State v. Brown

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 121,269

STATE OF KANSAS,

Appellee,

v.

THOMAS EARL BROWN JR.,

Appellant.

SYLLABUS BY THE COURT

1.

Under K.S.A. 2021 Supp. 60-261 and K.S.A. 60-2105, a trial error is reversible

only if it prejudices a defendant's substantial rights. The party benefitting from an error

violating a statutory right has the burden to show there is not a reasonable probability that

the error will or did affect the outcome of the trial in light of the entire record.

2.

Appellate courts use a two-step framework to analyze claims of prosecutorial

error. First, the appellate court considers whether the prosecutor stepped outside the wide

latitude prosecutors are given to conduct the State's case in a manner that does not offend

a defendant's constitutional right to a fair trial. Second, if error is found, the appellate

court must next determine whether the error prejudiced the defendant's due process rights

to a fair trial, using the traditional constitutional harmlessness inquiry demanded by

Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). Under

this test, prosecutorial error is harmless if the State can show beyond a reasonable doubt

that the error complained of will not or did not affect the outcome of the trial given the

entire record, that is, where there is no reasonable possibility that the error contributed to

the verdict.

1

3.

The test for cumulative error is whether the errors substantially prejudiced the

defendant and denied the defendant a fair trial given the totality of the circumstances. In

making the assessment, an appellate court examines the errors in context, considers how

the district court judge addressed the errors, reviews the nature and number of errors and

whether they are connected, and weighs the strength of the evidence. If any of the errors

being aggregated are constitutional, the constitutional harmless error test of Chapman

applies, and the party benefitting from the errors must establish beyond a reasonable

doubt that the cumulative effect of the errors did not affect the outcome.

Appeal from Shawnee District Court; DAVID DEBENHAM, judge. Opinion filed July 29, 2022.

Affirmed.

Nicholas David, of The David Law Office LLC, of Lawrence, argued the cause and was on the

brief for appellant.

Jodi Litfin, assistant solicitor general, argued the cause, and Derek Schmidt, attorney general, was

with her on the brief for appellee.

The opinion of the court was delivered by

LUCKERT, C.J.: After a jury convicted Thomas Brown Jr. of first-degree murder

and other crimes, he directly appeals, raising three questions:

(1) Did the district court err in admitting a map depicting cell phone tower

location data over his hearsay objection?

2

(2) Did the prosecutor engage in reversible error by making certain statements,

including "we know" statements, during closing argument? and

(3) Did cumulative error deprive him of his right to a fair trial?

We presume error on the first issue and find prosecutorial error after analysis of

the second issue. We also consider whether those errors individually or cumulatively

require us to reverse Brown's conviction and conclude beyond a reasonable doubt the

errors would not have affected the jury's verdict. We thus affirm Brown's convictions.

FACTS AND PROCEDURAL BACKGROUND

Hours after her marriage to Melvin Ray, Tiffany Davenport-Ray died from

gunshot wounds. The shooting happened in the early morning hours as the couple left a

postwedding party that they had hosted at the Topeka Elks Club. Ray drove Davenport-

Ray's Dodge Charger. While waiting at a stop light, Ray noticed a white SUV behind

them. The SUV followed the Charger and later pulled alongside it. Someone in the SUV

fired shots into the Charger. Ray hit the brakes and returned fire. The SUV lost control

and crashed. Ray then realized Davenport-Ray had been shot and drove to the hospital.

An autopsy revealed Davenport-Ray died of a gunshot wound to the head.

Residents near the shooting and police officers patrolling nearby heard several

gunshots. Officers immediately drove toward the sound. En route, they learned of an

injury accident in the direction they were heading. Nearby residents heard the collision

and went outside after the shots stopped. They reported observing two vehicles—one that

looked like a Charger and another that was a white SUV. One witness told the officers

she saw two people exit and flee the SUV, running toward a nearby auto shop. Her

husband also saw two people run toward the auto shop and an adjacent fence and a short

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time later saw the driver exit the vehicle and run. Another resident realized a bullet hit

her home where she lived with her mother and sisters.

One officer who arrived on the scene saw a black male running from the scene.

One of the residents identified the man as the driver of the SUV. An officer apprehended

the SUV driver, later identified as Awnterio Lowery. Officers searched Lowery and took

him to the Law Enforcement Center.

Other officers followed the trail of the two SUV passengers who ran toward the

auto body shop. Along the way, they found fresh-looking latex gloves matching gloves

found in the SUV. But they did not apprehend the two men. Over time, they developed

leads that suggested Brown and Jermel Robbins were the two passengers.

Some leads were developed from forensic testing of evidence found at the scene.

The police investigation of the scene revealed bullet holes in the passenger side of the

SUV. Officers found a gun, latex gloves, and two cell phones in the SUV—an iPhone and

a Samsung. Eventually the police tied Brown and Lowery to the phones, in part through

DNA testing and through data stored on the phones.

