State v. Brown

No. 119,790

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

JEREMIAH WILTON BROWN,

Appellant.

SYLLABUS BY THE COURT

1.

Prosecutors commit error when they misstate the law or inflame the passions and

prejudices of the jury. Here, the prosecutor's comments throughout closing arguments

repeatedly referring to Brown's voluntary intoxication defense as a "big fat excuse,"

telling the jury to skip certain jury instructions, and alleging that the trial judge had the

hardest job because it had to sentence Brown for each crime constituted misstatements of

law intended to inflame the passions and prejudices of the jury.

2.

The Fifth Amendment to the United States Constitution safeguards addressed in

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, reh. denied 385 U.S.

890 (1966), come into play whenever a law enforcement officer expressly questions a

person in custody. The Miranda safeguards also come into play whenever a law

enforcement officer subjects a person in custody to the functional equivalent of

interrogation.

3.

A law enforcement officer's intonation while speaking to a person in custody may

signal that a remark syntactically identical to a declarative statement is the same as an

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indirect question. This indirect question may be the functional equivalent to prohibited

custodial interrogation. Under the facts of this case, the law enforcement officer's

intonation while arresting Brown establishes that the officer engaged in the functional

equivalent of custodial interrogation.

4.

When a defendant moves for a jury trial continuance because that defendant's

witness cannot testify at the jury trial as scheduled, in deciding whether to grant the

defendant's continuance motion, trial courts must weigh the factors listed in State v.

Howard, 221 Kan. 51, 55, 557 P.2d 1280 (1976): (1) the probability that the unavailable

witness may appear at a later date should the court grant the continuance; (2) the

diligence disclosed in attempting to secure the now unavailable witness; (3) the possible

prejudice to the defendant; and (4) the materiality and importance of the probable

testimony.

5.

When considering whether to grant a defendant's jury trial continuance motion

because that defendant's proposed expert witness cannot testify at the jury trial as

scheduled, the trial court must weigh the Howard factors without considering whether the

proposed expert witness testimony would be admissible under the factors addressed in

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L.

Ed. 2d 469 (1993). The Howard-factor test and the Daubert-factor test are distinct tests

that cannot be merged without considerable prejudice to the defendant.

Appeal from Sedgwick District Court; STEPHEN J. TERNES and BRUCE C. BROWN, judges.

Opinion filed March 12, 2021. Reversed and remanded with directions.

Richard Ney, of Ney, Adams & Miller, of Wichita, for appellant.

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Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,

attorney general, for appellee.

Before GREEN, P.J., MALONE, J., and MCANANY, S.J.

GREEN, J.: A jury convicted Jeremiah Wilton Brown of the aggravated burglary

and the aggravated sexual battery of M.K. Brown now appeals those convictions, arguing

that four separate trial errors require reversal of his convictions. Alternatively, Brown

argues that we should reverse his convictions and remand for a new trial because his trial

attorneys provided ineffective assistance of counsel in nine separate ways.

As considered below, with the exception of Brown's argument that the trial court

wrongly granted the State's K.S.A. 2017 Supp. 60-455(d) motion, Brown's arguments

concerning the errors at his jury trial are persuasive: First, we conclude that the

prosecutor committed several instances of error during closing arguments by (1)

misstating the law, (2) inflaming the passions and prejudices of the jury, and (3) diluting

the role of the jury. We determine that all these arguments were fatally prejudicial.

Second, we conclude that the trial court wrongly admitted into evidence Brown's

incriminating pre-Miranda statements resulting from his custodial interrogation. Third,

we conclude that the trial court wrongly denied Brown's motion for continuance, which

prevented Brown's opportunity to present expert witness testimony in support of his

voluntary intoxication defense. Each of these preceding trial errors substantially

prejudiced Brown's presentation of his voluntary intoxication defense.

Thus, we reverse Brown's convictions and remand to the trial court for a new trial,

excluding from the trial's admission of all incriminating pre-Miranda statements made by

Brown in connection with his arrest. Because we have reversed Brown's convictions and

granted a new trial based on the previously mentioned trial errors, it is unnecessary for us

to address Brown's claims of ineffective assistance of counsel.

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Background Information

Jeremiah Wilton Brown, Jeremy Convery, Jason Conner, and M.K. all lived on the

same street in Haysville, Kansas. Brown and Convery had houses next to each other on

one side of the street. Meanwhile, Conner and M.K. had houses next to each other on the

other side of the street across from Brown's and Convery's houses.

In addition to being neighbors, Brown, Convery, and Conner were friends who

spent time with each other socially. Although M.K. was not friends with Brown, she was

friendly to Brown when she saw him around the neighborhood. Previously, Brown had

helped fix her lawn mower. M.K. also gave cookies to her neighbors, including Brown, at

Christmas time.

Brown's Alcohol Consumption

On Saturday, November 26, 2016, around 8 a.m., Convery drove Brown to a local

lake. Once at the lake, Brown and Convery met up with another friend, Luke Rogge, and

started fishing. That morning, as the friends fished at the lake, Brown consumed a

substantial amount of alcohol. According to Convery and Rogge, Brown had brought an

unopened 750 milliliter bottle of Tennessee Fire whiskey with him to the lake. Convery

had two sips of the whiskey. Rogge had "a little" whiskey in a cup. But Brown consumed

the remainder of the whiskey while at the lake. Brown also consumed at least three Bud

Lights and smoked marijuana while at the lake.

Brown and Convery left the lake and returned to Convery's house around

lunchtime. Once at Convery's house, Brown and Convery socialized for another couple

hours.

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It is not entirely clear what Brown did immediately after leaving Convery's house

around 2 p.m. Even so, around 3 p.m., Convery went over to Brown's garage—a place

where Brown routinely spent time—and spoke with Brown briefly. During Brown and

Convery's short conversation, Convery saw Brown drinking whiskey from an already

half-empty bottle of Crown Royal. At that time, Convery also noticed that Brown was

"laughing hysterically at things that were not funny." Later, Brown would allege that

after leaving Convery's house, he went to a liquor store, bought "a fifth" of Crown Royal

whiskey, which is a 750-millimeter bottle, and then continued to drink and smoke

marijuana the rest of the day.

Then, between 10 p.m. and 11 p.m., Conner saw Brown enter a local bar where he,

his wife, and some other friends were celebrating a birthday. When Conner saw Brown

enter the bar, he could tell that Brown was already heavily intoxicated. According to

Conner, Brown was stumbling around, being obnoxious, and slurring his words. Conner

estimated that Brown consumed anywhere from 6 to 12 cocktails during the 60 to 90

minutes he was at the bar. Also, Conner had to convince Brown to leave the bar after

Brown was rude to the bar's staff.

Because Brown was too intoxicated to drive home, Conner took Brown's car keys.

Conner then drove Brown home in his own car. While sitting in the passenger seat,

Brown repeatedly tried to drive the car by grabbing hold of the steering wheel. When

they arrived at Brown's house, Conner parked Brown's car in Brown's driveway, walked

Brown into his garage, and told Brown to go to bed. As Conner was leaving, Brown

asked Conner to return his car keys. Although Conner told Brown that he had already

returned his car keys, Conner actually kept Brown's car keys in an attempt to prevent

Brown from driving later on.

After Conner left Brown in his garage, Conner returned to his home across the

street. There, Conner, his wife, and their friends continued the birthday celebration. Yet,

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several minutes after Conner returned home, Conner heard Brown's car "start up and the

stereo start playing" before leaving Brown's driveway. Conner estimated that he heard

Brown's car start up and then leave between 12 a.m. and 1 a.m. on Sunday, November 27,

2016. Although Conner never saw Brown, he assumed that it was Brown who started up

Brown's car and then drove off.

Conner estimated that Brown returned home some 30 to 45 minutes later because

around that time, Brown walked through his backdoor. According to Conner, Brown

seemed slightly more intoxicated than when he had last seen him. Conner noted that

Brown was not saying things that made sense. He noted that Brown had urinated on

himself. What is more, when Conner looked into Brown's eyes, he could tell that "nobody

was home." Based on Brown's appearance and behaviors, Conner believed that Brown

was just "on auto pilot."

Conner allowed Brown to stay at his house until Brown retrieved Conner's bottle

of Crown Royal from his freezer. At that point, Conner took the bottle of Crown Royal

from Brown and told him that "he'd had enough." He explained to Brown that he was so

intoxicated that he was just "wasting [his] alcohol" by continuing to drink. Conner then

escorted Brown out of his house, told Brown to go to bed, and pointed Brown in the

direction of his house. Conner estimated that it was between 1:30 a.m. and 2 a.m. when

he escorted Brown out of his house and pointed him in the direction of his own house.

And when Conner left Brown, Brown was walking towards his own house across the

street.

Brown's Altercation with M.K.

Around 7 p.m., on Saturday, November 26, 2016, M.K. returned home from

celebrating Thanksgiving with relatives in Oklahoma. After getting home, she went over

to the house of her then-fiancé, Shane Adams, for a few hours. M.K. then returned to her

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own home around 11 p.m. Eventually, M.K. fell asleep in her bedroom with the lights on

while "Facebooking." Because M.K. had not intended to fall asleep, M.K. was still

wearing her regular clothes at that time.

M.K. remained asleep until about 3 a.m., on Sunday, November 27, 2016. At that

point, M.K. woke up to a man lying on top of her, shaking her face, saying her name over

and over again. The man had "horrible breath" and smelled of "really strong smoke." The

smell was so terrible M.K. "felt like [she] was going to throw up." At first, M.K. was

confused about what was happening. But after "a minute," she realized that the man on

top of her was Brown.

For about the next 30 minutes, Brown laid on top of M.K. while repeatedly telling

her that "he wanted to have sex with [her]" and "lick [her] pussy." He told M.K. that he

wanted her to move into his house. He also told M.K. that she was mean for not having

sex with him, noting that she had given him cookies at Christmastime.

Also, as Brown said these things, Brown made repeated attempts to remove both

his and M.K.'s clothing. Ultimately, Brown was unable to remove his pants. And M.K.

prevented Brown from removing her shirt and pants. Still, during the struggle, Brown

grabbed M.K.'s breast and pubic area through her clothing. Brown pushed down on

M.K.'s neck each time she attempted to get away from him. Additionally, at one point,

Brown "dry humped" M.K., and M.K. could feel that Brown had an erection as he "dry

humped" her.

Meanwhile, throughout the ordeal, M.K. tried to persuade Brown to get off her

and leave her house. Because Brown was acting abnormally, she asked him if he was

drunk. Brown responded that he was drunk and had been smoking "weed."

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She then told Brown that he should go home to his wife, who lived with him

across the street. But Brown responded that his wife would not have sex with him

anymore. M.K. then tried to convince Brown to repair his relationship with his wife. At

some point, however, M.K. "thought of [their] neighbor [Jason Conner]" because Conner

was "really good friends with [Brown]." She then told Brown that she was "[going to] go

get [Conner]" if he would not leave.

Brown responded by telling M.K. not to retrieve Conner. Afterwards, M.K.

convinced Brown to get off her, and the two headed towards M.K.'s front door. Yet, on

the way to M.K.'s front door, Brown fell while attempting to go down some stairs. When

M.K. tried to help Brown up, Brown pulled M.K. down on top of him, grabbed onto

M.K., and told M.K. that he still wanted to have sex with her. But M.K. responded to

Brown's renewed sexual advances by telling Brown that she would go get Conner and tell

him what had happened. It was at this point Brown got up and left her house.

After Brown left M.K.'s house, M.K. went around her house making sure all her

doors and windows were locked; M.K. realized that Brown had probably gotten inside

her house through her front door, which she often left unlocked. Then, after M.K. secured

her house, M.K. immediately grabbed her cell phone and texted Adams, asking if he was

awake; M.K. sent this text at 3:37 a.m.

M.K. wanted to talk to Adams because she was both scared and unsure whether

she should contact the police. M.K. later explained that at this point, she was confused

what to do because Brown was normally "a good guy." M.K. also felt sorry for Brown's

wife. And she worried about the police coming inside her house while it was messy.

Adams, however, did not respond to M.K.'s text until 5:45 a.m. As a result, M.K. also

texted her ex-boyfriend and now-husband, T.K., if he was available to talk.

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While talking to T.K. on her cell phone around 4 a.m. or 4:30 a.m., M.K. heard a

knock on the sliding glass doors at the back of her house. When M.K. investigated the

knock, she found Brown standing outside of her sliding glass doors in her fenced

backyard. Brown asked M.K. to let him inside her house as he was cold. M.K. refused to

let Brown inside her house, telling him to go home. At this point, M.K. believed that

Brown left her yard.

After finding Brown at her back sliding glass doors, M.K. was still unsure whether

she should call the police. Then, around 5:45 a.m., Adams texted M.K. that he was

available to talk. About 15 minutes later, as M.K. was on the phone with Adams, Brown

reappeared at M.K.'s back sliding glass doors. Once again, Brown asked M.K. to let him

inside her house because he was cold. And once again, M.K. refused to let Brown inside

her house. M.K. then tried to convince Brown to leave her backyard by noting that a

different neighbor would likely be coming outside soon.

It is unclear whether Brown left M.K.'s property after M.K. mentioned this.

Regardless, shortly after M.K. last saw Brown at her back sliding glass doors, M.K. saw

Brown come up to one of her side windows, which she had inadvertently left cracked.

Through the cracked window, Brown repeatedly asked M.K. to "please let [him] in." It

was at this point that Adams convinced M.K. to call the police.

M.K. called 911 to report Brown a few minutes before 6 a.m. The police arrived at

M.K.'s house several minutes afterwards.

The Police Investigation

Upon their arrival at M.K.'s house, the police searched M.K.'s property to

determine whether Brown was still outside. The police did not find Brown during this

search.

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After ensuring that Brown was no longer on M.K.'s property, the police asked

M.K. exactly what had happened. At this point, M.K. provided a detailed explanation

about waking up to Brown lying on top of her, telling her that he wanted to have sex, and

attempting to remove her clothing. Once M.K. told the police what had happened, the

police explained that a detective would likely want to conduct a formal interview with her

later that day.

Ultimately, Detective Brady Simmons conducted a formal interview with M.K.

just a couple hours later, around 8 a.m. During her formal interview, M.K. again

explained her altercation with Brown. In the interview, she also told Detective Simmons

that she did not "think that [Brown] really wanted to do what he was doing" because

Brown "could have been a lot more forceful." She explained that this behavior was out of

character for Brown, which therefore made her believe that Brown's behavior was the

result of "whatever he took or had." She explained that after she got Brown out of her

house, she was hoping Brown would go home, "get off" of "whatever he [was] on," and

"hopefully [not] remember whatever he did."

At the end of her interview, M.K. told Detective Simmons that she was still unsure

whether she wanted "to press charges" against Brown. Detective Simmons told M.K. that

in the event she wanted to press charges against Brown, the police would not try to

contact Brown until later that day after he had time to "sober up."

Sometime later that day, M.K. told Detective Simmons that she had decided to

press charges against Brown. Afterwards, around 3:30 p.m., Sergeant Amos Becker and

Officer Aaron Watkins went to Brown's house, knocked on Brown's front door, and

spoke with Brown's wife. After asking Brown's wife if they could speak with Brown,

Brown's wife retrieved Brown from inside the house. Once Brown came to his front door,

Officer Watkins asked, "Hey Jeremiah, can you step out here and talk to me for a

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minute?" Brown complied with Officer Watkins' request, exited his front door, and

walked down his front porch steps. While standing on the last step of his front porch,

Officer Watkins told Brown, "Okay. I need you to come over here with me."

At this point, Brown complied, saying, "Yes, Sir." Officer Watkins then directed

Brown over to the sidewalk in front of his house. Once there, Sergeant Becker walked up

to Brown and told him that they were "taking him in custody for an incident that [had]

happened last night" and to place his hands behind his back. Brown immediately placed

his hands behind his back, at which point Officer Watkins started handcuffing Brown.

