Opinion

State v. Quartez Brown

300 Kan. 565
331 P.3d 797
2014 Kan. LEXIS 440
2014 WL 3973510

Court: Supreme Court of Kansas
Filed: Aug 15, 2014
Status: Published
Author: Johnson
On the bench: Johnson, Moritz, King
Cited by: 99 cases
Authority: More cited than 92.6%

finding error when the prosecutor described the defendant's defense as a "fabrication," "tale," "story," and "yarn"

How later courts described this case

finding error when the prosecutor described the defendant's defense as a "fabrication," "tale," "story," and "yarn"
legally appropriate lesser included instructions of second-degree reckless murder and involuntary manslaughter not factually appropriate where there is not evidence that would reasonably justify a conviction of the lesser offenses
to obtain substitute counsel because of alleged “ ‘lack of performance’ by current counsel,” defendant “ ‘must show “justifiable dissatisfaction” with his or her appointed counsel’ ”
court remands for hearing on motion with direction that defendant be represented by conflict-free counsel

Written by the judges who cited it.

The opinion

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 106,894

STATE OF KANSAS,

Appellee,

QUARTEZ BROWN,

Appellant.

SYLLABUS BY THE COURT

In order to facilitate a meaningful appellate review, the district courts are directed

by Supreme Court Rule 165 (2013 Kan. Ct. R. Annot. 265) that they must make

sufficient findings of fact and conclusions of law on the record.

A criminal defendant has a constitutional right to the effective assistance of

counsel. But the constitutional right to counsel does not give a criminal defendant for

whom counsel has been court-appointed, the right to choose which attorney will represent

the defendant.

If a defendant seeks substitute counsel, the defendant must show justifiable

dissatisfaction with his or her appointed counsel, which can be demonstrated by showing

a conflict of interest, an irreconcilable disagreement, or a complete breakdown in

communication between counsel and the defendant.

A criminal defendant seeking substitute counsel bears the responsibility of

providing an articulated statement of attorney dissatisfaction. The providing of an

articulated statement of attorney dissatisfaction by the defendant will trigger the district

court's duty to inquire into the potential conflict of interest.

A district court's duty to inquire into a potential attorney/client conflict emanates

from its responsibility to assure that a defendant's constitutional right to effective

assistance of counsel is honored. The district court's duty to inquire into a potential

attorney/client conflict accrues when the court first learns of the potential conflict and

that duty does not decay or dissipate through any inaction on the part of the defendant.

The district court's failure to fulfill its duty to inquire into a potential

attorney/client conflict of which it has become aware is an abuse of discretion.

A lack of authority for the defendant to enter the building is an element of the

crime of aggravated burglary, separate and apart from the element that the entry be

accompanied with an intent to commit a felony therein. A lack of authority to enter a

building is not refuted simply because the entry door is always unlocked or because

persons other than the defendant have been given free access to the building.

In this case, a victim's statement that she felt threatened when the defendant

pointed a gun at her and demanded that she get down on the floor was sufficient evidence

to support the apprehension of immediate bodily harm element of aggravated assault.

For jury instruction issues, the progression of analysis and corresponding

standards of review on appeal are: (1) First, the appellate court should consider the

reviewability of the issue from both jurisdiction and preservation viewpoints, exercising

an unlimited standard of review; (2) next, the court should use an unlimited review to

determine whether the instruction was legally appropriate; (3) then, the court should

determine whether there was sufficient evidence, viewed in the light most favorable to

the defendant or the requesting party, that would have supported the instruction; and (4)

finally, if the district court erred, the appellate court must determine whether the error

was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292

Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).

10.

In order for a defendant to be entitled to a reduced charge because he or she acted

in the heat of passion, his or her emotional state of mind must exist at the time of the act

and it must have arisen from circumstances constituting sufficient provocation.

11.

For a defendant to be entitled to lesser included offense instructions on

unintentional but reckless second-degree murder and involuntary manslaughter, there

must be evidence to support a finding that the killing was unintentional.

Appeal from Sedgwick District Court; ANTHONY J. POWELL and GREGORY L. WALLER, judges.

Opinion filed August 15, 2014. Reversed and remanded with directions.

Joanna Labastida, of Kansas Appellate Defender Office, argued the cause and was on the brief

for appellant.

Boyd K. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston,

district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

JOHNSON, J.: Quartez Brown (Quartez) directly appeals from his convictions for

felony murder, the alternative charge of second-degree murder, aggravated burglary, and

aggravated assault. The charges arose out of an incident in which Quartez, Kevin Brown

(Brown), Kiara Williams, and Jalessa Bonner went to the apartment of Otis Bolden,

where Quartez and Brown entered the apartment, assaulted Ashley Green with a

handgun, and fatally shot Bolden.

Quartez contends: (1) The district court abused its discretion in not inquiring into

the reasons behind his pro se motion for new counsel before allowing its withdrawal

outside Quartez' presence and without a hearing; (2) insufficient evidence supported his

aggravated burglary, felony murder, and aggravated assault convictions; (3) the district

court should have given lesser included offense instructions on voluntary manslaughter,

reckless second-degree murder, and involuntary manslaughter; (4) the district court erred

in journalizing his second-degree murder conviction as an off-grid crime; and (5) the

district court violated his rights under the Sixth and Fourteenth Amendments to the

United States Constitution based on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct.

