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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 110,262

STATE OF KANSAS,

Appellee,

v.

GUSTIN BROWNLEE,

Appellant.

SYLLABUS BY THE COURT

1.

On the record in this case, the State has failed to establish that the district court 

judge was aware of a hold placed on a jailed defendant at the time his statutory right to 

trial within 90 days from arraignment was under consideration.

2. 

The "entire record," as that phrase is used in Supreme Court Rules 3.01 and 3.02

(2014 Kan. Ct. R. Annot. 20), includes all original papers and exhibits filed in the district 

court, the court reporter's notes and transcripts of proceedings, any other court-authorized 

record of the proceedings, and the entries on the appearance docket. It does not include a 

warrant and report never filed in the district court. 

3. 

A parole hold issued by the Kansas Department of Corrections is not a specific 

fact or proposition "of generalized knowledge [amenable to] immediate and accurate 

determination by resort to easily accessible sources of indisputable accuracy" under 

K.S.A. 60-409(b)(4), and it is not appropriate for judicial notice. 
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4. 

Failure to allow the defendant to be present at a motion hearing in this case was 

error under K.S.A. 2014 Supp. 22-3208(7), and the defendant did not acquiesce in a 

continuance sought by defense counsel at that hearing. The delay caused by the 

continuance should not have been counted against the defense for purposes of statutory 

speedy trial calculation.

5. 

The amendment to the speedy trial statute codified at K.S.A. 2012 Supp. 22-

3402(g) is a procedural provision that may be applied retroactively to a defendant whose 

crime was committed before the amendment took effect. 

6.

Under K.S.A. 2012 Supp. 22-3402(g), the legislature, which created the statutory 

right to trial within 90 days from arraignment for a defendant held in jail solely as a result 

of the charges at issue, has decided to eliminate the remedy for its violation in certain 

circumstances. The defendant in this case is not entitled to reversal of his convictions and 

dismissal of this action under the plain language of this subsection of the statute.

7.

An instruction on the lesser included offense of voluntary manslaughter was not 

factually appropriate on the evidence in this case. 

8. 

On the record of this case, the prosecutor's remarks about premeditation did not 

exceed the wide latitude allowed in discussing the evidence. They did not misinform the 

jury on whether premeditation can arise in an instant, and they correctly pointed out 
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factors that can give rise to an inference of premeditation, including a break between 

series of shots, the existence of defensive wounds, and the continuation of shooting after 

the victim had fallen to the ground. 

9. 

Fleeting improper testimony from a detective about the defendant's prior 

possessions of firearms and from a firearms expert about testing of a gun unrelated to the 

crimes charged, regardless of whether considered singly or together, did not require the 

district judge to grant a motion for mistrial or a motion for new trial. The evidence of the 

defendant's guilt in this case was overwhelming, and the improper testimony could not 

have resulted in substantial prejudice to the defense.

10. 

Cumulative error does not require reversal of the defendant's convictions in this 

case.

Appeal from Wyandotte District Court; WESLEY K. GRIFFIN, judge. Opinion filed August 7, 

2015. Affirmed. 

Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the briefs 

for appellant. 

Jennifer S. Tatum, senior assistant district attorney, argued the cause, and Jerome A. Gorman, 

district attorney, and Derek Schmidt, attorney general, were with her on the briefs for appellee.

The opinion of the court was delivered by

BEIER, J.: Defendant Gustin Brownlee appeals his jury trial convictions of firstdegree premeditated murder and criminal possession of a firearm, which arose out of the 
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fatal shooting of Tony "Black" Irvin at a party in April 2012. Brownlee contends that (1) 

his statutory right to a speedy trial was violated, necessitating dismissal of this case; (2) 

the jury should have been instructed on the lesser included offense of voluntary 

manslaughter; (3) the prosecutor committed misconduct during closing argument; (4) a 

mistrial or a new trial was necessary because of improper testimony by State witnesses; 

and (5) cumulative error compels reversal. 

As detailed below, we ultimately reject Brownlee's contentions and affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

On the day of the shooting, John Doran lived with his girlfriend, Brandie 

Brownlee; Brandie's four minor children; Brandie's adult child, Dyran Robinson; and 

Doran's son-in-law, Kenneth Brinson. Doran invited some friends over to watch a boxing 

match on television. In addition to those who lived with Doran, the party guests included 

Doran's uncle, William Jackson; Doran's nephew, Michael Thompson; Brandie's two 

sisters, Shaella and Erin; Brandie's cousins, Nicki and Shonda; and Irvin. Irvin, Brinson, 

Thompson, Doran, and Brandie had been there at Doran's residence all day. The other 

guests started arriving at 8 or 9 p.m. Gustin Brownlee, who is the brother of Brandie, 

Shaella, and Erin, arrived at 10:30 or 11 p.m. The children were upstairs while the adults 

were in the basement of the house. 

At about 2 a.m., police officers were dispatched to the house, where they

discovered Irvin lying face down in the driveway, dead from apparent gunshot wounds. 

Coroner Altaf Hossain later performed an autopsy and eventually would testify that 

Irvin's body had nine bullet entry wounds, including two in the back and seven in the 

front. Six of the wounds would have been fatal, and one wound to the back of Irvin's head 

alone could have caused his death instantly. Irvin also had possible defensive wounds on 
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his right forearm. Kansas Bureau of Investigation (KBI) firearm expert Zachary Carr 

eventually would testify that 15 of 16 fired cartridge cases found at the crime scene came 

from the same firearm. 

Brandie gave a recorded statement to police at about 6 a.m. the morning after the 

shooting. She told officers that Irvin touched her disrespectfully, and they had an 

argument. Brownlee and Doran convinced her to calm down, and the men went outside. 

Brandie and Doran then went upstairs but could hear Brownlee and Irvin arguing in the 

basement. Irvin left the house but said he would be back to hurt Brownlee. Apparently 

Brownlee then also left the house. When Brandie tried to bring Brownlee back inside, he 

pulled out a gun and fired three shots into the ground. Brownlee and Irvin started arguing 

again, and Brownlee shot Irvin multiple times. Brandie said she did not know if anyone 

else at the party had a gun. 

Detective Clayton Bye also interviewed Shaella, Erin, and Doran that day. He also 

later interviewed Jackson and Thompson. Doran, Jackson, and Thompson also identified 

Brownlee as the person who shot Irvin. 

Brownlee was arrested on May 23, 2012, and was charged with first-degree 

murder and criminal possession of a firearm. The parties do not dispute that Brownlee 

was held in jail pending trial. James Colgan was appointed as defense counsel. After a 

hearing set for June 5 was continued twice, Brownlee filed a July 12 pro se motion 

invoking what he said was his federal constitutional right to trial within 90 days. 

