State v. Brownlee, No. 110,262

CourtUnited States State Supreme Court of Kansas
Writing for the CourtBEIER, J.
PartiesSTATE OF KANSAS, Appellee, v. GUSTIN BROWNLEE, Appellant.
Docket NumberNo. 110,262
Decision Date07 August 2015


No. 110,262


August 7, 2015



On the record in this case, the State has failed to establish that the district court judge was aware of a hold placed on a jailed defendant at the time his statutory right to trial within 90 days from arraignment was under consideration.


The "entire record," as that phrase is used in Supreme Court Rules 3.01 and 3.02 (2014 Kan. Ct. R. Annot. 20), includes all original papers and exhibits filed in the district court, the court reporter's notes and transcripts of proceedings, any other court-authorized record of the proceedings, and the entries on the appearance docket. It does not include a warrant and report never filed in the district court.


A parole hold issued by the Kansas Department of Corrections is not a specific fact or proposition "of generalized knowledge [amenable to] immediate and accurate determination by resort to easily accessible sources of indisputable accuracy" under K.S.A. 60-409(b)(4), and it is not appropriate for judicial notice.

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Failure to allow the defendant to be present at a motion hearing in this case was error under K.S.A. 2014 Supp. 22-3208(7), and the defendant did not acquiesce in a continuance sought by defense counsel at that hearing. The delay caused by the continuance should not have been counted against the defense for purposes of statutory speedy trial calculation.


The amendment to the speedy trial statute codified at K.S.A. 2012 Supp. 22-3402(g) is a procedural provision that may be applied retroactively to a defendant whose crime was committed before the amendment took effect.


Under K.S.A. 2012 Supp. 22-3402(g), the legislature, which created the statutory right to trial within 90 days from arraignment for a defendant held in jail solely as a result of the charges at issue, has decided to eliminate the remedy for its violation in certain circumstances. The defendant in this case is not entitled to reversal of his convictions and dismissal of this action under the plain language of this subsection of the statute.


An instruction on the lesser included offense of voluntary manslaughter was not factually appropriate on the evidence in this case.


On the record of this case, the prosecutor's remarks about premeditation did not exceed the wide latitude allowed in discussing the evidence. They did not misinform the jury on whether premeditation can arise in an instant, and they correctly pointed out

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factors that can give rise to an inference of premeditation, including a break between series of shots, the existence of defensive wounds, and the continuation of shooting after the victim had fallen to the ground.


Fleeting improper testimony from a detective about the defendant's prior possessions of firearms and from a firearms expert about testing of a gun unrelated to the crimes charged, regardless of whether considered singly or together, did not require the district judge to grant a motion for mistrial or a motion for new trial. The evidence of the defendant's guilt in this case was overwhelming, and the improper testimony could not have resulted in substantial prejudice to the defense.


Cumulative error does not require reversal of the defendant's convictions in this case.

Appeal from Wyandotte District Court; WESLEY K. GRIFFIN, judge. Opinion filed August 7, 2015. Affirmed.

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.

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

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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.


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

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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.

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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...

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