2348, 147 L. Ed. 2d 435 (2000), by considering his prior convictions at sentencing.

Finding that the district court erred in not inquiring before allowing the apparently

nonconsensual withdrawal of Quartez' pro se motion for new counsel, we remand on this

issue. We also remand for a nunc pro tunc order correcting the severity level of Quartez'

second-degree murder conviction. We reject Quartez' remaining claims of error.

FACTS AND PROCEDURAL BACKGROUND

The events leading to this criminal prosecution began to unfold in the early

morning hours of April 26, 2010, when Williams and Bonner, together with their friend,

Rika Evans, left a local club and gathered at Bolden's apartment, along with Reader

Watley. After Bonner accompanied Bolden into his bedroom, she interpreted a comment

he made as indicating that he had participated with a group of men who had raped her

some 2 years earlier. That prompted Bonner to ask to leave the apartment.

Bolden drove the three women—Bonner, Williams, and Evans—to the home of

Bonner and Evans on Glendale, albeit Williams would return to Bolden's apartment to

stay the night. En route back to his apartment, Bolden picked up Green. Bolden and

Green spent the night in his bedroom, while Williams and Watley spent the night on the

couch. There was conflicting testimony as to whether there was any sexual activity

involving Williams. Watley drove Williams home the next morning.

That same morning, Bonner told her boyfriend, Brown, about Bolden's

involvement in her prior rape. Additionally, according to Bonner, Williams told Brown

that Watley and Bolden had sexually assaulted her the night before. Brown then called

his cousin, Quartez, who came to the Glendale house where the group discussed a course

of action. Evans noted that Brown was visibly upset but Quartez was not. Quartez,

Brown, Williams, and Bonner left in Quartez' car to go to Bolden's house. Evans and

Bonner both testified that they believed the Brown cousins intended to fight Bolden but

neither believed the men would kill Bolden. But on the way to Bolden's house, the group

stopped at "Drop's" house, ostensibly to pick up firearms.

The Brown cousins were not friends with Bolden and had never been to Bolden's

apartment, so Bonner directed them. When the group arrived at the apartment complex,

Quartez backed into a parking spot. The Brown cousins left the car and opened the

unlocked door to Bolden's apartment. They first encountered Green in the living room

and, at gunpoint, directed her to lie on the ground and asked for Bolden's location.

Initially, Green thought the men were Bolden's friends that were "playing" with him.

Nevertheless, Green was afraid and felt threatened by the cousins' actions. The cousins

proceeded to the bedroom indicated by Green, and she heard gunshots, together with the

inquiry, "[W]hy did you rape my home girl?" Green then heard a window shatter and saw

one of the assailants exit the apartment through the living room. Apparently, Bolden

jumped through a bedroom window and attempted to get away, although he would be

discovered later on the sidewalk at the complex.

When Bonner saw Bolden limping around the apartment building, she moved to

the driver's seat of the vehicle and retrieved the Brown cousins. The group briefly

stopped at Drop's house before returning to the Glendale house. Once back at the

Glendale house, Bonner asked Brown what happened at Bolden's apartment. He

explained that they were just going to talk to Bolden, but it looked as if Bolden was about

to reach for something in his side-table drawer, so Brown shot him. Brown said that after

his gun jammed, Quartez shot.

Passersby discovered Bolden on an apartment complex sidewalk and summoned

emergency personnel, who transported Bolden to the hospital, where he died from

multiple gunshot wounds. Bolden had superficial wounds at his genital area and an

entrance and exit wound on his left thigh, but the majority of Bolden's gunshot wounds

entered his body from the back side.

A crime scene investigation revealed no signs of forced entry into Bolden's

apartment. In the bedroom, an investigator found five .25 caliber shell casings, one .45

caliber shell casing, and a Bluetooth earbud that was still blinking. The deoxyribonucleic

acid (DNA) profile found on the earbud was a mixture of at least three individuals, but

the DNA of the major contributor was consistent with Quartez' profile. At trial, the State

presented three photos from Quartez' cellphone depicting a man presumed to be Quartez

wearing a Bluetooth earbud.

Based on these events, the State charged Quartez with first-degree premeditated

murder, or in the alternative, first-degree felony murder, aggravated burglary, and

aggravated assault. Before his trial began, Quartez filed a pro se motion requesting the

district court to appoint him new counsel. The motion was set for a hearing, but on the

day the hearing was scheduled, the record indicates that the motion was withdrawn. The

record does not indicate who withdrew the motion. The motion is not discussed again on

the record until Quartez mentioned it during his sentencing hearing.