On September 12, District Judge Ernest L. Johnson presided over Brownlee's 

preliminary hearing. The defense waived formal arraignment. The judge noted, "Speedy 

trial is running. And I know that Mr. Brownlee has already filed his notice that he wants 

his speedy trial." A pretrial conference was set for September 28, 2012. 
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On September 28, Colgan appeared before District Judge Wesley K. Griffin.

Brownlee was not present. The journal entry of the hearing states: "This pretrial 

conference will be continued by the defendant in order for the defendant to retain 

counsel. This matter will be continued until October 26, 2012 at 10:30. Time is assessed 

versus the defendant." On October 26, 2012, Judge Griffin set a status hearing for 

October 31. 

Both Brownlee and Colgan were present at the October 31 hearing before Judge 

Griffin. The judge repeated that the time between September 28 and October 31 was 

assessed to the defense because of the request to retain counsel. This meant that 74 days 

remained on Brownlee's 90-day speedy trial deadline, which would require trial to begin 

by January 8, 2013. Defense counsel agreed with this calculation, and the judge set a 

January 7, 2013, trial date. 

At a December 18 hearing with Brownlee present, Colgan informed Judge Griffin 

that Brownlee had filed a second pro se motion for speedy trial. After argument before

this court, Brownlee added the document defense counsel had described as Brownlee's 

second motion to the record on appeal. The notarized document says only: "Dear Mr. 

Griffin I do not understand why my 90 day speedy trial has been delayed. Sincerely 

Gustin C. Brownlee." The judge asked if Brownlee had another hold to keep him in jail,

and Colgan said no. The State did not attempt to contest or correct this statement. 

Brownlee did not believe that the time between September 28 and October 31

should be assessed to him. He explained that he had told Colgan he was not sure if lawyer 

KiAnn McBratney was getting involved in his case, and he had wanted Colgan to set a

trial date at the September hearing. Colgan responded that he did not think he could 

schedule a trial for another attorney. The district court agreed, and the judge said he 
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personally remembered talking to McBratney about October 26 and learning she was not 

going to be involved in Brownlee's case. This time the judge assessed September 28 to 

October 26 to the defense but did not charge the continuance from October 26 to October 

31 against the defense. 

Colgan informed the judge that he had a scheduling conflict with a January 7,

2013, trial date and that Brownlee was unhappy with him. The judge warned Brownlee

that appointment of a new attorney would mean Brownlee would not be able to go to trial 

on January 7. Brownlee asked the judge for an opportunity to think about this until 

January 4, the date set for the next hearing. 

On December 31, 2012, Colgan moved to withdraw, alleging Brownlee would not 

reveal essential information about the case. At the January 4 hearing, Colgan renewed his 

request to be removed. Brownlee told Judge Griffin that he wanted to represent himself

and go to trial on January 7. The judge tried to dissuade Brownlee and said that neither a 

new attorney nor Brownlee could possibly be prepared to go to trial in 3 days. Brownlee

insisted, and the judge agreed to appoint a standby attorney to enable Brownlee to 

represent himself. Brownlee asked for McBratney as the standby. McBratney was 

appointed standby counsel, but the judge said other trial settings meant Brownlee's trial 

could not begin until January 28.

Trial began as expected on January 28, 2013. As it opened, McBratney informed 

Judge Griffin that she would be representing Brownlee, who would "simply play the role 

of the defendant." 

The prosecutor and the defense agreed that witnesses who had told police that 

Brownlee had possessed guns at times before the Irvin killing should not be permitted to 

testify on that point at trial. The prosecutor promised to admonish the witnesses in 
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advance, and the judge agreed with this course of action. Still, the following exchange 

took place between Bye and the prosecutor:

"Q. At that point were you starting to hear some common themes between the 

statements?

"A. Oh definitely.

"Q. Can you give us an example?

"A. Early on tried to find out everybody that had a gun. No one ever said anyone besides 

Gustin had a gun, no one ever said anyone besides Gustin shot a gun. No one said 

anyone besides Gustin killed Mr. [Irvin]. Several people said they [had] seen Gustin 

with a gun in the past." 

Defense counsel asked for a mistrial, arguing the detective was a professional who 

should have known better than to mention Brownlee's past gun possessions. She did not 

want the jury admonished because she feared it would only draw more attention to the 

detective's statement. The prosecutor said the detective was the only State witness she 

had not reminded not to testify about Brownlee's past gun possessions because she also 

thought the detective knew better than to bring the subject up. She nevertheless argued a 

mistrial was unnecessary because the jury would know Brownlee was prohibited from 

having a gun the day of the party because it would be instructed about his prior felony. 

The judge stated the prosecutor's question had not been designed to elicit an inappropriate

answer and took the motion for mistrial under advisement. 

Also on the first day of trial, the prosecutor informed the judge that a 9mm gun 

recovered as a result of a burglary investigation involving Brownlee's relative had been 

sent to the KBI that morning for testing. The prosecutor acknowledged that evidence 

about the gun would be irrelevant if testing showed the casings found at the scene of 

Irvin's killing did not match. Nevertheless, the following exchange between the 

prosecutor and firearm expert Carr occurred during Carr's direct examination:
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"Q. Now you didn't have a firearm to test in this case, correct?

"A. Not originally, no, ma'am.

"Q. And that's not unusual, is it?

"A. No, it's not." 

The defense lodged no contemporaneous objection to Carr's response suggesting a gun 

was eventually tested. At a bench conference shortly thereafter, however, defense counsel 

alerted the judge to Carr's oblique reference to later testing of a firearm. Counsel 

specifically expressed concern about the possible admission of additional testimony 

concerning this weapon. The prosecutor said she thought the examiner knew he was not 

to discuss the subject further, but the judge took a break to allow the prosecutor to warn 

Carr explicitly. 

At trial, the party guests gave somewhat conflicting accounts of the events leading 

to Irvin's death. 

Brandie testified that Irvin had arguments with different people that day, including 

herself. At one point he said he would "snatch little niggas' guns and beat 'em with 

[them]." Brandie thought he had directed that comment at Robinson or Brownlee because 

they were smaller than he was. At one point, she testified, Irvin touched her 

inappropriately on her waist and buttocks, and she and he argued. Doran and Irvin also 

had an argument about the touching, which started inside the residence and then moved 

outside. According to Brandie, Brownlee convinced her to calm down and let the incident 

pass. Doran came back inside and went upstairs to the restroom. Irvin took off his shirt as 

though he was going to fight and went upstairs to find Doran. Brandie, Doran, and Irvin

came back down the stairs. Then, according to Brandie, Thompson went outside first and 

shot his gun three times. Doran pushed Brownlee out the door. Doran and Irvin were 
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arguing, and Brownlee was trying to calm them down. Brandie saw Irvin with a gun;

Doran put his hand on top of the gun; and the two men were talking. Doran told Brandie

to go into the house, and she heard gunshots as she turned around. She then saw Irvin on 

the ground, and everyone began running. Brandie and her children got into a car with 

Nicki and drove away. 

