NOT DESIGNATED FOR PUBLICATION
No. 122,834
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
THOMAS EUGENE BROWN JR.,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; JEFFREY SYRIOS, judge. Opinion filed March 26, 2021.
Affirmed.
Mark Sevart, of Derby, for appellant.
Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek
Schmidt, attorney general, for appellee.
Before ARNOLD-BURGER, C.J., BRUNS and POWELL, JJ.
PER CURIAM: A jury convicted Thomas Eugene Brown Jr. of felony and
misdemeanor drug charges in 2016. In 2019, while still serving his prison sentence, he
filed pro se motions in his criminal case seeking to require the production of forensic
testing information related to his criminal case and information about his criminal history
by third-party agencies. The district court summarily denied these requests. Brown now
appeals, arguing that the district court should have ordered the State to produce the
requested information pursuant to the State's discovery obligations. Finding no error, we
affirm.
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FACTUAL AND PROCEDURAL HISTORY
In June 2016, a jury found Brown guilty of one count each of felony possession of
heroin with intent to distribute, misdemeanor possession of marijuana, and failure to
maintain a single lane. The district court later sentenced him to a total sentence of 130
months in prison. On direct appeal, this court rejected Brown's jury instruction challenges
and affirmed his convictions. State v. Brown, No. 117,163, 2018 WL 3486152, at *1-3
(Kan. App. 2018) (unpublished opinion), rev. denied 310 Kan. 1064 (2019). The mandate
issued on January 10, 2020.
In January 2019—while the appeal was pending—Brown sent a letter to the
Sedgwick County Forensic Science Center (SCRFSC) asking for information on the
testing procedures used on evidence in his case. A forensic administrator from the
SCRFSC responded briefly about a week later, confirming their receipt of Brown's
request. A month later, the director of the SCRFSC sent a second letter denying Brown's
request because "the testing was performed for and results thereof are part of a criminal
investigation" and citing K.S.A. 45-221(a)(10)(B).
In April 2019, Brown filed a pro se peremptory order of mandamus with the
district court, asking the court to order disclosure of the information requested in the
SCRFSC letter "pursuant to K.S.A. 22-3212, 22-3213; and the Open Records Act (K.S.A.
45-215 through 45-223)." Citing State v. Warrior, 294 Kan. 484, 505-06, 277 P.3d 1111
(2012), and Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963),
Brown also asserted that "prosecutors have an unqualified obligation . . . to turn over all
evidence favorable to the accused when the evidence may be 'material either to guilt or
punishment."
The State objected to the request, asserting that Brown was improperly trying to
file a civil action against the SCRFSC in his criminal case. Ultimately, the court
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summarily denied the motion in May 2019, noting its agreement with the State's position
on the motion minutes sheet.
Brown then refiled the motion, with the only changes being (1) a handwritten
notation above the case caption that the motion was now being filed in the "Criminal
Department," and (2) including the State as a party in the certificate of service. In June
2019, the district court again summarily denied the motion.
A few weeks later, Brown filed a second pro se motion, this time seeking
disclosure of his criminal history record by the Sedgwick County Sheriff's Office,
pursuant to K.S.A. 22-4709(a). Again, the State objected to Brown's request, asserting a
similar argument as its response to the previously denied motion in that the named
agencies were not parties to his criminal case. The district court ultimately denied this
motion as well, noting on the motion minutes sheet that "Defendant fails to present a
substantial question of law or fact. See State v. Duke[,] 263 Kan. 193[, 946 P.2d 1375]
(1997). There is no legal authority to grant requested relief." Brown timely appealed
both.
ANALYSIS
Brown, now represented by counsel, refocuses his argument on appeal and asserts
that the district court erred in summarily denying his postconviction motions, claiming a
violation of his right to discovery in a criminal case. In response, the State argues that the
district court appropriately concluded Brown had not shown a legal foundation for the
court to grant his motions. The State asserts Brown's motions amounted to impermissible
requests for postconviction discovery that contained no more than a "fishing expedition"
for which he had not shown disclosure would be necessary to protect his substantial
rights. See State v. Matson, 260 Kan. 366, 383, 921 P.2d 790 (1996); State v. Nirschl, 208
Kan. 111, 116, 490 P.2d 917 (1971).
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Our standard of review is abuse of discretion.
Kansas courts review a district court's decision to grant or deny a request for
postconviction discovery only for abuse of discretion. State v. Mundo-Parra, 58 Kan.
App. 2d 17, 25, 462 P.3d 1211 (2020), rev. denied 312 Kan. ___ (October 16, 2020). This
standard of review stems from the long-standing rule that a district court has "broad
discretion" under K.S.A. 2020 Supp. 22-3212 to require the disclosure by the State of
documents or tangible evidence in the control of the prosecution. See State v. Kessler,
276 Kan. 202, 212, 73 P.3d 761 (2003).
Thus, Brown bears the burden of showing that the district court's summary denials
of his motions for postconviction discovery were: (1) arbitrary, fanciful, or unreasonable;
(2) based on an error of law; or (3) based on an error of fact. State v. Ingham, 308 Kan.
