Brown v. State

NOT DESIGNATED FOR PUBLICATION

No. 123,905

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JAMES LAMONT BROWN SR.,
Appellant,

v.

STATE OF KANSAS,
Appellee.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; SETH L. RUNDLE, judge. Submitted without oral argument.
Opinion filed November 22, 2023. Affirmed.

James L. Brown Sr., appellant pro se.

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Kris W. Kobach,
attorney general, for appellee.

Before GREEN, P.J., SCHROEDER and CLINE, JJ.

PER CURIAM: James Lamont Brown Sr. timely appeals pro se from the district
court's summary dismissal of his K.S.A. 60-1507 motion, raising four general claims of
error: (1) The district court lacked subject matter jurisdiction over his trial; (2) the State
committed prosecutorial error; (3) trial counsel provided ineffective assistance of
counsel; and (4) his appellate counsel provided ineffective assistance of counsel. After an
extensive review, we find no error and affirm the district court.

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 FACTS

The full factual and procedural background of the underlying criminal case was set
forth in Brown's direct appeal, State v. Brown, No. 109,814, 2015 WL 3555357, at *1-2
(Kan. App. 2015) (unpublished opinion), and need not be repeated here. Relevant to this
appeal, in 2012, a jury convicted Brown of nine counts of rape and eight counts of
aggravated human trafficking. The district court sentenced him to lifetime imprisonment
without the possibility of parole. On direct appeal, another panel of this court affirmed
Brown's convictions and sentences. 2015 WL 3555357, at *7.

Brown timely filed a pro se K.S.A. 60-1507 motion, containing 829 pages, raising
26 claims related to ineffective assistance of trial counsel, ineffective assistance of
appellate counsel, prosecutorial misconduct, and judicial misconduct. While his motion
was pending, the district court appointed Brown six different attorneys, but Brown was
not satisfied with their representation. The district court summarily dismissed Brown's
K.S.A. 60-1507 motion, concluding:

"Brown does not undermine this court's confidence that he was convicted because [the
victims] testified before the jury that Brown repeatedly raped them in Wichita, Sedgwick
County, Kansas, and that the jury convicted him because they believed that testimony and
other evidence to be proof of guilt, and not because of the acts or omissions of any judge,
prosecutor, or defense attorney."

Brown filed an objection to the district court's memorandum decision, arguing the
district court's decision was based on false information and not credible. The district
court construed this objection as a motion to reconsider its previous order but found its
order should stand without modification. Additional facts are set forth as necessary.

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 ANALYSIS

Brown advances four overarching arguments on appeal: (1) The district court
lacked subject matter jurisdiction over his trial; (2) prosecutorial error; (3) ineffective
assistance of trial counsel; and (4) ineffective assistance of appellate counsel. His
arguments are difficult to follow, generally conclusory, and often lack support with proper
citation to the record or pertinent authority. To the extent he cites authority in support of
his various contentions, Brown largely misapprehends the relevant points of law
discussed therein. For the reasons explained below, his arguments are waived or
abandoned due to improper briefing and are otherwise unpersuasive on the merits.

The State correctly points out Brown has failed to comply with numerous Supreme
Court Rules in his briefing, such as Brown's statement of facts contains no record
citations. In response to the State pointing out as much, Brown argues he does not have
an adequate record.

"Kansas Supreme Court Rule 6.02(a)(5) requires an appellant to provide specific citations
to the record on appeal. Without such citation to the record, the appellate court must
presume the district court was correct. See State v. Bryant, 285 Kan. 970, 980, 179 P.3d
1122 (2008) (appellant claims that are not properly keyed to the record will not be
considered on appeal); State v. Scheuerman, 32 Kan. App. 2d 208, 213, 82 P.3d 515
(2003) (material statements not keyed to the record on appeal presumed unsupported by
record)." State v. Razzaq, No. 114,325, 2016 WL 6139148, at *4 (Kan. App. 2016)
(unpublished opinion).

The Razzaq panel also held pro se litigants are not excused from complying with the
record citation requirements of Kansas Supreme Court Rule 6.02(a)(5) (2023 Kan. S. Ct.
R. at 36). 2016 WL 6139148, at *5. We agree with the Razzaq panel's reasoning and
apply it here.

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 Brown's brief also contains a lengthy appendix with 261 pages of materials not
keyed to the record on appeal. This is not a substitute for a proper record. An appendix to
a brief should only contain "limited extracts from the record on appeal." Rule 6.02(b)
(2023 Kan. S. Ct. R. at 36). Throughout his brief, Brown purports to cite to the record on
appeal in support of his various incidental arguments. Most of the purported factual
statements do not align with the volume and page numbers cited. We are unable to
decipher whether Brown is citing to the actual record on appeal or merely referencing
materials in the appendix of his brief. Due to his numerous failures to properly cite to the
record, we are seriously handicapped in our review of the issues and, therefore, presume
the district court was correct. See Razzaq, 2016 WL 6139148, at *4.