After dropping off the children, Brandie snorted cocaine and drove around until 

Doran called to be picked up. Doran told her that Brownlee had killed Irvin or told her to 

say so. Brandie went back to the crime scene and gave her statement to the police.

Brandie testified at trial that she was drunk and high on cocaine during her police

interview. She also claimed the investigating detective, Bye, badgered her, said she 

would never see her kids again, and said "cut the crap, bitch, we know your brother did 

it." Bye denied calling Brandie a name and said he did not try to intimidate her. He also 

testified that she did not appear to be under the influence of alcohol or drugs when she 

gave her statement.

Shaella testified that Brownlee did not have a problem with anyone downstairs at 

the party. He was the only man present who was calm and sober. Irvin and Brandie 

exchanged words for 15 minutes about him touching her, but Brownlee calmed them.

Doran went upstairs, and Irvin followed him, saying that Brandie and Brownlee were 

talking about him. Doran asked Irvin to leave, and Irvin told Doran, "I'll smack you and 

your bitch." Brownlee again told everyone to calm down, but Doran and Irvin began 

arguing and went outside. 

Shaella said that Brinson shot at the ground three times and said, "[Y]'all gonna 

calm down or I'm—I'm gonna start acting crazy." She also heard Irvin speak to Brownlee 

and heard Brownlee say he was not going to fight. Brandie went outside to tell Brownlee

to stay out of the argument. Then Doran pushed Brandie back into the house. When she 
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first heard shots, Shaella ran upstairs. When the gunfire stopped, she went back 

downstairs and looked outside. She saw Brownlee and Irvin "rassling." Doran was trying 

to break them up. Brinson and Thompson were standing nearby each holding a gun. She 

then heard more shots and ran back upstairs with Brinson behind her. Brinson was

holding a gun and said she needed to get out of the house if she did not "wanna die."

Shaella ran out the front door with Brandie and the children and got into a car with a 

friend and Erin. 

Eventually the people in the car with Shaella picked up Brandie and Doran, who

had a "secret" conversation in the car. Shaella testified the group dropped Doran off near 

his house and later took Brandie back there as well. Police later spoke to Shaella, and she 

said that only Brownlee and Irvin were arguing. When confronted with this statement at 

trial, Shaella acknowledged that she provided more limited information to police than she 

did at trial and said she had been afraid to do otherwise. 

Erin testified that she spent time both upstairs and downstairs at the party at 

Doran's house. She observed Irvin "in [Brownlee]'s face" and said they were talking 

about a fight. In her police statement, Erin had said Brownlee was spitting on Irvin. Irvin

said, "Bro, can you see or something," and Brownlee responded, "I'm not your bro or 

your cuz." Everybody was arguing, and she heard Irvin say that his "daddy taught him to 

take people's guns and beat them up or something." Erin said she was upstairs with the 

children when she heard "a lot of yelling." Everything appeared to cool down; then she 

heard gunshots. Brinson came upstairs with a gun and told everyone to get out of the 

house. 

Doran testified that Irvin touched Brandie and another female inappropriately. He 

talked to Irvin about it but said he was not really mad. He denied shooting Irvin. Doran

said that Brownlee was carrying a gun in the side of his pants. Brownlee and Irvin had an 
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argument, and Irvin said something about cowards having guns. Doran tried to get 

between the men but was pushed or pulled away and then heard gunshots. He reluctantly 

admitted that Brownlee shot Irvin, which was consistent with his earlier statement to 

police. 

Jackson did not want to testify at trial and was uncooperative. He admitted to 

having a gun on the night of Irvin's death but said he did not fire his gun. He could not 

testify with certainty about who shot Irvin. However, in his police statement, Jackson had 

said he saw Brownlee "walk back up to [Irvin] and finish[] unloading a gun into his 

body." 

Brinson testified that Doran, Brownlee, and Irvin were outside but that he could 

not see them when he heard gunshots. He ran upstairs to warn the children to get out of 

the house. He denied having a gun with him. 

Thompson testified that he heard a loud commotion and saw Irvin and Brownlee

go outside. A few minutes later he heard 10 to 12 gunshots. He saw Doran and Brandie 

run outside. He looked outside to see what was going on and saw Brownlee shooting 

Irvin. He went back inside to make sure everyone else got out safely. Thompson denied 

having or firing a gun. His statement to the police was similar to his trial testimony.

During the jury instruction conference, Brownlee initially asked the district judge 

to instruct only on first-degree premeditated murder, i.e., not to give any lesser included 

offense instructions on the more serious charge. The district judge suggested that the 

evidence also supported a second-degree murder instruction. At that point, defense 

counsel argued that a voluntary manslaughter instruction should be given because some 

evidence established a quarrel between Brownlee and Irvin. The State disagreed, arguing 

the evidence did not establish adequate provocation as a matter of law. Ultimately the 
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judge declined to give a voluntary manslaughter instruction, concluding the evidence was 

insufficient to show heat of passion or a sudden quarrel. 

The jury was given the following definition of premeditation from PIK Crim. 4th

54.150(d): "Premeditation means to have thought the matter over beforehand, in other 

words, to have formed the design or intent to kill before the act. Although there is no 

specific time period required for premeditation, the concept of premeditation requires 

more than the instantaneous, intentional act of taking another's life." During closing 

argument, the prosecutor made the following comments concerning premeditation:

"So let's start with the premeditation, okay. That is defined as the defendant must 

have formed the design or intent to kill before the act. There is no specific time period 

required. Obviously when we think of the textbook premeditation, we're thinking of 

someone who's like writing a journal about how they're going to kill people maybe days, 

maybe months before. And that's true, that is premeditation. However, Kansas law does 

not require that that be the case. What it requires is that the decision is not instantaneous, 

meaning the law requires that he has to have some time to think to himself and plan I'm 

going to kill Tony Irvin. And that can happen within a day, it can happen within a few 

hours, it can happen within minutes, just not instantaneously. 

"So I've made a list of the things that I have found in the evidence that support 

premeditation. The first is going to be the testimony of the coroner. Mr. Tony Irvin . . .

isn't here, but his body still tells us some things about what happened to him that day that 

no witnesses can dispute in this case. He was shot nine times, okay. And I don’t ask you 

to consider each one by itself but all of these collectively. He was shot nine times. He was 

shot six times fatally, most of these are in very vital areas of the body. As Mr. Carr told 

us, this gun's not firing itself, it requires a process, it requires loading, it requires aiming, 

it requires pulling the trigger over and over again. That's some period of time there to 

cause those things.
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"We also have defensive wounds on the victim on the right arm. He's holding up 

his right arm. If you're aiming and firing at someone and you see them holding up their 

arm or trying to move away, that gives you time to reflect. That’s not happening in just 

an instant. 