A jury found Quartez guilty of first-degree felony murder, second-degree murder

as a lesser included offense of first-degree premeditated murder, aggravated burglary, and

aggravated assault. The district court did not impose a sentence for the second-degree

murder conviction, but at the request of the State and with defense counsel's approval, the

district court did not dismiss the second-degree murder conviction. The district court then

imposed sentences of 20 years to life imprisonment and postrelease supervision of life for

the felony-murder conviction, 34 months' imprisonment for aggravated burglary, and 12

months' imprisonment for aggravated assault, ordering the sentences to run concurrently.

Of the other three participants, Bonner entered a plea, was sentenced, and has not

appealed. The other two—Brown and Williams—went to trial, were convicted, and have

appeals pending before this court which were heard on the same docket with Quartez'

case. However, the three pending appeals raise completely different issues, prompting us

to treat them as separate cases.

WITHDRAWAL OF PRO SE MOTION FOR NEW COUNSEL WITHOUT INQUIRY

Quartez first argues that the district court abused its discretion in allowing

someone to withdraw his pro se motion for new counsel without making a sufficient

inquiry into the circumstances prompting the motion. The State does not defend the

district court's actions on the merits, but rather it counters with a procedural strategy.

Specifically, the State contends that, pursuant to K.S.A. 2013 Supp. 22-3501, Quartez

only had 14 days to make his claim for a new trial and that his oral motion at sentencing

was too late, depriving the district court of jurisdiction to consider the claim of error, and,

thus, precluding our consideration of his complaint.

Standards of Review

Whether jurisdiction exists is a question of law over which this court's scope of

review is unlimited. State v. Berreth, 294 Kan. 98, 109, 273 P.3d 752 (2012).

If we clear the jurisdictional hurdle, we review the district court's inquiry into a

potential conflict of interest under the abuse of discretion standard. State v. Stovall, 298

Kan. 362, 370, 312 P.3d 1271 (2013). That standard is stated as follows:

"Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable,

i.e., no reasonable person would take the view adopted by the trial court; (2) is based on

an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is

based on an error of fact, i.e., substantial competent evidence does not support a factual

finding on which a prerequisite conclusion of law or the exercise of discretion is based."

State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594

(2012).

The defendant bears the burden of showing that the district court abused its

discretion. State v. Hulett, 293 Kan. 312, 319, 263 P.3d 153 (2011).

Analysis

Before proceeding further, we pause to observe that this case highlights how a

cavalier approach to making a record in the district court can impede, if not foreclose, a

meaningful appellate review and, thus, needlessly consume scarce judicial resources. In a

case from the same judicial district, where the practice is to memorialize rulings on

motions with preprinted minute sheets upon which the presiding judge inks a checkmark

in a box or two and, perhaps, scribbles a few words of cryptic explanation, we set forth

the following cautionary instruction:

"It is true that to facilitate a meaningful appellate review, the district court must

make sufficient findings of fact and conclusions of law on the record. State v. Moncla,

269 Kan. 61, 65, 4 P.3d 618 (2000); Supreme Court Rule 165 (2009 Kan. Ct. R. Annot.

239). This obligation is emphasized in Rule 165, which states in part that '[i]n all

contested matters submitted to a judge without a jury . . . , the judge shall state the

controlling facts required by K.S.A. 60-252, and the legal principles controlling the

decision.'" (Emphasis added.) State v. Edwards, 290 Kan. 330, 335, 226 P.3d 1285

(2010).

Unfortunately, a scant 9 months after the foregoing statement of a district court's

obligation to explain its ruling, the Eighteenth Judicial District failed to do so in this case.

There is no record that a judge made an oral ruling on the motion's disposition and the

written ruling is a checkmark in the box next to the preprinted words, "Withdrawn," on a

minute sheet.

What we do know from the record is that, before his trial began, Quartez filed a

pro se motion requesting that the district court appoint him a new defense counsel. The

motion alleged that there had been a "lack of performance" by current counsel, as well as

a "complete breakdown of communication," whereby current counsel "refus[ed] to

communicate 'at any level.'" The motion also alleged that Quartez was filing a complaint

against his attorney with the office of the Disciplinary Administrator.

The record also tells us that the motion was set for hearing before District Judge

Warren M. Wilbert, to be heard on January 21, 2011. But there is no record of a hearing

being held on that date; we only have the minute sheet indicating that the motion was

withdrawn. Moreover, the appearance docket lists District Judge Gregory L. Waller as

the presiding judge on the hearing date, and the illegible signature affixed to the minute

sheet appears to match an earlier order that identified Judge Waller as the signatory. As

we have suggested, the minute sheet does not reveal who requested the withdrawal or

whether the movant consented to that disposition.

As the State points out, the record does not reveal whether Quartez repeated his

complaints about his defense attorney prior to or during his jury trial, which was presided

over by yet another judge, District Judge Anthony Powell, who also presided over the

sentencing. But at sentencing, when Quartez was specifically asked by the court whether

he had anything to say, the following colloquy occurred:

"THE DEFENDANT: Yes, I would like to say something. The first thing I

would like to say—I wrote this down. This is information on the record. December 29th,

2010, I filed a motion to fire my attorney. I was set a court day for this motion on January

21st, 2011. My lawyer then came to see me and pleaded with me not to fire him. I told

him that I did not wish to speak with him until court. When my court date came, I never

was called to be in the courtroom. My lawyer came in on a later visit and said that the

judge withdrew my motion, so this whole time I've been trying to fire him and never got

a chance to hear it in front of a judge. I feel with me not given the appropriate—

opportunity to fire him, I might have had a greater chance at being—beating my case

because he was not working in my favor.