1466, 1469, 430 P.3d 931 (2018); State v. Thomas, 307 Kan. 733, 739, 415 P.3d 430
(2018). But Brown correctly recognizes that the issue he raises hinges partly on
interpretation of K.S.A. 2020 Supp. 22-3212, the Kansas criminal discovery statute. To
the extent resolving the questions presented in this appeal involves statutory
interpretation, that presents a question of law subject to unlimited review. State v.
Alvarez, 309 Kan. 203, 205, 432 P.3d 1015 (2019).
K.S.A. 2020 Supp. 22-3212 only applies to pretrial discovery requests.
Brown correctly points out that the prosecution is generally required to disclose all
favorable evidence to a criminal defendant when "'the evidence is material either to guilt
or to punishment.'" Warrior, 294 Kan. at 506 (quoting Brady, 373 U.S. at 87). Kansas
courts require three essential elements to establish a Brady violation: "'(1) The evidence
at issue must be favorable to the accused, either because it is exculpatory, or because it is
impeaching; (2) that evidence must have been suppressed by the State, either willfully or
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inadvertently; and (3) the evidence must be material so as to establish prejudice.'" State v.
DeWeese, 305 Kan. 699, 710, 387 P.3d 809 (2017).
Likewise, he notes that some provisions of K.S.A. 2020 Supp. 22-3212,
specifically subsections (a)(2) and (j), require the State to disclose relevant discovery
when requested for inspection by a criminal defendant. See K.S.A. 2020 Supp. 22-
3212(a)(2) (inspection of "results or reports of physical or mental examinations, and of
scientific tests or experiments made in connection with the particular case"); K.S.A. 2020
Supp. 22-3212(j) (requiring disclosure of prior convictions known by the prosecutor).
But Brown overlooks that these discovery rules would only pertain to pretrial
discovery requests. See K.S.A. 2020 Supp. 22-3212(h) ("Discovery under this section
must be completed no later than 21 days after arraignment or at such reasonable later
time as the court may permit."); K.S.A. 2020 Supp. 22-3212(i) ("If, subsequent to
compliance with an order issued pursuant to this section, and prior to or during trial, a
party discovers additional material . . . ." [Emphasis added.]).
Brown filed both motions here after this court affirmed his convictions on direct
appeal. See Brown, 2018 WL 3486152, at *1-3. On this point, he asserts—with no
support—that the criminal discovery statute "does not relieve the State of its obligation to
provide the information once sentencing has been pronounced. To the contrary there is an
ongoing obligation to provide discovery." Failure to support a point with pertinent
authority is akin to failing to brief the issue. State v. Salary, 309 Kan. 479, 481, 437 P.3d
953 (2019).
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Brown fails to establish how granting his postconviction discovery requests is necessary
to protect his substantial rights.
Although our Supreme Court has observed that disclosure and posttrial discovery
may be necessary on certain occasions to ensure due process, there must be more than
speculation that the State's file contains information in support of the defendant's legal
theory. Nirschl, 208 Kan. at 116. We agree with the State that due process does not
require a fishing expedition. Brown must present some evidence that the information
sought would be exculpatory or would reveal a clear error in the proceedings. See
Matson, 260 Kan. at 383.
This court recently explained the procedure for postconviction discovery requests
like Brown's in Mundo-Parra, 58 Kan. App. 2d at 22 (discussing line of cases setting
forth a "limited right to [postconviction] discovery when necessary to protect a
defendant's due process rights"). In that case, the defendant filed a discovery request
while incarcerated for a conviction that had occurred 12 years before. After the district
court denied the request, Mundo-Parra appealed. This court held that "[t]o get discovery,
the defendant must make a good-cause showing by identifying the specific subject matter
for discovery and explaining why discovery about those matters is necessary to protect
substantial rights." 58 Kan. App. 2d at 24.
Brown's motions are similar to the request made in Mundo-Parra. But beyond
asserting that his right to discovery obligated the State to provide the requested
information to facilitate his ability to investigate potential motions for postconviction
relief, Brown does not reference Mundo-Parra or otherwise discuss why granting his
motions would be necessary to protect any substantial rights. As to his request for
criminal history information he states only that "[t]his information would be needed post
conviction in order to review the validity of 130 month sentence that was handed down."
We note that Brown did object to his criminal history score at sentencing, but ultimately
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conceded that he had a criminal history score of A. He fails to indicate why he believes
that decision was in error. As to his request for forensic testing information, he claims
only that the information was needed "so that he could prepare a KSA 60-1507 Petition
that would merit a formal hearing." In short, Brown fails to show how the district court
abused its discretion in denying the motions.
For these reasons, we affirm the district court's decision to summarily deny
Brown's postconviction motions.
Affirmed.
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