The DNA testing did not exclude Brown as a contributor to DNA found on the

Samsung phone. It also revealed he was a contributor to DNA found on other pieces of

evidence, including the latex glove fragments found near the auto shop. The testing of the

gloves revealed a major contributor whose profile was consistent with Brown's. Testing

of DNA found on parts of the car revealed major contributors whose profiles were

consistent with Robbins and Lowery. Brown's DNA was consistent with a minor

contribution of DNA on the vehicle's airbag. The forensic scientist who performed the

DNA testing testified that her laboratory does not provide identity statements. In other

words, she would not say whether the DNA sample is a match but would instead state

4

whether test results excluded a particular individual and then provide a probability for

those individuals not excluded. The probability figures associated with evidence tend to

reveal a low probability that anyone other than Lowery, Robbins, or Brown could have

been the source of DNA found on one or more items of evidence. In other words, each

was identified as a major contributor to DNA found on evidence.

The police also obtained the phone records of the iPhone and Samsung found in

the SUV. Investigators determined the iPhone belonged to Lowery and Brown had used

the Samsung. They learned that Dina Sanchez bought a phone for Brown to use, but it

was not a Samsung. But the phone number assigned to the phone Sanchez gave Brown

was later assigned to the Samsung found in the SUV. Sanchez testified Brown paid the

bills and had exclusive use of the phone. Investigators found two sources of DNA on the

Samsung phone: Lowery and Brown. The phone also stored pictures of Brown and his

family and friends. Phone company records showed about 2,000 contacts between Brown

and people known to Brown in the time Brown used the phone and 762 contacts between

Brown and friends or family members in the week before Davenport-Ray's homicide.

At trial, the State presented evidence obtained from the cell phones found in the

SUV and from carrier records, including call records, text messages, and location data.

Several witnesses presented cell tower location data that the State used to establish where

Brown's and Lowery's phones were at various times. Those records include a call from

Brown to Lowery in the evening before the shooting. Lowery did not answer the call, and

Brown then texted Lowery, "Man cuz, don't spin me, NEED you right now." Lowery

replied, "Was good." Brown asked, "Where you at?" Lowery answered, "30 minutes."

Evidence of the carrier's records and the location of cell towers revealed communications

between the iPhone and Samsung and that the phones were near each other for about an

hour before Davenport-Ray's homicide. Both phones were also near the Elks Club and

the scene of Davenport-Ray's death.

5

That same night Brown and his former long-time girlfriend texted. The former

girlfriend said, "Good luck tonight, we'll always have some things in common." She

rejected the State's contention she was talking about the murder and said she was talking

about her stepchildren with Brown. She also texted Brown, "Let me know if I need to do

anything," although she did not recall sending the text. Brown replied, "Yeah, I'm on it. I

see those MFs don't/didn't give a fuck about my nigga because a lot of MFs knew about

the shit. I swear I'll be on some different type of time from now on."

Other evidence also connected Brown, Robbins, and Lowery to the shooting.

Weeks after Davenport-Ray's death, Robbins was shot and killed. At the time of his

death, Robbins had an old bullet wound on his right outer thigh that would point to a

bullet striking him if he had been sitting in the back passenger seat of a vehicle. Robbins

had told his sister he incurred the leg wound while sitting in the back of an SUV.

Acting on a tip, officers questioned Tashara Yeargin, who lived near the scene of

Davenport-Ray's shooting. Yeargin's statements to officers about events the night

Davenport-Ray died varied. At first, she denied any knowledge. She told investigators

she had stayed at her aunt's home that night. Later, she said that she was out with friends

on a party bus. Eventually, when officers suggested Robbins and Brown had been in her

home, she confirmed they arrived at her house out of breath and asked to use her phone.

Later analysis revealed calls originated from Yeargin's phone around the time of

Davenport-Ray's death to Brown's longtime former girlfriend and to Robbins' wife.

Yeargin acknowledged knowing both women, but she denied calling them while Robbins

and Brown were at her house. Shortly after making the calls, the two men left by car.

Before leaving, Brown told Yeargin, "[D]on't tell anybody that we were here." Robbins

gave her $40.

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Yeargin's identification of Brown and Robbins at trial was not always clear. She

identified one man who arrived the morning of the shooting as "Jermel," last name

unknown, who used the nickname BG. She later responded to questions that identified

Jermel as Jermel Robbins. She identified a second man who came in with Robbins as TJ

and identified him as Brown.

Yeargin stated she did not want to be involved, was afraid of participating, and

even moved from her home because she was scared. She specifically sought a new home

with cameras to discourage anyone from "mess[ing] with [her]." Defense counsel on

cross elicited testimony that Yeargin was mad at the police and believed she was being

held on charges as a pretext when the police really wanted her to testify against Brown.