Although Officer Watkins and Sergeant Becker were arresting Brown, they did not give

Brown any warnings as required under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,

16 L. Ed. 2d 694, reh. denied 385 U.S. 890 (1966), upon his arrest.

Instead, as Officer Watkins handcuffed Brown, Sergeant Becker asked Brown "I'm

assuming you know what this is about." Brown responded, "Yes, sir." Sergeant Becker

then told Brown that he did not want to discuss the matter further in front of Brown's

wife. He also told Brown that he would be able to talk to a detective soon. Immediately

afterwards, Sergeant Becker asked Brown if he had any weapons or other items on his

person that could hurt him. As Officer Watkins finished placing the handcuffs on Brown,

Brown told Sergeant Becker that he had nothing dangerous on his person. Sergeant

Becker then told Brown that they were going to pat him down.

As Officer Watkins patted Brown down, Sergeant Becker and Brown then had the

following conversation:

Sergeant Becker: "I'm assuming you were kind of expecting us.

Brown: "Uh, no.

Sergeant Becker: "No.

Brown: "She didn't say anything.

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Sergeant Becker: "Okay.

Brown: "She didn't say she was going to call the cops on me.

Sergeant Becker: "Okay.

Brown: "I told her I was sorry.

Sergeant Becker: "Okay. I'll tell you what, we will go ahead and get in that

discussion with our detective. We're not going to be talking to me about it. We'll just . . .

Brown: "I didn't really do anything, you know. I didn't take my clothes off or

anything.

Sergeant Becker: "Okay."

After having this discussion, Brown was placed in a patrol carl and driven to the

police station. Once Brown was read his Miranda rights, Brown invoked his right to

remain silent.

Brown's Criminal Case: Pretrial Events

Following his arrest, the State charged Brown with aggravated burglary, a severity

level 4 person felony in violation of K.S.A. 2016 Supp. 21-5807(b)(1), and aggravated

sexual battery, a severity level 5 person felony in violation of K.S.A. 2016 Supp. 21-

5505(b)(1). Significantly, Brown's aggravated burglary charge hinged on him entering

M.K.'s house to commit the aggravated sexual battery therein.

A few days after the State filed its charges, Brown bonded out of jail. He then

hired Jess Hoeme to represent him. Later, Brown waived his preliminary hearing. Then,

between February and July 2017, Hoeme obtained three jury trial continuances on behalf

of Brown. During this same period, Hoeme filed no other motions on behalf of Brown.

Next, on July 30, 2017, while attending a music festival at El Dorado Lake in

Butler County, Kansas, Brown grabbed a woman's breast without her permission. It is

undisputed that Brown was very intoxicated when he grabbed this woman's breast.

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Ultimately, Brown was charged with and pleaded guilty to simple battery, a class B

person misdemeanor in violation of K.S.A. 2017 Supp. 21-5413(a)(2), in Butler County

criminal case No. 17 CR 323.

When the State learned about Brown's Butler County simple battery, it moved to

admit evidence of this crime at Brown's future jury trial. In its K.S.A. 2017 Supp. 60-

455(d) motion, the State argued that the trial court should allow it to admit this evidence

because it was "extremely probative" of Brown's "propensity to commit similar crimes."

Also, around the same time, the State asked the trial court to hold a Jackson v. Denno,

378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964), hearing on the incriminating pre-

Miranda statements Brown made to Sergeant Becker.

After the State filed the preceding motions, on September 8, 2017, Hoeme

requested and was granted another jury trial continuance on behalf of Brown. After

granting Brown's latest motion for continuance, the trial court reset Brown's jury trial

date to October 30, 2017.

On October 20, 2017, the trial court held a joint hearing on the State's K.S.A. 2017

Supp. 60-455(d) motion and Jackson v. Denno hearing motion. The trial court first

considered the State's K.S.A. 2017 Supp. 60-455(d) motion. To support its motion, the

State admitted Brown's journal entry of judgment from that case, which showed that he

had pleaded guilty as charged to simple battery in Butler County criminal case No. 17 CR

323. The State also had the victim of Brown's Butler County simple battery, S.W., testify

about Brown grabbing her breast without permission. During her testimony, S.W.

indicated that she believed Brown grabbed her breast without permission to satisfy his

own sexual desires.

After S.W. testified, the State argued that the evidence of Brown's Butler County

simple battery should be admissible at trial because Brown's criminal conduct when

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grabbing S.W.'s breast without permission constituted evidence of sexual misconduct,

which was admissible for propensity purposes. Brown responded that the trial court

should not admit evidence of his Butler County simple battery at trial because in that

case, he pleaded guilty as charged to simple battery. That is, Brown asserted that because

the State never charged him with a sexual battery, his Butler County simple battery

conviction was inadmissible for purposes of establishing his propensity to engage in

sexual misconduct. But the State countered that the facts of Brown's Butler County

simple battery established that his conduct constituted a sexual battery regardless of how

he was charged.

The trial court ultimately agreed with the State's argument, ruling that the State

could admit evidence of Brown's Butler County simple battery at trial. It ruled that under

K.S.A. 2017 Supp. 60-455(d), the evidence of a defendant's prior sexual misconduct need

not be criminally charged as sexual misconduct to be admissible at trial. It then

determined that Brown's Butler County simple battery constituted sexual misconduct as it

satisfied the elements of sexual battery under K.S.A. 2017 Supp. 21-5505(a).

After granting the State's K.S.A. 2017 Supp. 60-455(d) motion, the trial court

considered the State's Jackson v. Denno motion. To support its motion, the State had

Sergeant Becker testify about Brown's incriminating pre-Miranda statements. During his

testimony, Sergeant Becker described Brown's incriminating pre-Miranda statements as

"spontaneous utterances not prompted by [his] questioning after [he had] told [Brown]

not to discuss this with [him]." He alleged that any question he or Officer Watkins asked

Brown was "germane to the purpose of [his] arrest" or in "response to [Becker's]

questions." Sergeant Becker further explained that "[his] intention for [asking Brown

questions] was more to gauge whether or not [Brown] was a potential flight risk." He said

that Brown was acting so calm during his arrest, he feared Brown may "attempt to

escape" or "attack."

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Significantly, during Sergeant Becker's testimony, the State admitted neither

Sergeant Becker's nor Officer Watkins' bodycam video of Brown's arrest. Instead, the

State relied solely on a transcript created by the Haysville Police Department to establish

Brown's incriminating pre-Miranda statements. Also, when the State sought to admit this

transcript into evidence, Brown objected, arguing (1) that the State had not provided

sufficient foundation to admit the transcript, and (2) that the transcript was not the best

evidence available.

The trial court then denied the State's request to admit the transcript into evidence

because "the transcript itself essentially duplicates Sergeant Becker's testimony." After

making this ruling, however, the State continued to argue that it should be allowed to

admit "the transcript" of Brown's incriminating pre-Miranda statements to Sergeant

Becker at trial because "Sergeant Becker . . . asked questions, very general questions that

are considered general, honest questioning by police officers." It added that Brown's

incriminating pre-Miranda statements were also admissible because they were

"spontaneous utterances" made after Sergeant Becker had given him "two warnings" not

to say anything.

Brown countered that the trial court should, at the very least, reserve its ruling on

the admission of his incriminating pre-Miranda statements to Sergeant Becker because

the State presented "insufficient information [for the trial court] to make a good decision

as to whether or not [Brown made his pre-Miranda statements] freely, knowingly,

intelligently, and voluntarily." In making this argument, Brown emphasized that the State

was relying on the transcript that the trial court had just ruled inadmissible.

In response to Brown's argument, the State began discussing whether Sergeant

Becker's questioning constituted custodial interrogation. It conceded that Brown was in

custody when he made the disputed pre-Miranda statements to Sergeant Becker. But the

State argued that because Brown "was not being interrogated" by Sergeant Becker,

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Brown's incriminating pre-Miranda statements were admissible. The State continued its

argument by commenting: "The law allows general on scene questioning. That's

watershed case law. The witness identified his questions in relation to officer safety,

again, a topic that's established within the law."

Brown responded that Sergeant Becker was interrogating him because his

questions were designed to elicit an incriminating response. Nevertheless, the trial court

rejected Brown's argument, holding that the State could admit evidence of Brown's pre-

Miranda statements to Sergeant Becker at trial for the following reasons:

"The Defendant is stating to the officer . . . that she just said she would call the

police. The Defendant apologized for his behavior and that the victim's clothes were

never removed by the Defendant.

"He made these comments to the arresting officer. The arresting officer noted

during the arrest of the defendant that he was unusually calm. Sergeant Becker was very

clear in his testimony on cross-examination. He has been an officer for 11 years and that

this gentleman was calm. He believed that potentially that calm could indicate that he

was about to flee or attempt to flee or that he could potentially be ready to fight. I think

the officer used the word—or the Sergeant used the word combat.

"The bottom line is he asked the question or two to attempt to assess the

Defendant with those things in mind. I would note that the officer testified he did not ask

Mr. Brown about the offense or anything about the offense with which he's charged here.

In fact, he affirmatively told him at least twice that he wasn't supposed to talk to the

Sergeant that witnessed that. In fact, he was there to simply arrest him and take him and

he would talk to the detective at the station.

"The Defendant continued to make statements, the statements that I just

specified, and it's my understanding of the law that the officer doesn't have the authority

to prevent him from speaking. He can admonish him. I'm not quite sure what else

Sergeant Becker is supposed to do.

"It appears to me that after being told twice not to say anything more that he

talked to the detective. That certainly is not a Miranda warning. I wouldn't pretend that it

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is, but it's a situation in which no interrogation is going on here other than a couple of

questions about do you know why we're here.

"I do not find that to be a custodial interrogation. He's clearly authorized to

make—to ask a few questions as a preliminary matter, and that question does not qualify

in terms of a custodial interrogation for the purpose of this offense.

"So I will find that the statements that the Defendant made to the officers were

freely, voluntarily and knowingly given, and they will be admissible. The motion's

granted." (Emphasis added.)

Four days after the preceding hearing on October 24, 2017, Brown admitted

himself into "inpatient treatment" at a private facility for alcohol and drug treatment. The

next day, Hoeme moved for another jury trial continuance on Brown's behalf. Later that

same day, the trial court granted Brown's motion for continuance. The trial court then set

Brown's new jury trial date for December 11, 2017.

Yet, on December 8, 2017, Hoeme requested that Brown undergo a competency

evaluation. The trial court agreed that Brown needed to undergo a competency

evaluation. Thus, it suspended all future proceedings in Brown's case until he had

completed his competency evaluation.

Within days of the preceding hearing, however, Brown fired Hoeme as he was

dissatisfied with Hoeme's representation. Brown then hired Roger Falk to represent him

against the State's charges. Falk first entered his appearance on Brown's behalf on

December 20, 2017.

Afterwards, on January 26, 2018, the trial court determined that Brown was

competent to stand trial and returned Brown's case to the trial calendar. The trial court

then set Brown's new jury trial date for Monday, April 9, 2018, noting that this new jury

trial date was "very firm."

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A few days later, Falk had Dr. Mark Goodman, a licensed psychologist and

pharmacologist, conduct a two-day psychological evaluation of Brown. Falk believed that

Brown's best trial strategy was to argue voluntary intoxication and involuntary

intoxication. Thus, Falk asked Dr. Goodman to determine what effect Brown's alcohol

and marijuana consumption had on his mind when he entered M.K.'s house the early

morning hours of November 27, 2016. Falk further asked Dr. Goodman to determine

whether Brown "was . . . able to form intent to touch [M.K.] inappropriately for the

purpose of sexual arousal."

During Dr. Goodman's evaluation of Brown, Brown told Dr. Goodman about his

alcohol consumption throughout his lifetime. To the extent that he could remember, he

also told Dr. Goodman about his alcohol consumption throughout November 26, 2016,

and the early morning hours of November 27, 2016. In addition, he told Dr. Goodman

that after he went to the bar where Conner, Conner's wife, and her friends were

celebrating a birthday, his "memory became clouded." He explained that after he urinated

on himself and Conner "got fed up with [him]," he "[could not] remember any more

details until [he] was in bed with a neighbor woman who noticed that [he] was in bed

with her." And he explained that "[he was] totally oblivious of how [he] ended up in bed

with [M.K.]" and could only remember "bits and pieces" of things that she had said to

him during this time.

Ultimately, based on the information Brown told Dr. Goodman, Dr. Goodman told

Falk that he opined that Brown was in the "stupor stage of alcohol influence" when he

entered M.K.'s house the early morning hours of November 27, 2016:

"Alcohol can cause seizures and can cause definite brain damage with excessive use. It

also causes lack of inhibition. Cannabis (also known as marijuana) can definitely cause

alteration of mood and memory, impaired memory, impaired motor coordination, and

impaired cognitive ability. It affects self-perception, complex sensory perceptions,

concentration, and information processing. It affects the ability to drive or fly. It enhances

18

the non-dominate senses of touch, taste, and smell. It can cause delusions or

hallucinations and paranoid feelings. It can also increase heart rate.

"Stages of acute alcohol influence/intoxication occur with the use of alcohol. In

speaking with Mr. Brown he stated that he was never tested as to his actual blood alcohol

level. It is this examiner's opinion that Mr. Brown was most likely at a level that would

cause a stupor stage of alcohol influence. For example, he mentioned urinating in his

pants, having stupor, having impaired consciousness, and having a lot of muscular

incoordination[,] including the lack of ability to stand or walk appropriately." (Emphasis

added.)

Sometime shortly after Dr. Goodman completed Brown's evaluation, in early to

mid-February 2018, Falk told Dr. Goodman that Falk's jury trial was very likely to start

on Monday, April 9, 2018. Falk further explained to Dr. Goodman that he would likely

call him to testify on Brown's behalf sometime after Wednesday, April 11, 2018. At the

end of their discussion, Falk believed that Dr. Goodman knew that he would likely call

him to testify sometime during the week of April 9, 2018. But Falk did not subpoena Dr.

Goodman to ensure his availability. Also, despite having Dr. Goodman's report in mid-

February 2018, it seems that Falk did not provide the State a copy of Dr. Goodman's

report until the week before Brown's scheduled jury trial.

Upon receiving Dr. Goodman's report, the State moved the trial court to hold a

hearing on Dr. Goodman's qualifications to testify as an expert witness as stated under

K.S.A. 2017 Supp. 60-457(b) and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). In its motion, the State argued that

the trial court should bar Dr. Goodman from testifying as an expert witness for two

reasons: First, the State asserted that "lay understanding of drunkenness is well within a

juror's common understanding and no expert testimony would serve to assist the trier of

fact and will only confuse the jury or give prejudicial weight to the expert's lay opinion."

Second, the State asserted that because Dr. Goodman was relying on Brown's and his

friends' memories to establish the extent of Brown's intoxication when he entered M.K.'s

19

house in the early morning hours of November 27, 2016, Dr. Goodman's opinions were

unreliable.

The next day, Thursday, April 5, 2018, the trial court scheduled a hearing on the

State's Daubert motion to occur Monday morning, April 9, 2018, before the start of

Brown's jury trial. Evidently, all parties were present when the trial court scheduled this

hearing. And at that time, Falk told the trial court he was not sure Dr. Goodman could

testify at a Daubert hearing Monday morning since he had previously told Dr. Goodman

that he would not call him to testify before Wednesday, April 11, 2018.

Thus, after the trial court scheduled the Daubert hearing for Monday morning,

April 9, 2018, Falk tried to contact Dr. Goodman to determine his availability. Falk did

not reach Dr. Goodman, however, until Saturday, April 7, 2018. At that time, Dr.

Goodman told Falk that he had no time to testify at the scheduled Daubert hearing or jury

trial. Dr. Goodman explained to Falk that he had already scheduled other appointments

that week because Falk had never "let him . . . know [the] date and time when he would

have to [testify]."

As a result, immediately after talking to Dr. Goodman, Falk, acting on Brown's

behalf, moved to continue the hearing on the State's Daubert motion and Brown's jury

trial to ensure his availability to testify at both hearings. In this motion, Falk detailed his

prior discussions with Dr. Goodman as well as Dr. Goodman's likely testimony at trial.

