State v. Brown

• Decision Date: 15 August 2014
• Docket Number: No. 106,894.,106,894.
• Citation: 331 P.3d 797
• Parties: STATE of Kansas, Appellee, v. Quartez BROWN, Appellant.
• Court: Kansas Supreme Court

331 P.3d 797

STATE of Kansas, Appellee,

v.Quartez BROWN, Appellant.

No. 106,894.

Supreme Court of Kansas.

Aug. 15, 2014.

Syllabus by the Court

1. In order to facilitate a meaningful appellate review, the district courts are directed by Supreme Court Rule 165 (2013 Kan. Ct. R. Annot. 265) that they must make sufficient findings of fact and conclusions of law on the record.

2. A criminal defendant has a constitutional right to the effective assistance of counsel. But the constitutional right to counsel does not give a criminal defendant for whom counsel has been court-appointed, the right to choose which attorney will represent the defendant.

3. If a defendant seeks substitute counsel, the defendant must show justifiable dissatisfaction with his or her appointed counsel, which can be demonstrated by showing a conflict of interest, an irreconcilable disagreement, or a complete breakdown in communication between counsel and the defendant.

4. A criminal defendant seeking substitute counsel bears the responsibility of providing an articulated statement of attorney dissatisfaction. The providing of an articulated statement of attorney dissatisfaction by the defendant will trigger the district court's duty to inquire into the potential conflict of interest.

5. A district court's duty to inquire into a potential attorney/client conflict emanates from its responsibility to assure that a defendant's constitutional right to effective assistance of counsel is honored. The district court's duty to inquire into a potential attorney/client conflict accrues when the court first learns of the potential conflict and that duty does not decay or dissipate through any inaction on the part of the defendant.

6. The district court's failure to fulfill its duty to inquire into a potential attorney/client conflict of which it has become aware is an abuse of discretion.

7. A lack of authority for the defendant to enter the building is an element of the crime of aggravated burglary, separate and apart from the element that the entry be accompanied with an intent to commit a felony therein. A lack of authority to enter a building is not refuted simply because the entry door is always unlocked or because persons other than the defendant have been given free access to the building.

8. In this case, a victim's statement that she felt threatened when the defendant pointed a gun at her and demanded that she get down on the floor was sufficient evidence to support the apprehension of immediate bodily harm element of aggravated assault.

9. For jury instruction issues, the progression of analysis and corresponding standards of review on appeal are: (1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied ––– U.S. ––––, 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012).

10. In order for a defendant to be entitled to a reduced charge because he or she acted in the heat of passion, his or her emotional state of mind must exist at the time of the act and it must have arisen from circumstances constituting sufficient provocation.

11. For a defendant to be entitled to lesser included offense instructions on unintentional but reckless second-degree murder and involuntary manslaughter, there must be evidence to support a finding that the killing was unintentional.

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

Boyd K. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

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

Quartez Brown (Quartez) directly appeals from his convictions for felony murder, the alternative charge of second-degree murder, aggravated burglary, and aggravated assault. The charges arose out of an incident in which Quartez, Kevin Brown (Brown), Kiara Williams, and Jalessa Bonner went to the apartment of Otis Bolden, where Quartez and Brown entered the apartment, assaulted Ashley Green with a handgun, and fatally shot Bolden.

Quartez contends: (1) The district court abused its discretion in not inquiring into the reasons behind his pro se motion for new counsel before allowing its withdrawal outside Quartez' presence and without a hearing; (2) insufficient evidence supported his aggravated burglary, felony murder, and aggravated assault convictions; (3) the district court should have given lesser included offense instructions on voluntary manslaughter, reckless second-degree murder, and involuntary manslaughter; (4) the district court erred in journalizing his second-degree murder conviction as an off-grid crime; and (5) the district court violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by considering his prior convictions at sentencing.

Finding that the district court erred in not inquiring before allowing the apparently nonconsensual withdrawal of Quartez' pro se motion for new counsel, we remand on this issue. We also remand for a nunc pro tunc order correcting the severity level of Quartez' second-degree murder conviction. We reject Quartez' remaining claims of error.

Facts and Procedural Background

The events leading to this criminal prosecution began to unfold in the early morning hours of April 26, 2010, when Williams and Bonner, together with their friend, Rika Evans, left a local club and gathered at Bolden's apartment, along with Reader Watley. After Bonner accompanied Bolden into his bedroom,she interpreted a comment he made as indicating that he had participated with a group of men who had raped her some 2 years earlier. That prompted Bonner to ask to leave the apartment.

Bolden drove the three women—Bonner, Williams, and Evans—to the home of Bonner and Evans on Glendale, albeit Williams would return to Bolden's apartment to stay the night. En route back to his apartment, Bolden picked up Green. Bolden and Green spent the night in his bedroom, while Williams and Watley spent the night on the couch. There was conflicting testimony as to whether there was any sexual activity involving Williams. Watley drove Williams home the next morning.

That same morning, Bonner told her boyfriend, Brown, about Bolden's involvement in her prior rape. Additionally, according to Bonner, Williams told Brown that Watley and Bolden had sexually assaulted her the night before. Brown then called his cousin, Quartez, who came to the Glendale house where the group discussed a course of action. Evans noted that Brown was visibly upset but Quartez was not. Quartez, Brown, Williams, and Bonner left in Quartez' car to go to Bolden's house. Evans and Bonner both testified that they believed the Brown cousins intended to fight Bolden but neither believed the men would kill Bolden. But on the way to Bolden's house, the group stopped at “Drop's” house, ostensibly to pick up firearms.

The Brown cousins were not friends with Bolden and had never been to Bolden's apartment, so Bonner directed them. When the group arrived at the apartment complex, Quartez backed into a parking spot. The Brown cousins left the car and opened the unlocked door to Bolden's apartment. They first encountered Green in the living room and, at gunpoint, directed her to lie on the ground and asked for Bolden's location. Initially, Green thought the men were Bolden's friends that were “playing” with him. Nevertheless, Green was afraid and felt threatened by the cousins' actions. The cousins proceeded to the bedroom indicated by Green, and she heard gunshots, together with the inquiry, “[W]hy did you rape my home girl?” Green then heard a window shatter and saw one of the assailants exit the apartment through the living room. Apparently, Bolden jumped through a bedroom window and attempted to get away, although he would be discovered later on the sidewalk at the complex.

When Bonner saw Bolden limping around the apartment building, she moved to the driver's seat of the vehicle and retrieved the Brown cousins. The group briefly stopped at Drop's house before returning to the Glendale house. Once back at the Glendale house, Bonner asked Brown what happened at Bolden's apartment. He explained that they were just going to talk to Bolden, but it looked as if Bolden was about to reach for something in his side-table drawer, so Brown shot him. Brown said that after his gun jammed, Quartez shot.

Passersby discovered Bolden on an apartment complex sidewalk and summoned emergency personnel, who transported Bolden to the hospital, where he died from multiple gunshot wounds. Bolden had superficial wounds at his genital area and an entrance and exit wound on his left thigh, but the majority of Bolden's gunshot wounds entered his body from the back side.

A crime scene investigation revealed no signs of forced entry into Bolden's apartment. In the bedroom, an investigator found five .25 caliber shell casings, one .45 caliber shell casing, and a Bluetooth earbud that was still blinking. The deoxyribonucleic acid (DNA) profile found on the earbud was a mixture of at least three individuals, but the DNA of the major contributor was consistent with Quartez' profile. At trial, the State presented three photos from Quartez'...