Miranda does not require that attorneys be
producible on call, only that the suspect be informed he or
she has the right to an attorney before and during
questioning and that an attorney will be appointed for him or
her if he or she cannot afford one. If the police cannot
provide appointed counsel, Miranda requires only
that the police not question a suspect unless and until he or
she waives his or her right to counsel.
the facts of this case, informing the defendant that an
attorney would be appointed for him "if he was
charged" did not render his Miranda warnings
constitutionally inadequate because the warnings, in their
totality, reasonably conveyed to the defendant his rights as
required by Miranda.
Property is in a person's presence if it is sufficiently
within the person's control such that he or she could, if
not overcome by violence or prevented by fear, retain
possession of it.
the facts of this case, the evidence was sufficient to
conclude that the victim's car, which was parked outside
the victim's house, was so within the victim's
control that he could have, if not overcome by violence
inside the house, retained possession of it.
from Sedgwick District Court; Benjamin L. Burgess, judge.
Michael P. Whalen, of Law Office of Michael P. Whalen, of
Wichita, argued the cause and was on the brief for appellant.
A. Isherwood, assistant district attorney, argued the cause,
and Marc Bennett, district attorney, and Derek Schmidt,
attorney general, were with her on the brief for appellee.
M. Brown directly appeals his convictions arising from his
participation in two interconnected felony murders that were
consolidated for trial in Sedgwick County. In one case, Brown
was convicted of felony murder and aggravated robbery for
shooting Adji Ibraham-Tampone in the back of the head and
taking Tampone's Cadillac and cell phone because of a $1,
000 drug debt Tampone owed. In the other case, Brown was
convicted of felony murder, attempted aggravated robbery, and
criminal discharge of a firearm under an aiding and abetting
theory for driving his associates to and from the shooting of
Shawn Rhone. The two homicides were tied together by
Brown's involvement, drug-related violence, and shared
appeal, Brown claims his statements to police should have
been suppressed because a detective misinformed him about his
Miranda right to counsel; the evidence was
insufficient to support his convictions; and jury instruction
errors warrant reversal of his convictions. However, we
conclude the warnings given to Brown, in their totality,
reasonably conveyed Brown's right to counsel as required
by Miranda; sufficient evidence supports his
convictions; and the jury instructions are not clearly
erroneous. Accordingly, we affirm Brown's convictions.
and Procedural Background
Adji Ibraham-Tampone Homicide
2012, Brown and his friend, Darius Smith, cooked and sold
crack cocaine together. Smith ran the drug business from a
motel room on South Broadway Street in Wichita. At that time,
Tampone was attending Wichita State University and living off
money that his father periodically sent him. Smith testified
that Tampone was a daily customer and owed money to multiple
drug dealers, including himself. Typically, Tampone paid
Smith when he received money from his father.
November 2012, Tampone bought a gray 2003 Cadillac Deville
with his father's money. He was proud of the car, drove
it often, and did not loan it to others. However, Tampone was
a spendthrift, and by December 27, 2012, he was broke and
waiting for his father to send more money.
December 30, 2012, Brown visited Smith's motel room. They
smoked marijuana and showed each other their guns-Smith had a
.22 caliber long barrel revolver and Brown had a .25 caliber
small semiautomatic gun. As entertainment, Smith shot both
guns at the corner of the wall to see which one was louder.
Later that day, Brown left the motel with his gun.
December 31, 2012, Brown was upset because Tampone stole $1,
000 worth of crack cocaine from him. Smith testified that
Brown then threatened to beat up and kill Tampone. That same
day, Brown posted a picture of Tampone's Cadillac on
Facebook with a caption that read "new lac."
was last seen alive on New Year's Eve, 2012, when a
neighbor observed him wearing a ball cap driving in the
Cadillac with another male in the alley behind Tampone's
house. That evening, Tampone and his friend, Dennis Haynes,
had plans to go to a casino, but Tampone did not show up.
Over the next day or two, Haynes called Tampone and stopped
by his house a few times, but there was no answer. Haynes
noticed that Tampone's curtains were drawn closed and his
gray Cadillac was missing.
January 1, 2013, Smith saw Brown driving Tampone's gray
Cadillac. Brown talked about taking the Cadillac to a chop
shop in Texas. When Smith cautioned that Tampone would surely
call the police, Brown said Tampone gave him the car as
collateral until he paid the drug money. When someone asked
how Brown got the car, Brown replied that he "had to
take care of business."
January 3, 2013, Haynes noticed that Tampone's back gate
was open, so he and his girlfriend entered the house through
the back door. They found Tampone's dead body slouched in
a lawn chair, with his ball cap and shoes lying on the floor.