The State is also correct Brown fails to cite to the proper standard of review for
summary dismissal of a K.S.A. 60-1507 motion. He does not begin his issues with the
appropriate standard of appellate review, nor does he provide a pinpoint reference to
where each issue was raised and ruled on below or explain why the issues should be
considered on appeal (if not raised below) in violation of Rule 6.02(a)(5). Our Supreme
Court has held Rule 6.02(a)(5) is to be strictly enforced. State v. Godfrey, 301 Kan. 1041,
1043-44, 350 P.3d 1068 (2015). An appellant who fails to comply with this rule risks a
ruling that the issue is improperly briefed and will be deemed waived and abandoned.
State v. Williams, 298 Kan. 1075, 1085-86, 319 P.3d 528 (2014).

We further note numerous errors in the formatting of Brown's brief as it does not
comply with Kansas Supreme Court Rule 6.07(a)(1) (2023 Kan. S. Ct. R. at 38), which
requires: "All text must be double-spaced except block quotations and footnotes which
may be single-spaced." Throughout his brief, Brown purports to quote from the record
(albeit with questionable citation thereto) in single-spaced block quotes but then adds his
own commentary in the same, single-spaced paragraphs. Although far from the most
glaring error in his briefing, this nevertheless complicates our review.

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 The State is well-justified in asserting that the numerous deficiencies in Brown's
brief make it difficult for the State to respond to the issues raised therein. Likewise, these
deficiencies make it difficult for us to properly analyze the issues. Accordingly, we deem
all issues raised by Brown waived or abandoned due to improper and/or inadequate
briefing. See State v. Davis, 313 Kan. 244, 248, 485 P.3d 174 (2021) (issues not briefed
deemed waived or abandoned); State v. Gallegos, 313 Kan. 262, 277, 485 P.3d 622
(2021) (issues not adequately briefed deemed waived or abandoned); State v. Meggerson,
312 Kan. 238, 246, 474 P.3d 761 (2020) (points raised incidentally in a brief and not
argued therein deemed waived or abandoned; failure to support a point with pertinent
authority or show why a point is sound despite a lack of supporting authority or in the
face of contrary authority is like failing to brief the issue); Williams, 298 Kan. at 1085
(failure to comply with Rule 6.02[a][5] constitutes waiver or abandonment of the issue);
State v. Bryant, 285 Kan. 970, 980, 179 P.3d 1122 (2008) (claims presumed unsupported
when not properly keyed to record on appeal). Moreover, even if we considered the
claims raised in Brown's brief (to the extent they can be deciphered), they individually
and collectively fail to show he is entitled to any relief.

Standard of Review

A district court must set aside a movant's conviction if "there has been such a
denial or infringement of the constitutional rights of the prisoner as to render the
judgment vulnerable to collateral attack." K.S.A. 2022 Supp. 60-1507(b). A district court
has three options when reviewing a K.S.A. 60-1507 motion:

"'(1) The court may determine that the motion, files, and case records conclusively show
the prisoner is entitled to no relief and deny the motion summarily; (2) the court may
determine from the motion, files, and records that a potentially substantial issue exists, in
which case a preliminary hearing may be held. If the court then determines there is no
substantial issue, the court may deny the motion; or (3) the court may determine from the

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 motion, files, records, or preliminary hearing that a substantial issue is presented
requiring a full hearing.'" White v. State, 308 Kan. 491, 504, 421 P.3d 718 (2018).

Here, the district court exercised the first option. When the district court
summarily denies a K.S.A. 60-1507 motion, we conduct de novo review to determine
whether the motions, files, and records of the case conclusively establish the movant is
not entitled to relief. Beauclair v. State, 308 Kan. 284, 293, 419 P.3d 1180 (2018).
Brown, as the movant, has the burden to prove his K.S.A. 60-1507 motion warranted an
evidentiary hearing by making more than conclusory contentions and stating an
evidentiary basis in support of his claims with specific factual allegations. See Mundy v.
State, 307 Kan. 280, 304, 408 P.3d 965 (2018). In deciding whether an evidentiary
hearing must be held, the district court generally must accept the factual allegations set
out in the motion as true. See Hogue v. Bruce, 279 Kan. 848, 850, 113 P.3d 234 (2005).

