State v. Brown

• Decision Date: 12 March 2021
• Docket Number: No. 119,790,119,790
• Citation: 486 P.3d 624,59 Kan.App.2d 418
• Parties: STATE of Kansas, Appellee, v. Jeremiah Wilton BROWN, Appellant.
• Court: Kansas Court of Appeals

59 Kan.App.2d 418

486 P.3d 624

STATE of Kansas, Appellee,

v.Jeremiah Wilton BROWN, Appellant.

No. 119,790

Court of Appeals of Kansas.

Opinion filed March 12, 2021.

Richard Ney, of Ney, Adams & Miller, of Wichita, for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Green, P.J., Malone, J., and McAnany, S.J.

Green, J.:

A jury convicted Jeremiah Wilton Brown of the aggravated burglary and the aggravated sexual battery of M.K. Brown now appeals those convictions, arguing that four separate trial errors require reversal of his convictions. Alternatively, Brown argues that we should reverse his convictions and remand for a new trial because his trial attorneys provided ineffective assistance of counsel in nine separate ways.

As considered below, with the exception of Brown's argument that the trial court wrongly granted the State's K.S.A. 2017 Supp. 60-455(d) motion, Brown's arguments concerning the errors at his jury trial are persuasive: First, we conclude that the prosecutor committed several instances of error during closing arguments by (1) misstating the law, (2) inflaming the passions and prejudices of the jury, and (3) diluting the role of the jury. We determine that all these arguments were fatally prejudicial. Second, we conclude that the trial court wrongly admitted into evidence Brown's incriminating pre- Miranda statements resulting from his custodial interrogation. Third, we conclude that the trial court wrongly denied Brown's motion for continuance, which prevented Brown's opportunity to present expert witness testimony in support of his voluntary intoxication defense. Each of these preceding trial errors substantially prejudiced Brown's presentation of his voluntary intoxication defense.

Thus, we reverse Brown's convictions and remand to the trial court for a new trial, excluding from the trial's admission of all incriminating pre- Miranda statements made by Brown in connection with his arrest. Because we have reversed Brown's convictions and granted a new trial based on the previously mentioned trial errors, it is unnecessary for us to address Brown's claims of ineffective assistance of counsel.

Background Information

Jeremiah Wilton Brown, Jeremy Convery, Jason Conner, and M.K. all lived on the same street in Haysville, Kansas. Brown and Convery had houses next to each other on one side of the street. Meanwhile, Conner and M.K. had houses next to each other on the other side of the street across from Brown's and Convery's houses.

In addition to being neighbors, Brown, Convery, and Conner were friends who spent time with each other socially. Although M.K. was not friends with Brown, she was friendly to Brown when she saw him around the neighborhood. Previously, Brown had helped fix her lawn mower. M.K. also gave cookies to her neighbors, including Brown, at Christmas time.

Brown's Alcohol Consumption

On Saturday, November 26, 2016, around 8 a.m., Convery drove Brown to a local lake. Once at the lake, Brown and Convery met up with another friend, Luke Rogge, and started fishing. That morning, as the friends fished at the lake, Brown consumed a substantial amount of alcohol. According to Convery and Rogge, Brown had brought an unopened 750 milliliter bottle of Tennessee Fire whiskey with him to the lake. Convery had two sips of the whiskey. Rogge had "a little" whiskey in a cup. But Brown consumed the remainder of the whiskey while at the lake. Brown also consumed at least three Bud Lights and smoked marijuana while at the lake.

Brown and Convery left the lake and returned to Convery's house around lunchtime. Once at Convery's house, Brown and Convery socialized for another couple hours.

It is not entirely clear what Brown did immediately after leaving Convery's house around 2 p.m. Even so, around 3 p.m., Convery went over to Brown's garage—a place where Brown routinely spent time—and spoke with Brown briefly. During Brown and Convery's short conversation, Convery saw Brown drinking whiskey from an already half-empty bottle of Crown Royal. At that time, Convery also noticed that Brown was "laughing hysterically at things that were not funny." Later, Brown would allege that after leaving Convery's house, he went to a liquor store, bought "a fifth" of Crown Royal whiskey, which is a 750-millimeter bottle, and then continued to drink and smoke marijuana the rest of the day.

Then, between 10 p.m. and 11 p.m., Conner saw Brown enter a local bar where he, his wife, and some other friends were celebrating a birthday. When Conner saw Brown enter the bar, he could tell that Brown was already heavily intoxicated. According to Conner, Brown was stumbling around, being obnoxious, and slurring his words. Conner estimated that Brown consumed anywhere from 6 to 12 cocktails during the 60 to 90 minutes he was at the bar. Also, Conner had to convince Brown to leave the bar after Brown was rude to the bar's staff.

