State v. Brown

• Decision Date: 03 July 2014
• Docket Number: No. 108,218.,108,218.
• Citation: 299 Kan. 1021,327 P.3d 1002
• Parties: STATE of Kansas, Appellee, v. Kevin L. BROWN, Jr., Appellant.
• Court: Kansas Supreme Court

299 Kan. 1021

327 P.3d 1002

STATE of Kansas, Appellee,

v.Kevin L. BROWN, Jr., Appellant.

No. 108,218.

Supreme Court of Kansas.

July 3, 2014.

Syllabus by the Court

1. A premature notice of appeal that seeks review of a conviction and a sentencing yet to be completed lies dormant until the final judgment, including the complete sentence, is pronounced from the bench, at which point the notice of appeal becomes effective to endow the appellate court with subject matter jurisdiction.

2. The complaint or information is the jurisdictional instrument in a criminal prosecution. If a crime is not specifically stated in the complaint or information or is not a lesser included offense of a charged crime, the district court does not have jurisdiction to convict a defendant of the uncharged crime, regardless of the evidence presented. A conviction for an offense over which the district court did not obtain jurisdiction is simply void.

3. An information or complaint is sufficient to invest the trial court with jurisdiction over a charged crime if it alleges all of the elements of the offense, if it sufficiently apprises the defendant of the facts against which he or she must defend, and if it is specific enough to safeguard the defendant against a subsequent prosecution for the same offense.

4. A facially valid charging document cannot be rendered jurisdictionally defective because of unchallenged latent defects in the preliminary hearing proceedings.

5. A challenge to the sufficiency of a preliminary hearing is deemed waived unless it is raised with a motion to dismiss or with another motion for appropriate relief which is filed in the district court before the defendant is convicted of the offense.

6. The aiding and abetting statute does not add distinct material elements to the definition of a charged crime, and, therefore, aiding and abetting is not an alternative means of committing a charged crime.

7. Aiding and abetting is a theory of criminal culpability rather than a separate and distinct crime.

8. The pattern instruction for felony murder that instructs a jury that the killing must occur during the commission of the underlying felony is sufficient to inform the jury that the offense does not include a murder committed after the underlying felony has been abandoned or completed.

9. A jury instruction on the elements of a charged crime that includes less than all of the alternative means of committing the offense listed in the charging document is not erroneous, absent a showing of prejudice to the defendant.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, 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 JOHNSON, J.:

Kevin L. Brown sought revenge against Otis Bolden for perceived sexual transgressions against his girlfriend, Jalessa Bonner, and her friend, Kiara Williams. After enlisting the help of his cousin, Quartez Brown (hereafter Quartez), the two men proceeded to Bolden's apartment, accompanied by Bonner and Williams, where the Brown cousins entered the apartment, assaulted Ashley Green with a firearm, and fatally shot Bolden. All four participants were prosecuted. Bonner entered into a plea agreement, while the other three were convicted at separate jury trials. In this case, Brown was convicted of felony murder, aggravated burglary, and aggravated assault.

Quartez, Williams, and Brown all appealed their convictions, and the oral arguments in their cases were conducted on the same day, albeit the three appeals do not raise any common issues. Some of Brown's issues on appeal are not easily grasped, so we take the liberty of beginning by simply reciting his stated issues on appeal from his appellate brief:

“A. The district court never gained jurisdiction to convict Mr. Brown of felony murder nor aggravated burglary because he was not bound over for aggravated assault against Otis Bolden as the underlying intent element of aggravated burglary.

“B. Mr. Brown was charged with all crimes as an aider/abettor, when there was no evidence to support the alternative means of being the principal or an aider and abettor.

“C. Aiding and abetting the commission of a criminal act is a separate and distinct crime from acting as the principal in the commission of a criminal act.

“D. The instructions given to the jury regarding the felony murder charge and the underlying felony were flawed, deficient and ineffective.

“E. Mr. Brown's convictions for felony murder and burglary are invalid due to the State's failure to amend the Information and for the district court's unwarranted narrowing of the charges in the jury instructions.”