He then argued that there was good cause to grant Brown's motion for continuance for the

following reasons: (1) because Dr. Goodman's testimony was "critical" to Brown's

voluntary and involuntary intoxication defenses; (2) because Dr. Goodman was uniquely

qualified to provide an evaluation on Brown's alcohol and drug consumption as he had

both a doctorate in psychology and "a post doctoral degree in the area of pharmacology";

(3) because Dr. Goodman's unavailability was "due to events beyond [Falk's] control";

and (4) because this was the first continuance he had requested on Brown's behalf.

20

Thus, before Brown's jury trial was set to begin on Monday, April 9, 2018, the

trial court held a hearing on Brown's Daubert hearing and jury trial motion for

continuance. At the hearing, Falk repeated the good-cause arguments he had made in

Brown's motion for continuance. He also explained that Dr. Goodman could be available

to testify at a Daubert hearing or a jury trial on April 27th, April 30th, May 1st, May 2nd,

May 3rd, or May 4th.

The State argued against Brown's motion for continuance. It stressed that Brown

had received five continuances already. It noted that it was prepared for trial that day.

And it noted that the trial court's previous order setting Brown's new jury trial date for

Monday, April 9, 2018, said that this was a "firm" date. Additionally, the State argued

that the trial court should deny Brown's motion for continuance because Dr. Goodman's

proposed testimony did not constitute a valid expert opinion under Daubert. Specifically,

it repeated its assertion that the effects of drunkenness were within the common

knowledge of the jury. And it further argued that Dr. Goodman's proposed expert

testimony constituted untested and unreliable "junk science."

After the State made this argument, Falk argued that the trial court could not

consider the State's Daubert motion "without putting on evidence for the Court to

consider." The trial court agreed with Falk that it could not consider the State's Daubert

motion at that time because Dr. Goodman was not available to testify. Then it denied

Brown's Daubert hearing and jury trial motion for continuance for the following reasons:

"So the things I'm looking at are the age of this case and numerous defense

continuances. And this matter needs to be tried, you know, justice delayed is justice

denied. Mr. Brown needs this resolved in his life so he can move on with his life and not

have this just pending over his head. And certainly the community, the witnesses, the

State, the attorneys need this matter resolved.

21

"I understand there's complications with an expert witness who said that he was

available and then changed his representation, but the fact of the matter is this matter's

been pending for a lengthy period of time in which to—and there's nothing new that's

been presented to me that hey, gee, all of a sudden we realized we've got this intoxication

defense, something new has popped up that hasn't been available.

"There are some, I think, also, some serious concerns about whether or not Dr.

Goodman's testimony will be admissible, but without a Daubert hearing I can't decide

that one way or another. It is apparent intoxication is something that juries understand. I

mean, we have intoxication evidence presented without experts all the time. And it's

something that does not in any way inhibit or limit the defendant's defense of voluntary

intoxication in this case. So with all that, I'm going to deny the motion for a continuance

and we'll move forward with [the] jury trial."

After denying Brown's Daubert hearing and jury trial motion for continuance, the

trial court proceeded to hold Brown's jury trial.

Brown's Criminal Case: Jury Trial

During its case-in-chief, the State had M.K., T.K., Adams, Detective Simmons,

Sergeant Becker, S.W., and the records custodian from the Sedgwick County Sheriff's

Office testify on its behalf.

M.K. provided extended testimony about her encounter with Brown in the early

morning hours of Sunday, November 27, 2016. During her testimony, M.K. indicated that

she did not smell an odor of alcohol on Brown when he was inside her house.

Nonetheless, on cross-examination, M.K. admitted that Brown's breath "smelled

horrible." She admitted that when Brown was on top of her telling her that he wanted to

have sex, she asked him if he had been drinking, to which Brown responded that he had

been drinking and "smok[ing] weed." Both T.K. and Adams confirmed M.K.'s testimony

that she contacted them during the early morning hours of November 27, 2016, asking

them whether she should call the police given Brown's troubling behavior.

22

Detective Simmons primarily testified about his interview of M.K. But M.K.'s

videotaped interview with Detective Simmons was not admitted into evidence by either

party at trial. Additionally, during his direct examination, the State asked Detective

Simmons several questions about how sexual assault victims normally behave based on

his training and experience. Through that questioning, Detective Simmons vouched for

M.K.'s credibility, saying that in his training and experience, the only thing "uncommon"

about M.K.'s sexual assault report was how quickly she made the report. Detective

Simmons further confirmed the State's question whether he had investigated cases in the

past where "individuals who [were] charged with a crime use[d] intoxication as an excuse

to excuse their behavior." When asked by the State, Detective Simmons agreed that

individuals citing intoxication as an excuse for their behavior had never "stopped [him]

from pursuing charges against [those individuals]" before.

Also, despite Brown's objection, the State successfully admitted Brown's

complaint and sentencing journal entry from his Butler County simple battery conviction

through Detective Simmons' testimony; it is undisputed that Detective Simmons had not

investigated Brown's Butler County simple battery. The State then questioned Detective

Simmons about Brown's Butler County simple battery conviction. Through that

questioning, Detective Simmons testified that he did not know why Brown was charged

with simple battery as opposed to sexual battery in the Butler County case. But he agreed

that Brown was convicted of simple battery in his Butler County case "regardless of

whether he was using drugs or alcohol during [the disputed] touching."

During his recross-examination of Detective Simmons, Falk sought to clarify this

testimony. Nevertheless, the trial court sustained the State's objection to Falk's

questioning after the following exchange occurred:

23

"[Falk]: Do you recall the prosecution asking you a question, on her redirect,

which asked you have you ever had people who were under the influence of alcohol

claim that as a defense in a case?

"[Detective Simmons]: Yes.

"[Falk]: Okay. And you responded that very way, correct?

"[Detective Simmons]: Correct.

"[Falk]: And then when she asked you if it made any difference whether my

client was drunk, stoned—or excuse me, had been using marijuana or alcohol, whether

that made any difference to you as a law enforcement officer, you recall that?

"[Detective Simmons]: In this case it did not, correct.

"[Falk]: Okay. And[,] but that's not what the law says —

"[The State]: Objection.

"[Falk]: —and the Judge will instruct the jury on what the law is.

"[The Trial Court]: Okay. The question that she asked was does that have

anything to do with whether you're going to investigate a crime. And he said no. That's

what he said, he didn't say anything about the law says that intoxication isn't a defense

and it's not a defense in this case." (Emphasis added.)

Next, Sergeant Becker testified about arresting Brown. Over Brown's objection,

the State successfully admitted the video of Brown's arrest into evidence through

Sergeant Becker's testimony. Brown's incriminating pre-Miranda statements to Sergeant

Becker can be heard in this video.

S.W. testified about Brown grabbing her breast without permission while at a

music festival in El Dorado, Kansas, on July 30, 2017. During cross-examination, S.W.

explained that the police who had arrested Brown told her that he was "drunk."

Finally, the records custodian from the Sedgwick County Sheriff's Office testified

about two phone calls Brown made to his wife while in jail immediately following his

arrest. In the audio recordings of those phone calls, which the State successfully admitted

into evidence, Brown and his wife discussed his arrest.

24

After the State rested, Brown sought to establish his voluntary intoxication defense

through the testimony of his friends Convery, Rogge, and Conner. Convery, Rogge, and

Conner each testified about the amount of alcohol and marijuana they saw Brown

consume throughout November 26, 2016, and in the early morning hours of November

27, 2016. They also testified about the things that made them believe that Brown was

very intoxicated; this included testimony about Brown's strange behavior and apparent

incontinence.

After Brown rested his case, the trial court held the jury instruction conference. At

the conference, the trial court granted Brown's request to instruct the jury on sexual

battery as a lesser included offense of aggravated sexual battery over the State's

objection. Also, after explaining that it was "struggling with" whether to give the jury an

instruction on voluntary intoxication, the trial court ultimately granted Brown's request to

instruct the jury on voluntary intoxication as a defense to aggravated burglary and

aggravated sexual battery charges.

During the State's closing arguments, the prosecutor argued that Brown's

statements and behavior established that Brown had the ability to form the necessary

intent to commit the aggravated burglary and the aggravated sexual battery of M.K. In

doing so, the prosecutor highlighted Brown's incriminating pre-Miranda statements to

Sergeant Becker, questioning how Brown could remember that he "'didn't take [his]

clothes off'" and "apologized to [M.K.]" if he was so intoxicated that he was "really

blacked out."

Also, the prosecutor told the jury the following about the sexual battery instruction

as a possible lesser included offense of the aggravated sexual battery charge and the

voluntary intoxication instruction as a possible defense to the aggravated sexual battery

charge:

25

"The lesser does not apply here. . . . Because the sexual battery is simply a

minimization of what happened. That's all it is. It takes away the force and the fear that

[M.K.] endured.

"So if you believe [M.K.], and if you agree that the State did prove up the

aggravated sexual battery, you don't even have to consider the sexual battery. Because

your instructions are going to say, if you feel like we proved the agg—the agg of the

sexual battery, the aggravated part, you don't even get to the next page. You don't have to

go there. Just skip to the next page. You don't have to look at it. Okay. You don't—you get

to skip over. So you don't have to consider it. So we're asking that you check the guilty

boxes on all the aggravated.

"Now, you are going to have instructions and you are probably going to hear a

whole lot about this—involuntary intoxication. Voluntary intoxication 'may'—that's the

big fat word there you need to hone in on. It may be a defense to the charges. Okay.

'When intoxication impairs the defendant's faculties to the extent that he was incapable of

forming the necessary intent to arouse or satisfy the sexual desires of himself.'

"All right. You do not have to do this. You do not have to consider this. Okay. It

is in there, but you don't have to do it. This is where the rubber meets the road, folks. This

is where the Constitution comes into play and you are the jury of his peers and you guys

decide are you buying this. Okay. Do you buy this? That he was so hammered that he

didn't know what he's doing. Do you really think that's the case here or do you think it's a

big fat excuse? You guys get to decide. Okay.

"Because essentially, it's a 'may.' It is permissive within the law. It is not a 'shall,'

like you have to consider it. You can skip it if you want, but it isn't there. Do you buy that

he was too drunk to form sexual intent? He is in her bedroom saying, 'I want to have sex

with you,' humping her with an erection. How does he not have the sexual intent? We

don't even know how drunk he was. Was he probably drunk? Yeah. So what.

....

"People get drunk all the time. Does everybody that gets drunk go and commit

sexual batteries or aggravated sexual batteries or aggravated sexual burglaries?"

(Emphases added.)

During Brown's closing argument, Brown's attorney stressed that being drunk was

not an excuse for his behavior but it was a legal defense if the evidence established that

26

he could not form the necessary specific intent to commit an aggravated burglary,

aggravated sexual battery, or sexual battery against M.K. Brown then recounted the

evidence of his alcohol and marijuana consumption before entering M.K.'s house. He

asserted that the evidence of his alcohol and marijuana consumption, coupled with the

evidence that he was not "in control of [his] faculties," proved that he was incapable of

forming the specific intent needed to commit any crime against M.K.

In her rebuttal to Brown's closing argument, however, the prosecutor first told the

jury that "alcohol doesn't make you do anything." Instead, "[a]lcohol makes it easier to do

the things you already want to do." The prosecutor then closed her rebuttal argument by

making the following statements to the jury:

"[T]he bottom line is when [Brown's] drinking he hurts people, and he commits

crimes, and you decide if you are okay with that and if being drunk is a good enough

excuse for that. You decide if you want to just brush it under the rug or not.

....

"[Brown was] not obliterated to where he's like slobbering drunk. Like, a mess.

That's not the evidence. That is not the evidence before you. He was conscious, he had a

conscious objective. He meets every definition of intent. He intended to [do] what he did.

"Now, you may have an idea of what you think needs to happen. Okay. You may

have an idea of what needs to happen to the defendant in the future or whatever. Now, I

remember in jury selection we talked about the fact that you are not responsible for that

piece of it. You don't have a part of that. Okay. And you're lucky that you don't, so

unburden yourself from that. The only thing that you have to decide is guilty or not guilty.

That's it. That's it. The judge has the hard job of deciding what happens next. Okay. But

what happens next part is the hardest part really. The judge will have all the information

before him. Remember we talked about in jury selection there are things you get to know,

the judge will know everything. He'll have all [the] information when it's time to decide

what happens next.

". . . Trust the judge to figure that out. So go back there and the State is asking for

you to go back there, and on the verdict form, check guilty on aggravated burglary and

aggravated sexual battery. You can skip the sexual battery because remember that is a

27

minimization of what happened to [M.K.]. Okay. That is not what happened here. That's

not even what's charged. So we're asking you to skip over that one and just everything

that says aggravated, check guilty. That's what we're asking for you to do. You can take

as much time as you want or as little time as you want. Okay. And zoom on down the

road." (Emphases added.)

Shortly afterwards, the jury found Brown guilty of aggravated burglary and

aggravated sexual battery.

Brown's Criminal Case: Postconviction Events

Before sentencing, Brown moved for a new trial, for judgment of acquittal, and for

a downward dispositional departure. Among other arguments in his new trial motion,

Brown challenged the trial court's denial of his motion for continuance. Brown alleged

that had Dr. Goodman been able to testify at his trial, he would have used the Kansas

Department of Health and Environment's Breath Alcohol Training Manual and the

Widmark formula to estimate his blood alcohol content. Brown alleged by using the

preceding technical standards, Dr. Goodman determined that his blood alcohol content

when he entered M.K.'s house was between .300 and .500.

At Brown's sentencing, however, the trial court denied each of Brown's motions. It

then imposed a total controlling sentence of 93 months' imprisonment followed by

lifetime postrelease supervision.

Brown timely appealed his convictions and sentence to us. After docketing his

appeal, Brown's appellate counsel asked us to remand his case to the trial court for a

hearing in accordance with State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 (1986), to

determine if Hoeme and Falk had provided Brown ineffective assistance of trial counsel.

We granted this request, remanding Brown's case to the trial court for a Van Cleave

hearing.

28

At the Van Cleave hearing, Brown questioned both Hoeme and Falk about their

various actions and inactions while representing him. In the end, the trial court rejected

each of Brown's ineffective assistance of counsel claims against Hoeme and Falk. Brown

then timely appealed the denial of his ineffective assistance of counsel claims to us.

Did the Prosecutor Commit Reversible Error During Closing Arguments?

Brown argues that several of the prosecutor's comments during closing arguments

constituted prosecutorial error. Although Brown challenges several of the prosecutor's

comments, Brown's complaints about the prosecutor's closing arguments can be broken

into three categories: First, Brown argues that the prosecutor's comments describing his

voluntary intoxication defense as an excuse both misstated the law and inflamed the

passions and prejudices of the jury. Second, Brown argues that the prosecutor's

comments about skipping over jury instructions on sexual battery as a lesser included

offense and on voluntary intoxication misstated the law. Third, Brown argues that the

prosecutor not only indicated that facts were not in evidence but also diluted the role of

the jury when she said that the judge had the hardest job in his criminal trial in deciding

Brown's sentence. Brown concludes that the preceding errors cannot be deemed harmless

because the prosecutor's erroneous comments undermined his voluntary intoxication

defense.

The State generally responds that Brown has taken the prosecutor's comments out

of context. According to the State, when viewed in context, the prosecutor's comments

during closing arguments were proper. Alternatively, the State contends that any error

stemming from the prosecutor's improper comments was harmless beyond a reasonable

doubt.

29

The Prosecutor Erred by Calling Brown's Voluntary Intoxication Defense a "Big

Fat Excuse"

An appellate court reviews a defendant's claim of prosecutorial error in two steps:

First, an "appellate court must decide whether the prosecutorial acts complained of fall

outside the wide latitude afforded prosecutors to conduct the State's case and attempt to

obtain a conviction in a manner that does not offend the defendant's constitutional right to

a fair trial." State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016). Second, if error is

established under the first step, an appellate court must determine whether the error was

harmless beyond a reasonable doubt under the constitutional harmless error test. 305 Kan.

at 109. Of note, we will review a defendant's claim of prosecutorial error made during

closing arguments even if the defendant raises the error for the first time on appeal. State

v. Butler, 307 Kan. 831, 864, 416 P.3d 116 (2018).

