Opinion
109,814.
05-29-2015
STATE of Kansas, Appellee, v. James L. BROWN, Appellant.
Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant, and James L. Brown, appellant pro se. Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant, and James L. Brown, appellant pro se.
Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before SCHROEDER, P.J., ATCHESON and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
James L. Brown appeals his 17 convictions—9 counts of rape and 8 counts of aggravated human trafficking—all off-grid personal felonies. We have read, considered, and analyzed the record before the district court, Brown's counseled brief, his pro se brief, and the State's brief. Based on the record before us, we find there was more than sufficient evidence to support Brown's convictions by the jury, and there was no trial or sentencing error committed by the district court that requires reversal of Brown's 17 convictions. We affirm.
In June 2011, A.J. disclosed to a neighbor that her mother had sex with her boyfriend, later identified as Brown, while she, age 14 years old, and M.J., age 15 years old, were in the same hotel room watching television. A.J. later revealed to the same neighbor that Brown would also have sex with A.J. and M.J. while their mother was in the same hotel room. The abuse was reported by the neighbor to the Kansas Protection Report Center and the Kansas City police.
The police investigation revealed that Brown resided in Wichita. Police were able to locate a hotel in Wichita where the girls' mother had stayed on previous occasions. The manager of the hotel remembered that the girls' mother would sometimes have a key held for Brown when he arrived at the hotel.
A.J. and M.J. were examined by a sexual assault nurse and the examination revealed both girls had suffered penetrating trauma. Police interviewed Brown on July 12, 2011. He denied knowing A.J. or M.J.
Brown and the girls' mother were each charged with ten counts of rape and ten counts of aggravated human trafficking—all off-grid person felonies. Pursuant to plea negotiations, the girls' mother pled guilty to two counts of aggravated human trafficking and testified for the State at Brown's trial.
Brown's attitude during two pretrial hearings resulted in what he characterizes as “heated exchanges” with the district judge. During one hearing, the district court judge instructed a bailiff to cover Brown's mouth after he kept interrupting the judge. At another hearing, Brown challenged the authority of the district court to have the bailiff cover his mouth. The district judge responded, “[i]f I wanted to I could have you hogtied and out on the floor.” Brown ultimately dared the bailiff to use a taser on him before calling the bailiff a “[b]itch ass motherfucker.” When the district court attempted to find Brown in contempt for that comment, Brown told the district judge, “Fuck you,” “I do not give a shit,” “Fuck you. Fuck you,” and more as reflected in the record. Brown later filed a motion to have the district judge recused, which the district judge denied. The chief district judge then conducted a separate hearing to consider Brown's motion for recusal and denied his request.
At trial, Brown denied abusing A.J. and M.J. The girls' mother testified in detail about the sexual abuse and recounted explicit telephone conversations between Brown and the girls while the girls were in Kansas City.
During a recess of the State's presentation of evidence, Brown informed the district court he wanted to proceed pro se because his attorney did not ask certain questions during cross-examination of M .J. The district court inquired further and attempted to ascertain whether Brown could represent himself. The questioning was mostly contained to two lines of inquiry: (1) whether Brown was mentally competent to represent himself, and (2) whether Brown was sufficiently knowledgeable in the law to adequately represent himself. The district court found Brown's counsel was performing adequately and Brown did not “have the credentials or the ability” to represent himself. Brown's request was denied.
The jury found Brown guilty of nine counts of rape and eight counts of aggravated human trafficking. Brown was sentenced to life imprisonment without any possibility for parole based on his 17 convictions.
Brown timely filed a notice of appeal and was granted permission to file a pro se brief in addition to the brief filed by his appellate counsel.
Analysis
Brown raises five issues in his counseled brief and six issues in his pro se brief. We address each issue from Brown's counseled brief individually and find there was no error committed by the district court. Additionally, we find the issues raised in Brown's pro se brief are so poorly expressed that we combined them for discussion and find them without merit.
Motion for Self–Representation
Brown argues he unequivocally asserted his right to self-representation and the district court erred in denying that request. The State characterizes Brown's statement as dissatisfaction with his counsel's trial strategy which would not warrant reversal. The State also argues that allowing Brown to represent himself midway through the jury trial would have confused the jury and been unduly disruptive.