"MR. [STEVEN] MANK [Defense counsel]: Well, that's news to me, Judge.

"THE COURT: Well, Mr. Brown, that's really something. I find your statement

to be, with all due respect, outrageous. You have got one of the best lawyers in this

community. Mr. Mank is one of the most respected, able defense attorneys—

"THE DEFENDANT: Well—

"THE COURT: Don't speak. Do not speak—that I've had the pleasure to work

with. And I think anyone, and you ask any lawyer, and they would say the same thing

about Mr. Mank. The fact is, from my observations in court, you got an able defense, I

think the best under the facts of the case. The facts are what the facts are, and you're

responsible for those facts.

"I think for you to come into this court now on the date of your sentencing and to

raise an issue of why—that you wanted to fire your lawyer, I find that to be particularly

troubling to this Court. But you have the right to file such a motion and you can make

those proper motions if you wish to do so, but I will tell you right now that my

observations of defense counsel, that his representation was more than is constitutionally

adequate. It was superior in every respect. And it's unfortunate that you seek, even today,

even after what you've heard, seek to blame others for your predicament. The only reason

that we're here is because of what you did.

"One of the speakers said that you're a follower when leadership was required,

and here at the opportunity that I give you to make some amens, you choose once again

to be a follower and not a leader, and I find it to be most despicable, with all due respect,

sir. What you've done—and the reason I allowed the victims to speak is so you would

understand the gravity of the acts that you've done, that you would understand that the

things that you've done can't be undone, and it would appear that all that appears to be

lost on you and you want to talk about firing your lawyer. I just—I find it incredible. Mr.

Mank was appointed to this case. He didn't ask to serve. He was asked by the court to

serve. Mr. Mank can go and do private work and get paid far more money for far less

hassle, but he agreed to represent you for the minimal amount that the government, that

the State pays because he knew that you were entitled to a defense. Unbelievable.

"MR. MANK: Judge, if I may add something for the record. I met with my client

last Thursday. We went over the presentence investigation report. We discussed

sentencing. None of this was mentioned to me.

"THE DEFENDANT: Your Honor, I asked for him to take some of my things

and to defend me. Because I have things that I did want him to say that he did not say,

and I asked him to file motions that I would need him to file but also—

"THE COURT: You're not the lawyer in this case, are you, Mr. Brown? You're

not the lawyer. You don't have legal training. Right?

"THE DEFENDANT: But I also—

"THE COURT: Mr. Mank has the right to decide your trial strategy, not you.

He's the one with the legal knowledge. Why do you think that you want to play lawyer?

"THE DEFENDANT: I didn't want to player lawyer, Your Honor. I just wanted

him to ask these questions. And I also have an apology to the family also, but I just

wanted to bring this forward.

"THE COURT: Mr. Brown, you have the right to file a motion, an action

alleging ineffective assistance of counsel after your appeals are exhausted. Once your

appeals are exhausted, you have a year from that time to file any ineffective assistance of

counsel claims that you wish to do. So I'll just advise you of your right to do that, and if

you wish to do it at that time you can do it."

Jurisdiction

The State sets up its jurisdictional argument by characterizing Quartez' statements

at allocution as a motion for new trial based upon ineffective assistance of trial counsel.

Then, it shoots down the "new trial motion" as untimely because it was made more than

14 days after the trial ended. See K.S.A. 2013 Supp. 22-3501(1) (new trial motion on any

other grounds than newly discovered evidence must be filed within 14 days of verdict or

finding of guilty). Curiously, the State's brief also points out the rather obvious

circumstance that the timely filed new trial motion, prepared and filed by trial counsel,

did not claim that the district court erred in not removing trial counsel. That would have

certainly placed trial counsel in a conflicted posture.

Nevertheless, as we read the defendant's statements at sentencing, he is

complaining that the district court refused to hear his pro se motion for new counsel,

which was timely filed, prior to trial. His complaint on appeal is that the district court

failed to perform its duty to inquire into a potential conflict he had with his attorney, after

being put on notice of the conflict by defendant's pro se motion. In recent direct appeals,

this court has considered the issue of a trial court's duty to inquire into a potential

attorney conflict. See, e.g., State v. Sharkey, 299 Kan. 87, 322 P.3d 325 (2014); Stovall,

298 Kan. 362; State v. Wells, 297 Kan. 741, 305 P.3d 568 (2013). We see no

jurisdictional impediment to do so again in this case.

Failure to Inquire

We begin by stating the well-known principle that both our federal and state

constitutions guarantee the right of criminal defendants to have the assistance of counsel.

That right to counsel "requires more than the presence of an attorney; it guarantees the

right to effective assistance from the attorney." (Emphasis added.) State v. Galaviz, 296

Kan. 168, 174, 291 P.3d 62 (2012).