Yeargin testified that police introduced Robbins' and Brown's names into their

conversations. But she later testified that their use of Robbins' and Brown's names

prompted her to tell the truth. Defense counsel tried to introduce doubt about her

identification of Brown by noting Yeargin's prior testimony that she knew other members

of Brown's family and they all looked alike. Yet Yeargin testified that she recognized

Brown as the person at her house. Yeargin acknowledged she testified differently in a

prior proceeding and that she was under the influence of drugs when Brown and Robbins

came to her house.

Brown's former girlfriend testified she spoke with Brown the weekend of the

wedding. She said she had to call Brown on someone else's phone on the Saturday before

Davenport-Ray's death because he lost his. She testified she did not recall talking to

Brown during the time he allegedly used Yeargin's phone.

Robbins' wife recalled talking by phone with her husband in the early morning

hours, but she denied picking him up at Yeargin's house. On cross, she testified she could

not recall the specific day she received the middle-of-the-night call from Robbins.

7

Evidence at trial covered Brown's activities after the shooting. The prosecutor used

this evidence to show he fled and to otherwise suggest the circumstances evidenced his

guilt. One theme related to him abandoning a job he had held for years. He reported to

work hours after the shooting and again the next day. After that, he never returned.

Brown's employer eventually terminated him for job abandonment. Law enforcement

located and arrested Brown in Missouri. At the time of his arrest, police seized a phone

from Brown. That phone showed Brown had forwarded to his former girlfriend a

newspaper article reporting on Davenport-Ray's murder. The two discussed Ray's

handling of his wife's murder. The phone also included an exchange with Brown's uncle

in which Brown said things looked bad and he needed a good attorney.

The jury found Brown guilty of murder in the first degree, attempted murder in the

first degree, conspiracy to commit murder in the first degree, criminal solicitation to

commit murder in the first degree, aggravated assault, criminal possession of a weapon,

and criminal discharge of a firearm. At sentencing, Brown received a hard 25 life

sentence for first-degree murder, another 653-month sentence for the attempted first-

degree murder to run consecutive to the life sentence, and concurrent terms for the

remaining counts.

Brown appeals, and this court has jurisdiction to consider his arguments. See

K.S.A. 60-2101(b) (Supreme Court jurisdiction over direct appeals governed by K.S.A.

2021 Supp. 22-3601); K.S.A. 2021 Supp. 22-3601(b)(3) (direct appeals to Supreme Court

allowed for life sentence crimes).

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ANALYSIS

1. No reversible error was committed in admitting the map of cell phone transmissions.

Brown complains of the admission of State's Exhibits 397 and 398 over his

hearsay objection. These exhibits are maps created by a police detective that show cell

towers and the locations of the cell phones found in the SUV at certain times the night of

the shooting. State's Exhibit 397 reflected data associated with Lowery's iPhone, and

Exhibit 398 related to the Samsung phone. Brown's trial attorney conducted a voir dire of

the detective regarding these exhibits. The detective explained he made the maps from

data he pulled "from the National Domestic Communications Assistance Center

[NDCAC] that's run by the United States Department of Justice from their secure

website. I download their stored data that's provided to them from the cell phone

providers." He also explained the providers were required by law to report the data to the

Department of Justice, and the secure website was available to law enforcement to assist

in investigations. The detective stated he then imported the data into software to create

the maps. The maps show locations of various cell towers in Topeka and the radius each

tower covers. He added pins to the maps to show where phones associated with Brown or

Lowery pinged a tower's sector near the Rays' travels.

Following the voir dire, Brown's attorney objected: "These are hearsay, Your

Honor. We don't have any foundation for how these were created[,] and they were not

created by him." In the ensuing discussion, neither the attorneys nor the judge discussed

whether the evidence was hearsay and, if so, whether a hearsay exception applied. Given

that record, the State argues Brown thus failed to preserve an objection based on hearsay

and that he mainly argued foundation at trial and now attempts to focus on hearsay. See

State v. Bryant, 272 Kan. 1204, 1208, 38 P.3d 661 (2002) ("[A] defendant may not object

to the introduction of evidence on one ground at trial, and then assert a different objection

9

on appeal."). But Brown's counsel did make a hearsay objection during trial, and thus

preserved the objection. See K.S.A. 60-404 (prohibiting setting aside a verdict when a

party fails to timely object to evidence).

Even so, we do not reach the merits of Brown's arguments for two reasons.

First, only State's Exhibit 398 appears in the record on appeal. Brown's failure to

include Exhibit 397 in the record places any error based on its admission beyond this

court's review. See Supreme Court Rule 3.01(b) (2022 Kan. S. Ct. R. at 20); see also

State v. Decker, 275 Kan. 502, 507, 66 P.3d 915 (2003) (concluding this court could not

determine whether trial court erred when appellant failed to include photograph

complained of in the record on appeal). We therefore limit our consideration to Exhibit

398.