The trial court had jurisdiction over the underlying criminal case.

Brown first argues the district court did not have subject matter jurisdiction over
his criminal trial. "Subject matter jurisdiction concerns the court's authority to hear and
decide cases. It may be raised at any time, whether for the first time on appeal or even on
the appellate court's own motion." In re K.L.B., 56 Kan. App. 2d 429, 437, 431 P.3d 883
(2018). Whether jurisdiction exists is a question of law over which this court exercises
unlimited review. In re N.A.C., 299 Kan. 1100, 1106, 329 P.3d 458 (2014).

Brown asserts the district court lacked subject matter jurisdiction due to false
statements and/or perjured testimony relied on in the probable cause affidavits, although
he does not specify the particular affidavit(s) with which he takes issue. His argument is
difficult to follow and contains many conclusory allegations without record support that
various in-court statements were unsupported by or contrary to the evidence. The
overarching thrust of Brown's purported jurisdictional argument seems to be the State's

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complaint was defective. Brown's argument is problematic because (1) the State's
complaint is not a jurisdictional instrument, (2) Brown is actually raising various claims
of trial error, not a true jurisdictional argument, and (3) he already raised this issue on
direct appeal. See State v. Dunn, 304 Kan. 773, 811, 375 P.3d 332 (2016) ("Charging
documents do not bestow or confer subject matter jurisdiction on state courts to
adjudicate criminal cases; the Kansas Constitution does."); Woods v. State, 52 Kan. App.
2d 958, 964, 379 P.3d 1134 (2016) (res judicata bars consideration of issue raised in
K.S.A. 60-1507 motion previously ruled on in direct appeal); Brown, 2015 WL 3555357,
at *6 (Brown argued State's complaint and amended complaint were fatally defective and
charging documents were perjured); Kansas Supreme Court Rule 183(c)(3) (2023 Kan. S.
Ct. R. at 243) (absent exceptional circumstances, K.S.A. 60-1507 motion not appropriate
means to raise claims of mere trial errors).

Brown's argument also seems to attack the credibility and weight of the evidence
underlying his 17 off-grid felony convictions. The panel on direct appeal already found:
"The record reflects more than sufficient evidence to support Brown's jury convictions
for nine counts of rape and eight counts of aggravated human trafficking beyond a
reasonable doubt." Brown, 2015 WL 3555357, at *5. Brown is asking us to do several
things we cannot do: (1) redetermine an issue already decided on direct appeal; (2)
examine a claim of simple trial error raised in a K.S.A. 60-1507 motion without a
showing of exceptional circumstances; and (3) substitute our own evaluation of the
evidence for the jury's. See State v. Aguirre, 313 Kan. 189, 209, 485 P.3d 576 (2021) (in
evaluating sufficiency of the evidence, "'[a]n appellate court does not reweigh evidence,
resolve conflicts in the evidence, or pass on the credibility of witnesses'"); State v. Neal,
292 Kan. 625, 630, 258 P.3d 365 (2011) (defendant must "raise all available issues on
direct appeal"); Woods, 52 Kan. App. 2d at 964 (res judicata bars consideration of issue
raised in K.S.A. 60-1507 motion previously ruled on in direct appeal); Rule 183(c)(3)
(absent exceptional circumstances, K.S.A. 60-1507 motion not appropriate means to raise
claims of mere trial errors).

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 Simply put, Brown is attempting to advance a procedurally inappropriate claim by
characterizing it as a jurisdictional argument. His claim fails as a matter of fact and of
law. His conclusory allegations of false statements by law enforcement, the prosecutor,
and other witnesses did not deprive the district court of subject matter jurisdiction.
Allowing a jury to determine the veracity of the evidence is the quintessential function of
trial. The jury had the opportunity to do so and found Brown guilty. The fact he is
dissatisfied with the result has no bearing on the district court's authority to hear and
decide the matter at issue.

Prosecutorial error

Brown next argues the State committed prosecutorial misconduct—now referred
to as prosecutorial error—by vouching for the credibility of witnesses and prosecutorial
error denied him the right to a fair trial. Specifically, he complains the prosecutor made
several comments at trial not supported by the evidence. The various excerpts he claims
to cite to from the record do not include correct pin cites with volume and page number.
We presume these statements have no factual support in the record given Brown's failure
to comply with Rule 6.02(a)(4). See Bryant, 285 Kan. at 980. But even if these statements
accurately reflect matters discussed on the record, they do not show improper vouching
by the prosecutor. Rather, the complained-of statements by the prosecutor reflect a
common-sense argument, based on the evidence, why the victims and their mother did
not have a motive to lie.