Yet, our constitutions do not guarantee the defendant the right to choose which

attorney will be appointed to represent the defendant. If a defendant seeks substitute

counsel, the defendant "must show 'justifiable dissatisfaction' with his or her appointed

counsel," which can be "demonstrated by showing a conflict of interest, an irreconcilable

disagreement, or a complete breakdown in communication between counsel and the

defendant." Wells, 297 Kan. at 754. The defendant bears the responsibility of providing

"'an articulated statement of attorney dissatisfaction,'" which will, in turn, "'trigger the

district court's duty to inquire into a potential conflict'" of interest. (Emphasis added.)

Wells, 297 Kan. at 755 (quoting State v. Rand, No. 106,774, 2012 WL 6634397, at *5

[Kan. App. 2012] [unpublished opinion]); see also State v. Taylor, 266 Kan. 967, 979,

975 P.2d 1196 (1999) (discussing Wood v. Georgia, 450 U.S. 261, 272, 101 S. Ct. 1097,

67 L. Ed. 2d 220 [1981], for proposition that district court aware of possible conflict of

interest between attorney and defendant charged with felony has "a duty to inquire

further").

Here, Quartez' motion for new counsel contained sufficient information to trigger

the district court's duty to make further inquiry. The record does not reflect that the

district court even attempted to fulfill that duty.

To the contrary, Quartez' in-court statement suggesting that the judge sua sponte

withdrew the motion without Quartez' consent and without his knowledge is the only

statement before us as to what occurred. Contrary to the State's argument, we view the

defense counsel's response—"Well, that's news to me, Judge"—as being ambiguous, at

best, especially in the context of counsel's later statements. Interestingly, the sentencing

transcript does not reflect that either the sentencing judge or the prosecutor attempted to

refute Quartez' description of how his pro se motion for new counsel was handled. That

description, in addition to raising due process concerns, obviously refutes the notion that

the district court made the requisite inquiry into whether the alleged problems between

Quartez and his attorney rose to the level of justifiable dissatisfaction. Moreover, when

the court was given another opportunity to inquire during defendant's allocution at

sentencing, the court actually prevented defendant from providing further information on

the conflict by demanding that he not speak while the judge gratuitously and strenuously

opined on trial counsel's virtues. We have recently found such a failure to inquire to be an

abuse of discretion. See State v. Sharkey, 299 Kan. at 98 (district court abused its

discretion by failing to make appropriate inquiry into potential conflict of interest);

Stovall, 298 Kan. at 370 (district court abuses its discretion when it makes no inquiry into

nature of conflict).

Quartez relies heavily on State v. Vann, 280 Kan. 782, 127 P.3d 307 (2006), where

this court held that the trial court abused its discretion by failing to consider the

defendant's pretrial pro se motion to discharge counsel. Vann followed up with a letter to

the clerk inquiring about the motion and later requested to proceed pro se, but he did not

mention the motion for new counsel again until the hearing on his motion for new trial.

The district court told Vann that he should have raised the new counsel issue when the

court considered his other pro se pretrial motions. Vann complained again at sentencing,

arguing that he could not have had a fair trial when he and his counsel had a conflict of

interest. The district court ignored the complaint and proceeded to sentencing. The Court

of Appeals similarly rejected Vann's arguments, ruling that Vann had multiple

opportunities after he filed his pro se motion to discharge his counsel to bring the motion

to the court's attention and failed to do so until posttrial, which the Court of Appeals

deemed to be too late.

This court disagreed with the lower courts, finding that the district court knew of

Vann's pretrial motion to discharge his counsel, his follow-up letter to the clerk, and his

pretrial motion to proceed pro se, and that knowledge, together with the posttrial

assertions of a conflict, rendered the court's failure to inquire an abuse of discretion

requiring remand to the district court. Vann, 280 Kan. at 792. The State's attempt to

distinguish Vann as a case involving the right to proceed pro se is unavailing. But we

must clarify the portion of Vann that distinguished the prior Court of Appeals decision in

State v. Boyd, 27 Kan. App. 2d 956, 965, 9 P.3d 1273, rev. denied 270 Kan. 900 (2000).

In Boyd, the Court of Appeals rejected Boyd's argument that the trial court

violated his constitutional rights by ignoring his pro se pretrial motion to dismiss counsel,

reasoning as follows:

"There is nothing in the record to indicate that Boyd ever objected to the

appearance of his trial counsel. Boyd appeared with his attorney at the motions hearing,

the jury trial, the motion for new trial, and at sentencing. He had ample opportunity to

object to the presence of his attorney. Also, an issue not presented to the trial court, as is

the case here, will not be considered for the first time on appeal." 27 Kan. App. 2d at 965.

