State v. Brown

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IN THE SUPREME COURT OF THE STATE OF KANSAS

Nos. 111,690
111,691

STATE OF KANSAS,
Appellee,

v.

JERONE H. BROWN,
Appellant.


SYLLABUS BY THE COURT

1.
K.S.A. 60-404 requires a timely and specific objection to the admission of
evidence when presented at trial.

2.
Subsequent to State v. King, 288 Kan. 333, 342, 204 P.3d 585 (2009), the three
judicially recognized exceptions for allowing appellate review of issues not raised below
have not been applied to absolve a party of K.S.A. 60-404 violations.

3.
Where exhibits are identified and treated by court and counsel as if admitted into
evidence, despite no formal admission, on appeal they are regarded as admitted and
K.S.A. 60-404 applies.

Appeal from Sedgwick District Court; BENJAMIN L. BURGESS, judge. Opinion filed March 23,
2018. Affirmed.

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Kristen B. Patty, of Wichita, argued the cause and was on the brief for appellant.

Lance J. Gillett, assistant district attorney, argued the cause, and Marc Bennett, district attorney,
and Derek Schmidt, attorney general, were with him on the brief for appellee.

The decision of the court was delivered by

NUSS, C.J.: Jerone Brown appeals his convictions for aggravated robbery and
murder. Brown specifically contends the State improperly published to the jury his
victim's autopsy photographs that he claims were not admitted into evidence. According
to Brown, this action violated his rights to due process and an impartial jury, requiring
reversal and remand for a new trial.

We agree with the State that Brown's issue is not preserved for appellate review.
So his convictions are affirmed.

FACTS AND PROCEDURAL HISTORY

Brown was convicted of two murders, both carried out by multiple defendants.
The murder of Shawn Rhone took place in early January 2013. Convicted of this murder
were brothers Jerone, Shawn, and Milo Brown, as well as their cousin Myron Peters.

The murder of Adji Tampone occurred sometime around December 31, 2012.
Jerone and Shawn Brown were convicted of this murder. The present appeal involves
photographs of Tampone's autopsy.

At trial, forensic pathologist and deputy coroner Dr. Timothy Gorrill gave detailed
testimony about Tampone's autopsy and its accompanying photographs (State's Exhibits
22A through 22H), as exemplified by the following excerpt:
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"Q: Dr. Gorrill, when you conduct an autopsy, is it also documented through
photographs?
"A: Yes, it is.
"Q: And is that so you can clearly describe for a jury the injuries an individual
sustained?
"A: Yes.
"[State's Attorney]: May I approach the witness, Your Honor?
"The Court: You may.
"Q: [Sic] Show you what has been previously been [sic] shown to defense
counsel, marked as State's Exhibit 22; specifically 22A through 22H.
"(State's Exhibits 22A through 22H were identified).
"Q: Would you please take a look at those to yourself.
"A: (Witness complies.)
"Q: Have you had an opportunity to review those photos?
"A: Yes, I have.
"Q: Are those photos that were taken during Adji Tampone's autopsy?
"A: Yes.
"Q: And would utilizing those photos assist you to show the injuries or describe
them for a jury?
"A: Yes.
"Q: I prefer to use the Elmo [projector] up here. And if you could describe or
identify the picture by its label on the back.
"The Court: Refocus.
"Q: All right. You can place the picture in the corner. If you could identify that
photograph, and tell us what it is depicting." (Emphasis added.)

Gorrill then identified and explained each of the State's eight autopsy photographic
exhibits—22A through 22H—all while displaying them to the jury via the Elmo projector
as instructed. The defense did not object during Gorrill's testimony.

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Immediately after Gorrill's testimony—contained in seven pages of trial
transcript—he was excused without any cross-examination, and the court recessed
overnight. The next mention of these photographic exhibits came the next day, when the
State used the testimony of a crime scene investigator to authenticate another exhibit:

"[State]: Your Honor, I would move to admit 22-I. (State's Exhibit 22-I was
offered.)
"[Defense]: No objection.
"The Court: I believe it's already been admitted.
"[State]: I think 22A through G [sic] has already been admitted.
"The Court: 22 'I' will be admitted.
"(State's Exhibit 22-I was admitted.)" (Emphasis added.)

