State v. Brownlee

Decision Date07 August 2015
Docket Number110,262.
Citation302 Kan. 491,354 P.3d 525
PartiesSTATE of Kansas, Appellee, v. Gustin BROWNLEE, Appellant.
CourtKansas Supreme Court

Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Jennifer S. Tatum, senior assistant district attorney, argued the cause, and Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, were with her on the briefs for appellee.

Opinion

The opinion of the court was delivered by BEIER, J.:

Defendant Gustin Brownlee appeals his jury trial convictions of first-degree premeditated murder and criminal possession of a firearm, which arose out of the fatal shooting of Tony “Black” Irvin at a party in April 2012. Brownlee contends that (1) his statutory right to a speedy trial was violated, necessitating dismissal of this case; (2) the jury should have been instructed on the lesser included offense of voluntary manslaughter; (3) the prosecutor committed misconduct during closing argument; (4) a mistrial or a new trial was necessary because of improper testimony by State witnesses; and (5) cumulative error compels reversal.

As detailed below, we ultimately reject Brownlee's contentions and affirm.

Factual and Procedural Background

On the day of the shooting, John Doran lived with his girlfriend, Brandie Brownlee; Brandie's four minor children; Brandie's adult child, Dyran Robinson; and Doran's son-in-law, Kenneth Brinson. Doran invited some friends over to watch a boxing match on television. In addition to those who lived with Doran, the party guests included Doran's uncle, William Jackson; Doran's nephew, Michael Thompson; Brandie's two sisters, Shaella and Erin; Brandie's cousins, Nicki and Shonda; and Irvin. Irvin, Brinson, Thompson, Doran, and Brandie had been there at Doran's residence all day. The other guests started arriving at 8 or 9 p.m. Gustin Brownlee, who is the brother of Brandie, Shaella, and Erin, arrived at 10:30 or 11 p.m. The children were upstairs while the adults were in the basement of the house.

At about 2 a.m., police officers were dispatched to the house, where they discovered Irvin lying face down in the driveway, dead from apparent gunshot wounds

. Coroner Altaf Hossain later performed an autopsy and eventually would testify that Irvin's body had nine bullet entry wounds, including two in the back and seven in the front. Six of the wounds would have been fatal, and one wound to the back of Irvin's head alone could have caused his death instantly. Irvin also had possible defensive wounds on his right forearm. Kansas Bureau of Investigation (KBI) firearm expert Zachary Carr eventually would testify that 15 of 16 fired cartridge cases found at the crime scene came from the same firearm.

Brandie gave a recorded statement to police at about 6 a.m. the morning after the shooting. She told officers that Irvin touched her disrespectfully, and they had an argument. Brownlee and Doran convinced her to calm down, and the men went outside. Brandie and Doran then went upstairs but could hear Brownlee and Irvin arguing in the basement. Irvin left the house but said he would be back to hurt Brownlee. Apparently Brownlee then also left the house. When Brandie tried to bring Brownlee back inside, he pulled out a gun and fired three shots into the ground. Brownlee and Irvin started arguing again, and Brownlee shot Irvin multiple times. Brandie said she did not know if anyone else at the party had a gun.

Detective Clayton Bye also interviewed Shaella, Erin, and Doran that day. He also later interviewed Jackson and Thompson. Doran, Jackson, and Thompson also identified Brownlee as the person who shot Irvin.

Brownlee was arrested on May 23, 2012, and was charged with first-degree murder and criminal possession of a firearm. The parties do not dispute that Brownlee was held in jail pending trial. James Colgan was appointed as defense counsel. After a hearing set for June 5 was continued twice, Brownlee filed a July 12 pro se motion invoking what he said was his federal constitutional right to trial within 90 days.

On September 12, District Judge Ernest L. Johnson presided over Brownlee's preliminary hearing. The defense waived formal arraignment. The judge noted, “Speedy trial is running. And I know that Mr. Brownlee has already filed his notice that he wants his speedy trial.” A pretrial conference was set for September 28, 2012.

On September 28, Colgan appeared before District Judge Wesley K. Griffin. Brownlee was not present. The journal entry of the hearing states: “This pretrial conference will be continued by the defendant in order for the defendant to retain counsel. This matter will be continued until October 26, 2012 at 10:30. Time is assessed versus the defendant.” On October 26, 2012, Judge Griffin set a status hearing for October 31.

