State v. Brown

• Decision Date: 11 March 2016
• Docket Number: No. 111,345.,111,345.
• Citation: 368 P.3d 1101
• Parties: STATE of Kansas, Appellee, v. Milo J. BROWN, Appellant.
• Court: Kansas Supreme Court

368 P.3d 1101

STATE of Kansas, Appellee,

v.Milo J. BROWN, Appellant.

No. 111,345.

Supreme Court of Kansas.

March 11, 2016.

Peter Maharry, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by BEIER, J.:

A jury convicted defendant Milo J. Brown of two alternative counts of first-degree felony murder, criminal possession of a firearm by a convicted felon, criminal discharge of a firearm, attempt to commit aggravated robbery, and aggravated burglary. On appeal, Brown argues that the evidence was insufficient to support a conviction for attempted aggravated robbery, as well as his felony-murder conviction. He also argues that the district court judge imposed an illegal sentence.

As detailed below, we affirm Brown's convictions and sentence.

FACTUAL AND PROCEDURAL BACKGROUND

In early January 2013, Shawn Rhone was at the Wichita home of his girlfriend, LaDonta Alford. Rhone left around 5:30 or 6 p.m. after having received a phone call. Before Rhone left, he told Alford "[t]hat he was going to go make a run." Alford would testify at trial that this meant Rhone was leaving to sell someone marijuana, but she did not testify on whether she actually saw marijuana in Rhone's possession before he left her home. Rhone also received a text message containing an address on Northeast Parkway in Wichita.

Just after 7 that evening, Wichita Police Officer Charles Byers reported to his dispatcher that he had heard six gunshots while patrolling just east of Northeast Parkway. Two residents living on Northeast Parkway also reported hearing gunshots.

About that time, Carl Lemons, an off-duty police officer, was arriving at his part-time job as a security guard at a nearby QuikTrip. A customer came into the store and told the clerk that a man in the parking lot had been shot. Lemons called 911 to report the shooting; Byers heard this call and drove to the QuikTrip.

When Lemons emerged from the store, he found a man lying on the ground next to a car. The car's rear window and one of its taillights had been shot out. A cell phone was lying near the victim. Lemons asked the man a series of questions, but the man had difficulty communicating. He was able to tell Lemons that he lived on "Parkway or Parkwood" and that his first name was Shawn. Investigators would later identify the man as Shawn Rhone.

After emergency medical responders arrived on the scene, Rhone was transported to Wesley Medical Center, where he later died.

Based on Rhone's statement about "Parkway" and one of the resident's reports about hearing gunshots on Northeast Parkway, officers blocked off the street and began a search for evidence. Officers found shell casings in front of 1757 Northeast Parkway.

After Rhone died, a detective went through the calls and text messages on Rhone's phone. The last received call had been placed at 6:44 the night of the shooting. There was also a text message from the same number, and it contained the 1757 Northeast Parkway address. Investigators determined that the cell phone number belonged to Euva Brown, defendant Milo J. Brown's mother.

Officers went to Euva Brown's address and spoke to her and another of her sons, Jerone. Eventually they took Euva, Jerone, and the defendant to the police station for questioning. While the defendant was getting dressed to go with the officers to the station, an officer noted that he had an electronic monitoring device on his ankle.

Defendant Milo J. Brown eventually was charged with first-degree felony murder based either on aggravated robbery of Rhone or criminal discharge of a firearm at an occupied vehicle; criminal possession of a firearm; criminal discharge of a firearm; attempted aggravated robbery; and aggravated burglary.

At trial, the State's evidence consisted primarily of Brown's connection to Rhone through the cell phone communications, ballistics evidence, tracking information from Brown's GPS tracker, and the testimony of one of Brown's acquaintances from jail.

The State's firearm expert testified that he had tested several bullets found during the investigation: a bullet taken from Rhone's body, one found in the QuikTrip parking lot, another found on the front floorboard of Rhone's car, another found in the rear dash of Rhone's car, and another found near the right rear door of Rhone's car. The expert concluded that the bullet found in the QuikTrip parking lot and the one found on the front floorboard of Rhone's car had been fired from the same gun and that the entire collection of five bullets had been fired by at least two different guns.

