State v. Brown, 111,166
| Court | United States State Supreme Court of Kansas |
| Writing for the Court | The opinion of the court was delivered by Biles, J. |
| Citation | 387 P.3d 835 |
| Parties | State of Kansas, Appellee, v. Antonio M. Brown, Sr., Appellant. |
| Docket Number | No. 111,166,111,166 |
| Decision Date | 20 January 2017 |
387 P.3d 835
State of Kansas, Appellee,
v.
Antonio M. Brown, Sr., Appellant.
No. 111,166
Supreme Court of Kansas.
Opinion filed January 20, 2017
Peter Maharry, of Kansas Appellate Defendant Office, argued the cause and was on the brief for appellant.
Ellen H. Mitchell, county attorney, argued the cause, and Derek Schmidt, attorney general, was with her on the brief for appellee.
The opinion of the court was delivered by Biles, J.:
Antonio Brown was convicted of felony murder, two counts of child abuse, and one count of interference with a law enforcement officer. Brown argues his convictions must be reversed because (1) the district court admitted statements he gave to police after he claimed he invoked his right to counsel and the statements were involuntary; (2) the district court failed to give lesser included offense instructions on the felony-murder charge; and (3) the evidence was insufficient to sustain his conviction of interference with a law enforcement officer. Brown further challenges the upward departure sentences imposed for the two child abuse convictions,
arguing they were not justified by substantial and compelling reasons. We affirm.
We hold Brown reinitiated his interview with police after his unsuccessful attempt to contact a lawyer and in doing so knowingly and intelligently waived his previously-invoked right to counsel. Brown's subsequent inculpatory statements were freely and voluntarily given.
We hold further that the district court properly refused to give lesser included offense instructions for the felony-murder charge. See K.S.A. 2015 Supp. 21–5402(d), (e) (no lesser included offenses of felony murder; provision retroactive to all pending cases); State v. Love , No. 112,611, –––Kan. ––––, ––––, 387 P.3d 820, 2017 WL 244772 (2017), this day decided (statutory elimination of lesser included offenses of felony murder does not violate due process or the right to jury trial as guaranteed by Section 5 of the Kansas Constitution Bill of Rights ); State v. Todd , 299 Kan. 263, 277–79, 323 P.3d 829 (2014) (retroactive abolition of lesser included offenses does not violate Ex Post Facto Clause).
We hold there was sufficient evidence to support Brown's conviction of interference with a law enforcement officer, based upon his failure to come out from hiding in a basement when instructed to do so by police.
Finally, under the facts of this case, we hold there were substantial and compelling reasons to impose upward departure sentences for the child abuse convictions because a 14–month–old victim was particularly vulnerable due to his age.
FACTUAL AND PROCEDURAL BACKGROUND
Beginning in late September 2011, Brown cared for 14–month–old Clayden Urbanek, while the child's mother, Brittney Betzold, was at work.
On October 4, Brown called Betzold's workplace and asked to talk to her about Clayden. The person who took the call said Brown seemed panicked and emotional. When Betzold arrived home, she found Clayden in a bedroom. He was awake but could not move his legs or arms. Brown told her Clayden took a hard fall from the couch and got a concussion. When Betzold said she was going to call 911, Brown left the house. He later called Clayden's father and volunteered that he did not hit Clayden and would never harm him.
When emergency personnel arrived, they found Clayden extremely pale with a distended abdomen, no pulse, and not breathing. Emergency room physicians transferred him to Wichita, where he underwent surgery for his abdominal injuries. He died shortly after the procedure.
Due to the extensive injuries, police investigated and charged Brown with felony murder, two counts of child abuse, and one count of interference with a law enforcement officer. The first child abuse charge related to incidents alleged to have occurred between September 26 and October 3, 2011. The second for incidents alleged on October 4. Brown was tried and convicted of all charges.
At a separate sentencing hearing, the jury found unanimously and beyond a reasonable doubt that there were aggravating factors associated with the child abuse charges. The jury returned verdicts finding four aggravating factors for the first count and three for the second. Based on those findings, the district court imposed departure sentences of double the presumptive sentences for each child abuse conviction. This is Brown's direct appeal.
Jurisdiction is proper. See K.S.A. 2015 Supp. 22–3601(b)(3)–(4) (life sentence imposed; defendant convicted of off-grid crime).
BROWN'S STATEMENTS TO POLICE
Brown argues inculpatory statements he made to police should have been suppressed because he claims: (1) The officers violated his Miranda rights by failing to honor his request for counsel, (2) the statements were not voluntary, and (3) officers failed to read him the Miranda rights after every break in the questioning. The district court denied a motion to suppress prior to trial. We agree with the district court.
Additional facts
Police took Brown into custody around 7 p.m. on October 4, 2011. At about 8 p.m., two
investigators began a recorded interview. Brown read, initialed, and signed a form, confirming that he understood he had the right to remain silent, that his statements could be used against him in court, that he had a right to have an attorney present, and that an attorney would be appointed for him if he could not afford one. While he was completing the form, Brown asked about the right to counsel.
He said he had a lawyer in a prior case but did not know if that person was still his lawyer or if the lawyer should be present. Brown asked if he could call his roommate to have him get in touch with the lawyer to see if Brown needed to have an attorney present for the questioning. An investigator told Brown they would discuss that after finishing the waiver form. Brown responded it did not matter because he would still talk to the officers.