Second, as to State's Exhibit 398, we elect to presume error and consider whether

the error demands reversing Brown's convictions. We do so because the trial record

related to Brown's objection is less than clear, making it difficult for us or the parties to

analyze. The lack of discussion about the hearsay objection provides no clue as to

whether the district court judge determined no hearsay was presented or whether the

evidence contained hearsay subject to one of the hearsay exceptions provided in K.S.A.

2021 Supp. 60-460. In an apparent attempt to overcome this lack of clarity, Brown's

appellate counsel suggests "it appears to Brown the district court ruled the exhibits fell

within the business records exception contained in K.S.A. 60-460(m)." The State argues

the evidence was not hearsay, and it contends that Brown is really talking about a lack of

foundation.

In addition to little discussion about whether the evidence was hearsay, the parties

have only briefly talked about hearsay exceptions. It may be the judge did rely on K.S.A.

10

2021 Supp. 60-460(m). We decline to engage in that speculation, however, especially

because other exceptions might apply, and each would require a different analysis that the

parties do not address. E.g., K.S.A. 2021 Supp. 60-460(o) (content of official record) or

(bb) (commercial lists and the like).

While the State argues we should not consider the arguments because Brown did

not develop the record, we cannot ignore that the State was the proponent of the evidence

and had the burden at trial of explaining the basis for admission. The lack of record here

falls on everyone—prosecution, defense, and the court. Given the record and the narrow

briefing of the issue, we decide not to fully explore the basis for the objection but will

instead assume a hearsay error—that is, a statutory violation.

Assuming error does not end our analysis. We also need to consider whether the

error is reversible. Under K.S.A. 2021 Supp. 60-261 and K.S.A. 60-2105 a trial error is

reversible only if it prejudices a defendant's substantial rights. Here, because Brown

contends the court violated his statutory right to the exclusion of certain hearsay

evidence, the so-called statutory harmless error test applies. Under that test, the State, as

the party benefitting from the assumed error, has the burden to show there is not "a

reasonable probability that the error will or did affect the outcome of the trial in light of

the entire record." State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011). The State

easily meets that burden by pointing us to the large volume of cumulative evidence that

came into the record of this case without objection.

The cumulative evidence most analogous to the information on State's Exhibit 398

is the Samsung phone's cell provider's records found in State's Exhibit 321. The State

introduced Exhibit 321 through the testimony of a Senior Trial Specialist in the Law

Enforcement Relations Group at T-Mobile Metro. Exhibit 321 included records revealing

the date, time, and duration of phone calls from the Samsung phone, whether each call

11

was incoming or outgoing, and the cell site location at the beginning and end of each call.

The witness explained the information, telling the jury that cell towers are usually divided

into three sectors. Location information includes which sector the phone used with the

historical information providing a general range from the tower within the sector, but not

a specific location for the phone. Typically, a phone looks for the strongest, closest

signal. He also explained that the range of a tower varies from 1 to 3 miles in an area like

Topeka.

Exhibit 321 includes a video file containing maps showing the location of towers

and the times certain phone calls pinged those towers. These maps differ from Exhibit

398 to the extent that they do not include cell tower numbers. But jurors could determine

those numbers by comparing the call information on the maps to an Excel file in Exhibit

321, which includes call information and towers pinged. Our review of the maps and

Excel files confirms the tower numbers shown on Exhibit 398 track the towers' addresses,

latitudes, and longitudes reflected in Exhibit 321.

Several witnesses orally explained the data and drew conclusions about the

locations of the cell phones at various times that night. Again, Brown made no objection

to this testimony, which duplicates aspects of the map he now objects to on appeal.

In sum, State's Exhibit 398 and related testimony are cumulative of other

testimony and exhibits found elsewhere in the record—testimony and exhibits admitted

without objection and not challenged in this appeal. We, therefore, conclude there is no

reasonable probability the admission of Exhibit 298 affected the outcome of Brown's trial

given the entire record. See K.S.A. 2021 Supp 60-261; Ward, 292 Kan. at 569. Any error

in the admission of Exhibit 398 was thus harmless.

12

2. Prosecutor's errors during closing argument were harmless.

Brown next points to the prosecutor's statements during closing argument as

prosecutorial error. Brown calls out the prosecutor's use of the phrase "we know" as she

argued seven points supporting Brown's guilt. Brown also argues the State erred in

asserting, "He [Brown] is responsible." We will first discuss the legal framework for

appellate review of prosecutorial error claims, then the caselaw discussing prosecutors'

use of "we know" and similar phrases, and finally the specific arguments on which

Brown focuses.

2.1. We follow a two-step legal framework for prosecutorial error claims.

We use a two-step framework to analyze claims of prosecutorial error.