Tampone had a single gunshot wound in the back of his head,
and it smelled as if he had been dead for a couple days. The
house appeared to have been rummaged through, and
Tampone's Cadillac was missing. The medical examiner
concluded that the cause of Tampone's death was the
gunshot wound to the back of his head.
firearm toolmark examiner concluded that the same gun had
fired the two .25 caliber bullets in evidence-one found
lodged in Smith's motel room wall and one recovered from
Tampone's brain. He explained the bullets could not have
been fired from Smith's .22 caliber revolver, suggesting
both were fired from Brown's .25 caliber gun. However, it
appears that the State never found Brown's gun because it
was not entered into evidence at trial.
detectives questioned Brown about the Cadillac and
circumstances surrounding Tampone's death, Brown kept
changing his story. First, Brown denied that he had a gray
Cadillac or knew anyone with one. When confronted with the
Facebook picture of his "new lac, " Brown claimed
it was not his. Next, Brown said he rented Tampone's
Cadillac on New Year's Eve. Finally, Brown admitted that
he went to Tampone's house on December 31, 2012, and took
Tampone's clothing, cell phone, and Cadillac. However,
Brown claimed Smith killed Tampone and gave the car and phone
Shawn Rhone Homicide
recently recited the basic facts of Shawn Rhone's
homicide when we affirmed the conviction of Milo Brown,
Brown's brother and accomplice, in a separate case. On
January 2, 2013:
"Shawn Rhone was at the Wichita home of his girlfriend,
LaDonta Alford. Rhone left around 5:30 or 6 p.m. after having
received a phone call. Before Rhone left, he told Alford
'[t]hat he was going to go make a run.' Alford would
testify at trial that this meant Rhone was leaving to sell
someone marijuana, but she did not testify on whether she
actually saw marijuana in Rhone's possession before he
left her home. Rhone also received a text message containing
an address on Northeast Parkway in Wichita.
"Just after 7 that evening, Wichita Police Officer
Charles Byers reported to his dispatcher that he had heard
six gunshots while patrolling just east of Northeast Parkway.
Two residents living on Northeast Parkway also reported
"About that time, Carl Lemons, an off-duty police
officer, was arriving at his part-time job as a security
guard at a nearby QuikTrip. A customer came into the store
and told the clerk that a man in the parking lot had been
shot. Lemons called 911 to report the shooting; Byers heard
this call and drove to the QuikTrip.
"When Lemons emerged from the store, he found a man
lying on the ground next to a car. The car's rear window
and one of its taillights had been shot out. A cell phone was
lying near the victim. Lemons asked the man a series of
questions, but the man had difficulty communicating. He was
able to tell Lemons . . . 'Parkway or Parkwood' and
that his first name was Shawn. Investigators would later
identify the man as Shawn Rhone.
"After emergency medical responders arrived on the
scene, Rhone was transported to Wesley Medical Center, where
he later died." State v. Brown, 303 Kan. 995,
996, 368 P.3d 1101 (2016).
had sustained one gunshot wound to his neck and another to
his chest. The medical examiner concluded that the gunshot to
the chest was the cause of Rhone's death.
observed multiple bullet holes in the back of Rhone's
vehicle, bullet fragments inside the vehicle, and a spent
cartridge casing on the front floorboard. However, they found
no blood, drugs, or cash in Rhone's car. Officers also
found shell casings and windshield glass fragments near 1757
Northeast Parkway. Firearm analysis indicated that at least
two guns were fired at the scene.
looked at Rhone's phone and found a text received shortly
before 7 p.m. directing him to meet at 1757 Northeast
Parkway. They determined that the number calling and texting
Rhone's phone prior to the shooting belonged to Euva
Brown, mother of three sons, Milo, Jerone, and the appellant,
Shawn Brown. Ms. Brown said her kids mostly used that phone.
When Ms. Brown was at the police department, Tampone's
cell phone number called her phone. Tampone's number was
listed in her phone under "Shiz, " Shawn
Brown's alias. Officers also discovered texts on Ms.
Brown's phone to Shawn Brown at Tampone's number.
Brown recalled that on January 2, 2013, her three sons left
the house in a gray Cadillac that Shawn was driving and
arrived home around 10 p.m. However, Milo's movements
were closely tracked that night-he was wearing a GPS ankle
monitor because he was on parole. The GPS system located Milo
around 1757 Northeast Parkway at the time of the shooting.
initially denied knowing about the shooting. However, Brown
later admitted that he dropped Milo and his cousin off at
1757 Northeast Parkway and then he and Jerone pulled around
the corner. After shots were fired, Brown and Jerone picked
the two up and drove away. Brown kept telling detectives that
"he didn't know anybody was going to get
robbed"-though detectives had not yet mentioned a
robbery. Brown claimed the robbery was his cousin's idea
and they planned to take "money and shit."
Tampone homicide, Brown was charged with felony murder and
aggravated robbery. In the Rhone homicide, Brown was charged
with felony murder, attempted aggravated robbery, and
criminal discharge of a firearm. The two cases were
consolidated for trial pursuant to K.S.A. 22-3203. The
district court denied Brown's motion to suppress
statements he made to detectives.
found Brown guilty of all charges, and the district court
denied Brown's motions for acquittal and a new trial. The
court sentenced Brown to a total of two life sentences plus
228 months, to be served consecutively. Brown appealed
directly to this court pursuant to ...