As the investigators were witnessing the form's execution, Brown again volunteered, "Actually it doesn't matter because I have nothing to hide." An investigator began to respond, "Well I want to clarify a couple of...."
The remainder of this sentence and any response appear to be edited from the video included with the appellate record because the video immediately jumps to the following exchange:
"Brown: I can't afford an attorney right now.
"Investigator #1: OK.
"Brown: Well I don't have the money in my pocket but my roommate, you know, he's been helping me, you know, on my last case. He was involved in it. But he helps me kind of financially, you know, to help with my lawyer. And he would, you know, we both have the same lawyer and that's the only reason I need to, you know, ask him.
"Investigator #1: I understand that. Can't really go through that route. What I could do is I can afford you the opportunity for a phone book and a phone to be able to call but going through your roommate is not going to happen.
"Brown: How about my fiancé?
"Investigator #1: That I can't do.
"Brown: That's fine. That's fine. Like I said I'm not worried about it.
"Investigator #1: OK. But I can afford you the opportunity to you know call your attorney via the phone I have no problems with that.
"Brown: Like I said I don't know if he's still my attorney well because I took off on parole you know and I don't know if that drops the whole fuckin' case? I mean I don't know?
"Investigator #2: We can't answer that for you.
"Brown: I mean I don't know. Do you mind if I call him? You guys can sit here and....
"Investigator #1: Yeah, go right ahead.
"Brown: Like I said I don't have nothing to hide so it don't matter to me. So but....
"Investigator #1: Yeah, go right ahead."
Both investigators assisted Brown in locating the attorney's telephone number. Brown tried unsuccessfully to reach the attorney at two different numbers. The following exchange then occurred:
"Investigator #1: No answer?
"Brown: No [inaudible].
"Investigator #1: Well, um ....
"Brown: Um I understand what's going on. You know what I'm saying. I understand fully what's going on.
"Investigator #1: Right. OK.
"Brown: You know I mean this ....
"Investigator #2: Our goal is to figure out the situation.
"Brown: Yeah. I'll—I'll—I'll talk ....
"Investigator #1: Without the presence of attorneys?
"Brown: Yes sir, yes sir, yes sir. Like I said I have nothing to hide, you know.
"Investigator #1: OK."
The investigators proceeded to interview Brown until about 2 a.m., during which time he made incriminating statements. He admitted he was the only person watching Clayden during the day for the last week and a half. He conceded he had a bad temper, was strict,
and a little mean. But he also said he would not hurt Clayden. He disclosed he had been upset with the child, but not to the point of hurting him, and sometimes grabbed him in a way that scared Betzold. He admitted spanking the child with a wooden paddle the Friday before the child died because he was not listening to Betzold, being "obnoxious," and getting into everything. He said he knew he had put bruises on Clayden's buttocks.
Brown told investigators Clayden's fatal injuries happened...
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Khalil-Alsalaami v. State, No. 115,184
...officers' fairness in conducting the interview; and (6) defendant's fluency with the English language. State v. Brown , 305 Kan. 674, 684, 387 P.3d 835 (2017).Primarily, Khalil-Alsalaami focuses on the sixth factor—defendant's fluency with the English language. Yet, as established above, th......
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State v. Butler, No. 115,604
...do not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations. State v. Brown , 305 Kan. 674, 689, 387 P.3d 835 (2017). At trial, Jewell testified he and Butler spoke on the phone in the afternoon of January 9, 2013, about robbing Yanos of his marijuana ......
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State v. Love, No. 112,611
...lesser included instruction). Whether a particular crime is a lesser included offense of a charged crime is also a question of law. See 387 P.3d 835State v. Belcher , 269 Kan. 2, 4, 4 P.3d 1137 (2000) ; see also K.S.A. 2015 Supp. 21–5109(b)(1)-(4) (defining lesser included offenses as lesse......
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State v. Harris, No. 116,515
...the possession of "any other dangerous or deadly cutting instrument of like character." See State v. Brown , 305 Kan. 674, 698, 387 P.3d 835 (2017) (noting a defendant lacks standing to challenge a statute as unconstitutionally vague when the 467 P.3d 506 defendant's act clearly f......
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Khalil-Alsalaami v. State, No. 115,184
...officers' fairness in conducting the interview; and (6) defendant's fluency with the English language. State v. Brown , 305 Kan. 674, 684, 387 P.3d 835 (2017).Primarily, Khalil-Alsalaami focuses on the sixth factor—defendant's fluency with the English language. Yet, as established above, th......
-
State v. Butler, No. 115,604
...do not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations. State v. Brown , 305 Kan. 674, 689, 387 P.3d 835 (2017). At trial, Jewell testified he and Butler spoke on the phone in the afternoon of January 9, 2013, about robbing Yanos of his marijuana ......
-
State v. Love, No. 112,611
...lesser included instruction). Whether a particular crime is a lesser included offense of a charged crime is also a question of law. See 387 P.3d 835State v. Belcher , 269 Kan. 2, 4, 4 P.3d 1137 (2000) ; see also K.S.A. 2015 Supp. 21–5109(b)(1)-(4) (defining lesser included offenses as lesse......
-
State v. Harris, No. 116,515
...the possession of "any other dangerous or deadly cutting instrument of like character." See State v. Brown , 305 Kan. 674, 698, 387 P.3d 835 (2017) (noting a defendant lacks standing to challenge a statute as unconstitutionally vague when the 467 P.3d 506 defendant's act clearly falls withi......