"There's two distinct series of shots. Where am I getting that from? Well, we 

have Shaella Brownlee for one who tells us that, we also had John Doran that mentioned 

it wasn't all one group. So there is at least some time period where shots stopped and 

started again. Again, that wasn't just an instant. That—during that time period this 

defendant could have reflected [on] what he was doing to Mr. Irvin.

"We also have that this defendant, Mr. Brownlee, went outside after [Irvin] went 

outside. He did not have to go outside, he didn't have to take a gun outside, but he chose 

to do that. That's a moment where he could have reflected upon what he was about to do 

to Mr. Irvin.

"We have testimony from Shaella again and John Doran that this—that both John 

Doran and Brandie Brownlee were trying to calm Mr. Brownlee down. We have 

testimony from Brandie Brownlee herself, she says they were trying to calm him down, 

tell him it's not worth it, pulled him back. That was an opportunity he had for him to 

reflect on what he wanted to do to Mr. Irvin.

"We have testimony from Brandie Brownlee that this defendant fired a warning 

shot into the ground. He could have fired that shot and said, Tony . . . , I'm tired of you, 

I'm tired of you touching my sister, I'm tired of you being loud, whatever the problem 

was, get going, but he didn't. Instead he chose to fire more shots. That goes to 

premeditation.

"We also have testimony from Brandie Brownlee that Mr. Gustin Brownlee fired 

at Tony after he had fallen to the ground. Once someone falls to the ground and you 

continue firing at them, that's an opportunity to reflect and form the intent to kill, plan on 

killing that person who in this case was Mr. Tony Irvin. 
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"We also had the fact that this defendant fled following the incident. You can 

consider that as to whether or not he intended to kill Tony Irvin. He fled, he wasn't found 

until May 23rd.

"And finally for premeditation on my list is that Tony Irvin did not provoke this 

defendant. He might have been loud, yes. Maybe he was disrespectful to his sister, but he 

didn't pull a weapon on him. There's no testimony that [Irvin] had a weapon at all. He

didn't get in his face or make any threats by anyone's testimony that night, any threats of 

violence. Maybe he was obnoxious, that's not provocation. And you do not have an 

instruction on self-defense and that's why, because under the law, self defense is not a 

defense in this case so it does not need to be considered.

"But those are the factors I suggest to you that support premeditation. And as a 

group, I think you can probably think of more too." (Emphases added.) 

After the jury returned guilty verdicts on the two charges, when the district judge

was considering the defense motion for mistrial based on Bye's testimony, defense 

counsel asked if the court's ruling would be affected if Carr's testimony were considered 

as well. The judge observed that no objection or motion for mistrial had previously been 

based on Carr's testimony but ruled that even any cumulative prejudice from Bye's and 

Carr's improper testimony would not require a mistrial to be declared. 

The defense later filed a motion for new trial, raising several issues. Relevant to 

this appeal, Brownlee again challenged the testimony from Bye and Carr. At the hearing

on the matter, the defense argued that Bye's statement "leads the jury to believe 

[Brownlee] has a propensity for carrying guns and things of that nature when, as the court 

knows, our defense was that he was unarmed on the evening of the murder." On Carr's

testimony, counsel argued that it could be inferred there was a weapon found when that 

was not accurate. The judge agreed with defense counsel's decision not to seek an 

admonishment of the jury after Bye's improper testimony. But the judge concluded that,
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although both witnesses injected error into the trial, neither incident was prejudicial 

enough under the state statutory harmless error standard, see K.S.A. 2014 Supp. 60-261, 

to warrant a new trial. 

Brownlee also continued to argue posttrial that his speedy trial right had been 

violated, but neither party discussed the existence of a parole hold at the hearing on the 

motion for new trial. The judge again rejected Brownlee's speedy trial argument. 

Brownlee was sentenced to a hard 25 life sentence on the murder conviction,

consecutive to 8 months' imprisonment for the conviction of criminal possession of a 

firearm. 

After Brownlee's appeal was docketed in this court, the State added a May 17, 

2012, warrant for Brownlee's arrest issued by the Kansas Department of Corrections to 

the record on appeal. The parties have agreed that this document was not part of the 

record before the district court. The warrant states that Brownlee should be taken into 

custody and arrangements should be made for him to return to the designated institution 

to await a further hearing before the Kansas Parole Board. An accompanying report 

alleges that Brownlee violated the terms of his postrelease supervision based on the 

charges in this case and by failing to report travel and residence on May 16, 2012. 

Brownlee was not actually transported to the Hutchinson Correctional Facility for a 

hearing on his alleged postrelease supervision violations until June 19, 2013. 

STATUTORY SPEEDY TRIAL

Brownlee first argues on this appeal that his statutory right to a speedy trial was

violated, warranting vacation of his convictions and dismissal of the case with prejudice. 
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He does not argue that any federal or state constitutional right to speedy trial was 

violated. 

At the time Irvin was killed, K.S.A. 22-3402(1) provided in relevant part: 

"If any person charged with a crime and held in jail solely by reason thereof shall 

not be brought to trial within 90 days after such person's arraignment on the charge, such 

person shall be entitled to be discharged from further liability to be tried for the crime 

charged, unless the delay shall happen as a result of the application or fault of the 

defendant, or a continuance shall be ordered by the court under subsection (5)." 

The statutory speedy trial clock starts running at arraignment. State v. Sievers, 299 

Kan. 305, 307, 323 P.3d 170 (2014). For Brownlee, waiver of formal arraignment took 

place on September 12, 2012. "Only the State is authorized to bring a criminal 

prosecution to trial, so it is the State's obligation to ensure that a defendant is provided a 

speedy trial within the statutory limits." 299 Kan. 305, Syl. ¶ 2. Although Brownlee filed 

two motions asserting his right to a speedy trial, a defendant is not required to take any 

affirmative action to see that his or her right to a speedy trial is vindicated. 299 Kan. at 

307-08. 

Applicability of 90-day Time Limit

We first must dispense with the State's assertion that the K.S.A. 22-3402(1) 

speedy trial limit of 90 days did not apply to Brownlee because he was not being held 

solely by reason of the charges pending in this case. See State v. Montes-Mata, 292 Kan. 