Vann distinguished Boyd by noting that Vann had "raised the issue of his pro se

motion for new counsel on repeated occasions before the district court." Vann, 280 Kan.

at 790. While that factual distinction was present, we discern that Boyd's rationale simply

does not comport with our current decisions. A district court's duty to inquire into a

potential attorney/client conflict emanates from its responsibility to assure that a

defendant's constitutional right to effective assistance of counsel is honored. Sharkey, 299

Kan. at 96 (quoting State v. Carter, 284 Kan. 312, 321, 160 P.3d 457 [2007]). The duty to

inquire accrues when the court first learns of the potential conflict, and that duty does not

decay or dissipate just because a pro se defendant fails to give the court multiple

reminders of its duty throughout the proceedings. As noted in Wells, what a defendant is

obligated to do to invoke the trial court's duty to inquire is to provide an articulated

statement of attorney dissatisfaction. 297 Kan. at 754. We decline to add a further

requirement of repetitive notice.

We pause to clarify that we are not saying that a district court cannot permit a pro

se movant to withdraw his or her motion for new counsel. But such a withdrawal must be

the personal, voluntary, and knowing act of the defendant, and the record must reflect

that circumstance. Otherwise, a district court receiving a motion for new counsel that

contains an articulated statement of attorney dissatisfaction acquires the duty to make

reasonable inquiry into the potential conflict of interest and the failure to do so constitutes

an abuse of discretion. Moreover, after a defendant has triggered the district court's duty

to inquire into a potential attorney/client conflict, the defendant does not thereafter waive

his or her right to conflict-free counsel by failing to renew the motion for new counsel

periodically throughout the proceedings.

Here, the record reflects that Quartez triggered the district court's duty to inquire

into a potential attorney/client conflict with his pro se motion for new counsel. The

record does not reflect that Quartez personally, voluntarily, and knowingly withdrew the

motion, and the record does not reflect that the district court made an inquiry into the

potential conflict of interest. Consequently, the district court abused its discretion.

On the other hand, as the State points out, this court is not in a position to make

the factual findings that would be necessary to reverse Quartez' convictions. Without the

district court's inquiry we do not have a suitable record on appeal to assess the alleged

conflict of interest or to determine whether any conflict found to exist "'adversely

affected his counsel's performance.'" Vann, 280 Kan. at 792 (quoting State v. Gleason,

277 Kan. 624, 653-54, 88 P.3d 218 [2004]). Therefore, we remand with instructions for

the district court to conduct a hearing on Quartez' claim of attorney dissatisfaction, at

which the defendant is to be represented by conflict-free counsel. At the conclusion of the

hearing, the district court shall determine whether Quartez has established justifiable

dissatisfaction with his counsel and whether that conflict adversely affected the adequacy

of the attorney's representation.

SUFFICIENCY OF THE EVIDENCE

Quartez also argues that insufficient evidence supported his aggravated burglary,

felony murder, and aggravated assault convictions. Notwithstanding our remand on the

first issue, we must analyze the sufficiency issue to determine whether Quartez is entitled

to an outright reversal.

Standard of Review

Our standard of review for sufficiency of the evidence challenges is well

established:

"When the sufficiency of evidence is challenged in a criminal case, this court

reviews all the evidence in the light most favorable to the prosecution in determining

whether a rational factfinder could have found the defendant guilty beyond a reasonable

doubt. State v. Frye, 294 Kan. 364, 374-75, 277 P.3d 1091 (2012). In determining

whether there is sufficient evidence to support a conviction, this court will not reweigh

the evidence or reassess the credibility of the witnesses. State v. Hall, 292 Kan. 841, 859,

257 P.3d 272 (2011)." State v. Brown, 298 Kan. 1040, 1054, 318 P.3d 1005 (2014).

Aggravated Burglary

One of Quartez' convictions was for aggravated burglary, which is defined in

K.S.A. 21-3716 as "knowingly and without authority entering into or remaining within

any building . . . in which there is a human being, with intent to commit a felony . . .

therein." In this case, the jury was instructed that the State had to prove the following

elements:

"1. That the defendant knowingly entered a building;

"2. That the defendant did so without authority;

"3. That the defendant did so with the intent to commit aggravated assault

[against Bolden] a felony therein;

"4. That at the time there was a human being in the building; and

"5. That this act occurred on or about the 26th day of April, 2010, in Sedgwick

County, Kansas." (Emphasis added.)

Quartez asserts that the State failed to present sufficient evidence to prove that his

entry into Bolden's apartment was without authority. Quartez points to State v. Harper,

246 Kan. 14, 25-26, 785 P.2d 1341 (1990), where this court found that the legislature

intended "entry without authority and entry with intent to commit a felony or theft to be

two separate elements." While Harper's legal holding is applicable here, the factual

differences in this case do not mandate the same result.

In Harper, the defendant had an "extremely broad grant of authority to enter and

use" the office at a softball complex where he worked. 246 Kan. at 25. Specifically,

Harper had a key to the office and authority to enter the office for his duties as the

complex's groundskeeper, in his role as umpire, for the construction work he was

contracted to perform for the complex, and when he had too much to drink to drive home.

The Harper court found that because he had authority to enter the building, he could not

be convicted of burglary even though he did not have permission to take the records he

was in the office to obtain. The court reasoned that Harper's authority to enter the office

was not negated even where his entry was for an unlawful purpose. 246 Kan. at 20.