First, we consider whether the prosecutor stepped outside the wide latitude

prosecutors are given to conduct the State's case in a manner that does not offend a

defendant's constitutional right to a fair trial. State v. Sherman, 305 Kan. 88, 109,

378 P.3d 1060 (2016); State v. King, 308 Kan. 16, 30, 417 P.3d 1073 (2018). This wide

latitude extends to statements made during the prosecutor's opening statement and closing

argument. We do not consider any statement in isolation but look to the statement's

context to determine whether error occurred. State v. Timley, 311 Kan. 944, 949-50, 469

P.3d 54 (2020).

Second, "[i]f error is found, the appellate court must next determine whether the

error prejudiced the defendant's due process rights to a fair trial. In evaluating prejudice,

we simply adopt the traditional constitutional harmlessness inquiry demanded by

Chapman [v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)]."

Sherman, 305 Kan. at 109. Under this test, "prosecutorial error is harmless if the State can

demonstrate 'beyond a reasonable doubt that the error complained of will not or did not

13

affect the outcome of the trial in light of the entire record, i.e., where there is no

reasonable possibility that the error contributed to the verdict.'" 305 Kan. at 109 (quoting

Ward, 292 Kan. 541, Syl. ¶ 6).

2.2. Use of "we know" is often outside the prosecutor's wide latitude.

Turning to the first step, our caselaw often recognizes a prosecutor has the latitude

during closing argument to highlight the evidence presented and to draw reasonable

inferences from that evidence. Timley, 311 Kan. at 950. In doing so, a prosecutor may

argue the evidence proves a defendant's guilt. But our caselaw does not give a prosecutor

latitude to state the prosecutor's opinion about the ultimate issue of the defendant's guilt.

King, 308 Kan. at 31.

In keeping with this limitation, we have warned prosecutors to not use words that

suggest an argument reflects the prosecutor's view. A review of our recent cases reveals

phrases such as "I think," "I believe," and "we know" often reflect the prosecutor's views

and thus may constitute error. The use of those phrases is not always error, however.

Context matters. See State v. Charles, 304 Kan. 158, 173-75, 372 P.3d 1109 (2016).

Timing also matters to the extent that we have refrained from labeling an impermissible

statement an error if we had never given notice to prosecutors that they should not use a

particular phrase. See King, 308 Kan. at 33-34. This approach reflects the rule that

prosecutors "must be evaluated based on the state of the law at the time of" the trial.

Sherman, 305 Kan. at 117. Despite these considerations, in King, we held the prosecutor

committed error by repeatedly using the phrase "we know" during closing arguments.

308 Kan. at 34.

Brown cites King, 308 Kan. at 33-36, to support his argument the prosecutor

committed error. In King, we relied on State v. Corbett, 281 Kan. 294, 315-16, 130 P.3d

1179 (2006), in holding the prosecutor erred by repeatedly using the phrase "we know."

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We acknowledged in King that Corbett recognized a prosecutor discussing

uncontroverted evidence could appropriately use "we know." But Corbett also gave

notice that a prosecutor commits error by using "we know" when discussing controverted

evidence because doing so improperly expresses the prosecutor's opinion. See King, 308

Kan. at 34-35. We recently reaffirmed use of "we know" statements is prosecutorial error

when the phrase precedes a discussion of controverted evidence in State v. Alfaro-

Valleda, 314 Kan. 526, 538-39, 502 P.3d 66 (2022) (discussing King and State v.

Douglas, 313 Kan. 704, 490 P.3d 34 [2021]). In sum, these cases hold that, "[i]f a

prosecutor uses the words 'we know' when drawing inferences for the jury rather than

recounting uncontroverted evidence, the prosecutor errs even if drawing a reasonable

inference." 314 Kan. 526, Syl. ¶ 2.

In King, three "we know" statements arose in the context of the prosecutor

discussing controverted evidence and asking the jury to draw inferences from that

evidence. In the first statement, the prosecutor said, "[W]e know based on what you can

see in all the videos and the still photos that have been taken that those Easton batting

gloves [referencing gloves found in a car on the defendant's driveway] are used in every

robbery." 308 Kan. at 34. This statement required inferring the gloves found in the car

were the same batting gloves described by witnesses or shown in security surveillance

videos from various locations where robberies had occurred. In the second statement, the

prosecutor said "we know" that the defendant was at a particular robbery scene because a

victim's blood was found on the defendant's boot recovered from the defendant's

bedroom. This statement drew inferences that the defendant wore the boot while

committing a crime and that it was during the commission of that crime that a victim's

blood transferred to the defendant's shoe. And in the final "we know" statement, the

prosecutor asked the jury to infer the defendant's involvement in the alleged crimes

because "[w]e know that they shared in money" based on coin wrappers found in each

coconspirator's house and evidence that robbers took coins from various locations.