“[A] defendant has a right to self-representation, [but] that right is unqualified only if it is asserted before trial. [Citation omitted.] If a defendant does not ask to represent himself before trial starts, the court has discretion whether to grant his request for self-representation.” State v. Cromwell, 253 Kan. 495, 505, 856 P.2d 1299 (1993) (citing United States v. Mayes, 917 F.2d 457, 462 [10th Cir.1990], cert. denied 498 U.S. 1125 [1991] ). Judicial discretion is abused when the decision is so arbitrary that no reasonable person would agree with it or when the decision is based on an underlying legal or factual error. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014).
“[B]ecause the right of self-representation frequently conflicts with the right to representation by competent counsel, a court must adopt a presumption against waiver of the right to counsel, and a waiver of the right to represent oneself may be assumed by the failure to unequivocally assert the right.” State v. McCormick, 37 Kan.App.2d 828, 839, 159 P.3d 194 (discussing unequivocal waivers in pretrial hearings), rev. denied 284 Kan. 949 (2007). A statement of dissatisfaction with trial counsel does not amount to a request for self-representation. State v. Hollins, 9 Kan.App.2d 487, 489, 681 P.2d 687 (1984) (citing Moreno v. Estelle, 717 F.2d 171, 176 [5th Cir.1983] ).
Here, Brown made the statement, “I choose to represent myself” after being given the opportunity to discuss trial strategy with his attorney during a recess of the jury trial. On its own, the statement appears to be unambiguous, but when viewed in context of why the statement was made, we see Brown's dissatisfaction was with his attorney's failure to ask questions Brown wanted asked. Again, the record before us reflects Brown's complaint mellowed after the district court explained that an attorney controls the trial strategy and what questions to ask. Brown then said, “ ‘That's all I ask, if he just look them.” Therefore, the record reflects that Brown's statement was not the unequivocal assertion of the right to self-representation now claimed by Brown in his counseled brief.
The district court did not err by informing Brown he could not control his counsel's trial strategy and by denying Brown's less-than-clear request for self-representation during the middle of the jury trial. The district court listened to Brown's complaints, considered them, discussed them with Brown, and did not act arbitrarily or abuse its discretion by denying Brown's request.
Recusal of the District Judge
Brown argues “a heightened and palpable tension” between himself and the district judge led to “several heated exchanges” in pretrial hearings, and the district judge should have recused himself from presiding over Brown's trial. Brown also claims the chief district judge erred by not ordering the district judge to recuse. The State argues Brown failed to comply with the statutory requirements for seeking recusal, a point which Brown concedes. The State also argues Brown fails to identify any recognized instance requiring the judge to recuse himself under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The adequacy of due process is reviewed de novo. State v. Robinson, 293 Kan. 1002, 1030, 270 P.3d 1183 (2012) (citing State v. Hall, 287 Kan. 139, 143, 195 P.3d 220 [2008] ).
“In Kansas, there are at least three possible substantive bases on which a litigant may argue that a judge's recusal is required.” State v. Sawyer, 297 Kan. 902, 905, 305 P.3d 608 (2013). The litigant may rely on K.S.A. 20–311f, the Kansas Code of Judicial Conduct, or the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Sawyer, 297 Kan. at 905–06 (citing Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 876–87, 129 S.Ct. 2252, 173 L.Ed.2d 1208 [2009] ). In addition to recognized common law bases, where “experience teaches that the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable,” recusal is required under the Due Process Clause. Caperton, 556 U.S. at 877 (citing Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 43 L.Ed.2d 712 [1975] ).
Brown's argument almost exclusively relies on Sawyer for legal authority. Brown argues Sawyer stands for the concept that any “inappropriate” behavior by the judge requires recusal and bias should be assumed. In Sawyer, the judge told the defendant to “be quiet” and “shut up” during sentencing. 297 Kan. at 911. Our Supreme Court, however, was more concerned with the fact the judge presided over Sawyer's jury trial after having previously recused himself in an earlier proceeding. The concern was with the judge's “intemperate demeanor” that followed whatever circumstance represented a “need for recusal” that convinced our Supreme Court the judge's bias had not been abated. 297 Kan. at 911–12.
Here, Brown acknowledges his own behavior led to the district judge's reactions. Brown also acknowledges the judge “made a concerted effort to proceed fairly.” Although a judge has a duty to perform judicial duties without bias or prejudice and to avoid conduct manifesting bias or prejudice, see Code of Judicial Conduct Rule 2.3 (2014 Kan. Ct. R. Annot. 762), judges are human and an inartful expression of the judge's ability to control the courtroom cannot be the basis for a presumption of actual bias.
