State v. Brown

Citations: 973 P.2d 773; 266 Kan. 563; 1999 Kan. LEXIS 13Docket: 79,172

Court: Supreme Court of Kansas; January 22, 1999; Kansas; State Supreme Court

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Charles Brown was convicted of first-degree murder and sentenced to life imprisonment with the possibility of parole after 25 years. He appealed the conviction, alleging nine errors: denial of a change of judge, violation of his right to a speedy trial, denial of a request for a transcript from the preliminary hearing, admission of bone and teeth fragments, allowance of expert testimony from a volunteer in a search and rescue organization, denial of investigative services, limitation on cross-examination, ineffective assistance of counsel, and cumulative error. The court found none of these claims warranted reversal.

The case against Brown was primarily based on witness testimony, as the victim, Michael Gerhard's body, was never recovered. Key witnesses included Shawn Cordray, an employee, Glenda Sands, a former girlfriend, and Shannon Cooper, a jailhouse companion. Cordray testified that Brown believed Gerhard was responsible for a fire that killed Brown's pets and expressed a desire to kill him if he found out who was responsible. After Gerhard spent the night at the salvage yard, Cordray heard a confrontation between Brown and Gerhard, followed by a period of silence. He later discovered Gerhard injured and unconscious and claimed Brown admitted to killing him. Cordray assisted Brown in disposing of the body by burning it and was instructed to ensure no bones remained. Despite Brown's denials, the circumstantial evidence, combined with witness testimony, led to his conviction.

Cordray testified that Brown instructed him to inform anyone inquiring that Gerhard had returned to Iowa due to a missed court appearance. Cordray admitted he assisted Brown out of fear for his and his family's safety, claiming Brown threatened him if he revealed Gerhard's death. Brown allegedly took and sold some of Gerhard's belongings, including a van sold to David Cordray for $300 and tools sold to David Servais, who later returned the tools to police after recognizing them in connection with Gerhard's disappearance. Cordray ceased working for Brown in January 1996 and reported the situation to police through a family friend. He was present during a police search of Brown's salvage yard, identifying a location where a fire had occurred, which search dogs indicated contained human remains.

Glenda Sands, Brown's ex-girlfriend, testified that Brown claimed Gerhard started a fire to conceal thefts and later wrote her a note confessing he had strangled Gerhard and burned his body, fearing his house was bugged. Brown threatened Sands with violence if she disclosed this information, and she eventually reported the details to police after their breakup.

Inmate Shannon Cooper recounted a conversation with Brown in jail, where Brown confessed to killing Gerhard by strangulation and involving Cordray in disposing of the body. Brown offered Cooper money to testify that Cordray was the murderer and expressed concern that another individual, Shawn Cordray, might inform the police. Cooper later negotiated a deal with prosecutors in exchange for his testimony.

Gerhard's landlord, Anthony Serrano, noted that Gerhard had not been seen at his residence in November and that most of his possessions were gone by January, except for his dog and motorcycle, which were prized possessions indicating he likely would not have left without them. David Cordray corroborated that Gerhard's van was at the salvage yard and recounted Brown's explanation for Gerhard's absence. Irene Korotev assisted in a search at the salvage yard using her trained dog to detect human remains.

A police investigation began after a potential indication of human remains was reported. An alert from a dog named Tino led to the excavation of soil and ashes at a suspected burn site, resulting in the discovery of heavily burned human bones and teeth fragments by an anthropologist. Charles Brown testified he was at home during the fire and mentioned suspecting several individuals, including Gerhard, who later became a non-suspect after a gas can was found. 

Brown recounted seeing Shawn Cordray at the salvage yard on November 5, where he observed something resembling rib bones in a fire. Although Brown inquired about it, Cordray dismissed his concerns. Brown further claimed that Cordray confessed to killing Gerhard and disposing of his body in the fire. Brown denied the State's allegations and explained that he hid from police due to uncertainty about the charges against him. 