Factual and Procedural Overview

Hours before Bolden was shot, he and his friend, Reader Watley, had driven Bonner, Williams, and their friend, Rika Evans, to a club in Wichita. After the club closed, Bolden and Watley took the three women to Bolden's apartment. At the apartment, Bonner formed the belief that Bolden had participated in her gang rape some 2 years prior, and she asked to leave. Bolden and Watley proceeded to drive the three women to Bonner's home, although Williams would return to the apartment to spend the night with Bolden, Watley, and Green, who was picked up on the return trip.

The next morning, Brown went to the women's home, and Williams returned from Bolden's apartment. At some point, Bonner told Brown that she believed Bolden had been one of her rapists and she shared that the night before Bolden had belittled Brown. Also, Williams allegedly reported that Bolden and Watley had sexually assaulted during the previous evening by touching her inappropriately. Angered by that information, Brown called Quartez, who came to the women's house, where they planned their revenge against Bolden. There were varying statements about the planned action, such as beating Bolden, robbing him, or just talking to him.

Bonner, Williams, Brown, and Quartez left in an automobile, en route to Bolden's apartment. The Brown cousins had never been to Bolden's apartment, so Bonner and Williams helped direct them there. On the way, the cousins stopped at a house to obtain two guns in the event that Bolden was armed or another man was present in the apartment.

Upon arriving at the apartment, Bonner and Williams remained in the car, while the Browns entered the unlocked apartment with their guns drawn. They first encountered Green, who was walking from the bedroom into the kitchen. At gunpoint, they ordered Green to the ground and demanded the location of Bolden. The two men proceeded to the bedroom indicated by Green and found Bolden in his bed. Although Bolden was shot multiple times, he managed to jump through his bedroom window and run down the sidewalk before collapsing. Police were summoned by witnesses who discovered Bolden on the sidewalk. He died shortly after arriving at the hospital.

Green fled the apartment and returned home, where she contacted the police and informed them that Williams and Watley had been at the apartment the previous evening. Information gleaned from Watley's interview led police to Brown, Bonner, and Williams, who all eventually confessed to being part of the incident that led to Bolden's death.

Brown, Quartez, Bonner, and Williams were all originally charged with the felony murder of Bolden and the aggravated assault of Green. With respect to the felony-murder charge, Brown's complaint alleged that Brown killed Bolden “while in the commission of, attempt to commit, or flight from, an inherently dangerous felony, to wit: Aggravated Burglary, Aggravated Assault, Aggravated Battery or Aggravated Robbery.” The preliminary hearings for Brown, Bonner, and Williams were conducted together, and, at the conclusion, the prosecutor requested two additional counts: one alternative count of first-degree premeditated murder and one count of aggravated burglary. With regard to the aggravated burglary charge, the prosecutor stated: “Aggravated burglary is when they went in the house and they committed the aggravated assaults or an aggravated battery, or murder for that matter, as the underlying felony when they entered that residence.”

Prior to the district court's binding over of Brown, his trial counsel requested to be informed of which felonies were incorporated into the felony-murder charge and indicated a belief that, if there was to be more than one underlying felony, they should be charged. The district court responded that the felony-murder charge was supported by evidence of aggravated burglary, aggravated assault, and aggravated battery. The district court explained that the aggravated burglary charge was based on the evidence that “they entered the apartment expecting it to be occupied by at least Otis Bolden and [it] happened to be occupied by Ashley Green.” The judge concluded, with respect to Brown, that

“the evidence would support probable cause for premeditated, first degree murder as an alternative to Count I. Ashley Green said both of the black males entered the apartment, pointed guns at her and told her to get on the floor, so aggravated assault, there is probable cause to believe he committed that offense, as well as the aggravated burglary, as found. There is probable cause and I will bind him over for an arraignment on the Amended Information.”

Consequently, an information was filed against Brown containing the added charges of first-degree premeditated murder, in the alternative to felony murder, as well as aggravated burglary. For the felony-murder count, the information stated, in relevant part, that Brown

“did then and there unlawfully kill a human being, to wit: Otis L. Bolden Jr. ..., while in the commission of, attempt to commit, or flight from, an inherently dangerous felony, to wit: Aggravated...