State v. Brown, 92,544.

• Decision Date: 07 December 2007
• Docket Number: No. 92,544.,92,544.
• Citation: 173 P.3d 612
• Parties: STATE OF Kansas, Appellee, v. Akira T. BROWN, Appellant.
• Court: Kansas Supreme Court

173 P.3d 612

STATE OF Kansas, Appellee, v. Akira T. BROWN, Appellant.

No. 92,544.

Supreme Court of Kansas.

December 7, 2007.

Carl F.A. Maughan, of Maughan & Maughan, LC, of Wichita, argued the cause, and Sarah Ellen Johnson, of Kansas Appellate

Defender Office, was with him on the briefs for appellant.

Lesley A. Isherwood, assistant district attorney, argued the cause, and Nola Foulston, district attorney, and Phill Kline, attorney general, were with her on the brief for appellee.

LUCKERT, J.

Akira Brown was convicted of first-degree premeditated murder after James Cooper died of a single gunshot wound to the head. According to the prosecution's theory, the shooting was motivated by animosity between rival street gangs. Several eyewitnesses identified Brown as the shooter and, after several hours of interrogation, he confessed. In defense arguments to the jury, Brown's attorney suggested police focused on Brown as the suspect within a few minutes after the shooting and, consequently, ignored evidence pointing to other suspects. Further, defense counsel argued Brown's confession was coerced.

On appeal, Brown raises several issues. We first consider his argument that his confession was not voluntary. The fact that Brown was handcuffed to a table for a 12-hour span during which several periods of interrogation occurred makes the issue of voluntariness a close question. An examination of the totality of the circumstances, however, leads us to the conclusion that Brown's free will was not overborne and his confession was freely and voluntarily given.

Next, we consider whether the admission of several hearsay statements violated Brown's right to confrontation and whether the statements met any hearsay exceptions. Applying Davis v. Washington, 547 U.S. ___, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), and Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), we conclude the statements, which were made at the scene shortly after the shooting by an unidentified emotional bystander to one of approximately 200 other bystanders, were not testimonial and, therefore, did not violate the Confrontation Clauses of the United States Constitution and Kansas Constitutions. Further, we find that all but one of the statements were properly admitted under a hearsay exception, specifically the excited utterance exception. See K.S.A. 60-460(d)(2). One statement was not properly admitted, however, because it was double hearsay and a foundation was not laid for the included statement. This error does not require reversal of Brown's conviction, however, because there were other eyewitness identifications of Brown as the shooter and because Brown confessed to being the shooter, making the evidence cumulative and the error harmless.

We find no merit to Brown's remaining arguments. We conclude that the trial court did not commit error in admitting gang evidence because the evidence tied Brown and the victim to rival gangs and the evidence of the rivalry provided a motive for an otherwise inexplicable crime. Additionally, we conclude there was not an evidentiary basis for giving a voluntary manslaughter instruction as a lesser included offense because the evidence was that Brown interjected himself into the fight that preceded the shooting, there was no showing of prior animosity between Cooper and Brown, and the fight that preceded the shooting would not have placed a reasonable person in Brown's position in fear of great bodily harm or at risk of death. Next, we conclude the trial court did not err in refusing to admit speculative testimony tending to suggest a third party committed the shooting because there is no evidence actually tying an alleged third party to the crime. Finally, we reject Brown's request to find cumulative error requiring reversal of his convictions.

FACTS

The rivalry that formed the basis of the State's theory of the case was between the Bloods and Junior Boys gangs. The Junior Boys gang, which consists of "older" gang members, has two subsets formed of younger members: the Second Street Junior Boys and the Hill Block Junior Boys. Officer Espinoza, a gang intelligence officer, testified that tension between the Bloods and Junior Boys had resulted in several violent incidents separate from the current crime. Espinoza mentioned gang intimidation, various forms of "disrespect," shootings, and murder. History had shown that verbal confrontations between a Blood and a Junior Boy could easily escalate into physical violence when gang members "back-up" fellow members.

The victim of the shooting in this case, James Cooper, was a member of the Bloods. Shortly after midnight on January 11, 2003, Cooper and his girlfriend, Cecilia Arnold, joined several Bloods gang members at "The Cave" nightclub in Wichita. Members of the Hill Block and Second Street Junior Boys gangs, including Brown who is a member of the Hill Block gang, were also present at "The Cave."