Terrell Vernor of Sentinel Vendor Services testified and explained a video depicting defendant Milo J. Brown's location throughout the day of Rhone's murder, based on information generated by the GPS monitoring bracelet. According to Vernor, at 6:44 p.m., Brown was near 4265 East 13th Street North and was moving at a speed that indicated he probably was traveling in a vehicle. By 6:51 p.m., Brown was traveling, possibly in a vehicle, on Northeast Parkway near a house with the number 1779. Between 6:51 p.m. and 7:07 p.m., the GPS monitor placed Milo J. Brown in front of 1779 Northeast Parkway, by showing "basically a cluster of points." At 7:08 p.m., the monitor indicated Brown had started to move again and was heading westbound on East 21st Street toward southbound I–135. According to Vernor, although the GPS monitoring system itself returned relatively accurate latitude and longitude data, the way that mapping software applied the information could result in an address given being off by up to 30 meters.

The State's jailhouse witness, Cameron Porter, met Milo J. Brown while Brown was in jail, awaiting trial of this case. At the conclusion of a jail chapel service, Porter and Brown had a conversation in which Brown told Porter that he was in jail with his two brothers and Myron Peterson because of the QuikTrip homicide. Brown then told Porter the details of Rhone's shooting, saying he and his brothers and Peterson had set up a meeting with Rhone with the intention of robbing him of drugs. Porter testified that Peterson initiated the meeting by calling Rhone on Brown's cell phone. At the arranged meeting place,

"[Brown] got in the car and started conversating [sic ] with the fellow. And while conversating [sic ] with the guy [Peterson] walked—walked to the other side of the car, to the driver's side, and also started initiating communication with the victim. And while [Peterson] was communicating with him and then I guess words was exchanged, and so that's when [Brown] had said he jumped out the car, out of the vehicle, And they both, I guess had drawn a weapon at that point. So those was the circumstances right then.

"And what was said, there was still communication going back and forth between [Peterson] and the other guy. And then I guess that's when [Brown] said, ‘why we playing? If we're going to shoot him, why would we play about?’ And at—from that—from them further words, that's when [Brown] had said they shot."

Porter reiterated that when Brown had said "they" shot, Brown had meant "both shot. Not intentionally saying who shot first, but saying that they shot."

Porter then testified about Brown's conversation with Rhone while in Rhone's car:

"Going on about ‘Do you have—you have—you have the stuff for us,’ pretty much. I don't know exactly what they was getting or anything, but the drugs. They was asking, ‘Do you have drugs?’ And I guess the guy was asking, ‘Do you have money? Show me the money first.’ And I guess that's when [Brown] had pulled out the money, showing him the money, to flash him the money to, you know, ‘Okay. It's here.’ But, you know, and so then—then that's when [Brown] asked the guy to show him what—show him his stuff. I guess the guy was fidgeting, being nervous, nervous about the whole situation. Then that's—around that time, that's when [Peterson] had walked around the vehicle to the driver's side, to the victim's window—or door, as you should say. And that's why—just saying, ‘Show us the work,’ or whatever, ‘or we will shoot. We will shoot you, man. Stop playing or we going to shoot you.’ And I believe—I don't remember, but I believe that those was the words that [Brown] had said that [Peterson] told—said to—said to the victim."

After Porter's description of the robbery and subsequent shooting, the State asked Porter about what had happened to the drugs:

"Q. Was there ever a discussion as to whether or not they actually got the drugs?

"A. No.

"Q. So you don't know whether he got the drugs or not?

"A. No, I do not know."

Later, during the testimony of Detective Rick Craig, the State asked whether investigators had been able to find out what happened to the drugs:

"Q. When the victim, Shawn Rhone, when his vehicle was searched, and I guess when his person was searched, at any point in time did they ever find any marijuana on him?

"A. No, there was none found.

"Q. Okay. And you talked to Cameron Porter?

"A. Yes.

"Q. And he indicated to you that the defendant didn't indicate to him whether or not they got the marijuana?

"A. Correct.

"Q. Did you have any evidence to say one way or the other that the marijuana was actually taken?

"A. No. Even before we talked to Cameron Porter, officers went back and walked the area between the Quiktrip and 1757 Northeast Parkway to see if maybe it was thrown out of the vehicle and none was located.

"Q. Possible it just wasn't found?

"A. It's possible.

"Q. The bottom line is, the Wichita Police Department doesn't know what happened to the marijuana?

"A. That's true."

At the conclusion of the evidence at trial, the jury was instructed on the elements of the charged crimes. The district judge gave the following instruction for first-degree felony murder with the underlying felony...