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State v. Brown

Supreme Court of Kansas

September 15, 2017

State of Kansas, Appellee,
v.
Shawn Malik Brown, Appellant.

         SYLLABUS

         1. 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.

         2. On 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.

         3. 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.

          4. On 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.

         Appeal from Sedgwick District Court; Benjamin L. Burgess, judge. Affirmed.

          Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, argued the cause and was on the brief for appellant.

          Lesley 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.

          OPINION

          Stegall, J.

         Shawn 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 evidence.

         On 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.

         Factual and Procedural Background

          1. Adji Ibraham-Tampone Homicide

         In late 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.

         Around 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.

         On 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.

         On 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."

         Tampone 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.

         On 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."

         On 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.

         The 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.

         When 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 to him.

         2. Shawn Rhone Homicide

         We 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 hearing gunshots.
"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).

         Rhone 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.

         Investigators 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.

         Officers 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.

          Ms. 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.

         Brown 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."

         In the 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.

         A jury 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 ...


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