Because Brown was too intoxicated to drive home, Conner took Brown's car keys. Conner then drove Brown home in his own car. While sitting in the passenger seat, Brown repeatedly tried to drive the car by grabbing hold of the steering wheel. When they arrived at Brown's house, Conner parked Brown's car in Brown's driveway, walked Brown into his garage, and told Brown to go to bed. As Conner was leaving, Brown asked Conner to return his car keys. Although Conner told Brown that he had already returned his car keys, Conner actually kept Brown's car keys in an attempt to prevent Brown from driving later on.

After Conner left Brown in his garage, Conner returned to his home across the street. There, Conner, his wife, and their friends continued the birthday celebration. Yet, several minutes after Conner returned home, Conner heard Brown's car "start up and the stereo start playing" before leaving Brown's driveway. Conner estimated that he heard Brown's car start up and then leave between 12 a.m. and 1 a.m. on Sunday, November 27, 2016. Although Conner never saw Brown, he assumed that it was Brown who started up Brown's car and then drove off.

Conner estimated that Brown returned home some 30 to 45 minutes later because around that time, Brown walked through his backdoor. According to Conner, Brown seemed slightly more intoxicated than when he had last seen him. Conner noted that Brown was not saying things that made sense. He noted that Brown had urinated on himself. What is more, when Conner looked into Brown's eyes, he could tell that "nobody was home." Based on Brown's appearance and behaviors, Conner believed that Brown was just "on auto pilot."

Conner allowed Brown to stay at his house until Brown retrieved Conner's bottle of Crown Royal from his freezer. At that point, Conner took the bottle of Crown Royal from Brown and told him that "he'd had enough." He explained to Brown that he was so intoxicated that he was just "wasting [his] alcohol" by continuing to drink. Conner then escorted Brown out of his house, told Brown to go to bed, and pointed Brown in the direction of his house. Conner estimated that it was between 1:30 a.m. and 2 a.m. when he escorted Brown out of his house and pointed him in the direction of his own house. And when Conner left Brown, Brown was walking towards his own house across the street.

Brown's Altercation with M.K.

Around 7 p.m., on Saturday, November 26, 2016, M.K. returned home from celebrating Thanksgiving with relatives in Oklahoma. After getting home, she went over to the house of her then-fiancé, Shane Adams, for a few hours. M.K. then returned to her own home around 11 p.m. Eventually, M.K. fell asleep in her bedroom with the lights on while "Facebooking." Because M.K. had not intended to fall asleep, M.K. was still wearing her regular clothes at that time.

M.K. remained asleep until about 3 a.m., on Sunday, November 27, 2016. At that point, M.K. woke up to a man lying on top of her, shaking her face, saying her name over and over again. The man had "horrible breath" and smelled of "really strong smoke."

The smell was so terrible M.K. "felt like [she] was going to throw up." At first, M.K. was confused about what was happening. But after "a minute," she realized that the man on top of her was Brown.

For about the next 30 minutes, Brown laid on top of M.K. while repeatedly telling her that "he wanted to have sex with [her]" and "lick [her] pussy." He told M.K. that he wanted her to move into his house. He also told M.K. that she was mean for not having sex with him, noting that she had given him cookies at Christmas time.

Also, as Brown said these things, Brown made repeated attempts to remove both his and M.K.'s clothing. Ultimately, Brown was unable to remove his pants. And M.K. prevented Brown from removing her shirt and pants. Still, during the struggle, Brown grabbed M.K.'s breast and pubic area through her clothing. Brown pushed down on M.K.'s neck each time she attempted to get away from him. Additionally, at one point, Brown "dry humped" M.K., and M.K. could feel that Brown had an erection as he "dry humped" her.

Meanwhile, throughout the ordeal, M.K. tried to persuade Brown to get off her and leave her house. Because Brown was acting abnormally, she asked him if he was drunk. Brown responded that he was drunk and had been smoking "weed."

She then told Brown that he should go home to his wife, who lived with him across the street. But Brown responded that his wife would not have sex with him anymore. M.K. then tried to convince Brown to repair his relationship with his wife. At some point, however, M.K. "thought of [their] neighbor [Jason Conner]" because Conner was "really good friends with [Brown]." She then told Brown that she was "[going to] go get [Conner]" if he would not leave.

Brown responded by telling M.K. not to retrieve Conner. Afterwards, M.K. convinced Brown to get off her, and the two headed towards M.K.'s front door. Yet, on the way to M.K.'s front door, Brown fell...