It is well-known that it is error "for a prosecutor to comment on facts not in

evidence, to divert the jury's attention from its role as factfinder, or to make comments

that serve no purpose other than to inflame the passions and prejudices of the jury." State

v. Stimec, 297 Kan. 126, 128, 298 P.3d 354 (2013). In State v. Pratt, 255 Kan. 767, 768-

69, 876 P.2d 1390 (1994), our Supreme Court held: "Voluntary intoxication is neither an

excuse for nor a justification of crime. In specific intent crimes, however, voluntary

intoxication may be raised as a defense." (Emphasis added.)

Brown alleges that the prosecutor inflamed the passions and prejudices of the jury

by suggesting that his voluntary intoxication was "a big fat excuse." He also takes issue

with the prosecutor's suggestion that acceptance of his voluntary intoxication defense

would be akin to "brush[ing his conduct] under the rug." The State responds that when

viewed in context, the prosecutor's "'big fat excuse' comment was not denigrating the

defense; rather, it was part of a rhetorical question to the jury asking them to evaluate

[Brown's] claimed intoxication." We disagree.

30

The central theme in the State's prosecution was whether the jury was going to

excuse Brown's conduct because of his intoxication. And the prosecutor's intended theme

is clear. As indicated in the facts section of our opinion, when the prosecutor ended her

redirect examination of Detective Simmons, she specifically asked Detective Simmons

this question: "Detective, in your training and experience have you had individuals who

are charged with a crime use intoxication as an excuse to excuse their behavior?"

Detective Simmons responded that he "had [intoxication] used before" and agreed with

the State that a person's alleged intoxication had never "stopped [him] from pursuing

charges against [that] person." The prosecutor also elicited testimony from Detective

Simmons that Brown had been convicted of simple battery in his Butler County case

"regardless of whether he was using drugs or alcohol during [the disputed] touching."

When Brown's attorney, in his recross-examination of Detective Simmons, sought

to clarify Detective Simmons' testimony about having pursued charges against people

regardless if they had "use[d] intoxication as an excuse to excuse their behavior," the

prosecutor objected to this line of questioning. Although the prosecutor provided no basis

for her objection, the trial court sustained the prosecutor's objection. In sustaining the

objection, the trial court stated in part: "[Detective Simmons] didn't say anything about

the law says that intoxication isn't a defense and it's not a defense in this case."

(Emphasis added.) The trial court here erred when it sustained the prosecutor's objection

and when it ruled that "[intoxication is] not a defense in this case." This is a misstatement

of controlling law which we will discuss later in this opinion.

Turning to the prosecutor's closing argument, we also note that before the

prosecutor told the jury that it could skip the instructions on sexual battery as a lesser

included offense and the instruction on voluntary intoxication, the prosecutor discussed

Brown's Butler County simple battery conviction. In doing so, the prosecutor asked the

jury to compare Brown's Butler County simple battery conviction with this case. Then,

31

the prosecutor told the jury that during the Butler County "battery," Brown had grabbed

S.W.'s breast while intoxicated "just like he [did] in the [M.K. altercation]." The

prosecutor then told the jury that Brown's conduct in this case was more serious than the

lesser included offense of sexual battery:

"Sexual battery is in your instructions. Okay. It's like the tinier version of aggravated

sexual battery. Okay. The difference is there is no force or fear required with a sexual

battery. Okay. That completely minimizes what happened to [M.K.] Completely. An

example of a sexual battery would be like grabbing someone's breast. Okay, that would

be like an example of a sexual battery. Okay. What happened to [M.K.] is way more than

that. She endured at least 30 minutes she believes of the defendant on top of her. . . . She

is terrified. That is not sexual battery, folks, and it's the State's opinion that you could just

skip that one."

Afterwards, the prosecutor asked the jury about Brown's voluntary intoxication defense

and asked the jury if it believed Brown's voluntary intoxication defense: "Do you really

think that's the case here or do you think it's a big fat excuse? You guys get to decide.

Okay."

During his closing arguments, Brown's attorney sought to clarify that Brown was

not arguing that his voluntary intoxication was an excuse for his inappropriate behavior.

Instead, Brown's attorney pointed out to the jury the following: "[A]nother factor that

can influence intent and that's the voluntary intoxication instruction that was given. Is

being drunk an excuse? No. It is not. Okay. You are still responsible for your actions

even if you don't remember. The difference is criminal culpability." But in the

prosecutor's rebuttal to Brown's closing argument, the prosecutor told the jury that "the

bottom line is when Brown is drinking he hurts people, and he commits crimes, and you

decide if you are okay with that and if being drunk is a good enough excuse for that. You

decide if you want to just brush it under the rug or not."

32

The prosecutor's comments here are highly disparaging and intended to inflame

the jury to convict Brown. To begin with, our Supreme Court precedent in Pratt

establishes that "[v]oluntary intoxication is neither an excuse for nor a justification of

crime." 255 Kan. at 768. Voluntary intoxication is instead a valid legal defense. 255 Kan.

at 768-69. Here, the prosecutor improperly told the jury that Brown's voluntary

intoxication defense was equivalent to an excuse to harm someone. This is clearly a

misstatement of the law. Cf. State v. Schreiner, 46 Kan. App. 2d 778, 795-96, 264 P.3d

1033 (2011) (holding that the prosecutor's request to the jury to "find that intoxication is

not an excuse for the behavior" while technically a correct statement of the law was likely

confusing to the jury).

Also, the prosecutor injected a theory of moral sentiments in the jury's decision-

making process by referring to Brown's voluntary intoxication defense as "a big fat

excuse." First, the prosecutor implied that the jury would absolve Brown of his

inappropriate behavior if it accepted his voluntary intoxication defense. The prosecutor

then offered to the jury a false disjunction composed of two options: the jury could

decide to find Brown guilty of the aggravated burglary and aggravated sexual battery of

M.K. or the jury could decide to "'brush [Brown's inappropriate conduct] under the rug.'"

The prosecutor, however, failed to tell the jury that another alternative existed: the jury

could decide to convict Brown of sexual battery as the lesser included offense of

aggravated sexual battery.

Also, the prosecutor's argument implicitly invited the jurors to protect society

against such unfairness based on Brown's voluntary intoxication defense. The

prosecutor's argument implied the unfairness which would result if the jury condoned

Brown's detestable behavior by falling for or adopting his voluntary intoxication defense.

Indeed, the prosecutor declared: "[T]he bottom line is when Brown is drinking he hurts

people, and he commits crimes, and you decide if you are okay with that and if being

drunk is a good enough excuse for that. You decide if you want to just brush it under the

33

rug or not." This kind of argument would be a snare to the moral sentiments of the jurors

and to what they believe is just, right, or acceptable in society. As a result, the

prosecutor's argument can be reconstructed into this categorical syllogism:

Major premise: No defenses excusing bad behavior are to be trusted.

Minor premise: A voluntary intoxication defense excuses bad behavior.

Conclusion: Therefore, a voluntary intoxication defense is not to be trusted.

Obviously, there is no purpose or support for this syllogistic argument except to inflame

the passions and prejudices of the jurors.

Next, the prosecutor's use of the word "excuse" taken together with her description

of Brown's Butler County simple battery conviction and what conduct constituted a

sexual battery was misleading. Both through Detective Simmons' testimony as well as in

her closing argument, the prosecutor emphasized that Brown was charged and convicted

of his Butler County simple battery even though he was drunk when he committed that

crime. Because simple battery is a general intent crime, however, Brown never had the

option to assert voluntary intoxication as a defense to his crime. See K.S.A. 2020 Supp.

21-5413(a)(2). But the fact that Brown could not raise a voluntary intoxication defense to

his Butler County simple battery charge was never explained to the jury.

In fact, the prosecutor described Brown's nonconsensual grabbing of S.W.'s breast

as a "battery" and then told the jury that the act of grabbing someone's breast without

consent constituted a "sexual battery." Because a sexual battery also requires a person to

act "with the intent to arouse or satisfy the sexual desires of the offender or another,"

however, it is a specific intent crime for which voluntary intoxication is a valid legal

defense. See K.S.A. 2020 Supp. 21-5505(a).

34

Thus, not only did the prosecutor emphasize that Brown was convicted of a sexual

battery in the Butler County case despite being drunk, she implied that he could have

raised a voluntary intoxication defense to that battery. As a result, the jury may have

believed that Brown had tried but failed when raising a voluntary intoxication "excuse" to

his Butler County simple battery charge; or, it may have believed that Brown had pleaded

guilty instead of arguing voluntary intoxication because he knew such a defense would be

futile in his Butler County case. Either way, the jury could have construed Brown's Butler

County simple battery conviction, despite his undisputed drunkenness when he

committed that crime, as evidence that the jury should reject his voluntary intoxication

"excuse" in this case too.

Thus, it is readily apparent that the prosecutor erred when she referred to Brown's

voluntary intoxication defense as "a big fat" excuse. Voluntary intoxication was Brown's

valid legal defense, not an excuse, and the jury would not have "brush[ed]" Brown's

inappropriate behavior "under the rug" had it accepted that defense.

In its brief, the State contends that even if we determine that the prosecutor's

comments were erroneous, each of the prosecutor's comments were harmless (1) because

overwhelming evidence supported that Brown had the specific intent necessary to

commit an aggravated burglary and aggravated sexual battery against M.K. and (2)

because the trial court instructed the jury to follow all of the jury instructions.

As for the State's contention that the prosecutor's "big fat excuse" related

comments were harmless because the trial court instructed the jury to follow all the jury

instructions, the State misjudges the seriousness of the prosecutor's comments. As

previously explained, the prosecutor's comments directed the jury's focus away from

whether Brown was capable of acting with the intent to arouse or satisfy the sexual

desires of himself or of M.K. to an improper morality question. That is, whether the jury

should excuse Brown for his inappropriate conduct just because he was drunk.

35

Moreover, the State's argument ignores one of the more confusing things that

happened during Brown's jury trial. When we consider harmlessness under the

constitutional harmless error test, we consider the error in light of the entire record. Also,

under the constitutional harmless error test, the party benefiting from the error must prove

beyond a reasonable doubt that the error complained of did not affect the jury's verdict in

light of the entire record. That is, the party benefiting from the error must establish that

there is no reasonable possibility that the error contributed to the jury's verdict. State v.

Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011). For reasons unclear, when the trial

court sustained the State's objection to Brown's attorney's questioning of Detective

Simmons, the trial court explicitly stated the following: "[Detective Simmons] didn't say

anything about the law says that intoxication isn't a defense and it's not a defense in this

case." There can be no doubt that this misstatement of law by the trial court, in and of

itself, prejudiced Brown. This misstatement of the law told the jury that even the judge

does not believe that voluntary intoxication constitutes a defense in Brown's case.

Also, the timing of the trial court's misstatement heightened its prejudicial effect.

This is because the trial court made this misstatement while sustaining the State's

objection to Brown's attorney's questioning of Detective Simmons, which Brown's

attorney undertook in an effort to clarify Detective Simmons' redirect examination

testimony―implying that voluntary intoxication is an excuse rather than a valid legal

defense to the State's charges against Brown.

The timing of the prosecutor's disputed "excuse" comments is also important.

After the prosecutor made the "big fat excuse" comment during closing argument,

Brown's attorney sought to explain to the jury that Brown was not raising voluntary

intoxication as an excuse. Yet again, during her rebuttal argument to the jury, the

prosecutor told the jury "you decide if you are okay with [Brown hurting people when he

is drunk] and if being drunk is a good enough excuse for that. You decide if you want to

36

just brush it under the rug or not." As a result, one of the last things that the prosecutor

told the jury was that to accept Brown's voluntary intoxication defense would be akin to

brushing Brown's inappropriate behavior under the rug. Because the prosecutor made the

preceding comment during her rebuttal, the timing of the prosecutor's inappropriate

comments magnified its prejudicial effect. See Zapata v. Vasquez, 788 F.3d 1106, 1122

(9th Cir. 2015) (Holding that "[t]he presentation of improper material at the end of trial

'magnifie[s]' its prejudicial effect because it is 'freshest in the mind of the jury when [it]

retire[s] to deliberate.' [Citation omitted.]").

In short, the trial court bolstered the prosecutor's theme that Brown's voluntary

intoxication defense did not excuse his conduct in this case. Thus, although the trial court

instructed the jury to follow all the jury instructions, it is highly likely that the jury had

already discredited Brown's voluntary intoxication defense based on the prosecutor's and

trial court's misstatements of law by the time it received those instructions. Under these

facts, the State cannot prove that the prosecutor's errant comments referring to Brown's

voluntary intoxication defense as "a big fat excuse" were harmless beyond a reasonable

doubt.

The Prosecutor Erred by Telling the Jury to Skip Instructions

It is a well-known rule that "[a] prosecutor's misstatement of law constitutes

prosecutorial error." State v. Ross, 310 Kan. 216, 221, 445 P.3d 726 (2019).

In arguing that the prosecutor erred by telling the jury to skip the instructions on

sexual battery as a lesser included offense and voluntary intoxication, Brown asserts that

his case is comparable to State v. McCorkendale, 267 Kan. 263, 282, 979 P.2d 1239

(1999), disapproved of on other grounds by State v. King, 288 Kan. 333, 204 P.3d 585

(2009). There, our Supreme Court considered the following comments made by the

37

prosecutor during closing arguments regarding McCorkendale's voluntary intoxication

defense against his first-degree premeditated murder charge:

"There's an instruction on involuntary manslaughter. There's one on voluntary

manslaughter. I'm asking that you do not even consider those. He is charged with first

degree intentional premeditated murder. You have proof beyond a reasonable doubt that

that's what this case is about. You don't even have to consider those lessers. Those are

thrown in to confuse you; don't consider them.'

"'He's argued, and there's an instruction on intoxication as a defense, and I'm not

sure if he's saying now, well, yeah, I did do first degree murder, excuse it because I was

intoxicated, but nonetheless, there's an instruction in there that I'm going to ask that you

totally disregard because he was not intoxicated to the point that he didn't know what he

was doing and that's what the instruction basically says. In order for you to think that's a

defense to first degree murder, you have to think that he was totally out of it because he

was drinking, he wasn't aware of what was going on in his surroundings.' (Emphasis

added.)" 267 Kan. at 282.

Our Supreme Court decided McCorkendale under our previous standard for

reviewing prosecutorial wrongdoings—the prosecutorial misconduct test. Regardless, our

Supreme Court explained that it "[had] no hesitancy in concluding that the above remarks

by the State were improper":

"Urging the jury not to consider instructions given by the court because they were thrown

in to confuse the jury and asking the jury to totally disregard instructions given by the

court constitutes prosecutorial misconduct. While the State asks this court to consider the

comments in context as a statement that the jury need not consider the lesser included

offenses because the evidence establishes first-degree premeditated murder, and that the

voluntary intoxication instruction should be ignored because there was no evidence to

support its consideration, the remarks improperly advise the jury to ignore the trial court's

instruction. The effect of the State's comment was not to simply persuade the jury that the

evidence had fallen short of establishing any of the lesser included offenses or failed to

establish intoxication in accord with the instructions given. Rather, the argument

38

improperly told the jury to disregard the trial court's instructions in a given area." 267

Kan. at 282.

The State responds that Brown's comparison of the prosecutor's comments to skip

the instructions on sexual battery as a lesser included offense and on voluntary

intoxication during closing arguments in his case are distinguishable from the

prosecutor's comments during McCorkendale's closing arguments. Specifically, the State

alleges the prosecutor's comments in this case are distinguishable because unlike in

McCorkendale, the prosecutor here "did not flatly tell the jury to disregard the court's

instructions." Nevertheless, the State's characterization of the prosecutor's comments is

wrong and misleading.

When discussing the lesser included offense of sexual battery instruction, the

prosecutor explicitly told the jury the following:

"So if you believe [M.K.], and if you agree that the State did prove up the

aggravated sexual battery, you don't even have to consider sexual battery. Because your

instructions are going to say, if you feel like we proved the agg—the agg of the sexual

battery, the aggravated part, you don't even get to the next. You don't have to go there.