The remainder of Brown's prosecutorial error complaints are that various
witnesses' testimony was either false or not corroborated by other evidence. Brown offers
no factual support from the record for these contentions; he merely punctuates them with
conclusory allegations or unsupported statements. Again, Brown has failed to comply
with Rule 6.02(a)(4). And it is not within our purview to determine the weight and
credibility of the evidence. Aguirre, 313 Kan. at 209.

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 We find Brown's prosecutorial error argument lacks merit. He has not set forth a
sufficient factual basis to show the prosecutor's actions were erroneous, much less
prejudicial. As with his previous argument, this claim is generally inappropriate to raise
in a K.S.A. 60-1507 motion because it is a claim of trial error that could have been raised
on direct appeal. See Neal, 292 Kan. at 630; Rule 183(c)(3).

Ineffective assistance of trial counsel

Brown argues his trial counsel was ineffective for failing to interview various
witnesses and perform adequate investigation, which prevented Brown from presenting
his theory of defense. He further argues trial counsel was ineffective in his questioning of
witnesses on cross-examination and/or failing to object to the State's questioning of
witnesses on direct examination.

The right to effective counsel is embodied in the Sixth Amendment to the United
States Constitution and "plays a crucial role in the adversarial system." Strickland v.
Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467
U.S. 1267 [1984]); see Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985)
(adopting Strickland).

"To prevail on a claim of ineffective assistance of trial counsel, a criminal
defendant must establish (1) that the performance of defense counsel was deficient under
the totality of the circumstances, and (2) prejudice, i.e., that there is a reasonable
probability the jury would have reached a different result absent the deficient
performance. Sola-Morales v. State, 300 Kan. 875, 882, 335 P.3d 1162 (2014) (relying on
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh.
denied 467 U.S. 1267 [1984])." State v. Salary, 309 Kan. 479, 483, 437 P.3d 953 (2019).

There is a strong presumption that counsel rendered adequate assistance and
exercised reasonable professional judgment. Strickland, 466 U.S. at 689. Brown has the

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burden to establish counsel's representation fell below an objective standard of
reasonableness viewed at the time of counsel's conduct. See 466 U.S. at 687-88, 690. In
analyzing a claim of ineffective assistance of counsel, we need not determine whether
counsel's performance was objectively deficient if the defendant cannot show prejudice
as a result thereof. Edgar v. State, 294 Kan. 828, 843-44, 283 P.3d 152 (2012). Here,
Brown has not met his burden to show prejudice.

Brown's arguments on this issue are all conclusory. He also incidentally raises
several points where he does not appear to be advancing an argument at all. Instead, he
periodically cites to what he asserts are excerpts from the record then follows these up
with a series of open-ended or rhetorical questions that, at best, go to issues beyond our
scope of review—namely, the weight and credibility of the evidence at trial. See Aguirre,
313 Kan. at 209.

Brown complains of numerous potential witnesses trial counsel could have
interviewed and various pieces of evidence trial counsel could have investigated,
including the crime scene and medical records. However, he never sets forth a factual
basis to demonstrate what information such further investigation would have revealed,
much less how it would have affected the verdict. This is contrary to the longstanding
rule that a movant must set forth more than unsupported contentions to establish
entitlement to relief under K.S.A. 60-1507. Burns v. State, 215 Kan. 497, 500, 524 P.2d
737 (1974). Accordingly, we find Brown cannot make the requisite showing of prejudice
to demonstrate he is entitled to relief based on trial counsel's pretrial investigation.

Brown further makes several incidental arguments about trial counsel's cross-
examination of certain witnesses at trial and/or failure to object to testimony elicited by
the State on direct examination. His arguments on these points are hard to decipher. He
seems to be simultaneously complaining about prosecutorial error and ineffective
assistance of trial counsel, but, to the extent he tries to connect the points, his analysis

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and explanation is lacking. He makes numerous conclusory allegations the State's
questions were leading and/or intended to prejudice the defense—which is generally the
point of the evidence the State presents. He further makes several conclusory allegations
there was either perjured testimony or various testimony was not supported by the
evidence. The latter contention is particularly unpersuasive as trial testimony is evidence.

Brown intermittently cites some authority but generally fails to explain the context
of these authorities, much less how any relevant points of law therein apply to his various
factual contentions. From one paragraph to the next, Brown's argument shifts from one
incidental point to another without meaningful explanation of if/how they relate.
Accordingly, we find Brown's complaints about trial counsel's questioning of witnesses
and/or responses or failure to respond to various matters introduced by the State are not
adequately briefed and, therefore, are waived or abandoned. See Gallegos, 313 Kan. at
277.

