State v. Brown, 91,727.

• Decision Date: 09 September 2005
• Docket Number: No. 91,727.,91,727.
• Citation: 118 P.3d 1273
• Parties: STATE of Kansas, Appellee, v. Eric BROWN, Appellant.
• Court: Kansas Supreme Court

118 P.3d 1273

STATE of Kansas, Appellee, v. Eric BROWN, Appellant.

No. 91,727.

Supreme Court of Kansas.

September 9, 2005.

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Sarah Ellen Johnson, assistant appellate defender, argued the cause and was on the brief for appellant.

Lee J. Davison, assistant attorney general, argued the cause, and Phill Kline, attorney general, was with him on the brief for appellee.

The opinion was delivered by LUCKERT, J.:

A jury convicted Eric Brown of felony murder and attempted robbery. We reverse his convictions, finding he was denied a fair trial as the result of comments by the trial court. In the disputed comments, the trial court advised the jury that because of concerns for the jurors' safety and security, steps were being taken to prevent further disclosure of the jurors' identities. In the context of this case, we conclude that the trial court did not take adequate precautions to minimize the prejudicial effects of the comments.

The comments were made following jury selection and after the trial court was informed that a witness had been threatened. Although the individual responsible for making the threats had been identified and incarcerated, the court remained concerned for the safety of the jurors. The court decided to refer to jurors only by number from that point forward and asked the parties to turn over any documents which might contain the jurors' names. Brown did not object to the court's decision.

The trial court then informed the jury about the situation, stating:

"Overnight some concerns, as far as security and safety, have developed. Those are being investigated right now, and we're taking every precaution. They involve witnesses, at this particular point, but as a further precaution, insofar as your safety and security is concerned, I've retrieved from counsel and asked them to provide me with any juror list — they keep track of your names and your information, as far as your questionnaires are concerned. I've retrieved and will be retrieving from them anything that identifies you individually as a juror. Likewise, I've taken the Court's copy and those have all been sealed and secured in the clerk's office, and for further purposes, if necessary, I doubt that counsel will really need to be referring to any of you in the future, but as a precaution, I want everyone to sit where you're seated right now, and let's start with the back row, the first juror there, and you'll be one, and I'd just like you to count off so that counsel, we all have another sheet here, and we're going to refer to you by number if we have to refer to you at all . . . .

. . . .

"Now further precaution. I'll advise the public and the participants that if I'm made aware of any leak of any information concerning the identity of a juror, that will be dealt with as a contempt of Court issue and punishment will be whatever is deemed appropriate, at the time. And that includes public, press, counsel and parties and witnesses."

Brown did not object to the trial court's comments.

Since Brown argues these comments caused prejudice, we must consider the context of the comments and evidence presented. Following the disputed comments, the prosecutor presented the State's opening statement. Within the argument, the prosecutor told the jury:

"[T]he watchword of this investigation [was] fear. People fear for themselves. Fear for their families. There were witnesses that did not come forward until just recently, because of fear. Witnesses that have changed their story, initially denying that Eric Brown was involved, have changed their story to now say that he [was] involved, because of fear."

The prosecutor also stated:

"At the conclusion of the evidence . . . [w]e will stand before you and ask you to be brave like the witnesses that have [come] forward and will testify for you in these next few days, and we'll ask you to be brave like them and return a verdict of guilty on all counts."

The theme of fear was repeated at various times as the prosecutor presented evidence. The principal witness at the trial was Paula Wilson, the wife of victim Doug Wilson. Her testimony at trial was significantly different from the statements she initially gave police and her testimony at the preliminary hearing. She explained to the jury that she had initially lied because she was afraid.

At trial, Paula testified that on Friday, November 9, 2001, she and her husband Doug were driving through Independence in search of crack cocaine. Doug saw Chris Brown, one of Doug's regular cocaine suppliers, and followed Chris and Brown, who is Chris' brother, to South 16th Street. Chris and Brown got out of their vehicle, and Brown ran into a nearby house. Chris came to the driver's side door of Doug's car and sold him a $20 rock of crack cocaine. After Chris walked away, Brown approached Doug's window and told him he wanted his money. Doug held up his wallet, which contained cash from the paycheck Doug had received that day, but refused to give it to Brown. Brown pulled out a gun and fired three shots into the car, hitting Doug. Although Doug was able to drive away from the scene, he soon collapsed, and Paula then drove him to the emergency room. Doug underwent surgery for his injuries but died within a few hours.

