denied any knowledge. She told investigators she had stayed at her aunt's home that night. Later, she said that she was out with friends on a party bus. Eventually, when officers suggested Robbins and Brown had been in her home, she confirmed they arrived at her house out of breath and asked to use her phone. Later analysis revealed calls originated from Yeargin's phone around the time of Davenport-Ray's death to Brown's longtime former girlfriend and to Robbins' wife. Yeargin acknowledged knowing both women, but she denied calling them while Robbins and Brown were at her house. Shortly after making the calls, the two men left by car. Before leaving, Brown told Yeargin, "[D]on't tell anybody that we were here." Robbins gave her $40.
Yeargin's identification of Brown and Robbins at trial was not always clear. She identified one man who arrived the morning of the shooting as "Jermel," last name unknown, who used the nickname BG. She later responded to questions that identified Jermel as Jermel Robbins. She identified a second man who came in with Robbins as TJ and identified him as Brown.
Yeargin stated she did not want to be involved, was afraid of participating, and even moved from her home because she was scared. She specifically sought a new home with cameras to discourage anyone from "mess[ing] with [her]." Defense counsel on cross elicited testimony that Yeargin was mad at the police and believed she was being held on charges as a pretext when the police really wanted her to testify against Brown. Yeargin testified that police introduced Robbins' and Brown's names into their conversations. But she later testified that their use of Robbins' and Brown's names prompted her to tell the truth. Defense counsel tried to introduce doubt about her identification of Brown by noting Yeargin's prior testimony that she knew other members of Brown's family and they all looked alike. Yet Yeargin testified that she recognized Brown as the person at her house. Yeargin acknowledged she testified differently in a prior proceeding and that she was under the influence of drugs when Brown and Robbins came to her house.
Brown's former girlfriend testified she spoke with Brown the weekend of the wedding. She said she had to call Brown on...
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