367, Syl. ¶ 2, 253 P.3d 354 (2011) ("A defendant who is not being held 'solely by reason'

of the pending charges is not entitled to the protections of the 90-day time limit for 

bringing a defendant to trial under K.S.A. 22-3402."). The State concedes that this 

argument was not raised before the district court and that the supporting warrant and 
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accompanying report were not part of the district court record. Because of this unusual 

circumstance, this court sought briefs from the parties on whether the documents could be 

added to the record on appeal or otherwise considered. 

The State first asserts that the district judge was on notice of Brownlee's parole 

hold because the journal entry in this case orders Brownlee's sentence to run consecutive 

to his sentence in the case giving rise to the hold. We reject this argument. The journal 

entry was not in existence during the time Brownlee's speedy trial right was being ruled 

upon in district court, and the district judge never indicated any awareness of a parole 

hold when calculating time and setting the trial date. In fact, when defense counsel was 

asked if there was another hold, the answer was no, and the State did not interject. In 

addition, there is nothing about the journal entry that demonstrates the existence or 

vitality of a hold, as opposed to mere recognition of an earlier sentence not fully served. 

See Montes-Mata, 292 Kan. at 370-71 ("Unless a communication from another agency or 

jurisdiction constitutes a present custodial claim on a defendant, it cannot affect the 

speedy trial question of whether the defendant is being held solely on pending charges.").

The State next argues that Supreme Court Rules 3.01 and 3.02 (2014 Kan. Ct. R. 

Annot. 20) provide authority for adding the warrant and report to the record on appeal. 

Rule 3.01(b)(2) provides that "[a]n appellate court may, on its own, order that additional 

parts of the entire record be filed." (Emphasis added.) (2014 Kan. Ct. R. Annot. 20). Rule 

3.02(d) provides that "[a] party may request adding to the record on appeal any part of the 

entire record under Rule 3.01(a)." (Emphasis added.) (2014 Kan. Ct. R. Annot. 21). Rule 

3.01(a) (1 through 4) define the "entire record" as all original papers and exhibits filed in 

the district court, the court reporter's notes and transcripts of proceedings, any other 

court-authorized record of the proceedings, and the entries on the appearance docket. 

(2014 Kan. Ct. R. Annot. 20). The warrant and report were not among the original papers 
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filed in the district court and thus do not qualify as part of "the entire record" under Rules 

3.01 and 3.02. These authorities do not assist the State.

The State also contends that this court is permitted to take judicial notice of the 

warrant and report under K.S.A. 60-409(b)(4), which provides: "(b) Judicial notice may 

be taken without request by a party, of . . . (4) specific facts and propositions of 

generalized knowledge which are capable of immediate and accurate determination by 

resort to easily accessible sources of indisputable accuracy." The State argues that parole 

holds issued by the Department of Corrections are amenable to immediate and accurate 

determination through "a quick online search and/or phone call to a state government 

agency." 

Brownlee responds that these documents are not amenable to "immediate . . . 

determination by resort" to an easily accessible source and that any source is not 

indisputably accurate. K.S.A. 60-409(b)(4). Rather, he asserts, the State would have had 

to follow certain procedures to admit the documents into evidence before the district 

court. See K.S.A. 2014 Supp. 60-460(o) (hearsay exception that allows for the admission 

of official records subject to authentication); see also K.S.A. 60-465 (exceptions for 

requiring evidence of authenticity of copies of records if (1) office in state, documents 

attested to as correct copies, (2) office in United States, documents attested to, 

authenticated by seal). In addition, Brownlee asserts that mistakes can be and are made in 

such documents. See, e.g., In re K.B.J., No. 102,922, 2010 WL 348294, *2 (Kan. App.)

(unpublished opinion), rev. denied 290 Kan. 1094 (2010) (district court erred in taking 

judicial notice of criminal history under K.S.A. 60-409; Department of Correction's 

online system includes a disclaimer of accuracy of information); see also 

http://www.dc.state.ks.us/kasper. 
20

Brownlee also relies on two other cases in support of his argument rebuttal to the 

State's argument urging judicial notice. In State v. Taylor, 198 Kan. 290, 299, 424 P.2d 

612 (1967), this court held uncertified machine copies of Federal Bureau of Investigation 

and KBI "'rap sheets'" to be hearsay evidence, absent from the list in Kansas statutes on 

judicial notice, and not to contain "'facts of generalized knowledge capable of immediate 

and accurate determination by resort to easily accessible sources of indisputable accuracy'

(K.S.A. 60-409[a] and [b])." Brownlee also directs us to Leffel v. Kansas Dept. of 

Revenue, 36 Kan. App. 2d 244, 249, 138 P.3d 784 (2006), in which a Court of Appeals 

panel resisted taking judicial notice of Kansas Department of Health and Environment 

internal documents not readily accessible in published form. 

We are not persuaded by the State's arguments and authorities on the facts and 

record in this case. As the documents the State seeks to have us consider are not properly 

before us, they cannot be relied upon to demonstrate that Brownlee was in custody 

pending trial for reasons other than the first-degree murder and criminal possession 

charges against him. The 90-day time limit of K.S.A. 22-3402 was applicable to 

Brownlee. 

Merits of Statutory Speedy Trial Claim

The issue of whether the State violated a criminal defendant's statutory right to 

speedy trial raises a question of law subject to de novo review on appeal. Sievers, 299 

Kan. at 307. 

The 90 days from Brownlee's waiver of formal arraignment on September 12 

expired on December 11, 2012. But any "delays that result from the request of a 

defendant toll the statutory speedy trial period." State v. Vaughn, 288 Kan. 140, 144, 200 

P.3d 446 (2009). The statutory speedy trial right is waived if a defendant requests a 
21

continuance or files a motion that delays trial beyond the statutory deadline. 288 Kan. at 

144. And defense counsel's actions that delay trial are attributable to the defendant unless 

the defendant timely voices his or her disagreement with counsel's actions. 288 Kan. at 

144.

"For acquiescence to result in a waiver of speedy trial rights, the State must 

demonstrate more than mere passive acceptance and must produce some evidence of 

agreement to the delay by the defendant or defense counsel. The record must support a 

conclusion that the defendant expressly or impliedly agreed to the delay." 288 Kan. at 

145.

Brownlee argues his statutory speedy trial right was violated because the defense

was erroneously assessed the time between September 28 and October 26, 2012. On the 

way to this mistake, Brownlee asserts, his constitutional and statutory right to be present 

was infringed on September 28, and he thus was not given an opportunity to object in 

person to the critical continuance. Brownlee emphasizes that he had filed a pro se motion 

to protect his right to a speedy trial in July, i.e., even before his waiver of formal 

arraignment and the September 28 hearing; that he had advised defense counsel and the 

district court that the prospects of securing retained counsel were uncertain; and that he 

had instructed counsel to schedule the trial at the September 28 hearing.