The record before us reflects neither the district judge or the chief district judge erred in denying Brown's motions for recusal. Finally, we note Brown has failed to show in the record or in his briefs how he was prejudiced by the district judge's failure to recuse that justifies reversal of Brown's convictions.
Motion to Suppress
Brown argues the district court erred in denying his pretrial motion to suppress the statements he made during the police investigation. Brown claims he did not waive his Miranda rights and the nature of his confinement during police questioning was coercive, rendering any statements he made inadmissible.
“The contemporaneous-objection requirement of K.S.A. 60–404 specifically applies to the admission or exclusion of evidence.” State v. King, 288 Kan. 333, 346, 204 P.3d 585 (2009) (citing State v. Miller, 268 Kan. 517, 519–20, 997 P.2d 90 [2000] ). Post-Miranda statements are included in this requirement. State v. Richard, 300 Kan. 715, 725–26, 333 P.3d 179 (2014). Accordingly, Brown should have renewed his pretrial objection to the voluntariness of his statements at the time the statements were presented at trial, and he did not make a timely objection.
Again, Brown fails to show this court he made a timely objection during the jury trial to preserve the issue for appeal. Moreover, the record is voluminous and the appellant has the burden of supporting his appeal with appropriate citations to the record. This court may presume that facts lacking appropriate citations to the record are unsupported. Supreme Court Rule 6.02(a)(4) (2014 Kan. Ct. R. Annot. 40.)
Brown has failed to demonstrate this issue was preserved for appellate review, and we decline to address it.
Sufficiency of the Evidence
Brown challenges the sufficiency of the evidence by claiming the girls were coached and the corroborating evidence was not believable. Accordingly, Brown argues the State failed to present sufficient evidence for the jury to convict him beyond a reasonable doubt. The State replies that Brown failed to reveal how the jury's verdict on each charge was not supported to the appropriate standard of proof. Here, Brown invited this court to reweigh the evidence and reassess the credibility of the witnesses, which is something this court cannot do.
“In a criminal action where the defendant contends the evidence at trial was insufficient to sustain a conviction, the standard of review on appeal is: Does the evidence when viewed in the light most favorable to the prosecution convince the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt? [Citation omitted.]” State v. Williams, 229 Kan. 290, 296, 623 P.3d 1334 (1981).
Brown failed to present his argument in a way that allows for meaningful appellate review. Ordinarily, this court would review the challenged evidence, resolve any conflicts in favor of the State, and test the evidence against the elements of the crime it was offered to support. Instead, Brown cast doubt only on whether the girls were believable due to conflicts in their testimony. Additionally, he challenged the credibility of the mother's testimony given the favorable plea agreement she received in exchange for her testimony.
Brown's argument fails since this court will not reweigh evidence or evaluate the credibility of witnesses—that is the jury's responsibility. See Hall, 292 Kan. at 859. The record reflects more than sufficient evidence to support Brown's jury convictions for nine counts of rape and eight counts of aggravated human trafficking beyond a reasonable doubt.
Prior Criminal History
Brown's next challenge is the district court's use of his prior felony sex offense convictions to enhance his sentence as an aggravated habitual sex offender. See K.S.A.2014 Supp. 21–6626(a). Brown argues the district court erred by using his “prior sex offense convictions to increase his mandatory sentence from life without the possibility of parole for 25 years, to life without any possibility of parole.” This argument raises a question of law reviewable de novo. See State v. Ivory, 273 Kan. 44, 46, 41 P.3d 781 (2002) .
In Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), the United States Supreme Court held, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” In Alleyne v. United States, 570 U.S. ––––, 133 S.Ct. 2151, 2163, 186 L.Ed.2d 314 (2013), the United States Supreme Court extended its holding in Apprendi to apply where facts increased the mandatory minimum sentence.
Here, the statutory application of the aggravated habitual sex offender statute applies because of Brown's prior sex-related convictions, and those prior convictions are not “an ‘element’ that must be submitted to the jury” under Alleyne. 133 S.Ct. at 2155. The determination to sentence Brown to “life without any possibility of parole” was based on the statute and Brown's prior criminal history. It did not involve any judicial factfinding regarding Brown's crimes of conviction that were problematic in Alleyne. See State v. Soto, 299 Kan. 102, Syl. ¶ 9, 322 P .3d 334 (2014) (finding that aggravating factors in premeditated murder conviction must be proven to a jury beyond a reasonable doubt).