15

We held each of these "we know" statements constituted error. 308 Kan. at 34. In

conclusion, we held that "drawing inferences for the jury, not stating uncontroverted

evidence . . . [was] error, even if the inferences being drawn were reasonable." King, 308

Kan. at 34.

Comparing the prosecutor's arguments about Brown's guilt to those in King,

Brown argues the prosecutor committed multiple errors.

2.3. Here, the prosecutor erred by repeatedly saying, "We know."

Before we discuss each of the prosecutor's "we know" statements, we address the

State's argument about timing and lack of notice. It argues we should not find error

because we decided King after this case went to trial and the prosecutor thus did not have

notice that use of "we know" constituted error. We reject this argument because, while

Brown's trial was before our decision in King, in King we held that Corbett had given

prosecutor's notice not to use the words "we know." King, 308 Kan. at 34. This holding

contrasts with our discussion in King about the prosecutor's lack of notice not to use the

phrase "I think." 308 Kan. at 33-34 (holding "I think" comments "are impermissible

conveyances of the prosecutor's opinion to the jury. . . [but] we decline to find the

comments were error in this case because when the prosecutor made these statements at

King's trial, we had not yet placed prosecutors on notice that such comments were

improper").

Here, the prosecutor had notice. Corbett predates Brown's trial by 10 years, and it

made clear "we know" was properly used only if it "does not indicate [the prosecutor's]

personal opinion[] but demonstrates that the evidence was uncontroverted." Corbett, 281

Kan. at 315. And we applied the holding from Corbett to find prosecutorial error in King,

and that trial was before Brown's. 308 Kan. at 34. The State does not provide any reason

16

for a different result here. And we see none. We reaffirm our holding in Corbett and the

holding in King, that prosecutors had notice not to use the phrase "we know" to discuss

contested evidence. We now apply that rule.

Here, each of the "we know" statements about which Brown complains related to

controverted matters and required the jury draw one or more inferences from the

evidence. These statements included:

(1) "The first reason we know that the defendant is guilty is the phone evidence in

this case" and "we know that the Samsung was in the area of the Elks Club, just like the

iPhone was in the area of the Elks Club."

(2) "[R]eason No. 2 that we know the defendant is guilty is the DNA evidence."

(3) "What we know is common sense. The defendant is in the front passenger seat

beginning his firing and keeping his firing as the SUV passes the Dodge Charger. Reason

No. 4 that the defendant is guilty is simply common sense."

(4) "[T]he defendant, as you know is charged with a murder," and "[t]he reason we

know that those guys acted together is because Awnterio Lowery, Jermal Robbins, both

of their DNA was in the SUV," and the "defendant's [DNA] is close by."

(5) "Reason No. 6 . . . to show that the defendant is guilty, is simply that we know

the defendant left. He ran."

(6) "[W]e know the defendant acted intentionally because he reeled off enough

rounds."

We agree with Brown's contention that the prosecutor erred in each instance. Each

statement related to a contested point, and each required the jury to draw inferences. For

example, the first point about the phone evidence required inferring: (1) the Samsung

17

phone was Brown's despite being linked to another person's account, (2) Brown

physically possessed the phone the night of Davenport-Ray's death, (3) the Samsung's

location within the cell tower's sector was near the Elks Club rather that somewhere else

within the sector, and (4) the iPhone associated with Lowery was also located near the

Elks Club rather than somewhere else within the sector covered by the tower.

Similarly, when considering the other statements, the jury had to rely on

controverted evidence to make inferences from the evidence to conclude Brown fired

shots from the front passenger seat, he repeatedly fired shots and that action demonstrated

his intent, he conspired with Lowery and Robbins, and he left his job and relocated out of

guilt.

Given the controverted nature of each reason listed by the prosecutor and the

inferences the jury needed to make to reach the conclusions the prosecutor promoted, her

repeated use of "we know" was prosecutorial error. See Alfaro-Valleda, 314 Kan. at 539

(reiterating the general rule that an inference, even a reasonable one, captures the

prosecutor's thought process or opinion and is not an uncontroverted fact).

2.4. The prosecutor erred in another argument.

Brown also argues the prosecutor erred in the final sentences of her closing

argument and in making similar statements throughout the argument. At the end of her

argument, she said: "[T]hese crimes took place because the defendant fired into a vehicle

that contained three people. He is responsible. Those seven reasons show that he is

responsible for every single charge pending against him." Brown makes two arguments.