K.S.A. 2014 Supp. 22-3208(7) provides that a Kansas criminal defendant has a 

right to be present at a hearing on any motion. See State v. Turner, No. 107,412, 2013 

WL 4404176, at *2 (Kan. App. 2013) (unpublished opinion), review denied 299 Kan. __

(2014). In addition, "K.S.A.1998 Supp. 22-3405, as well as the Sixth Amendment's 

Confrontation Clause and the Due Process Clause of the Fourteenth Amendment, require 

the defendant's presence at every critical stage of a trial. [Citations omitted.]." State v. 

Bell, 266 Kan. 896, 919-20, 975 P.2d 239, cert. denied 528 U.S. 905 (1999); see also 

Howard v. State, No. 106,782, 2012 WL 6217193, at *6 (Kan. App. 2012) (unpublished 

opinion) (panel assumed motion hearing critical stage; State did not contest error); State 
22

v. Taylor, No. 104,455, 2011 WL 3795481, at *4 (Kan. App. 2011) (unpublished 

opinion) (defendant's absence prevented defendant from objecting to counsel's 

continuance).

Here, the State concedes that K.S.A. 2014 Supp. 22-3208(7) granted Brownlee a 

statutory right to attend the September 28 hearing. Given this concession, and our 

agreement that it is sound and sensible, we need not reach the further question of whether 

every motion hearing qualifies as a critical stage of trial under other statutory or 

constitutional provisions. 

The State likewise concedes that Brownlee did not acquiesce in the continuance

and says he should not be bound by the actions of his counsel in requesting it. See 

Vaughn, 288 Kan. at 144 (actions of defense counsel attributable to defendant unless 

defendant timely voices disagreement); State v. Hines, 269 Kan. 698, 703-04, 7 P.3d 

1237 (2000) (when defendant objects to continuance beyond statutory limit, time cannot 

be assessed against defendant); State v. Arrocha, 30 Kan. App. 2d 120, 127, 39 P.3d 101 

(2002) (if defendant stands silent, neither advocating nor acquiescing in delay, State must 

beware). This also qualifies as a sound and sensible concession, and we hold that the 

district judge erred in assessing the time between September 28 and October 26 against 

the defense. Brownlee should have been present to voice his opinion on September 28; 

without his presence, we are left with his earlier motion making clear he had wanted his 

trial set within the statutory speedy trial period. 

Reversibility

Having conceded statutory speedy trial error, the State nevertheless argues that the 

error does not require reversal. It relies on a 2012 amendment to the speedy trial statute. 
23

The meaning and applicability of a statutory amendment involve only questions of 

law arising on proved or admitted facts that will be finally determinative of the issue. See 

State v. Barnes, 293 Kan. 240, 255, 262 P.3d 297 (2011). We therefore address the issue 

on appeal, despite the lack of opportunity for the district judge to consider it. 

Our standard of review is often repeated and familiar: 

"The most fundamental rule of statutory construction is that the intent of the 

legislature governs if that intent can be ascertained. When a statute is plain and 

unambiguous, an appellate court does not speculate as to the legislative intent behind it 

and will not read into the statute something not readily found in it. Where there is no 

ambiguity, the court need not resort to statutory construction." State v. Jolly, 301 Kan. 

313, Syl. ¶ 2, 342 P.3d 935 (2015).

The speedy trial statute was amended effective July 1, 2012, 64 days after Irvin's 

killing, to provide in relevant part:

"(g) If a defendant, or defendant's attorney in consultation with the defendant, 

requests a delay and such delay is granted, the delay shall be charged to the defendant 

regardless of the reasons for making the request, unless there is prosecutorial misconduct 

related to such delay. If a delay is initially attributed to the defendant, but is subsequently 

charged to the state for any reason, such delay shall not be considered against the state 

under subsections (a), (b) or (c) and shall not be used as a ground for dismissing a case 

or for reversing a conviction unless not considering such delay would result in a 

violation of the constitutional right to a speedy trial or there is prosecutorial misconduct 

related to such delay." (Emphasis added.) K.S.A. 2012 Supp. 22-3402. 

The State acknowledges that a statute operates prospectively unless there is clear 

language indicating the legislature intended otherwise. State v. Waller, 299 Kan. 707, 

718, 328 P.3d 1111 (2014). But it argues for application of an exception to this rule 
24

because, in its view, this statutory change did not prejudicially affect Brownlee's

substantive rights and is merely procedural or remedial in nature. See State v. Williams, 

291 Kan. 554, 557, 244 P.3d 667 (2010); see also State v. Hutchison, 228 Kan. 279, 287, 

615 P.2d 138 (1980) (procedural amendment provides, regulates steps by which 

punishment for criminal act meted out; substantive amendment declares specific acts 

crimes, prescribes punishment). 

The statute does not expressly state whether subsection (g) applies retroactively,

and we discern no clear legislative intent on this point in other sources. See State v. 

Jaben, 294 Kan. 607, 613, 277 P.3d 417 (2012). Our research reveals no cases 

interpreting this amendment or exploring its retroactivity. And recorded legislative 

history provides no guidance. 

Lacking these indicators, we observe that the provision does not alter the law on 

the acts that qualify as crimes. Nor does it alter the punishment for any crime. It does, on 

the other hand, regulate the steps of the judicial process. We therefore conclude that 

K.S.A. 2012 Supp. 22-3402(g) is a procedural provision, and it can be retroactively 

applied to Brownlee's case. See Williams, 291 Kan. at 557.

On the subject of where retroactive application then leads, the State focuses on the 

second sentence of subsection (g) emphasized above. The State contends that the district 

judge's error in assessing the time between September 28 and October 26 against the 

defense did not violate Brownlee's constitutional right to a speedy trial or flow from 

prosecutorial misconduct. Thus, in the State's view, we must disregard the mere statutory 

violation that resulted from exceeding subsection (a)'s 90-day time limit. 

Brownlee counters that the first sentence of subsection (g) sets up a precondition 

for application of the second sentence to save a conviction on appeal. The first sentence 

assesses time attributable to delay sought by defense counsel to the defense only if the 

delay was sought "in consultation with the defendant" and only as long as there was no 
25

related prosecutorial misconduct. Because Brownlee explicitly told his lawyer not to 

continue the trial setting, he reasons, neither the first sentence nor the second sentence of 

subsection (g) can be invoked by the State to affirm his convictions. 