Just skip to the next page. You don't have to look at it. Okay. You don't—you get to skip

over. So you don't have to consider it. So we're asking that you check the guilty boxes on

all the aggravated." (Emphasis added.)

Telling the jury that it "[does not] have to look at [the lesser included offense

instruction]" and instead can "[j]ust skip to the next page" is telling the jury to disregard

the court's instructions. To interpret the prosecutor's comments in any other way would

be patently unreasonable.

As for the prosecutor's comments concerning the voluntary intoxication

instruction, immediately after telling the jury that it "[did not] have to look at" the lesser

39

included offense instruction, the prosecutor told the jury that voluntary intoxication

"may" be a defense to the State's charges against Brown. This is a correct statement of the

law. See K.S.A. 2020 Supp. 21-5205(b). Nevertheless, immediately after saying that

voluntary intoxication "may" be a defense to Brown's aggravated burglary and

aggravated sexual battery charges, the prosecutor told the jury the following:

"All right. You do not have to do this. You do not have to consider this. Okay. It

is in there, but you don't have to do it. This is where the rubber meets the road, folks.

This is where the Constitution comes into play and you are the jury of his peers and you

guys decide are you buying this. Okay. Do you buy this? That he was so hammered that

he didn't know what he's doing. Do you really think that's the case here or do you think

it's a big fat excuse? You guys get to decide. Okay.

"Because essentially, it's a 'may.' It is permissive within the law. It is not a 'shall,'

like you have to consider it. You can skip it if you want, but it isn't there." (Emphasis

added.)

Once again, telling the jury that it "[does] not have to consider" and "can skip" the

instruction on voluntary intoxication is telling the jury that it can disregard the court's

instructions. This is the only reasonable way to interpret the prosecutor's comments.

The trial court's primary instruction to the jury was that "it [was its] duty to

consider and follow all of the instructions." Afterwards, the trial court instructed the jury

on sexual battery as a lesser included offense and voluntary intoxication as a defense. Just

like the prosecutor in McCorkendale, by telling the jury to ignore the instructions on

sexual battery as a lesser included offense and on voluntary intoxication as a defense, the

prosecutor in this case did not simply try to persuade the jury that the evidence supported

convicting Brown of aggravated sexual battery as opposed to sexual battery as a lesser

included offense. Nor did the prosecutor simply try to argue that the evidence of Brown's

voluntary intoxication defense was unpersuasive. Instead, the prosecutor improperly told

the jury to disregard the trial court's instructions on sexual battery and voluntary

40

intoxication. Simply put, the prosecutor's comments about skipping the instructions

constituted a misstatement of law.

Additionally, the prosecutor's discussion of how voluntary intoxication "may" be a

defense to Brown's aggravated burglary and aggravated sexual battery charges makes the

prosecutor's comment about skipping the voluntary intoxication instruction even more

egregious than the comments at issue in McCorkendale. The prosecutor told the jury that

the law allowed it to ignore Brown's voluntary intoxication defense. As a result, the

prosecutor undermined Brown's right under both the United States Constitution and the

Kansas Constitution to present his defense theory. See State v. Pennington, 281 Kan. 426,

439, 132 P.3d 902 (2006).

Regarding harmlessness, the prosecutor's directions to the jury to skip the

instructions on sexual battery as a lesser included offense and voluntary intoxication as a

defense only compounded the harm caused by the prosecutor's "big fat excuse" comment

detailed in the preceding question. Also, the prosecutor repeated her directions to "skip

over" the sexual battery as a lesser included offense instruction during her rebuttal.

Because this was one of the last things the jury heard before it began deliberating, the

timing of the prosecutor's comments magnifies the error. See Zapata, 788 F.3d at 1122.

In short, the prosecutor's directions to the jury to skip the instructions on sexual battery as

a lesser included offense and voluntary intoxication as a defense were not harmless

beyond a reasonable doubt.

The Prosecutor Erred by Telling the Jury That the Judge Had the "Hard Job"

In his final claim of prosecutorial error, Brown asserts that the prosecutor erred

when she told the jury that the trial "judge ha[d] the hard job of deciding what happens

next." In making his argument, Brown notes that in State v. Brinklow, 288 Kan. 39, 50,

200 P.3d 1225 (2009), our Supreme Court stated that prosecutors err if they make

41

comments that dilute the State's burden of proof during closing arguments. He then

contends that the prosecutor's comment that the trial "judge ha[d] the hard job of deciding

what happens next," diluted the role of the jury by "minimiz[ing] [its] responsibility in

determining [Brown's] guilt beyond a reasonable doubt." Brown also argues that the

prosecutor's comment that "[t]he judge will have all the information before him" when

deciding "what happens next" insinuated that there were important facts not in evidence.

The State counters that the prosecutor did not dilute the role of the jury because

she was merely "reminding [the jury] that [its] only concern was deciding whether

[Brown] was guilty or not guilty." As for the prosecutor's comment about the trial judge

having "all the information before him" when he decided "what happens next," the State

concedes that "[t]he allusion to the fact that the jury did not have all the information may

have been erroneous." But the State further contends that in context, none of the

prosecutor's disputed comments were erroneous because she was merely paraphrasing

one of the court's jury instructions. The State's arguments, however, are flawed.

To review, near the very end of her rebuttal to Brown's closing argument, the

prosecutor told the jury the following:

"Now, you may have an idea of what you think needs to happen. Okay. You may

have an idea of what needs to happen to the defendant in the future or whatever. Now, I

remember in jury selection we talked about the fact that you are not responsible for that

piece of it. You don't have a part of that. Okay. And you're lucky that you don't, so

unburden yourself from that. The only thing that you have to decide is guilty or not guilty.

That's it. That's it. The judge has the hard job of deciding what happens next. Okay. But

what happens next part is the hardest part really. The judge will have all the information

before him. Remember we talked about in jury selection there are things you get to know,

the judge will know everything. He'll have all [the] information when it's time to decide

what happens next.

". . . Trust the judge to figure that out. So go back there and the State is asking for

you to go back there, and on the verdict form, check guilty on aggravated burglary and

42

aggravated sexual battery. You can skip the sexual battery because remember that is a

minimization of what happened to [M.K.] Okay. That is not what happened here. That's

not even what's charged. So we're asking you to skip over that one and just everything

that says aggravated, check guilty. That's what we're asking for you to do. You can take

as much time as you want or as little time as you want. Okay. And zoom on down the

road." (Emphases added.)

Of note, although the prosecutor never explicitly stated that she was discussing

sentencing when referring to "what happens next," it is readily apparent from the context

of her statement that she was talking about sentencing Brown. Also, in the disputed

comment, the prosecutor states that she is referencing a discussion that happened during

jury selection. At jury selection, the prosecutor told the jury "[s]omething else that we're

not allowed to talk about is sentencing."

Next, although neither party cites Caldwell v. Mississippi, 472 U.S. 320, 105 S. Ct.

2633, 86 L. Ed. 2d 231 (1985), this United States Supreme Court decision is helpful in

determining whether the prosecutor erred by making the preceding comments. A jury

convicted Caldwell of capital murder. Afterwards, during the penalty phase of Caldwell's

case, Caldwell's defense attorney told the jury that it was in control of Caldwell's fate.

The prosecutor responded to this argument by telling the jury that its decision whether to

recommend the death penalty was reviewable:

"'[Defense counsel] said 'Thou shalt not kill.' If that applies to him, it applies to you,

insinuating that your decision is the final decision and that they're gonna take Bobby

Caldwell out in the front of this Courthouse in moments and string him up and that is

terribly, terribly unfair. For they know, as I know, and as Judge Baker has told you, that

the decision you render is automatically reviewable by the Supreme Court.

Automatically, and I think it's unfair and I don't mind telling them so.'" 472 U.S. at 325-

26.

The jury ultimately sentenced Caldwell to death.

43

Caldwell appealed to the United States Supreme Court, arguing that the

prosecutor's comments were inconsistent with the Eighth Amendment to the United

States Constitution's heightened reliability requirement in the determination of a death

penalty sentence. The United States Supreme Court agreed: "[W]e conclude that it is

constitutionally impermissible to rest a death sentence on a determination made by a

sentencer who has been led to believe that the responsibility for determining the

appropriateness of the defendant's death rests elsewhere." 472 U.S. at 329-30. It then

vacated Caldwell's death penalty sentence because by "suggest[ing] that the responsibility

for any ultimate determination of death will rest with others," the prosecutor created "an

intolerable danger that the jury [would] in fact choose to minimize the importance of its

role." 472 U.S. at 333.

Clearly, because this is not a capital punishment case, the prosecutor's comments

here do not receive the same heightened scrutiny as the prosecutor's comments in

Caldwell's case. Still, the Caldwell decision indicates that a prosecutor errs when he or

she implies that the jury's verdict is reviewable or that the jury is not the ultimate

decision-maker. Yet, this is exactly what the prosecutor did in this case by telling the jury

that the trial "judge ha[d] the hard job of deciding what happen[ed] next."

The State's contention that the prosecutor was merely "reminding [the jury] that

[its] only concern was deciding whether [Brown] was guilty or not guilty" ignores the

context of the prosecutor's comments. Although the prosecutor told the jury "[t]he only

thing that [it had] to decide was guilty or not guilty," it then immediately directed the

jury's attention to the fact that the trial judge "ha[d] the hard job of deciding what

happens next." In effect, the prosecutor told the jury not to worry about convicting Brown

of aggravated burglary and aggravated sexual battery because the judge was ultimately

responsible for determining Brown's punishment. Also, if the prosecutor wanted the jury

to focus solely on whether to convict Brown, there was no need to bring up sentencing.

44

And there was certainly no need to tell the jury that the trial judge would also have the

benefit of having "all the information before him" when he "decide[d] what happens

next."

It is also important to note that after the prosecutor told the jury that the trial judge

"ha[d] the hard job of deciding what happens next," the prosecutor repeated that the jury

could "skip over" the sexual battery as a lesser included offense instruction because

"[t]hat's not even what's charged." And then the prosecutor added that the jury could "take

as much time as [it] want[ed] or as little time as [it] want[ed]" before "zoom[ing] on

down the road." Between telling the jury to skip jury instructions, telling the jury it could

take as little time as it wanted in its deliberations, and telling the jury that the trial "judge

ha[d] the hard job of deciding what happens next," there can be little doubt that the jury

believed it was playing an insignificant role in Brown's criminal case.

Also, the State's contention that the prosecutor was merely paraphrasing jury

instructions when she made the disputed comments is unconvincing. Based on the State's

citation, it seems the State believes that the prosecutor was paraphrasing the trial court's

first jury instruction. But the trial court's first jury instruction does not state that it would

have all the information before it when sentencing. The only language in the instruction

that involves evidence is that the jury "should consider everything admitted into

evidence" and consider nothing not admitted into evidence. Also, this instruction

explicitly states that "[t]he disposition of the case thereafter is not to be considered in

arriving at your verdict."

In summary, a prosecutor must limit his or her closing comments on the evidence

of the record and the inference that may reasonably be drawn from them. Here, the

prosecutor willingly walked along the cliff of reversible error. And the prosecutor walked

over that cliff when she failed to separate proper and legitimate arguments from the

disparaging comments and misstatements of law intended to inflame the jury to convict

45

Brown. Indeed, the prosecutor minimized the jury's role by suggesting that the trial

"judge ha[d] the hard job of deciding what happens next" to Brown. The prosecutor also

minimized the role of the jury by stating that it could rush through deliberations by

skipping jury instructions, by taking as little time as it wanted during deliberations, and

by "zoom[ing] on down the road." In making those comments, the prosecutor implied

that the jurors' decision was insignificant when compared to the trial judge's larger

responsibility of deciding Brown's punishment. In the context of the prosecutor's other

erroneous comments during closing arguments, as well as the prosecutor's and the trial

court's misstatement of law before the jury―that voluntary intoxication was not a

defense in Brown's case―the prosecutor's actions were not harmless beyond a reasonable

doubt.

We thus reverse Brown's aggravated burglary and aggravated sexual battery

convictions and remand to the trial court for a new trial.

Does the Admission of Brown's Incriminating Pre-Miranda Statements at Trial Require

Reversal of His Convictions?

To review, at the end of the State's Jackson v. Denno hearing, the trial court ruled

that the State could admit Brown's incriminating pre-Miranda statements to Sergeant

Becker into evidence at trial because Brown's incriminating pre-Miranda statements were

not the result of a custodial interrogation. Then, at Brown's jury trial, over Brown's

objection, the State admitted into evidence Sergeant Becker's bodycam video which

showed Brown making the incriminating pre-Miranda statements to Sergeant Becker.

Again, the incriminating pre-Miranda statements indicated that Brown understood why

the police were arresting him and that he did not expect the police to come because "she

[M.K.] didn't say anything," because "she didn't say she was going to call the cops," and

because he "didn't really do anything" as he never "[took his] clothes off."

46

On appeal, Brown challenges the trial court's ruling that his incriminating pre-

Miranda statements to Sergeant Becker were not the result of custodial interrogation.

Brown first notes that at the Jackson v. Denno hearing, the State conceded that he was in

custody. He then argues that caselaw establishes that his incriminating pre-Miranda

statements were in response to Sergeant Becker's interrogation. Finally, Brown concludes

that the erroneous admission of his incriminating pre-Miranda statements was not

harmless. Brown points out that the prosecutor relied on his incriminating pre-Miranda

statements during closing arguments to undermine his voluntary intoxication defense.

As it did below, the State concedes that Brown was in custody when he made his

incriminating pre-Miranda statements to Sergeant Becker. Even so, the State argues that

Sergeant Becker was not interrogating Brown because Sergeant Becker only made

"statements" to Brown as opposed to "questioning" Brown. It further argues that Sergeant

Becker was not interrogating Brown because his statements were "not necessarily likely

to elicit an incriminating response." Alternatively, the State asserts that any error from the

trial court's admission of Brown's incriminating pre-Miranda statements to Sergeant

Becker was harmless for two reasons: First, it contends any error was harmless because

Brown's "more incriminating statements were spontaneous." Second, it contends that any

error was harmless because the evidence was overwhelming supporting Brown's

aggravated burglary and aggravated sexual battery convictions.

Custodial Interrogation Law

Before considering the parties' respective arguments, however, it is first important

for us to review the law on custodial interrogations.

"'The Fifth Amendment to the United States Constitution guarantees the right

against self-incrimination, including the right to have a lawyer present during custodial

interrogation and the right to remain silent.'" State v. Walker, 276 Kan. 939, 944, 80 P.3d

47

1132 (2003) (citing Miranda, 384 U.S. at 479). In Rhode Island v. Innis, 446 U.S. 291,

300-01, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980), the United States Supreme Court held

that "the Miranda safeguards come into play whenever a person in custody is subjected to

either express questioning or its functional equivalent." Thus, the Miranda safeguards are

triggered "'when an accused person is (1) in custody and (2) subject to interrogation.'"

State v. Guein, 309 Kan. 1245, 1253, 444 P.3d 340 (2019). This, in turn, means that when

a law enforcement officer obtains incriminating pre-Miranda statements from a defendant

while that defendant is in custody and under interrogation, that officer violates that

defendant's rights under the Fifth Amendment. See State v. Palacio, 309 Kan. 1075,

1081-82, 442 P.3d 466 (2019) (citing Innis, 446 U.S. at 297). So incriminating pre-

Miranda statements obtained during a custodial interrogation must be excluded from

evidence. 309 Kan. at 1082.

Again, it is undisputed that Brown was in custody when he made his incriminating

pre-Miranda statements to Sergeant Becker. Next, whether Brown's Fifth Amendment

rights were violated hinges on if Sergeant Becker was interrogating Brown. To determine

if an incriminating pre-Miranda statement resulted from interrogation, courts must

consider the law enforcement officer's conduct when the defendant made the

incriminating pre-Miranda statement: "An officer's words or actions, including explicit

questioning, is interrogation only if the officer should have known that the questioning

was 'reasonably likely to elicit an incriminating response from the suspect.'" Palacio, 309

Kan. at 1085 (quoting Innis, 446 U.S. at 301). "Whether words or actions are likely to

elicit an incriminating response 'focuses primarily upon the perceptions of the suspect,

rather than on the intent of the police.'" 309 Kan. at 1085 (quoting Innis, 446 U.S. at 301).

