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State v. Brown

Supreme Court of Kansas

March 23, 2018

State of Kansas, Appellee,
v.
Jerone H. Brown, Appellant.

         SYLLABUS BY THE COURT

         1. K.S.A. 60-404 requires a timely and specific objection to the admission of evidence when presented at trial.

         2. Subsequent to State v. King, 288 Kan. 333, 342, 204 P.3d 585 (2009), the three judicially recognized exceptions for allowing appellate review of issues not raised below have not been applied to absolve a party of K.S.A. 60-404 violations.

         3. Where exhibits are identified and treated by court and counsel as if admitted into evidence, despite no formal admission, on appeal they are regarded as admitted and K.S.A. 60-404 applies.

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

          Kristen B. Patty, of Wichita, argued the cause and was on the brief for appellant.

          Lance J. Gillett, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

          NUSS, C.J.

         Jerone Brown appeals his convictions for aggravated robbery and murder. Brown specifically contends the State improperly published to the jury his victim's autopsy photographs that he claims were not admitted into evidence. According to Brown, this action violated his rights to due process and an impartial jury, requiring reversal and remand for a new trial.

         We agree with the State that Brown's issue is not preserved for appellate review. So his convictions are affirmed.

         Facts and Procedural History

         Brown was convicted of two murders, both carried out by multiple defendants. The murder of Shawn Rhone took place in early January 2013. Convicted of this murder were brothers Jerone, Shawn, and Milo Brown, as well as their cousin Myron Peters.

         The murder of Adji Tampone occurred sometime around December 31, 2012. Jerone and Shawn Brown were convicted of this murder. The present appeal involves photographs of Tampone's autopsy.

         At trial, forensic pathologist and deputy coroner Dr. Timothy Gorrill gave detailed testimony about Tampone's autopsy and its accompanying photographs (State's Exhibits 22A through 22H), as exemplified by the following excerpt:

"Q: Dr. Gorrill, when you conduct an autopsy, is it also documented through photographs?
"A: Yes, it is.
"Q: And is that so you can clearly describe for a jury the injuries an individual sustained?
"A: Yes.
"[State's Attorney]: May I approach the witness, ...

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