Kathy Creason, a defense witness, recounted an encounter with Cordray, who threatened her with a propane torch and referred to Gerhard's murder. She also stated that Sands, Gerhard's landlord, sought ways to eliminate Brown from her life. Faith Spruill, another inmate, testified to seeing Gerhard weeks post-murder and mentioned Cordray's animosity towards him. 

Johnny Hogue, also an inmate, indicated that Cooper had made a deal to testify against Brown. Despite his claims of innocence and the circumstances surrounding his arrest, Brown was ultimately convicted of first-degree murder and sentenced to life imprisonment without parole for 25 years.

The trial court's denial of Brown's motion for a change of judge was upheld, finding no error in the decision. The standard for reviewing such motions, established in State v. Alderson, requires a two-part analysis to determine if the defendant received a fair trial or if due process was violated: 1) whether the judge had a duty to recuse due to bias or prejudice, and 2) if there was actual bias or prejudice warranting the judgment's reversal. Brown's motion, submitted on August 16, 1996, was deemed untimely as it failed to comply with K.S.A. 20-311f, which mandates that a motion for change of judge must be filed within seven days after a pretrial or upon notification of the assigned judge. Brown and his attorney were aware of the judge's assignment by late April 1996, making the August filing 70 days late. The trial judge rejected the sufficiency of the supporting affidavits, which alleged animosity between the judge and defense counsel, and the administrative judge also found the motion insufficient. Brown's claims of personal bias, the need for another judge, and denial of a fair trial were deemed meritless. Additionally, the court found no violation of Brown's right to a speedy trial when a continuance was granted for DNA testing, as the statutory requirements allow for extensions when material evidence is unavailable, which was applicable in this case.

Only one continuance is permitted unless good cause is shown, with the trial required to start within 120 days of the original date. Brown was arraigned on March 22, 1996, with a trial set for June 17, 1996, within the 90-day period. On June 6, 1996, a hearing resulted in a continuance to allow for PCR DNA testing on bone and teeth fragments, based on an FBI agent's assurance of reliable results from minimal DNA samples. The trial subsequently began on September 3, 1996, 89 days after the hearing.

Brown raised two arguments: the unreliability of the DNA test under the Frye standard and the assertion that the continuance was based on false information regarding dental records. Both arguments were dismissed as meritless. The evidence sought was material, and its admissibility did not impact the validity of the continuance. The State does not need to demonstrate Frye compliance before a continuance is granted, and the continuance was deemed proper without violating Brown's right to a speedy trial.

The trial court denied Brown's request for a transcript of the preliminary examination, which was not considered an abuse of discretion since an audio recording was provided, deemed sufficient for defense preparation. Citing prior case law, the trial court's decision was upheld as Brown's counsel had adequate access to necessary testimony.

The trial court also did not err in admitting the bone and teeth fragments found at the murder scene. Brown's relevance objections were overruled after establishing a foundation for the evidence. The fragments were relevant as they contributed to the context of the crime, paralleling precedents where evidence was admitted despite a lack of direct linkage to the crime.

In Cooper, it was established that when a physical object is presented as evidence and its connection to the defendant or the crime is questioned, it should be admitted unless clearly irrelevant. This ruling applies to the case at hand, where bone and teeth fragments, as well as a knife, were properly admitted. An appeal argument that the fragments were more prejudicial than probative was not preserved, as it was not raised during trial. The trial court did not abuse its discretion in allowing the admission of these fragments. 

Irene Korotev, a volunteer with extensive training in search and rescue canines since 1984, testified that her trained dog, Tino, alerted to potential human remains. Despite defense objections regarding the foundation of her qualifications and the request for voir dire, the court ruled that an adequate foundation had been established. On appeal, the defendant, Brown, contended that Korotev lacked sufficient medical training to render her opinion and argued that not allowing voir dire was prejudicial. The State countered that Korotev was fully qualified and that the foundation for her testimony was sufficient, citing precedents related to canine evidence.