Quartez argues that his authority to enter the apartment emanated from the fact

that Bolden did not lock the door to his apartment and did not even have a key to the

entry door. Apparently, Quartez believes that an unlocked entry door is an invitation for

anyone to walk into the abode unannounced at any time. One can only imagine the

euphoria among members of law enforcement upon learning that an unlocked apartment

door provides them with the authority to enter at will. Of course, such a ludicrous

proposition does not comport with either common sense or the law. Any rational person

should know that, without more, a closed door at a residence—whether locked or not—

signals the need to obtain permission to enter. Legally, our legislature "eliminated the

common-law requirement that a burglary involve a 'breaking.'" State v. Storey, 286 Kan.

7, 12, 179 P.3d 1137 (2008) (citing Judicial Council Comment, 1968, to K.S.A. 21-3716

[Weeks]); see also 3 Wharton's Criminal Law §§ 317-318 (15th ed. 1995) ("There is an

actual break if the defendant makes an opening in the dwelling house, i.e., he removes

some obstruction in order to enter. . . . It is enough merely that he open a closed but

unlocked door."). Here, Green testified that Quartez and Brown opened the door to enter

the apartment unannounced and without permission.

Quartez also argues that he had apparent permission to enter the apartment, based

upon: (1) Watley's testimony that people came and went as they pleased from Bolden's

apartment and people "crashed" there; and (2) Green's testimony that she initially thought

Quartez and Brown were playing a joke on Bolden. Again, we reject the premise.

Granting some people permission to enter the apartment at will does not imply that all

persons have the same authority. See State v. Fondren, 11 Kan. App. 2d 309, 315-16, 721

P.2d 284 (discussing implied and express authority with respect to school building), rev.

denied 240 Kan. 805 (1986).

Here, viewing the evidence in the light most favorable to the State, the Brown

cousins did not have either express or implied authority to enter Bolden's apartment.

Bonner testified that she did not believe that the cousins had permission to enter the

apartment and Bolden did not invite them in. Bonner further explained that prior to the

early morning in question, she had never been to Bolden's apartment and, to her

knowledge, Brown and Bolden were not friends and the Brown cousins had not

previously been to Bolden's apartment. The evidence that other people freely entered and

left Bolden's apartment did not establish an implied authority for strangers to enter the

apartment uninvited. Consequently, we find that the State presented sufficient evidence to

establish all of the elements of aggravated burglary.

Felony Murder

Quartez next argues that the State presented insufficient evidence to support his

felony-murder conviction because the evidence was insufficient to support the underlying

felony of aggravated burglary. We can dispose of this issue forthwith.

First, the State was not required to prove that Quartez was convicted of the

aggravated burglary, just that the killing was done while he was in the commission of the

underlying felony. See State v. Wise, 237 Kan. 117, 122-23, 697 P.2d 1295 (1985)

(completion of underlying felony not essential element of felony murder; acquittal of

underlying felony not inconsistent with felony-murder conviction). Nevertheless, the

simple answer is that the State did present sufficient evidence of the underlying felony, so

that the evidence was sufficient for the felony-murder conviction, as well.

Aggravated Assault

Quartez' final sufficiency of the evidence challenge is to his conviction for the

aggravated assault against Ashley Green. Aggravated assault under K.S.A. 21-3408 and

K.S.A. 21-3410(a) "is intentionally placing another person in reasonable apprehension of

immediate bodily harm" committed with a deadly weapon. Quartez argues the State did

not prove Green was in immediate apprehension of bodily harm. See Spencer v. State,

264 Kan. 4, 6, 954 P.2d 1088 (1998) ("[T]here can be no crime of assault without

apprehension by the victim of bodily harm.").

Quartez argues Green's direct examination established that she was not afraid until

after the threat to her had passed. The following exchange occurred after Green described

the shooting:

"[Prosecution] Q. Okay. What were you doing this whole time?

"A. On the floor, covering my eyes, praying, head down.

"Q. Were you—this may seem like a silly question, but were you afraid?

"A. Yes."

Quartez also argues that Green's cross-examination established that Green thought

that the Brown cousins were friends of Bolden's, did not threaten her, and did not seem

interested in her. Quartez' argument is based upon the following exchange:

"[Defense counsel] Q. After the two guys came in, it appeared to you that they

weren't even interested in you, didn't it?

"A. I don't know.

"Q. I mean, they told you to get down and they went into Otis's room?

"A. Yeah.

"Q. They didn't even threaten you, did they?

"A. No. I mean—

"Q. You even told the detective that you thought initially they were his friends,

didn't you?

"A. (Witness nodding head.) Yeah.

"Q. And why did you think that?

"A. I thought they was playing. I didn't know.

"Q. So—

"A. I didn't know. I didn't know. I thought they was playing. I didn't know that—

I don't know.

"Q. Were those the kind of friends that Otis would have as somebody that would

come into his house, carrying guns?

"A. I don't know.

"Q. But that's what you thought, they could be his friends?

"A. I don't know."