When the nightclub closed around 2 a.m., a crowd estimated to number "a couple hundred" exited onto the streets and sidewalks around the club. Several fights broke out in the crowd.

According to Arnold, she and Cooper prepared to leave in Arnold's car when Terrell Cole — a member of the Second Street gang (one of the Junior Boy subsets and a rival gang to Cooper's gang) — ran in front of the car, chasing two persons while holding a gun. The couple got out of the car because Cooper wanted to tell the others to "quit tripping" or calm down. Arnold testified that Cooper basically followed Cole and told him to stop fighting and put away the gun, saying, "We all kicked it. We all had fun. Let's call it a night." Arnold indicated that, although she did not see the gun anymore, Cole kept a "cocky" and "bodacious" attitude toward Cooper. Cooper told Cole he would remember how Cole was acting. Arnold was not certain where Cole went after the conversation with Cooper, but she thought he "kind of mingled off into the crowd."

Cooper's cousin Bruce Berry had walked up at some point during the confrontation, and he also spoke to Cooper. Then, Arnold and Cooper, holding hands, started to walk away but stopped when they saw a commotion in the crowd. A single shot rang out, and the bullet struck Cooper in the back of his head causing a fatal wound.

Arnold told police that, although she did not actually see the shooting, she believed the shooter was Cole. When asked where she had stood talking with Cooper and his cousin Berry, Arnold testified that they stood "in the middle of Second Street," near the nightclub at Second Street and Mosley.

Russell Hunt was also in the crowd of people exiting the nightclub. According to his testimony, he observed the altercation occurring in the road at Second Street and Mosley. Hunt first saw three to four individuals "jumping" one man on the ground. Then, Hunt saw a man pull a handgun out of the waistband of his pants, point it toward the middle of Second Street, and fire a single shot. Hunt described the man as wearing a cream-colored shirt. He stated the man was standing beside a tree. After taking cover and then seeing that someone was hit, Hunt called 911 and helped clear the way for an ambulance.

Hunt talked to an officer about what he had seen. As he did so, he noticed another man standing there, looking "very distraught." After he finished talking to the officer, Hunt asked the bystander what was wrong. Hunt testified that the bystander told him "That's my cousin" and "They said Lovey shot him." Although Berry was identified as Cooper's cousin, the bystander who talked to Hunt was never identified. Police knew Brown was nicknamed "Lovey," and other eyewitnesses identified Brown as "Lovey."

Later, after reviewing a photographic lineup, Hunt identified Brown as the shooter.

Another eyewitness was Devon Brown (who will be referred to as Devon to avoid confusion with the defendant Brown). Devon testified she actually saw Brown fire the shot. Devon was at the nightclub, and she saw Brown there earlier that evening. Devon testified that she had gone to the same high school as Brown and had no difficulty recognizing him. She also knew him as "Lovey." When the club closed, Devon attempted to drive away from the scene on Second Street but saw an altercation in the middle of the crowded street. Next, Devon saw two men walking backwards as if one was trying to break up an argument and "he was pushing his friend away from the altercation." Devon and her passenger got out of the car to see if they recognized anyone in the midst of the fight. Devon saw Brown step out from a tree, raise a gun, and fire a shot in the direction of the fight. After Brown fired the gun, he took off running eastward on Second Street.

Berry, who had talked to Cooper just before the shooting, also identified Brown as the shooter. Berry testified that he saw Brown inside the nightclub on the night of the incident and described him as wearing a cream-colored shirt. After the club had closed, Berry started to pull away in his car but then got out to carry on two separate conversations, one of which included Cooper and Cooper's girlfriend Arnold. Berry had finished talking to the couple and turned to go back to his car when he heard a gunshot coming from behind. He ducked and ran toward his car. Berry testified that as he put his foot inside the car, he turned to see Cooper lying on the ground. According to Berry, he saw Brown standing near a tree, holding a gun. Then, he saw Brown run eastward on Second Street with the gun held down to his side.

Police dispatch notified patrol officers to be on the lookout for a suspect nicknamed "Lovey." Officers checked Brown's known addresses and eventually went to a recent address at an apartment complex. Around 3:17 a.m., a vehicle drove into the parking lot and officers saw the passenger was a black male wearing a "tan" shirt. The passenger was Brown.

Brown was placed in custody and taken to the police...