Both Brownlee and Colgan were present at the October 31 hearing before Judge Griffin. The judge repeated that the time between September 28 and October 31 was assessed to the defense because of the request to retain counsel. This meant that 74 days remained on Brownlee's 90–day speedy trial deadline, which would require trial to begin by January 8, 2013. Defense counsel agreed with this calculation, and the judge set a January 7, 2013, trial date.

At a December 18 hearing with Brownlee present, Colgan informed Judge Griffin that Brownlee had filed a second pro se motion for speedy trial. After argument before this court, Brownlee added the document defense counsel had described as Brownlee's second motion to the record on appeal. The notarized document says only: “Dear Mr. Griffin I do not understand why my 90 day speedy trial has been delayed. Sincerely Gustin C. Brownlee.” The judge asked if Brownlee had another hold to keep him in jail, and Colgan said no. The State did not attempt to contest or correct this statement.

Brownlee did not believe that the time between September 28 and October 31 should be assessed to him. He explained that he had told Colgan he was not sure if lawyer KiAnn McBratney was getting involved in his case, and he had wanted Colgan to set a trial date at the September hearing. Colgan responded that he did not think he could schedule a trial for another attorney. The district court agreed, and the judge said he personally remembered talking to McBratney about October 26 and learning she was not going to be involved in Brownlee's case. This time the judge assessed September 28 to October 26 to the defense but did not charge the continuance from October 26 to October 31 against the defense.

Colgan informed the judge that he had a scheduling conflict with a January 7, 2013, trial date and that Brownlee was unhappy with him. The judge warned Brownlee that appointment of a new attorney would mean Brownlee would not be able to go to trial on January 7. Brownlee asked the judge for an opportunity to think about this until January 4, the date set for the next hearing.

On December 31, 2012, Colgan moved to withdraw, alleging Brownlee would not reveal essential information about the case. At the January 4 hearing, Colgan renewed his request to be removed. Brownlee told Judge Griffin that he wanted to represent himself and go to trial on January 7. The judge tried to dissuade Brownlee and said that neither a new attorney nor Brownlee could possibly be prepared to go to trial in 3 days. Brownlee insisted, and the judge agreed to appoint a standby attorney to enable Brownlee to represent himself. Brownlee asked for McBratney as the standby. McBratney was appointed standby counsel, but the judge said other trial settings meant Brownlee's trial could not begin until January 28.

Trial began as expected on January 28, 2013. As it opened, McBratney informed Judge Griffin that she would be representing Brownlee, who would “simply play the role of the defendant.”

The prosecutor and the defense agreed that witnesses who had told police that Brownlee had possessed guns at times before the Irvin killing should not be permitted to testify on that point at trial. The prosecutor promised to admonish the witnesses in advance, and the judge agreed with this course of action. Still, the following exchange took place between Bye and the prosecutor:

“Q. At that point were you starting to hear some common themes between the statements?
A. Oh definitely.
“Q. Can you give us an example?
A. Early on tried to find out everybody that had a gun. No one ever said anyone besides Gustin had a gun, no one ever said anyone besides Gustin shot a gun. No one said anyone besides Gustin killed Mr. [Irvin]. Several people said they [had] seen Gustin with a gun in the past.”

Defense counsel asked for a mistrial, arguing the detective was a professional who should have known better than to mention Brownlee's past gun possessions. She did not want the jury admonished because she feared it would only draw more attention to the detective's statement. The prosecutor said the detective was the only State witness she had not reminded not to testify about Brownlee's past gun possessions because she also thought the detective knew better than to bring the subject up. She nevertheless argued a mistrial was unnecessary because the jury would know Brownlee was prohibited from having a gun the day of the party because it would be instructed about his prior felony. The judge stated the prosecutor's question had not been designed to elicit an inappropriate answer and took the motion for mistrial under advisement.

Also on the first day of trial, the prosecutor informed the judge that a 9mm gun recovered as a result of a burglary investigation involving Brownlee's relative had been sent to the KBI that morning for testing. The prosecutor acknowledged that evidence about the gun would be irrelevant if testing showed the casings found at the scene of Irvin's killing did not match. Nevertheless, the following exchange between the prosecutor and firearm expert Carr occurred during Carr's direct examination:

“Q. Now you didn't have a firearm
...

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