On redirect examination, the prosecutor asked Green: "[Defense counsel] asked

you did they ever threaten you. Did the two people who came in the apartment point their

guns at you?" Green responded: "That's considered a threat to me."

Quartez relies on State v. Warbritton, 215 Kan. 534, 527 P.2d 1050 (1974), in

which the defendant was convicted of aggravated assault for pointing a gun at his mother-

in-law, after he had shot his wife. The mother-in-law was holding the defendant's baby

and testified that she did not fear for her own safety because she thought Warbritton

would hit the baby first if he shot and would not hurt her. A majority of this court

reversed the aggravated assault conviction because the victim's testimony negated the

element that she be placed in immediate apprehension of harm to herself. 215 Kan. at

538.

Without commenting further on the Warbritton opinion, we find that the facts

presented here are more akin to those in State v. Lessley, 271 Kan. 780, 26 P.3d 620

(2001). There, Lessley confronted his ex-girlfriend, Lisa Sears, with a gun in an

apartment complex parking lot. During the confrontation, Sarah and Darrell Blackman

drove toward Lessley and Sears. Sears blocked the path of the Blackmans' car and asked

them to stop. Sarah rolled down the car window, and Sears pleaded with the Blackmans

not to drive away. Lessley showed Sarah his gun and told the Blackmans to continue

driving. After the Blackmans drove away, Lessley shot and killed Sears.

On appeal, Lessley argued Warbritton entitled him to relief because the State did

not present sufficient evidence that Sarah was placed in immediate apprehension of

bodily harm. Lessley relied upon Sarah's testimony during cross-examination that she did

not feel threatened as long as she did not get involved. She explained on redirect

examination that she felt if she and her husband got involved, their lives would be at

stake and that she felt threatened. On recross-examination, Sarah agreed that Lessley had

not verbally threatened her life and "'[h]arm was not being immediately threatened

against' her." 271 Kan. at 788.

After discussing both the majority and dissent in Warbritton, the Lessley majority

concluded that despite Sarah's testimony that she did not feel threatened as long as she

complied with Lessley's demands, "Sarah obviously had great fear for her safety and

well-being." 271 Kan. at 790. The majority focused on the evidence establishing that

Sarah was less than 3 feet from a man with a gun, panicked when she saw the gun and

asked her husband to keep driving, and was hysterical while she and her husband looked

for a telephone to call for help. The dissent focused on the notion that Sarah did not feel

threatened if she complied with Lessley's demands. 271 Kan. at 800 (Allegrucci, J.,

dissenting).

Similarly, in State v. Hurt, 278 Kan. 676, 688-89, 101 P.3d 1249 (2004), this court

found sufficient evidence to establish reasonable apprehension of immediate bodily harm

notwithstanding some inconsistent testimony from the victim. Pointedly, in Hurt, the

victim ran away when Hurt pointed a gun at him and then Hurt fired the weapon at the

victim as he ran away. Certainly, the victim's actions were most consistent with his

testimony that he was scared when he ran away from the gun and the shots.

Unlike in Warbritton, we are not faced with unequivocal testimony that Green was

not afraid for herself. See 215 Kan. at 537-38. At most, the defendant can point to some

inconsistencies in the victim's testimony, as in Lessley and Hurt. Although Green testified

that she initially thought the men might be playing a joke on Bolden, she clearly said that

she considered it a threat when they pointed the guns at her. Moreover, if she were not

afraid, why did she immediately comply with the armed men's demand to get on the

ground? If a person complies with a demand made at gunpoint, it is logical to infer that

the compliance was motivated by a fear of bodily harm. If Green truly did not experience

an apprehension of immediate bodily harm, she would not have hit the ground and given

up the location of Bolden. See State v. Nelson, 224 Kan. 95, 96, 577 P.2d 1178 (1978)

(noting that circumstantial evidence can establish victim's fear of bodily harm); see also

State v. Powell, 266 Kan. 282, 291, 971 P.2d 340 (1998) (noting that because the

Warbritton opinion did not discuss circumstantial evidence, this court must assume there

was none). The evidence was sufficient to support the jury's conviction for aggravated

assault.

LESSER INCLUDED OFFENSE INSTRUCTIONS

Quartez next contends that the district court erred in denying his requested lesser

included offense instructions on voluntary manslaughter, reckless second-degree murder,

and involuntary manslaughter. Obviously, if the district court determines, after

conducting the aforementioned hearing with conflict-free defense counsel, that a conflict

existed between Quartez and his trial counsel that adversely affected the adequacy of trial

counsel's representation, the district court will order a new trial and the instruction issues

presented in this appeal will be moot. But we proceed to determine whether the

instruction issues provide an independent basis for ordering a new trial for Quartez as a

prophylactic measure against the possibility that the district court would determine that

the conflicted counsel issue did not warrant a new trial, standing alone. Cf. State v.

Sharkey, 299 Kan. 87, 101, 322 P.3d 325 (2014) (clarifying that a new trial contingent on

district court's decision at remand hearing on ineffectiveness of counsel).

Standard of Review

"For jury instruction issues, the progression of analysis and corresponding