Thus, the officer's disputed words or actions will constitute an interrogation if the officer

should have known that the suspect would have perceived the officer's disputed words or

actions as an invitation to divulge incriminating information.

48

When an appellate court reviews a trial court's ruling regarding the suppression of

an accused's statements, an appellate court reviews the trial court's ruling under two

steps: Under the first step, an appellate court reviews the trial court's factual findings for

substantial competent evidence. Guein, 309 Kan. at 1251-52. "Substantial competent

evidence refers to legal and relevant evidence that a reasonable person could accept as

being adequate to support a conclusion." State v. Schultz, 289 Kan. 334, 340, 212 P.3d

150 (2009). While engaging in the substantial competent evidence standard of review, an

appellate court does not reweigh evidence, assess the credibility of the witnesses, or

resolve conflicting evidence. Guein, 309 Kan. at 1252. Under the second step, an

appellate court exercises de novo review over the trial court's legal conclusions. 309 Kan.

at 1252.

If a defendant establishes that the trial court erroneously admitted evidence at trial

of his or her incriminating pre-Miranda statement resulting from custodial interrogation,

an appellate court must then consider if the erroneous admission of the defendant's

incriminating pre-Miranda statement was harmless under the constitutional harmless

error test. See State v. Lewis, 299 Kan. 828, 837, 326 P.3d 387 (2014). As stated earlier,

under the constitutional harmless error test, the party benefiting from the error must prove

beyond a reasonable doubt that the error complained of did not affect the jury's verdict in

light of the entire record. That is, the party benefiting from the error must establish that

there is no reasonable possibility that the error contributed to the jury's verdict. Ward,

292 Kan. 541, Syl. ¶ 6.

Previously, both this court and our Supreme Court have considered defendants'

challenges to the admission of their incriminating pre-Miranda statements by arguing that

their incriminating pre-Miranda statements stemmed from a custodial interrogation. On

this question, Kansas caselaw authority can be divided generally into two categories: (1)

cases involving explicit questioning by law enforcement of a defendant in custody before

49

Mirandizing the defendant and (2) cases involving declaratory statements made by a law

enforcement officer to a defendant in custody before Mirandizing the defendant.

Kansas courts often hold that questioning under the first category constitutes

custodial interrogation. For instance, in State v. Hebert, 277 Kan. 61, 70, 82 P.3d 470

(2004), our Supreme Court held that a law enforcement officer who asked Hebert, a

murder suspect who had not yet been Mirandized, if he "'[w]ould . . . like the opportunity

to tell [him his] side of the story,'" constituted custodial interrogation. And in another

case, State v. Johnson, 46 Kan. App. 2d 387, 396, 264 P.3d 1018 (2011), we held that a

law enforcement officer's pre-Miranda question whether Johnson "'had anything on his

person that she should know about'" constituted custodial interrogation, in part, because

the officer "should have known her question was reasonably likely to elicit an

incriminating response." Of note, in reaching this holding, we also rejected the State's

argument that the officer's question fell under the narrow exception allowing law

enforcement officers to ask limited public safety-related questions before Mirandizing a

defendant. 46 Kan. App. 2d at 396.

On the other hand, when deciding cases involving a law enforcement officer's

declaratory statement, Kansas courts frequently affirm the trial court's admission of a

defendant's incriminating pre-Miranda response. Although the Palacio decision involved

whether Palacio's incriminating post-Miranda statements were the result of interrogation

and, thus, inadmissible because a law enforcement officer continued to talk to him after

he asked to speak with an attorney, our Supreme Court rejected Palacio's argument

because the law enforcement officer's "declarative statements" were not an interrogation.

It determined that the declarative statements were "meant to inform Palacio of the reasons

he and his girlfriend were in custody" as opposed to eliciting incriminating responses.

309 Kan. at 1086.

50

Our Supreme Court reached a similar result in State v. Duke, 256 Kan. 703, 707,

887 P.2d 110 (1994). There, while transporting a handcuffed Duke to jail, a law

enforcement officer told another officer that he was transporting a "'murder suspect.'" 256

Kan. at 707. The other officer responded, "'No Shit.'" 256 Kan. at 707. To which Duke

replied, "'No shit, it was me'" or "'I did it.'" 256 Kan. at 707. Because our Supreme Court

determined that Duke's incriminating pre-Miranda reply was a voluntary spontaneous

statement in response to the law enforcement officer's declaratory statements, it affirmed

the trial court's admission into evidence of Duke's incriminating pre-Miranda reply. 256

Kan. at 708-09.

Thus, there is Kansas authority addressing if pre-Miranda explicit questioning of a

suspect by a law enforcement officer constitutes custodial interrogation and there is

Kansas authority addressing if a pre-Miranda declaratory statement made by a law

enforcement officer to a suspect constitutes custodial interrogation. Nevertheless, there

seems to be no Kansas caselaw either (1) explaining when a law enforcement officer has

engaged in the functional equivalent of a custodial interrogation or (2) stating examples

of what sort of words or actions by a law enforcement officer are necessary to constitute a

functional equivalent of a custodial interrogation. There also seems to be no Kansas case

with facts comparable to this case, that is, where the law enforcement officer asked a

defendant, "I'm assuming you know what this is about" and "I'm assuming you were kind

of expecting us."

In his brief, though, Brown compares the facts of his case to cases from other

jurisdictions. Specifically, Brown compares the facts of his case to the facts at issue in the

United States Supreme Court case Oregon v. Elstad, 470 U.S. 298, 105 S. Ct. 1285, 84 L.

Ed. 2d 222 (1985), the Wisconsin Court of Appeals case Wisconsin v. Cleaver, No.

2004AP169-CR, 2005 WL 2757478 (Wis. Ct. App. 2005) (unpublished opinion), and the

Kentucky Supreme Court case Dunlap v. Com., 435 S.W.3d 537 (Ky. 2013), as modified

(Feb. 20, 2014).

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In Elstad, a law enforcement officer asked the defendant suspected of burglary

two questions before Mirandizing him. First, the officer asked Elstad "'if he was aware of

why [law enforcement was] there to talk.'" 470 U.S. at 301. And Elstad replied, "'[N]o.'"

470 U.S. at 301. Then, the officer asked Elstad if he knew the burglary victim without

mentioning that this person had been burglarized. At this point, Elstad told the officer that

he knew the victim and had heard there was "'a robbery'" at the victim's house. 470 U.S.

at 301. Elstad then added that "'[he] was there.'" 470 U.S. at 301. Ultimately, the State of

Oregon conceded that the officer's questioning of Elstad constituted custodial

interrogation. The Elstad decision, however, included no analysis on the custodial

interrogation issue. Even so, in deciding if Elstad's post-Miranda confession was

voluntary, the United States Supreme Court assumed that the officer's pre-Miranda

questioning of Elstad constituted a custodial interrogation. 470 U.S. at 315-16.

In Cleaver, a law enforcement officer drove Cleaver, who was suspected of

murdering her infant child, from her workplace to her home. Once at Cleaver's home, and

before Mirandizing Cleaver, a detective asked Cleaver: "'Do you know why we're here

today?'" 2005 WL 2757478, at *2. Cleaver responded either "'because of my baby'" or

"'because of what you found in my basement.'" 2005 WL 2757478, at *2. Before the trial

court, Cleaver successfully moved to suppress her incriminating pre-Miranda statements

as fruit of a custodial interrogation. The State of Wisconsin appealed this ruling. But the

Wisconsin Court of Appeals affirmed the trial court, holding that the trial court ruling

was supported by the record and by the law. 2005 WL 2757478, at *3.

Meanwhile, in Dunlap, when a law enforcement officer executing a search warrant

arrived at Dunlap's home, the officer asked Dunlap: "'Do you know why we are here?'"

435 S.W.3d at 596. Dunlap, who was suspected of murder and had not been Mirandized,

then responded "'[a]bout the Roaring Springs thing'"; the murders had occurred in

Roaring Springs. 435 S.W.3d at 596. Upon Dunlap's appeal, the Kentucky Supreme

52

Court relied on Elstad and Cleaver to hold that Dunlap made his incriminating pre-

Miranda statement while under custodial interrogation. 435 S.W.3d at 596.

Sergeant Becker Interrogated Brown

Now that we have reviewed the law on custodial interrogations, we will now

consider the merits of Brown's underlying argument.

Once again, the trial court determined that although Brown was in custody when

he made his incriminating pre-Miranda statements, Brown was not under interrogation

when he made his incriminating pre-Miranda statements for the following reasons: (1)

because Sergeant Becker warned Brown twice about not saying anything more before

Brown made his "spontaneous" incriminating pre-Miranda statements; (2) because

Sergeant Becker asked Brown a "question or two" to ensure his safety as Brown's

calmness indicated he may flee or fight; and (3) because none of Sergeant Becker's

questions were related to Brown's alleged criminal conduct.

We first point out that at the Jackson v. Denno hearing the State neither played nor

admitted Sergeant Becker's bodycam video of Brown's arrest into evidence. Instead, it

relied on Sergeant Becker's testimony and a transcript of Brown's arrest created by the

Haysville Police Department, which the trial court did not admit into evidence. At

Brown's trial, the State played and admitted Sergeant Becker's bodycam video of Brown's

arrest.

The preceding series of events are troubling for four reasons: First, we do not

have the transcript that Sergeant Becker relied on while testifying at the Jackson v.

Denno hearing in the record on appeal. Second, although Sergeant Becker testified at

both the Jackson v. Denno hearing and Brown's jury trial, by admitting Sergeant Becker's

bodycam video into evidence at trial, the State admitted into evidence something that was

53

not before the trial court when it ruled that Brown's incriminating pre-Miranda

statements were not the result of a custodial interrogation. Third, and perhaps most

alarming, the trial court denied the admission of the transcript because it "duplicate[d]

Sergeant Becker's testimony," meaning the transcript was cumulative. But the record on

appeal indicates that the trial court never reviewed the transcript before ruling that it was

cumulative of Sergeant Becker's testimony. Indeed, it seems that only Sergeant Becker

and the State had copies of the transcript during the Jackson v. Denno hearing. Clearly,

the trial court had no factual basis to support its ruling that the transcript was cumulative

or duplicative of Sergeant Becker's testimony since it never reviewed the transcript. This,

in and of itself, undermines the trial court's factual findings about Brown's incriminating

pre-Miranda statements. Fourth, Sergeant Becker's bodycam video of Brown's arrest that

the State admitted into evidence at Brown's trial wholly undermines each of the trial

court's factual findings in support of its admissibility ruling.

For starters, although the trial court found that Sergeant Becker had warned Brown

twice about not speaking to him before Brown made his incriminating pre-Miranda

statements, this is incorrect. The video of Sergeant Becker's bodycam shows that

Sergeant Becker first asked Brown: "I'm assuming you know what this was about."

Then, Brown responded, "Yes, sir." Afterwards, Sergeant Becker first warned Brown that

he was not going to "discuss this" with him in front of his wife and that he could talk to a

detective soon. Thus, Sergeant Becker did not provide his first warning until after he

made his first potentially coercive communication.

After giving his first warning to Brown not to "discuss this," Sergeant Becker

started talking to Brown once again. He asked Brown: "I'm assuming you were kind of

expecting us." Then, when Brown replied, "No," Sergeant Becker asked, "No." Then,

after Sergeant Becker asked Brown "No," he told Brown "Okay" three times as Brown

made a string of incriminating pre-Miranda statements. It was only after Brown made

54

this string of incriminating pre-Miranda statements that Sergeant Becker interrupted

Brown mid-sentence in stating: "We're not going to be talking about it with me."

In short, despite providing the initial warning to Brown not to "discuss this,"

Sergeant Becker reengaged Brown by asking him: "I'm assuming you were kind of

expecting us." Thus, it is readily apparent that substantial competent evidence does not

support the trial court's finding that Brown made his incriminating pre-Miranda

statements "after being told twice not to say anything more." Sergeant Becker's bodycam

video definitively establishes that Sergeant Becker engaged in a discussion with Brown,

then gave Brown a warning, reengaged a discussion with Brown, and then gave Brown

another warning. Indeed, the timing of Sergeant Becker's second warning is noteworthy

because Sergeant Becker allowed Brown to make a string of incriminating pre-Miranda

statements before finally providing Brown with the second warning to not "talk[] about it

with me." Simply put, if Sergeant Becker wanted to avoid eliciting incriminating pre-

Miranda statements from Brown, he would have provided Brown with a second warning

as soon as Brown indicated that he was not expecting them.

Sergeant Becker's bodycam video also disproves the trial court's finding that

Sergeant Becker spoke to Brown to ensure only that Brown would not flee or fight. As

already noted, a narrow exception allowing a law enforcement officer to ask a defendant

limited questions related to public safety before Mirandizing that defendant exists. See

Johnson, 46 Kan. App. 2d at 393-94 (discussing the public safety exception to Miranda).

Nevertheless, as discussed in the fact section of our opinion, Officer Watkins had placed

handcuffs on Brown as Sergeant Becker asked Brown: "I'm assuming you know what

this is about." And Brown was already handcuffed when Sergeant Becker asked Brown,

"I'm assuming you were kind of expecting us." Thus, even if Brown's calmness could

have made Sergeant Becker reasonably believe that Brown might be a flee or fight risk,

once Brown had been physically restrained, Sergeant Becker would no longer have any

legitimate flee or fight concerns to support his questioning. As a result, no reasonable

55

person would have made the trial court's ruling that Sergeant Becker's discussion with

Brown did not constitute custodial interrogation under the public safety exception to

Miranda.

Next, we note that although the State now asserts that Sergeant Becker just made

"statements" to Brown, this is not what the State argued before the trial court. Before the

trial court, the State repeatedly referred to Sergeant Becker as questioning Brown. For

instance, at one point, the prosecutor described Sergeant Becker as "ask[ing] questions,

very general questions that are considered general, honest questioning by police officers."

Undoubtedly, the prosecutor believed that Sergeant Becker had questioned Brown

because this was Sergeant Becker's explicit testimony. Sergeant Becker testified that his

"intention for the questions was more to gauge whether or not there was a potential flight

risk or potential combat or something like that."

Also, in ruling that Brown's incriminating pre-Miranda statements to Sergeant

Becker were admissible, the trial court found that Sergeant Becker was asking Brown

questions. It specifically found that Sergeant Becker "asked the question or two" to

ensure that Brown did not flee or fight. And it further found that Sergeant Becker's and

Brown's discussion was "a situation in which no interrogation [was] going on here other

than a couple of questions about do you know why we're here." (Emphasis added.)

The preceding finding by the trial court is critical for two reasons: First, it

establishes that regardless of what the State now argues on appeal, the trial court believed

that Sergeant Becker questioned Brown. Second, by finding that "no interrogation [was]

going on here other than a couple of questions about do know why we're here," the trial

court found that Brown was being interrogated when Sergeant Becker asked him

questions. Again, the State has never disputed that Brown was in custody when he made

his incriminating pre-Miranda statements to Sergeant Becker. Also, there can be no doubt

that Brown was in custody when Sergeant Becker asked him: "I'm assuming you know

56

what this was about" and "I'm assuming you were kind of expecting us" as Sergeant

Becker arrested Brown and told him that he was "taking him into custody."

Additionally, Sergeant Becker's syntax and intonation when talking to Brown

establishes that he was indirectly questioning Brown. Outside of the two warnings

Sergeant Becker gave to Brown about not "discuss[ing] this" with him, during the

disputed exchange, Sergeant Becker asked Brown the following: (1) "I'm assuming you

know what this is about"; (2) "I'm assuming you were kind of expecting us"; and (3)

"No." As mentioned earlier, he also told Brown "Okay" three times before giving Brown

a second warning not to "talk[] to [him] about it."

