# State v. Brown

> Court of Appeals of Kansas · March 12, 2021 · 59 Kan. App. 2d 418

URL: https://www.frixlaw.com/law-library/cases/4667265

## Case

- **Court:** Court of Appeals of Kansas
- **Decided:** March 12, 2021
- **Citations:** 59 Kan. App. 2d 418; 486 P.3d 624
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

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.

2
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.

3
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.

4
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,

5
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

6
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."

7
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.

8
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.

9
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

10
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.

11
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.

12
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

13
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."

14
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,

15
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

16
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."

17
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)"

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4667265. Public record. Not legal advice.