When Paula initially spoke with police, she did not tell police about the drug deal or that Doug had been driving the car because she knew that Doug had no driver's license and she did not want him to get into trouble. She also told police that she could not identify the shooter except to say he was a black male. At trial, Paula explained that she had been "scared for her life" and was reluctant to identify either Brown or his brother because both men knew who she was. Paula stated, "I was afraid if they thought I could really tell who did it, they'd be after me." At different points in her testimony, Paula stated, "I was scared," "I had to protect myself," and that she was afraid of being hurt.

One other eyewitness, Cameron Johnson, who was 15 years old at the time of the shooting, identified Brown as the shooter. Johnson testified that on the day of the shooting, he had been using alcohol and marijuana. That evening, as he was headed toward South 16th Street to try to find more marijuana, he saw Brown firing a gun at a person inside a car. Johnson was asked if he was afraid to testify, and he stated that he feared retaliation.

At least five different witnesses testified they saw Brown with a handgun on the day before or the day of the shooting. One of these witnesses, who testified she saw Brown with a gun on the day of the shooting, heard the shooting, and saw the victim's car leaving the scene but could not identify the shooter's sex or race, was asked by the prosecutor why she did not come forward with information immediately after the shooting. She responded, over Brown's objection, that she was scared.

Other witnesses testified about conversations with Brown during the week following the shooting. Brown told his former lover, Shannon Werner, there had been a shooting on South 16th Street, he and his brother's names were "in it," and that he would be leaving Independence. Virgil Vaughn testified he overheard Brown saying that "he had to smoke the guy" because "he owed him some money." David Robison testified Brown admitted shooting the victim because he had disrespected Brown's brother.

Bennie Freeman recalled Brown telling him that "[e]verybody was running around making statements on him, and it was all lies, because there wasn't but a couple of people there, him and [his brother]." In addition, over Brown's objection, Freeman was asked about an encounter he and Brown had earlier on the day Freeman testified. Freeman stated Brown was visibly upset and yelled at him, calling him names like "police mother fucker" and "snitch mother fucker." Freeman was asked if he took this as threatening, and Freeman replied, "No." Later, the trial court admonished the jury to disregard the testimony related to this incident.

Other evidence presented as part of the State's case included the testimony of police officers who discovered the victim's wallet lying in the street at the scene of the shooting; the wallet still contained over $500 in cash. Officers also recovered a partial palm print from the driver's front door of Doug and Paula's car, which matched Brown's palm print.

Although Brown did not testify, the jury viewed videotapes of three police interviews of him. While Brown consistently denied committing the murder, he admitted that earlier in the day he had been in the neighborhood where the murder took place.

Brown called one alibi witness, Anthony Taylor, who testified Brown was at his home during the time the shooting took place. Taylor, however, had previously made a statement to an assistant Montgomery County attorney that Brown had admitted shooting the victim. Taylor made this statement while he was incarcerated on a burglary charge and, at trial, explained that he "told them what they wanted to hear to save my own neck."

Brown also called Cameron Johnson's aunt, who testified that Cameron was playing in a park across from her house several blocks away from the shooting when it took place. This testimony cast doubt on whether Cameron could actually have witnessed the shooting from his location.

In closing arguments, the prosecutor returned to the theme of fear. There were numerous references to Paula Wilson being scared. At one point the prosecutor said Paula "was scared out of her mind of drug dealers. Was she the only witness that said I'm scared, that got on this stand and said I'm scared for my family? Cameron Johnson said the same thing. Other witnesses . . . said the same thing." Later, the prosecutor reiterated that Cameron Johnson was scared.

Was the Defendant Denied a Fair Trial?

On appeal, Brown argues his substantial rights to a fair trial were prejudiced because of...