We disagree with Brownlee's interpretation of what we believe is the plain 

language of the statute. The two sentences of the subsection are not worded to make them 

contingent upon each other. The first sentence clearly applies to situations, unlike this 

case, where the defendant himself, or upon consultation with his attorney, requests a 

delay that is granted. In such a factual scenario, the defense is charged with the delay for 

speedy trial purposes, barring related prosecutorial misconduct. The second sentence is 

much broader in its application. It involves situations where "a delay is initially attributed 

to the defendant[] but is subsequently charged to the state for any reason . . . ."

(Emphases added.) K.S.A. 2012 Supp. 22-3402(g). The second sentence covers the 

factual scenarios encompassed by the first sentence, i.e., those in which the defendant 

alone or in consultation with counsel requested a delay. But it is not limited to such

situations. Absent prosecutorial misconduct or a violation of a defendant's constitutional 

speedy trial right, the second sentence also is applicable to any factual situation in which 

a delay initially charged to the defense is subsequently charged to the State. 

The facts of this case fall squarely within the circumstances described by the

second sentence of subsection (g). The district judge erroneously assessed the time 

between September 28 and October 26, 2012. We have now concluded the time should 

have been charged to the State. Brownlee does not assert on appeal that his constitutional 

right to a speedy trial was violated, and he says only that he "may" claim that 

prosecutorial misconduct had a role in the delay because the State did not secure his 

presence without alleging or demonstrating that he or his counsel ever sought to have him 

brought to court. The only speedy trial violation before us is purely statutory, arising out 

of application of what was then subsection (1)'s and is now subsection (a)'s 90-day limit. 

Under subsection (g), the legislature, which created the statutory right, has decided to 
26

eliminate the remedy for its violation in certain circumstances, providing explicitly that 

the violation "shall not be used as a ground for dismissing a case or for reversing 

[Brownlee's] conviction." K.S.A. 2012 Supp. 22-3402(g). We are compelled by this plain 

language to affirm the district judge's refusal to dismiss this case on statutory speedy trial 

grounds. In essence, the judge managed to arrive at the right destination via the wrong 

road. State v. Bryant, 272 Kan. 1204, 1210, 38 P.3d 661 (2002). 

VOLUNTARY MANSLAUGHTER INSTRUCTION

Brownlee next argues that the district judge erred by failing to instruct the jury on 

voluntary manslaughter. 

"For jury instruction issues, the progression of analysis and [the] corresponding 

standards of review on appeal are: (1) First, the appellate court should consider the 

reviewability of the issue from both jurisdiction and preservation viewpoints, exercising 

an unlimited standard of review; (2) next, the court should use an unlimited review to 

determine whether the instruction was legally appropriate; (3) then, the court should 

determine whether there was sufficient evidence, viewed in the light most favorable to 

the defendant or the requesting party, that would have supported the instruction; and (4) 

finally, if the district court erred, the appellate court must determine whether the error 

was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 

Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012)." State v. Plummer, 

295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012).

On reviewability, this court has observed that "[t]o fully preserve a claim that the 

district court erred in failing to give a lesser included offense instruction, the defendant 

must distinctly state an objection to the omission before the jury retires to consider its 

verdict. K.S.A. 22-3414(3)." State v. Wade, 295 Kan. 916, 924, 287 P.3d 237 (2012). 

This obligation to object was fulfilled in this case.
27

On the second question of whether a voluntary manslaughter instruction was 

legally appropriate, we recognize that voluntary manslaughter—the knowing killing of a 

human being committed upon a sudden quarrel or in the heat of passion, K.S.A. 2014

Supp. 21-5404(a)—is a lesser included offense of first-degree premeditated murder. See 

State v. Hayes, 299 Kan. 861, 864, 327 P.3d 414 (2014); State v. Gooding, 50 Kan. App. 

2d 964, 979-80, 335 P.3d 698 (2014), rev. denied 301 Kan. ___ (2015) (voluntary 

manslaughter lesser included offense of murder as lesser degree of same crime). An

instruction on the elements of voluntary manslaughter was legally appropriate in this 

case. See State v. Story, 300 Kan. 702, 710, 334 P.3d 297 (2014).

We next turn to whether a voluntary manslaughter instruction was factually 

appropriate. In order to require the instruction, there must have been evidence that would 

reasonably justify a conviction of the lesser included crime. 300 Kan. at 710. This court 

does not speculate about hypothetical scenarios. 300 Kan. at 710 (quoting Wade, 295 

Kan. at 925).

"The key elements of voluntary manslaughter under K.S.A. 21-3403 are an 

intentional killing and legally sufficient provocation. [Citation omitted.] When reviewing 

whether provocation was legally sufficient, an objective test is used. [Citation omitted.] 

'Heat of passion' has been defined as 'any intense or vehement emotional excitement of 

the kind prompting violent and aggressive action, such as rage, anger, hatred, furious

resentment, fright, or terror,' based 'on impulse without reflection.' [Citation omitted.]

The provocation '"must be sufficient to cause an ordinary man to lose control of his 

actions and his reason."' [Citations omitted.] 

. . . . 

"[I]n order to reduce a homicide from murder to voluntary manslaughter, there 

must be an adequate provocation that deprives a reasonable person of self-control and 
28

causes that person to act out of passion rather than reason. Mere words or gestures, 

however offensive, do not constitute legally sufficient provocation for a finding of 

voluntary manslaughter." Hayes, 299 Kan. at 864-66.

A sudden quarrel can be one form of heat of passion. State v. Johnson, 290 Kan. 

1038, 1048, 236 P.3d 517 (2010). "[A]n unforeseen angry altercation, dispute, taunt, or 

accusation could fall within th[e] definition [of heat of passion] as sufficient 

provocation." 290 Kan. at 1048. "'The hallmark of heat of passion is taking action upon 

impulse without reflection.'" State v. Hilt, 299 Kan. 176, 194, 322 P.3d 367 (2014)

(quoting Wade, 295 Kan. at 925). 

Brownlee argues that numerous witnesses testified the shooting was part of an 

angry dispute or altercation. He points to evidence that Irvin inappropriately touched

Brownlee's sister, Brandie, and, when confronted, said "I'll smack you [Doran] and your 

bitch [Brandie]." When Doran, Irvin, Brinson, Thompson, and Brownlee went outside, 

one man shot at the ground saying, "[Y]'all gonna calm down or I'm . . . gonna start 

acting crazy." Brandie said she tried to go outside to calm Brownlee down, and Doran

testified that Irvin and Brownlee argued outside the house. Shaella testified that she saw 

Irvin and Brownlee "rassling" and that Doran was trying to break the fight up. Brownlee

asserts that this evidence supported an "objectively sufficient provocation for an 

emotional state of mind of 'rage, anger, hatred, [or] furious resentment.'" See State v. 

Horn, 278 Kan. 24, 40-42, 91 P.3d 517 (2004). 