He first contends the evidence does not support the contention that Brown fired

into the Charger because DNA testing excluded him as a contributor to the DNA mixture

18

found on the gun. While it is true no DNA tied Brown to the gun, the evidence left room

for the jury to draw a reasonable inference he shot the gun. Circumstantial evidence

suggested Brown was in the car, and injuries suffered by Lowery and Robbins suggest

Lowery drove and Robbins sat in the rear seat. Ray's testimony and other evidence

suggested shots were fired from the front passenger seat. And evidence supports an

inference Brown wore gloves the night of the shooting, which could explain why he did

not transfer DNA to the gun. Considering the entire record, the prosecutor's comments

were a fair inference drawn from the evidence presented at trial.

In his second argument, Brown contends the prosecutor's "[h]e is responsible"

statement violates this court's holding in State v. Peppers, 294 Kan. 377, 399-400, 276

P.3d 148 (2012). There, while acknowledging a prosecutor may argue evidence shows an

accused's guilt, we held the prosecutor should avoid saying things like the defendant is

guilty "[b]ecause he did it" without directing the jury back to the evidence. Otherwise, the

failure to include directional language, such as "the evidence shows the defendant's

guilt," renders the statements an impermissible expression of the prosecutor's opinion.

294 Kan. at 400. The prosecutor's statements at the end of closing argument that "he is

responsible" did not use directional language to point the jury back to the evidence. As

Brown argues, the prosecutor thus offered improper expressions of her opinion that

constitute error under Peppers.

2.5. Prosecutorial error was individually and cumulatively harmless.

Brown argues the prosecutor's errors are individually prejudicial to the point they

require a new trial and cumulatively they do even more harm to his right to a fair trial.

We agree that the prosecutor's repeated use of the prohibited "we know" phrase is

troubling. But the repetition is just one aspect of our consideration. When determining if

prosecutorial error causes prejudice, "[a]ppellate courts must simply consider any and all

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alleged indicators of prejudice, as argued by the parties, and then determine whether the

State has met its burden—i.e., shown that there is no reasonable possibility that the error

contributed to the verdict." Sherman, 305 Kan. at 111. The strength of the evidence may

inform this inquiry, but it is not our primary focus, for prejudice may be found even in

strong cases. 305 Kan. at 111 (citing United State v. Socony-Vacuum Oil Co., 310 U.S.

150, 240, 60 S. Ct. 811, 84 L. Ed. 129 [1940]).

Here, the State relies on the jury instructions; the context of the statements and,

more specifically, that the prosecutor surrounded the statements with a discussion of the

evidence; the reasonableness of the inferences the prosecutor asked the jury to draw; and

the overall strength of the evidence. Before we discuss the evidence and the record, we

will address the argument about the district court's instructions to the jury before closing

argument.

Appellate courts often weigh these instructions when considering whether any

prosecutorial error is harmless. In doing so, we presume the jurors follow the instructions.

See, e.g., Alfaro-Valleda, 314 Kan. at 545-46. District courts commonly instruct the jury

that "[s]tatements, arguments, and remarks of counsel are intended to help you in

understanding the evidence and in applying the law, but they are not evidence. If any

statements are made that are not supported by evidence, they should be disregarded."

Through these words, jurors know prosecutors are advocates, and appellate courts can

weigh that in determining whether a prosecutor's error is harmless. See Timley, 311 Kan.

at 951. Here, the district court gave that instruction. It also reminded the jury that it was

for the jurors "to determine the weight and credit to be given the testimony of each

witness." We weigh these instructions in considering whether the prosecutor's errors

affected the verdict.

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We next turn to the State's argument about context. We agree that each time the

prosecutor used the words "we know" she did so in the context of discussing evidence

that supported the conclusion. For example, after commenting that one reason "we know

that the defendant is guilty is the phone evidence in this case" and "we know that the

Samsung was in the area of the Elks Club, just like the iPhone was in the area of the Elks

Club," the prosecutor thoroughly reviewed the cell phone evidence. In doing so, she first

detailed the evidence supporting the inferences that Brown used the Samsung phone

found in the SUV in the weeks and hours before Davenport-Ray's death. This was mostly

evidence of the many texts, calls, and pictures found on the Samsung to and about

Brown's friends and family. The prosecutor also highlighted evidence supporting the

second inference that the Samsung had been near the Elks Club and the location of the

shooting. In doing so, she acknowledged differences in testimony of the State's witnesses.

For example, she referred to the testimony of the Senior Trial Specialist from T-Mobile

Metro describing the sector covered by each tower as ranging from 1 to 3 miles, not just

the 1-mile radius the police detective had drawn on his maps. She explained reasons the

jury could still infer that both the Samsung and the iPhone had been near where the

newlyweds celebrated and the scene of Davenport-Ray's shooting.

Likewise, the prosecutor followed the "we know" statement relating to DNA

evidence by explaining the places investigators found the evidence and reviewing the

scientific evidence supporting the inference that Brown contributed to the DNA samples.

And, again, the prosecutor was candid, commenting, "There was some question as to why

we didn't have any of the defendant's DNA in the car. The defendant could not be

excluded from the front driver's air bag. The numbers are not big, the numbers are small."