The admission of canine tracking evidence parallels this case, where the qualifications of both the dog and trainer were demonstrated. Korotev’s testimony was relevant and complemented by other evidence, establishing a circumstantial case that the jury could weigh accordingly. Brown's counsel was not hindered from cross-examining Korotev, aligning with the standards set in prior case law, which also requires foundational testimony for canine alerts to establish probable cause for searches.

A knowledgeable individual's description of a dog's behavior indicating a controlled substance is essential for establishing probable cause. The trial court properly denied the defense's motion for an investigator's services, as the discretion to authorize such services for an indigent defendant lies with the trial court and cannot be overturned without showing prejudice. Defense counsel sought an investigator to explore the possibility of Shawn Cordray's involvement in previous killings to discredit the main witness against Brown. The court ruled that evidence of Cordray's alleged other killings would be inadmissible, although evidence about the victim's death would be allowed. During the trial, defense counsel's attempts to question a witness about Cordray's admissions regarding other deaths were restricted. Brown argued that this limitation hindered his defense, similar to the case Dunn v. Roberts, which involved an accused's mental state requiring investigative funding. The State acknowledged that indigent defendants could receive investigative services under K.S.A. 22-4508, but this right is not absolute. Prior case law supported the trial court's decision to deny the investigator request, as proving Cordray's other crimes would not be admissible under K.S.A. 60-447. Additionally, Brown's speculation regarding the investigator's ability to uncover other suspects was deemed insufficient. The trial court also acted within its discretion in excluding inquiries into Cordray's alleged admissions about other killings, as such evidence of specific conduct unrelated to criminal convictions is inadmissible. After his conviction, Brown claimed ineffective assistance of counsel, alleging his attorney lacked experience in murder cases, failed to interview witnesses, and did not utilize available evidence to challenge false testimony.

Albin submitted an affidavit detailing his experience with 15 jury trials, his thorough preparation for the current case, including witness interviews and consultations with Brown's neighbors. He indicated that he anticipated a defense verdict for Cordray, which would lead to further charges against him. During a hearing regarding Brown's motion for new counsel, the judge granted the request but noted that Brown chose not to call additional witnesses. The judge also determined that Brown's right to a fair trial was not compromised and that he had received adequate legal representation. On appeal, Brown argued that he was denied an evidentiary hearing and requested the court to either remand for such a hearing or defer ruling on the issue for future consideration. He claimed that his allegations were factually supported and warranted a deeper analysis, which was lacking during the initial motion hearing. The State countered that Brown had opportunities to present evidence, and his failure to do so effectively waived the need for a hearing, citing State v. Walker. The appellate court declined to remand the case, asserting that the trial court had adequately reviewed the matter and allowed for evidence presentation. The court cited Strickland v. Washington's standard for evaluating claims of ineffective assistance of counsel, requiring a two-pronged test: proving that counsel's performance was deficient and that this deficiency prejudiced the defense. It emphasized the need for judicial deference towards counsel's performance, requiring a showing that any alleged errors likely affected the trial's outcome. The court would consider the totality of evidence available during the trial when assessing claims of ineffective assistance.

The trial court affirmed that Mr. Albin's representation of the defendant met adequacy standards based on relevant case law and his experience. The court emphasized the importance of the trial judge's firsthand observations of the proceedings. Brown's pro se motion lacked supporting evidence; he failed to provide witness names or addresses, and no witnesses corroborated his allegations. Although Brown claimed Albin's statements were prejudicial and created a conflict of interest, particularly regarding Albin’s comment about representing Shawn, no evidence substantiated this claim. The court found that Albin’s belief about Cordray being the killer aligned with his trial strategy and did not indicate ineffective assistance of counsel. Brown did not satisfy the Chamberlain test, leading to the affirmation of the trial court’s ruling on effective counsel. Furthermore, Brown's argument of cumulative error was deemed meritless, as the evidence presented did not prejudice his case or undermine the jury's verdict. The record reflected that a fair trial occurred, despite its imperfections.