Apprendi remains good law, and the Kansas Supreme Court has consistently rejected arguments seeking to extend Apprendi to criminal history scores. See, e.g., State v. Snellings, 294 Kan. 149, 166–67, 273 P.3d 739 (2012) ( “the use of prior convictions for sentencing enhancement is constitutional”); State v. Bennington, 293 Kan. 503, Syl. ¶ 9, 264 P.3d 440 (2011) ; State v. Riojas, 288 Kan. 379, 388, 204 P.3d 578 (2009) ; State v. Fewell, 286 Kan. 370, 394–96, 184 P.3d 903 (2008) ; Ivory, 273 Kan. at 46–48.
This court is duty bound to follow the precedent set by our Supreme Court absent some indication it intends to depart from its prior position. Hall, 298 Kan. at 983. Brown points this court to no such indication. Here, the district court correctly used Brown's prior sex-related convictions from his criminal history to impose a sentence of life without any possibility of parole for nine counts of rape (off-grid) and eight counts of aggravated human trafficking (off-grid).
In–State Convictions as Nonperson Felonies
Next, Brown attacked his sentence by claiming two of his three prior felonies should have been scored as nonperson felonies because they predate the adoption of the Kansas Sentencing Guidelines Act (KSGA), following State v. Murdock, 299 Kan. 312, 319, 323 P.3d 846 (2014) (mod. by Supreme Court order September 19, 2014).
Here, Brown misses the point entirely. Murdock applies to how prior crimes are scored as either person or nonperson crimes when sentencing a person for a grid crime under the KSGA. 299 Kan. at 314. Given Brown was convicted of 17 off-grid crimes, Murdock does not apply. Thus, Brown's argument fails. The district court did not err in using his prior criminal history that reflected sex-related crimes to find the aggravated habitual sex offender statute applied at his sentencing.
Brown's Supplemental Brief
Brown filed a motion for leave to submit a supplemental brief pursuant to Supreme Court Rule 5.01(f) (2014 Kan. Ct. R. Annot. 34.) Brown's request was granted by another panel of this court.
Brown raises the following issues in his uncounseled brief:
• The district court erred in failing to dismiss the charges sua sponte.
• The State's complaint was fatally defective.
• The State's amended complaint was fatally defective.
• The charging documents were perjured.
• There were numerous trial errors.
Generally, Brown's supplement brief is incomprehensible and unsupported by legal authority or citations to the record. Although this court should liberally construe pro se pleadings, “it cannot advocate for either side and will not consider arguments not raised or properly briefed.” Campbell v. Hubbard, No. 103,733, 2011 WL 4563075, at *7 (Kan.App.2011) (unpublished opinion) (citing Supreme Court Rule 6.02 [a][5] ). “Issues raised in passing that are not supported by argument or cited authority are deemed waived.” State v. Garza, 290 Kan. 1021, 1034, 236 P.3d 501 (2010). Brown's first four contentions as listed above are so poorly set out that we cannot comprehend them or find support in the record—all are deemed waived.
Finally, Brown's last argument, if liberally construed, could be an argument based on cumulative error by lumping all of his complaints together. Cumulative trial errors, when considered collectively, may require reversal of the defendant's conviction when the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. However, if evidence is overwhelming against the defendant, no prejudicial error may be found based upon the cumulative error rule. State v. Burns, 295 Kan. 951, 960, 287 P.3d 261 (2012), overruled on other grounds by State v. King, 297 Kan. 955, 966–67, 305 P.3d 641 (2013). “Cumulative error will not be found when the record fails to support the errors raised on appeal by the defendant. [Citations omitted.]” State v. Cofield, 288 Kan. 367, 378, 203 P.3d 1261 (2009). Here, the evidence overwhelmingly supports the jury's guilty verdict, and we find no cumulative error.
Conclusion
Brown's challenge to his 17 jury trial convictions—9 counts of rape and 8 counts of aggravated human trafficking involving 2 children ages 14 and 15—are supported by overwhelming evidence. Brown's counseled brief requested we reweigh and evaluate the testimony presented at trial. We decline his invitation. In a light most favorable to the State, there was more than sufficient evidence for the jury to convict Brown of all 17 counts. Brown's challenge to the use of his criminal history based on Apprendi and Alleyne is misplaced. It is well-settled law in Kansas that the use of a defendant's prior criminal history is allowed to determine his or her sentence in compliance with the KSGA. Ivory, 273 Kan. at 46–48. Additionally, we find Murdock does not apply to the facts of this case with all 17 of Brown's convictions being off-grid crimes. Finally, we note Brown's uncounseled brief and, as discussed, find it without merit. We affirm.
Affirmed.