The defense did not object to the prosecutor's characterization of the status of the autopsy
photographic exhibits, i.e., their being previously admitted.

The third mention of Exhibits 22A through 22H came a few days later. The jury
had been excused and the court was conferring with both counsel when the State
appeared to attempt to correct any deficiencies regarding admission of its exhibits:

"The Court: Just one or two questions. Obviously it's just before 11:00. Take our
noon recess. We have cross-examination. Do we have any other State's witnesses?
"[State]: Judge, I'll compare with you the exhibits. But I do think we're going to
rest after this witness.
"The Court: The notes I have, I have Exhibits 1 through 33 exclusive [sic], except
Exhibit 28, which is shown on my list as a registration card from the Surf Motel.
"(State's Exhibit 22 A-H were offered and admitted.)
"[State]: Judge, I believe that’s what we have as well. I'll confirm that on a break.
I think that is where we're at; upon cross and redirect, we will be resting." (Emphasis
added.)

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Despite being present for this exchange, the defense did not object or attempt to correct
the apparent understanding of the prosecutor and the judge that the exhibits already had
been admitted into evidence. Brown now argues, however, that the requirements for
admitting these photographs into evidence—the prosecutor's formal offer and the court's
formal admission—were missing in this exchange and throughout the trial. According to
Brown, the court reporter's parenthetical notation cannot satisfy those requirements here.

These exhibits were again mentioned after the State's final witness finished
testifying. After the court asked if there were any more witnesses, the State responded,
"Judge, with the exhibits 1 through 33, minus number 28, the State would rest." The
defense did not object to the message implicit in the State's response, i.e., that these
exhibits had been admitted—so it was resting its case.

The judge later told the jury, "[G]o to the deliberation room and we'll bring you
copies of the written instructions. All the exhibits will be brought back for your
consideration." (Emphasis added.) The defense did not object to any of the exhibits the
judge seemingly understood to have been admitted, including the eight autopsy
photographs (Exhibits 22A through 22H), being sent to the jury room.

Ultimately, the defense filed an unsuccessful motion for a new trial and judgment
of acquittal. The motion did not mention publication of these photographs as a claim of
error.

This court's jurisdiction is provided by K.S.A. 2017 Supp. 22-3601(b)(3) (life
sentence imposed).

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ANALYSIS

Issue: Publication of the autopsy photographs to the jury did not violate Brown's rights to
due process and an impartial jury.

In response to Brown's contention that Tampone's autopsy photographs were
improperly published to the jury because they were not admitted into evidence, the State
argues this issue was not preserved for appellate review. In the alternative, it argues that
the autopsy photographs were admitted into evidence but even if not, any error in
publishing them to the jury was harmless.

Standard of review

When the adequacy of the trial court's legal basis for admission of evidence is
challenged, the appellate court will review the challenge under a de novo standard. State
v. Dukes, 290 Kan. 485, 487, 231 P.3d 558 (2010).

Discussion

It is undisputed that Brown made no objections to these autopsy photographs until
this appeal. Our caselaw regarding the necessity of contemporaneous objections is clear.
"The contemporaneous objection rule requires each party to make a specific and timely
objection at trial in order to preserve evidentiary issues for appeal. K.S.A. 60-404. The
purpose of the rule is to avoid the use of tainted evidence and thereby avoid possible
reversal and a new trial." Dukes, 290 Kan. at 488 (citing State v. King, 288 Kan. 333,
342, 204 P.3d 585 [2009]). This rule not only gives the trial court the opportunity to
address the issue, but practically it also constitutes "'one of necessity if litigation is ever
to be brought to an end.'" State v. Fisher, 222 Kan. 76, 83, 563 P.2d 1012 (1977).
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Subsequent to our decision in King, we have not applied the three recognized
exceptions—for allowing appellate review of issues not raised below—to absolve a party
of K.S.A. 60-404 violations. Dukes, 290 Kan. at 488 (identifying the exceptions and
expressing concern that the contemporaneous objection rule "case law exceptions would
soon swallow the general statutory rule [K.S.A. 60-404]") (citing State v. Richmond, 289
Kan. 419, 429-30, 212 P.3d 165 [2009]). Accordingly, Brown's photographic issue is not
preserved for our review. 290 Kan. at 488 (defendant's argument that admission of
evidence violated his constitutional rights under the Confrontation Clause was not
preserved for appeal because he failed to raise a specific and timely objection at trial
court).