A person's intonation may turn a declarative statement into the functional

equivalent of a question, which is commonly called an indirect question. As explained by

Janet E. Ainsworth in In A Different Register: The Pragmatics of Powerlessness in Police

Interrogation, 103 Yale L.J. 259, 282 (1993), a law journal article discussing common

female gender-linked syntactic and paralinguistic characteristics, a rising intonation

changes an otherwise declarative statement into a question:

"Ordinarily, English speakers use rising intonation to signal a question or for some other

special effect. This is especially true for questions that are syntactically identical to

declarative statements. For example, each of the following pairs of utterances typically

would be distinguished in speech by the use of a high, rising intonation at the end of the

second sentence in each pair.

"Chris isn't hère.

"Chris isn't hére? (expressing uncertainty and request for confirmation or

explanation)

"I need a lawyèr.

"I need a lawyér? (expressing incredulity)"

57

In this case, although Sergeant Becker's disputed exchange with Brown may be

read as declarative statements, Sergeant Becker's intonation is key. As shown on his

bodycam video, the inflection in Sergeant Becker's voice while telling Brown "I'm

assuming you know what this is about" and "I'm assuming you were kind of expecting

us" established that Sergeant Becker was asking indirect questions. Sergeant Becker

wanted Brown to confirm or explain if he knew why he was being arrested and expected

to be arrested. As for Sergeant Becker's use of the word "assume," the word "assume" as

used by Sergeant Becker means "to take for granted or suppose (something) to be true."

Webster's New World College Dictionary 87 (5th ed. 2014). Thus, not only did Sergeant

Becker's intonation signal that he was asking Brown an indirect question, by using the

word "assume" Sergeant Becker told Brown that he would also take as true that "[he]

kn[e]w what this was about" and that "[he was] kind of expecting [law enforcement]"

unless he told him otherwise.

Turning to Sergeant Becker telling Brown "No," we note that Sergeant Becker told

Brown "No" in response to Brown's statement indicating that he was not expecting "[law

enforcement]." And this statement by Brown was in response to Sergeant Becker's

indirect question: "I'm assuming you were kind of expecting us." Sergeant Becker's

intonation when telling Brown "No" expressed uncertainty because he had just indicated

to Brown that "I'm assuming you were kind of expecting us." In short, the uncertainty in

Sergeant Becker's voice invited Brown to explain why he was not expecting law

enforcement because Sergeant Becker initially assumed that Brown knew why law

enforcement was at his house arresting him.

As for Sergeant Becker telling Brown "Okay" three times as Brown made a series

of incriminating pre-Miranda statements, Sergeant Becker did not use a rising intonation

while saying "Okay." Thus, Sergeant Becker made declarative statements when he said

"Okay" to Brown.

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Still, by saying "Okay," Sergeant Becker encouraged Brown to keep telling him

why he was not expecting law enforcement. "Verbal fillers" or "filled pauses" are

awkward hesitations and repeated words or phrases that people use while speaking.

"Verbal fillers can be seen as signposts for people engaged in the complex give and take

of conversation." See Gotthelf, The Lawyer's Guide to Um, 11 Legal Comm. & Rhetoric:

JALWD 1, 11 (2014). Here, a review of Sergeant Becker's bodycam video establishes

that he said "Okay" to Brown as a signpost that he was listening to what Brown had to

say in response to his indirect questions: "I'm assuming you were kind of expecting us"

and "No." Saying "Okay" was also a signal to Brown that he should keep explaining

himself.

In a nutshell, Sergeant Becker's bodycam video establishes that when he asked,

"I'm assuming you know what this is about," "I'm assuming you were kind of expecting

us," and "No," Sergeant Becker was not making a declarative statement. Instead, his

intonation established that he was asking Brown indirect questions. As a result, in

addition to Sergeant Becker's explicit testimony that he questioned Brown, Sergeant

Becker's syntax and intonation establishes that Sergeant Becker questioned Brown when

he asked, "I'm assuming you know what this is about," "I'm assuming you were kind of

expecting us," and "No." In turn, the State's contention that Sergeant Becker was not

interrogating Brown because he simply made declarative statements as opposed to

explicit questioning flies in the face of reason as well.

The State's remaining argument that Sergeant Becker's "statements" were not

"necessarily likely to elicit an incriminating response" is also unconvincing. For starters,

by asserting that Sergeant Becker's "statements" were not "necessarily likely to elicit an

incriminating response," the State implicitly concedes that Sergeant Becker's questioning

may have elicited an incriminating response. More importantly, under the facts of this

case, it is readily apparent that Sergeant Becker should have known that his indirect

59

questioning of Brown would have been perceived by Brown as an invitation to divulge

incriminating information.

When Sergeant Becker indirectly asked Brown, "I'm assuming you know what this

is about," Sergeant Becker invited Brown to divulge details of his alleged criminal

conduct. Clearly, if Brown responded "yes" to his indirect question, Brown would

connect himself to the criminal conduct for which he was being arrested. And this is

exactly how Brown responded to Sergeant Becker's indirect question.

Also, when Sergeant Becker asked Brown this indirect question, he had already

told Brown that he and Officer Watkins were there "to take [him] into custody" for "an

incident that happened last night." Thus, Sergeant Becker had already indicated to Brown

why he was being arrested. Because Brown was complying with Sergeant Becker's and

Officer Watkins' commands while being arrested, there was no need to further

communicate with Brown to see if he understood why he was being arrested. Indeed, by

telling Brown he was under arrest for "an incident that happened last night" and then

indirectly asking Brown, "I'm assuming you know what this is about," Sergeant Becker

essentially asked Brown to explain to him why he was under arrest.

As for Sergeant Becker's indirect question, "I'm assuming you were kind of

expecting us," in asking this indirect question, Sergeant Becker again invited Brown to

divulge details of his alleged criminal conduct. Any response from Brown about why he

was or was not expecting the police to arrest him could connect Brown to the criminal

conduct for which he was arrested. Plainly, people who have not engaged in criminal

conduct would be surprised by their sudden arrest. Thus, when Sergeant Becker indirectly

asked Brown, "I'm assuming you were kind of expecting us," Sergeant Becker

specifically invited Brown to divulge if he knew that he had engaged in some conduct

warranting his arrest. Also, as with Sergeant Becker's first indirect question―"I'm

assuming you know what this is about"―Sergeant Becker's second indirect question

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about if Brown was "kind of expecting [law enforcement]" was unnecessary because

Sergeant Becker had already explained to Brown that he was under arrest for "an incident

that happened last night."

As for Sergeant Becker's indirect question "No," as addressed already, Sergeant

Becker asked this indirect question after Brown responded, "Uh, no" to his second

indirect question: "I'm assuming you were kind of expecting us." In effect, Sergeant

Becker asked Brown to clarify why he was not expecting his arrest. And this is exactly

what Brown did as he then told Sergeant Becker that "she didn't say anything," "she

didn't say she was going to call the cops on me," "I told her I was sorry," "I really didn't

do anything," and "I didn't take my clothes off or anything."

Additionally, the Elstad, Cleaver, and Dunlap decisions that Brown cites in his

brief supports that Sergeant Becker should have known that his indirect questioning of

Brown invited Brown to divulge details of his underlying criminal conduct. Although the

Elstad, Cleaver, and Dunlap decisions are merely persuasive authority, Sergeant Becker's

disputed indirect questions are all but identical to the law enforcement officers' explicit

questioning at issue in those cases. Once again, in Elstad, the United States Supreme

Court assumed as true that a law enforcement officer who directly asked the defendant

"'if he was aware of why [law enforcement was] there to talk'" engaged in an

interrogation. 470 U.S. at 301, 315-16. Similarly, in Cleaver and Dunlap, the Wisconsin

Court of Appeals and the Kentucky Supreme Court, respectively, determined that a law

enforcement officer directly asking a defendant if the defendant knew why law

enforcement were "there" constituted interrogation. Cleaver, 2005 WL 2757478, at *2-3;

Dunlap, 435 S.W.3d at 596.

Here, just like the law enforcement officers in Elstad, Cleaver, and Dunlap,

Sergeant Becker asked a known suspect who was in custody but not Mirandized if he

understood why the police were there arresting him. Simply put, even though the Elstad,

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Cleaver, and Dunlap decisions are merely persuasive authority, the decisions are highly

persuasive authority as other courts have determined that law enforcement officers'

questioning of defendants about their knowledge as to why law enforcement officers

were contacting them constituted an interrogation, thus violating their Fifth Amendment

rights as explained under Miranda.

Thus, the trial court erred by admitting Brown's pre-Miranda statements into

evidence because Sergeant Becker's indirect questioning of Brown while in custody

constituted the functional equivalent of custodial interrogation.

Erroneous Admission Harmed Brown

Because the trial court admitted Brown's incriminating pre-Miranda statements to

Sergeant Becker's custodial interrogation into evidence at trial, we must now consider if

the trial court's admission of those incriminating pre-Miranda statements was harmless

under the constitutional harmless error test. Once again, this requires the party benefiting

from the error to prove beyond a reasonable doubt that the error complained of did not

affect the jury's verdict in light of the entire trial record. Ward, 292 Kan. 542, Syl. ¶ 6.

The State makes two arguments on appeal about why the errant admission of

Brown's incriminating pre-Miranda statements at his jury trial were harmless beyond a

reasonable doubt. In its first argument, the State asserts that any error from the admission

of Brown's incriminating pre-Miranda statements was harmless because Brown's "more

incriminating statements were spontaneous." Evidently, the State believes that only

Sergeant Becker's indirect questions that "I'm assuming you know what this is about" and

"I'm assuming you were kind of expecting us" constituted interrogation. Thus, according

to the State, Brown's incriminating pre-Miranda statements that did not directly follow

the preceding indirect questions should be considered admissible.

62

In contrast, this argument is not truly about harmlessness. It is instead another

argument about the underlying admissibility of Brown's incriminating pre-Miranda

statements to Sergeant Becker. As addressed earlier, however, Brown's incriminating pre-

Miranda statements to Sergeant Becker were not spontaneous. Instead, his responses

directly corresponded to Sergeant Becker's three indirect questions: "I'm assuming you

know what this is about," "I'm assuming you were kind of expecting us," and "No."

Although Brown said multiple incriminating statements after Sergeant Becker's indirect

question "No," Sergeant Becker then encouraged Brown to continue to speak by saying

"Okay" three times. Thus, the State's argument that Brown's "more incriminating pre-

Miranda statements were spontaneous" is unconvincing.

The State's remaining harmlessness argument is that "the evidence, including that

defendant was not so intoxicated that he could not form the requisite intent(s), was

overwhelming as set forth repeatedly above." Nevertheless, the only somewhat extended

discussion of harmlessness in the State's brief concerns if the trial court's denial of

Brown's Daubert hearing and jury trial motion for continuance could be considered

harmless. In making this argument, the State alleges that "[o]verwhelming evidence

showed that defendant knew he went into M.K.'s house through her unlocked door, and it

powerfully demonstrated defendant was capable of forming the requisite intents when

doing so to sexually batter M.K." But outside of noting that Brown went into M.K.'s

house through her unlocked door, the State cites no other evidence to support its

contention that overwhelming evidence established Brown's ability to form the specific

intent necessary to commit the aggravated burglary and aggravated sexual battery against

M.K.

Simply put, the fact that Brown went into M.K.'s house does not constitute

overwhelming evidence that he could form the specific intent necessary to commit the

aggravated burglary and aggravated sexual battery of M.K. This fact is just one piece of

circumstantial evidence that the jury may have considered when deliberating Brown's

63

intent. Also, the State's assertion is conclusory. The State cannot successfully claim that

overwhelming evidence exists to support Brown's convictions without (1) explaining why

the piece of evidence it cites is overwhelming or (2) otherwise citing to evidence that

overwhelmingly establishes Brown's guilt.

It is a well-known rule that we will not consider points raised incidentally in a

party's brief and not argued there. Instead, we will deem such points abandoned. State v.

Lowery, 308 Kan. 1183, 1231, 427 P.3d 865 (2018). Here, by failing to explain what

overwhelming evidence established that Brown had the specific intent necessary to

commit the aggravated burglary and the aggravated sexual battery of M.K., the State has

abandoned its assertion that any error from the admission of Brown's incriminating pre-

Miranda statements into evidence at his jury trial was harmless. Because the State carries

the burden of establishing harmlessness, the State's failure to properly brief this issue is

fatal. See Ward, 292 Kan. 542, Syl. ¶ 6 (holding that the party benefiting from a

constitutional error has the burden of establishing harmlessness).

Notwithstanding the preceding, the evidence supporting that Brown could form

the specific intent necessary to commit an aggravated burglary and aggravated sexual

battery was not overwhelming. Outside of Brown's incriminating pre-Miranda statements

to Sergeant Becker, the most incriminating evidence concerning Brown's ability to form

the specific intent necessary to commit the aggravated burglary and aggravated sexual

battery of M.K. came from the two phone calls Brown placed to his wife while in jail

immediately following his arrest. During those jail phone calls, Brown told his wife that

he had not "do[ne] anything," that he "apologized to [M.K.]," and that M.K. had never

said "she was going to call the cops."

Clearly, the preceding statements parallel some of the incriminating pre-Miranda

statements that Brown made to Sergeant Becker during his custodial interrogation.

Nonetheless, the jail phone calls do not contain any conversation similar to Brown's most

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incriminating pre-Miranda statement: "I didn't really do anything, you know. I didn't

take my clothes off or anything." Brown's comment that he did not take his clothes off

established that he could remember a very important detail of what happened when he

was on top of M.K. while in M.K.'s bed. It further places his other incriminating pre-

Miranda statements in the context of a sex crime against M.K. Also, it implies that

Brown did not believe what he did to M.K. was inappropriate because he "didn't take his

clothes off or anything."

The context of Brown's jail phone call comments about not having "do[ne]

anything," having "apologized to [M.D.K]," and having never been told by M.K. that

"she was going to call the cops," however, is very different. In the jail phone call, Brown

seemed shocked to learn that he tried to take over the steering wheel when Conner drove

him home from the bar. He seemed shocked to learn that he had driven his own car to the

liquor store after Conner had driven him home and taken his car keys. And he seemed

shocked to learn that he was charged with an aggravated sexual battery. Moreover, when

his wife told Brown that she had learned from the bondsman that M.K. woke up to him

lying on top of her, Brown responded, "Oh God. What else, what happened? I didn't do

anything."

As a result, although some of Brown's incriminating pre-Miranda statements were

like Brown's comments to his wife during the jail phone call, the context of Brown's

comments to his wife during the jail phone call was substantially less incriminating. This

is because in those phone calls, Brown alleged that he had no memory of being in M.K.'s

bed. And he told his wife that he did not do anything because he had no memory of doing

anything. This is very different than telling Sergeant Becker, who was arresting him for

the aggravated sexual battery of M.K., that he "didn't really do anything" because he

"didn't take [his] clothes off or anything."

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Also, although Dr. Goodman was not allowed to testify as Brown's expert witness

on the effects of his alcohol and drug consumption, Dr. Goodman's report on Brown's

psychological evaluation states that Brown had very few discernable memories after he

went to the bar where Conner, Conner's wife, and her friends were celebrating a birthday.

Specifically, Brown provided Dr. Goodman the following narrative of his memory of

what happened once he reached the bar:

"I then that evening drove down to the [bar] and had more mixed drinks. At that time my

memory became clouded. I don't remember the ride home by my friend from the bar. My

friend tried to take me home several times. I ended up urinating on myself. My friend got

fed up with me. He lives right across the street from me. By that time[,] I can't remember

any more details until I was in bed with a neighbor woman who noticed I was in bed with

her. I am totally oblivious of how I ended up in bed with her. I remember bits and pieces

of her talking to me. I don't even remember staggering back to my place across the street

from her. She claims that I went back to her house three or four times and I remember

none of this."