Due to Brown's improper briefing of the issue(s) and/or failure to provide adequate
factual support for his various contentions, we find he has not shown he was prejudiced
by any alleged deficiencies in trial counsel's pretrial investigation or performance at trial.
Accordingly, Brown is not entitled to relief.

Ineffective assistance of appellate counsel

Finally, Brown argues his appellate counsel was ineffective for failing "to raise
critical constitutional [violations] and [crimes] on direct appeal." The bulk of his
argument is a continuation of the first three issues repackaged through the lens of
appellate counsel's failure to raise them on direct appeal. Again, this largely amounts to a
series of incidental points punctuated with rhetorical questions, open-ended statements,
and/or conclusory allegations of wrongful acts or omissions by appellate counsel, trial
counsel, the prosecutor, various judges, and various witnesses.

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 "To establish ineffective assistance of counsel on appeal, defendant must show '(1)
counsel's performance, based upon the totality of the circumstances, was deficient in that
it fell below an objective standard of reasonableness, and (2) the appellant was prejudiced
to the extent that there is a reasonable probability that, but for counsel's deficient
performance, the appeal would have been successful.'" State v. Smith, 278 Kan. 45, 51-
52, 92 P.3d 1096 (2004).

Contrary to Brown's assertions, appellate counsel did not fail to raise any
argument on direct appeal that would have been a "dead-bang winner." Brown rehashes
his unpersuasive conclusory arguments that false information and perjured testimony was
used to charge and convict him. He asserts appellate counsel was ineffective for failing to
argue trial counsel was ineffective, although it is not clear how he believes trial counsel
should have acted or what appellate counsel should have argued. Brown also suggests
appellate counsel omitted arguments on appeal to cover up violations of the Fourth and
Fourteenth Amendments to the United States Constitution by investigating officers.
Because his arguments are conclusory, poorly framed, and insufficiently briefed, we
deem these points waived or abandoned. See Gallegos, 313 Kan. at 277.

Brown next argues a conflict of interest arose because the attorney who
represented him at his preliminary hearing was subsequently prosecuted in Sedgwick
County. Brown claims this created a conflict of interest extending to the district attorney,
trial counsel, appellate counsel, and the trial court. Again, this point is premised on
nothing but conclusory allegations, which we deem waived or abandoned due to
improper briefing. See Gallegos, 313 Kan. at 277.

Brown further argues appellate counsel was ineffective for failing to raise
prosecutorial error on direct appeal, specifically that the prosecutor attempted to argue
facts not in evidence. Brown's argument consists of conclusory assertions the State's
questions were improper, the State was arguing facts not in evidence, or the witnesses'
answers were untruthful. Setting aside the fact his conclusory allegations are insufficient

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to show he is entitled to relief, Brown misunderstands what it means to argue facts not in
evidence. He often complains about the prosecutor's questions to various witnesses.
However, these were not instances in which the prosecutor was making an argument; it
was how the State developed the evidence against Brown to support its request for the
jury to find him guilty. Accordingly, Brown cannot establish appellate counsel was
ineffective for failing to raise the issue on direct appeal.

Brown additionally complains of a variety of judicial misconduct claims appellate
counsel did not raise on direct appeal. Like his other claims on appeal, Brown's
arguments are conclusory and inadequately briefed. Based on Brown's failure to support
his claims with proper citation to the record, citation to pertinent authority, and general
failure to meaningfully explain his points, we deem his judicial misconduct claims
waived or abandoned. See Gallegos, 313 Kan. at 277; Rule 6.02(a)(4), (5). Moreover,
many of the points relevant to this claim were, in fact, raised on direct appeal where his
appellate attorney argued the district court erred in denying Brown's motion for recusal.

Finally, Brown argues appellate counsel was ineffective for failing to raise a claim
of cumulative trial errors. This claim lacks merit because the panel on direct appeal
liberally construed Brown's pro se supplemental brief as raising a claim of cumulative
error. The panel concluded: "[T]he evidence overwhelmingly supports the jury's guilty
verdict, and we find no cumulative error." 2015 WL 3555357, at *6. Again, Brown cannot
use his K.S.A. 60-1507 motion to relitigate an issue already decided on direct appeal. See
Woods, 52 Kan. App. 2d at 964.

We find Brown's claims on appeal are waived and abandoned due to improper
briefing. Further, even if we considered his arguments, he has failed to demonstrate he is
entitled to relief on any of the grounds set forth in his brief. Accordingly, we affirm the
district court's summary dismissal of Brown's K.S.A. 60-1507 motion.

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Affirmed.

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