Coiled within Brown's contention is an assertion that the language of K.S.A. 60-
404 indicates the statute only applies to admitted evidence. And because Brown contends
the photographs were not ever admitted into evidence, then the requirements of 60-404
arguably have no application. The statute provides:

"A verdict or finding shall not be set aside, nor shall the judgment or decision
based thereon be reversed, by reason of the erroneous admission of evidence unless there
appears of record objection to the evidence timely interposed and so stated as to make
clear the specific ground of objection." (Emphasis added.)

We reject this assertion because the judge and both counsel certainly considered the
photographs to have been admitted into evidence—despite no recording of a formal
motion for their admission by the State and no recording of a formal granting of their
admission by the court.

The United States Court of Appeals for the D.C. Circuit provides considerable
guidance in United States v. Barrett, 111 F.3d 947 (D.C. Cir. 1997). There, the defendant
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argued insufficient evidence existed to support his convictions because the trial exhibits
were never formally admitted into evidence but only marked for identification. The court
squarely rejected this argument:

"We find no merit to this challenge. The exhibits were treated below, without objection,
as if they were admitted into evidence; they are therefore deemed admitted. See United
States v. Bizanowicz, 745 F.2d 120, 123 (1st Cir. 1984) (tape played for jury deemed
admitted 'where at least a quo there was no doubt that [it] was admitted, notwithstanding
the judge's failure to instruct the courtroom deputy directly to mark the tape as an exhibit'
and appellant did not object to playing); United States v. Stapleton, 494 F.2d 1269, 1270
(9th Cir.) (seven exhibits marked for identification but not formally offered or received
into evidence deemed admitted where '[t]here was extensive testimony about each of
them,' 'both parties, and the judge, acted as if they were in evidence, and the judge relied
upon them in finding [the defendant] guilty' and 'defense counsel raised no question about
the exhibits not being in evidence'), cert. denied, 419 U.S. 1002, 95 S. Ct. 321, 42 L. Ed.
2d 277 (1974)." 111 F.3d at 951.

See United States v. McCoy, 242 F.3d 399, 402-03 (D.C. Cir. 2001) (holding that where
the court clerk's exhibit list shows exhibits admitted and all parties understand them to be
admitted, there is no error); Voelkel v. State, 629 S.W.2d 243 (Tex. App. 1982) (holding
that exhibits never offered or admitted into evidence constitute no error where there was
testimony and discussion without objection regarding the exhibits); and Newfound
Management Corp., General Partner of Newfound Ltd. Partnership v. Sewer, 34 F. Supp.
2d 305, 310-11 (D.V.I. 1999) (holding that exhibits would be treated as admitted into
evidence, even though they were never formally admitted into evidence, where all
exhibits were identified and treated as if admitted into evidence). See also Gray v. United
States, 100 A.3d 129 (D.C. 2014) (not plain error for trial court to reach verdict relying
on videos that had not been formally authenticated and admitted into evidence but,
among other things, had been played in open court without objection, witnesses discussed
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them, and defense did not object to the court's reliance on them in announcing the
verdict) (citing Barrett, 111 F.3d at 951).

Here, the State marked the autopsy photographs as exhibits, showed them to
Brown's counsel, and introduced them. Its expert witness provided extensive testimony
regarding the photographs while they were displayed to the jury via projector. Statements
throughout the trial by the prosecutor and the judge reveal their understanding that these
exhibits were admitted into evidence. The defense remained silent during these
exchanges. And despite a number of other opportunities at the trial court, the defense
made no issue of these exhibits until appeal to this court. Under these circumstances, this
court regards the photographs as admitted. See Barrett, 111 F.3d at 951.

The decision of the district court is affirmed.