As a result, outside of his incriminating pre-Miranda statement to Sergeant

Becker, he had not "really do[ne] anything" because he had not "take[n his] clothes off or

anything," the record on appeal indicates that Brown had no memory of entering M.K.'s

house and very few discernable memories of being inside M.K.'s house. Also, according

to Dr. Goodman's report, Brown believed that he was merely in bed with M.K., as

opposed to on top of M.K. telling her that he wanted to have sex. Clearly, the most

significant piece of evidence indicating that Brown had some awareness of the unwanted

sexual advances he made towards M.K. was his incriminating pre-Miranda statement to

Sergeant Becker that he had not "really do[ne] anything" because he had not "take[n his]

clothes off or anything."

Also, the State undoubtedly recognized this because in its closing arguments, the

prosecutor highlighted this incriminating pre-Miranda statement, saying:

66

"If you are really blacked out, do you remember? He told the police I apologized to her.

You saw the Axon video. All they did was walk up. 'I apologized to her.' 'I didn't take my

clothes off.' Well, how do you know? If you don't remember, how do you know? 'She said

she wouldn't call the police,' and then how would you know? If you don't remember what

happened, how would you know?" (Emphasis added.)

Shortly after stating the preceding, the prosecutor also equated Brown's memory of what

happened inside M.K.'s house as evidence that Brown had the specific intent necessary to

commit an aggravated burglary and aggravated sexual battery against M.K. The

prosecutor stated that because Brown "was conscious, he had a conscious objective."

The prosecutor's emphasis during closing arguments on Brown's memory of not

removing his clothes is significant for a couple of reasons: First, it establishes that even

assuming the State has not abandoned its argument that the admission of Brown's

incriminating pre-Miranda statements were harmless beyond a reasonable doubt, it is

readily apparent that the admission of Brown's incriminating pre-Miranda statements was

not harmless beyond a reasonable doubt. The State sought to bolster its case against

Brown by relying on Brown's incriminating pre-Miranda statements to argue that

Brown's memory of what happened during his altercation with M.K. established that

Brown was not so intoxicated that he could not form the specific intent to commit the

aggravated burglary and aggravated sexual battery against M.K. This necessarily

prejudiced Brown's voluntary intoxication defense.

Second, it emphasizes the prosecutor's fundamental misunderstanding of Brown's

voluntary intoxication defense. K.S.A. 2016 Supp. 21-5205(b)—the statutory provision

on voluntary intoxication—states:

"An act committed while in a state of voluntary intoxication is not less criminal

by reason thereof, but when a particular intent or other state of mind is a necessary

67

element to constitute a particular crime, the fact of intoxication may be taken into

consideration in determining such intent or state of mind."

Here, Brown was charged with aggravated burglary under K.S.A. 2016 Supp. 21-

5807(b) and aggravated sexual battery under K.S.A. 2016 Supp. 21-5505(b)(2). K.S.A.

2016 Supp. 21-5807(b)(1) states: "Aggravated burglary is, without authority, entering

into or remaining within any . . . [d]welling in which there is a human being, with intent

to commit a felony, theft or sexually motivated crime therein." On the other hand, K.S.A.

2016 Supp. 21-5505(b)(2) states: "Aggravated sexual battery is the touching of a victim

who is 16 or more years of age and who does not consent thereto with the intent to arouse

or satisfy the sexual desires of the offender or another . . . when the victim is unconscious

or physically powerless." Also, sexual battery under K.S.A. 2016 Supp. 21-5505(a),

which the trial court instructed the jury upon as a lesser included offense of aggravated

sexual battery, requires the defendant to have acted "with the intent to arouse or satisfy

the sexual desires of the offender or another."

Thus, Brown's voluntary intoxication defense hinged on establishing that his

voluntary intoxication prevented him from acting "with the intent to arouse or satisfy the

sexual desires of the offender or another." K.S.A. 2016 Supp. 21-5202(h) defines the

culpable mental state "intentionally" or "with intent" as meaning "it is such person's

conscious objective or desire to engage in the conduct or cause the result." So as applied

to Brown's criminal charges, the State needed to prove that Brown had the "conscious

objective or desire" to arouse or satisfy the sexual desires of himself or M.K.

Although Brown's memory of being inside M.K.'s house may constitute evidence

that Brown could form the specific intent necessary to arouse the sexual desires of

himself or M.K., contrary to the State's closing argument, his memories of what happened

does not necessarily mean that he had a conscious objective or desire to arouse or satisfy

the sexual desires of himself or M.K. While the word "conscious" is often a synonym for

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being "awake," Merriam Webster's Dictionary also defines "conscious" as "having mental

faculties not dulled by sleep, faintness, or stupor." Merriam-Webster.com,

https://merriam-webster.com/dictionary/conscious (online ed. 2021). Both the plain

language of K.S.A. 2016 Supp. 21-5202(h), as well as the preceding definition, support

that a person must take more affirmative steps to intentionally commit a crime than just

being awake. Thus, the words "conscious objective or desire" as used when defining the

term "intentionally" and "with intent" as a culpable mental state implies that a person

must be both aware of his or her actions and wants to engage in his or her actions.

As a result, although the State alleged that Brown's memory made him conscious,

and his consciousness meant he had a conscious objective, this is not the case. A person's

memory of a disputed action does not necessarily mean that a person intended a disputed

action.

Indeed, the fact that Webster's Dictionary defines "conscious" as "having mental

faculties not dulled by sleep, faintness, or stupor" is telling. (Emphasis added.) As noted

previously, Dr. Goodman specifically opined that Brown was in "a stupor stage of

alcohol influence" during the early morning hours of November 27, 2016. Further,

Brown's friends testified that Brown was acting abnormally. Conner explicitly testified

that when he escorted Brown out of his house between 1:30 a.m. and 2 a.m. on November

26, 2016, he looked into Brown's eyes and could tell that "nobody was home" and that

Brown "was on auto pilot."

Simply put, Brown's statements regarding his lack of memory during his jail

phone call, Dr. Goodman's report, and Brown's friends' testimony strongly indicated that

during the early morning hours of November 27, 2016, Brown was so intoxicated that he

fell into a state of stupor. In turn, this evidence supported Brown's defense that he was so

intoxicated that he could not form a conscious objective or desire to arouse or satisfy his

own sexual desires or the sexual desires of M.K. As a result, despite the State's arguments

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to the contrary, there was not overwhelming evidence that Brown acted with the requisite

specific intent to commit an aggravated burglary and aggravated sexual battery against

M.K.

To conclude, the strongest evidence that Brown purposefully made unwanted

sexual advances to M.K. was his incriminating pre-Miranda statements resulting from

Sergeant Becker's impermissible custodial interrogation. Because the admission of

Brown's incriminating pre-Miranda statements resulting from Sergeant Becker's

impermissible custodial interrogation was not harmless beyond a reasonable doubt, we

reverse Brown's aggravated burglary and aggravated sexual battery convictions and

remand for a new trial where those statements are excluded from the evidence.

Does the Trial Court's Denial of Brown's Motion for Continuance Require Reversal of

Brown's Convictions?

On appeal, Brown argues that the trial court committed reversible error by denying

his Daubert hearing and jury trial motion for continuance. In making his argument,

Brown argues that our decision in State v. Huntley, 39 Kan. App. 2d 180, 177 P.3d 1001

(2008), establishes the trial court could not deny his motion for continuance based on

admissibility concerns regarding Dr. Goodman's proposed expert testimony. Brown

further argues that the trial court failed to adequately consider the importance of Dr.

Goodman's proposed expert witness testimony in presenting his voluntary intoxication

defense. Also, Brown asserts that in denying his motion, the trial court ignored that Dr.

Goodman would be available to testify at a Daubert hearing or jury trial in the near

future. He then concludes that the trial court's denial of his Daubert hearing and jury trial

motion for continuance undermined his voluntary intoxication defense, which in turn

requires reversal of his aggravated burglary and aggravated sexual battery convictions.

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As it did below, the State argues that the trial court properly denied Brown's

Daubert hearing and jury trial motion for continuance because Brown had already

received multiple continuances and because caselaw supports that intoxication is a

subject readily understood by the jury. It further argues that the trial court properly

denied Brown's motion because Dr. Goodman's opinion only concerned Brown's

involuntary intoxication defense.

Continuances Law

K.S.A. 22-3401 provides that "[c]ontinuances may be granted to either party for

good cause shown." In State v. Howard, 221 Kan. 51, 55, 557 P.2d 1280 (1976), our

Supreme Court explained that a trial court "must weigh" the following four factors when

considering whether to grant or deny a defendant's motion for continuance to ensure the

availability of a witness: (1) "the probability of the witness' appearance at a later date if

the continuance is granted"; (2) "the diligence (or lack of it) disclosed in attempting to

secure the attendance of the witness"; (3) the "possible prejudice to the defendant"; and

(4) "the materiality and importance of the probable testimony." Consideration of the

preceding four Howard factors is necessary to ensure the defendant's federal and Kansas

constitutional right to present his or her theory of defense is preserved. Huntley, 39 Kan.

App. 2d at 186; see also Pennington, 281 Kan. at 439 (explaining that "[u]nder our state

and federal Constitutions, a criminal defendant has the right to present his or her defense

theory").

When reviewing the trial court's denial of a defendant's motion for continuance,

"[a]n appellate court will not disturb the trial court's ruling unless the defendant can show

that the trial court abused its discretion and prejudiced his or her substantial rights." State

v. Ly, 277 Kan. 386, 389, 85 P.3d 1200 (2004). An abuse of discretion occurs when the

trial court's "ruling was arbitrary, fanciful, or unreasonable, i.e., no reasonable person

would take the view adopted by the trial court." State v. Haney, 299 Kan. 256, 259, 323

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P.3d 164 (2014). An abuse of discretion may also occur when the trial court's "ruling is

based on an error of law, i.e., the discretion is guided by an erroneous legal conclusion, or

where the ruling 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." 299 Kan. at 259-60. Also, "[a]n abuse of discretion may be found if

the district court's decision goes outside applicable legal standards." Huntley, 39 Kan.

App. 2d at 186 (citing State v. Edgar, 281 Kan. 30, 38, 127 P.3d 986 [2006]).

In Huntley, we reversed a defendant's rape and aggravated criminal sodomy

convictions because the trial court went outside the applicable legal standards for ruling

on Huntley's motion for continuance when denying it. There, Huntley moved to continue

his jury trial so he could retain an expert witness who could review the questioning,

statements, and mannerisms of his victims, who were all children, in their videotaped

forensic interviews. But the trial judge ultimately denied Huntley's motion for

continuance. The trial court first explained that it was denying Huntley's motion because

he was not sure whether such a witness' testimony would be admissible expert testimony:

"[P]robably the most important is I'm not sure even if you and the State of Kansas paid

for the money to hire whomever you were going to hire to look at these tapes, that this

Court was going to allow that testimony to come in. I think that you can, by cross-

examination, question the people as to can kids be led, and are they subject to that? I

think jurors normally know those things just because they've had kids and therapy kids.

And so, some of those things are not expert testimony type issues, they are common

sense." 39 Kan. App. 2d at 182.

The trial judge then explained that it was denying Huntley's motion for continuance

because "even though [the defense attorney] had suggested to [him that the defense]

might be available to go back to trial next month, this Court couldn't put [the defense] on

a jury trial docket until March at the next time." 39 Kan. App. 2d at 182.

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After a jury convicted Huntley of multiple counts of rape and aggravated criminal

sodomy, Huntley appealed the trial court's denial of his motion for continuance to us.

Huntley asserted that the trial court relied on impermissible grounds to deny his motion

for continuance. In the end, we agreed with Huntley and reversed his convictions because

it determined that the trial court abused its discretion in three ways when denying his

motion for continuance. 39 Kan. App. 2d at 189-90.

First, because caselaw indicated that expert witness testimony regarding child

interviewing techniques constituted an issue outside the knowledge of the jury, we held

"that the court was guided by the erroneous legal conclusion that any such testimony

from an expert in these areas would not be admissible." 39 Kan. App. 2d at 189. Second,

we "agree[d] with Huntley's contention that the determination of inadmissibility was . . .

premature" because "[t]he expert had not yet been secured, and the scope of his or her

testimony could not yet be established." 39 Kan. App. 2d at 188. Third, we held that the

trial court's rescheduling concerns constituted an inappropriate weighing of the Howard

factors. 39 Kan. App. 2d at 190. In reaching this third holding, we noted that the trial

court never considered Huntley's diligence in attempting to secure the expert witness as

required under the Howard factors, and the record otherwise indicated that Huntley was

diligent in attempting to secure the expert witness. 39 Kan. App. 2d at 190. Also, we

noted that the trial court never considered the probability that Huntley would be able to

have the expert witness testify at a later trial. 39 Kan. App. 2d at 190. It then explained

"[w]eighing these factors against the potential importance of the witness and the possible

prejudice to the defense, we fail to understand the court's concern over rescheduling." 39

Kan. App. 2d at 190.

Thus, the Huntley decision stands for the proposition that a trial court must stay

within the confines of the Howard factors when deciding whether to grant or deny a

defendant's motion for continuance to ensure an expert witness' availability to testify at

73

trial. If a trial court considers an issue outside of the four Howard factors, the trial court

commits an error of law. See 39 Kan. App. 2d at 190.

Finally, we note that K.S.A. 2017 Supp. 60-456(b) controls the admission of

expert witness testimony. It states:

"If scientific, technical or other specialized knowledge will help the trier of fact

to understand the evidence or to determine a fact in issue, a witness who is qualified as an

expert by knowledge, skill, experience, training or education may testify thereto in the

form of an opinion or otherwise if: (1) The testimony is based on sufficient facts or data;

(2) the testimony is the product of reliable principles and methods; and (3) the witness

has reliably applied the principles and methods to the facts of the case."

Continuance Wrongly Denied

Now that we have reviewed the applicable law concerning motions for

continuances, we now consider whether the trial court properly denied Brown's Daubert

hearing and jury trial motion for continuance under the Howard factors.

To begin this discussion, we first note that the trial court never cited any authority,

including the Howard factors, when it denied Brown's Daubert hearing and jury trial

motion for continuance. Also, although some of the trial court's findings may fit under

the Howard factors, it is readily apparent that the trial court was not considering the

Howard factors when it denied Brown's motion for continuance. Nevertheless, our

Supreme Court has determined that "the trial judge must weigh" the Howard factors when

considering a defendant's motion for continuance to secure a witness. (Emphasis added.)

221 Kan. at 55.

Also, even if we interpreted some of the trial court's findings as fitting under the

Howard factors, the trial court made no finding that can fit under the Howard factor

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regarding the likelihood that Dr. Goodman could testify at a later date should it grant the

continuance. And as the State concedes in its brief, this Howard factor weighed in favor

of granting Brown's motion for continuance because at the continuance hearing, Falk,

Brown's attorney, explained that Dr. Goodman could testify for a Daubert hearing or a

jury trial within a couple of weeks.

Thus, from the outset, it is readily apparent that the trial court violated our

Supreme Court precedent in Howard when it denied Brown's motion for continuance. As

a result, the trial court's failure to follow Howard, including its failure to consider the

Howard factor regarding Dr. Goodman's future availability to testify, constituted an error

of law.

Although the trial court did not strictly comply with Howard, most of its findings

fit loosely under the Howard diligence factor. In denying Brown's Daubert hearing and

jury trial motion for continuance, the trial court correctly noted that Brown's criminal

case had been pending for 16 months, that Brown had previously received 5

continuances, and that Brown's ability to argue voluntary intoxication was not a late-

breaking event. Arguably, one could interpret the preceding fact-findings as evidence that

Brown did not diligently secure Dr. Goodman's attendance at his trial despite having

ample time to do so.

Nevertheless, the trial court also made conflicting findings regarding Brown's

diligence in securing Dr. Goodman's trial attendance. As Brown notes, the trial court

found that it was Dr. Goodman who "said that he was available and then changed his

representation" both at the continuance hearing and Van Cleave hearing. Thus, although

the trial court never explicitly said so, in effect, it found that it was not for Brown's lack

of diligence that Dr. Goodman became unavailable. Additionally, some evidence

supports this finding. For example, alth

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