This context informed the jury it had to weigh the evidence.

In each other instance of a "we know" argument, the prosecutor discussed the

evidence that supported the inference, which often built on the inferences related to the

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phone and DNA evidence. In general, the inferences were reasonable, and most were

compelling. And each time, the prosecutor discussed evidence that weighed against the

State's case, such as the lack of DNA evidence definitively putting Brown in the SUV.

The context of this discussion underscored for the jury that it needed to consider how,

and if, the evidence supported each of the seven reasons the prosecutor listed.

As to the reasonableness of the inferences and the strength of the evidence factors

argued by the State, the inferences were reasonable and the evidence was sufficient to

show beyond a reasonable doubt that Brown was in contact with Lowery before the

homicide in this case (both through text messages and phone calls made before the

homicide as well as cell phone location data showing that their phones were near each

other just before and at the time of the shooting). Lowery's on-scene apprehension, the

eyewitness' identification of him as the SUV's driver, and the discovery of Brown's phone

in the SUV made the cell phone evidence connecting him and Brown that evening

compelling. And Robbins' DNA taken from the interior of the SUV strongly supports a

conclusion that Robbins was present. Yeargin's testimony and phone calls made from her

phone to Brown's former girlfriend and Robbins' wife on Yeargin's phone provide

evidence connecting Brown to Robbins at the time of the shooting. And Brown's DNA on

the latex gloves found on the path of the two occupants who fled from the car also

provides convincing evidence of Brown's presence. Circumstantial evidence establishes

that Robbins sat in the backseat of the SUV, allowing for reasonable inferences that

Brown was in the passenger seat of the car when the multiple shots were fired. Finally, as

to the last inference, the prosecutor reviewed the evidence establishing that Brown

abandoned a job he held for years within days of the shooting without notifying his

employer. From the totality of the evidence a jury could reasonably infer he had fled out

of guilt.

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Nothing suggests to us that the jurors would have reached a different verdict had

the prosecutor more appropriately couched the seven reasons for finding Brown guilty in

terms of statements like "the evidence shows." In summary, we have considered the

strength of the evidence against Brown, the context of each "we know" statement as part

of the discussion of the evidence the jury should weigh, and the court's instruction

charging the jurors with the duty to weigh the evidence and consider counsel's arguments

as just that, not as evidence. Those factors considered in context of the entire record

convince us the State met its burden of establishing beyond a reasonable doubt there is no

reasonable possibility the errors individually or cumulatively contributed to the verdict.

3. Cumulative error does not require reversal of Brown's convictions.

Finally, Brown argues cumulative error requires us to reverse his convictions.

We have assumed error in the admission of Exhibit 398 and identified error in the

prosecutor's closing argument. Our standard when considering cumulative error

arguments is well settled:

"The test for cumulative error is whether the errors substantially prejudiced the

defendant and denied the defendant a fair trial given the totality of the circumstances. In

making the assessment, an appellate court examines the errors in context, considers how

the district court judge addressed the errors, reviews the nature and number of errors and

whether they are connected, and weighs the strength of the evidence. . . . If any of the

errors being aggregated are constitutional, the constitutional harmless error test of

Chapman applies, and the party benefitting from the errors must establish beyond a

reasonable doubt that the cumulative effect of the errors did not affect the outcome. . . .

Where, as here, the State benefitted from the errors, it has the burden of establishing the

errors were harmless." State v. Thomas, 311 Kan. 905, 914, 468 P.3d 323 (2020).

In applying this standard, we note that State's Exhibit 398 and the first asserted

"we know" error during closing argument both relate to evidence from phone records.

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There is thus some interrelationship among the errors. But the errors occurred on separate

days of the trial, with enough time between them that the jury was unlikely to associate

one with the other. We also discount for the cumulative error analysis any error in the

admission of exhibit 398 because the data underlying the exhibit was also found in other

exhibits not challenged in this appeal. While the prosecutor erred in saying "we know,"

the evidence allowed a reasonable and convincing inference that Brown possessed the

phone at certain locations significant to this case. And, given the jury instructions, the

jurors knew it was their role to consider that evidence to see if it supported the inferences

and if the inferences supported convicting Brown. So, while there is an interrelation

among these two errors, they do not accumulate to cause substantial prejudice or an

unfair trial.

As we have discussed, we do not find the prosecutor's errors to be cumulatively

prejudicial. We see no other basis for concluding cumulative error supports reversal here.

We thus hold that cumulative error doctrine does not require reversing Brown's

convictions.

CONCLUSION

While we find error, we have concluded the State met its burden of establishing

beyond a reasonable doubt the errors did not affect the jury's verdict. We therefore affirm

Brown's convictions and his sentences.

Affirmed.

WILSON, J., not participating.

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