The State responds that even when the evidence is viewed in the light most 

favorable to the defense, it does not support legal, sufficient provocation. It points out 

that Brandie and Shaella testified that Brownlee was calm; that both Doran and Brandie 

tried to prevent Brownlee from confronting Irvin; that Irvin was provoking Brandie, not 

Brownlee; and that Irvin did not have a weapon or threaten Brownlee. See, e.g., State v. 

Stallings, 246 Kan. 642, 649, 792 P.2d 1013 (1990) (testimony that defendant, victim 
29

argued insufficient to warrant voluntary manslaughter instruction; no evidence of 

aggressive acts, physical threats, physical assault with insulting language by victim). The 

State also points out that a sudden quarrel between a victim and a third party will not 

support a conviction of voluntary manslaughter. See State v. Clark, 263 Kan. 370, 374, 

949 P.2d 1099 (1997) (sudden quarrel voluntary manslaughter instruction inappropriate 

when defendant shot victim fighting with third person); State v. Harris, 27 Kan. App. 2d 

41, 44, 998 P.2d 524 (2000) (sudden quarrel voluntary manslaughter inappropriate when

party guest, not defendant, said he wanted victim dead).

Viewing the evidence in the light most favorable to the defense, Irvin had 

inappropriately touched Brandie, and they argued. At some point Irvin said he would 

"smack" both Doran and Brandie. But this behavior and comment were not directed at 

Brownlee. The only insulting or threatening language Irvin may have used toward 

Brownlee at some point during the night were his comments that he would "snatch little 

niggas' guns and beat 'em with it" and that he would be back later to hurt Brownlee. Irvin

was unarmed, but Brownlee was carrying a gun. Irvin and Brownlee argued outside the 

house, and one witness testified that they were "rassling" before the shots were fired. But 

no evidence was presented about who started the physical fight or what the two men were 

arguing or fighting about. The dispute was not sudden; it merely simmered. Such 

evidence does not rise to the level of "adequate provocation that deprives a reasonable 

person of self-control and causes that person to act out of passion rather than reason."

Hayes, 299 Kan. at 866. 

Because a lesser included instruction on voluntary manslaughter would not have 

been factually appropriate in this case, the district judge did not err in refusing to give it. 

We need not reach the further question of whether any error was harmless. 
30

PROSECUTORIAL MISCONDUCT

Brownlee argues the prosecutor committed misconduct during closing argument

by stating that a defendant can form premeditated intent to kill during the act of shooting 

a gun. Brownlee points to statements that Irvin was shot several times; that the shooting 

involved a process of loading, aiming, and pulling the trigger over a period of time; that 

Brownlee had time to reflect when Irvin took a defensive posture, which could not have

happened in an instant; and that there were two distinct series of shots. The State's

response is that even a cursory review of the record disproves Brownlee's 

mischaracterization of the prosecutor's comments. 

We note first that no contemporaneous objection was necessary to preserve this 

issue for appeal. State v. Crawford, 300 Kan. 740, 744, 334 P.3d 311 (2014). We next 

must determine whether the prosecutor's comments were improper. "[W]hile a prosecutor 

has wide latitude in discussing evidence, the remarks must accurately reflect that 

evidence, accurately state the law, and cannot be intended to inflame the passions or 

prejudices of the jury or divert the jury from its duty to decide the case based on the 

evidence and controlling law." State v. Marks, 297 Kan. 131, 136, 298 P.3d 1102 (2013). 

"'Premeditation means to have thought the matter over beforehand, in other words, 

to have formed the design or intent to kill before the act. Although there is no specific 

time period required for premeditation, the concept of premeditation requires more than 

the instantaneous, intentional act of taking another's life.'" State v. Jones, 298 Kan. 324,

336, 311 P.3d 1125 (2013) (quoting State v. Martis, 277 Kan. 267, 301, 83 P.3d 1216 

[2004]). We have also recognized that "'[p]remeditation is the process of thinking about a 

proposed killing before engaging in the homicidal conduct, but it does not have to be 

present before a fight, quarrel, or struggle begins.'" State v. McBroom, 299 Kan. 731, 756, 
31

325 P.3d 1174 (2014) (quoting State v. Gunby, 282 Kan. 39, Syl. ¶ 9, 144 P.3d 647 

[2006]).

This court considers the following factors to assist in determining whether

evidence gives rise to an inference of premeditation: "(a) the nature of the weapon used; 

(b) the lack of provocation; (c) the defendant's conduct before and after the killing; (d) 

the defendant's threats and declarations before and during the occurrence; and (e) the 

dealing of lethal blows after the deceased was felled and rendered helpless." State v. 

Lloyd, 299 Kan. 620, Syl. ¶ 5, 325 P.3d 1122 (2014). This determination is not driven by 

the number of factors present because one factor alone may constitute compelling 

evidence of premeditation. Lloyd, 299 Kan. 620, Syl. ¶ 5. "'"[P]remeditation and 

deliberation may be inferred from the established circumstances of a case, provided the 

inference is a reasonable one."'" Jones, 298 Kan. at 336. 

Brownlee first contends the prosecutor's argument that premeditated intent could 

be developed simultaneous to the act of firing gunshots misstated the law, eliminating the 

line between mere intent and the actual forethought required for premeditation. "[T]his 

court has repeatedly warned prosecutors about going outside of the approved language in 

PIK Crim. 3d 56.04(b) and making comments that are analogous to stating premeditation 

can occur in the same instant as the act that results in a death." State v. Kettler, 299 Kan. 

448, 474-75, 325 P.3d 1075 (2014) (prosecutor misstated law of premeditation by saying

"'[Y]ou could think it over, just a half second before you actually fired the fatal shot.'").

Among the caselaw precedents cited by the parties is State v. Anthony, 282 Kan. 

201, 145 P.3d 1 (2006). In that case, the victim was beaten with an object, and the 

prosecutor stated in closing argument: 

"'[I]f you think about it, the two blows that actually killed [the victim] had to occur at 

some point, they may have occurred last and [the victim] went to the ground, but if they 

came last, then there is [sic] at least five blows before them. This person is thinking about 
32

what they are doing. They know what they are doing. If those two blows came first, then 

[the victim] is unconscious, defenseless on the ground, and this person continues to beat 

him at least five more times. That's premeditation.'" 282 Kan. at 208. 

We ruled there was no misconduct in this description of the number and possible order of 

the blows and of the potential for the defendant to think about what he was doing before 

inflicting additional blows on a victim already rendered helpless. 282 Kan. at 209. 

Our decision 2 years later in State v. Warledo, 286 Kan. 927, 190 P.3d 937 (2008), 

is similar. In that case, the defendant had stomped the victim 15 times as she lay on the 

floor, and the prosecutor argued premeditation could be formed in between stomps and 

again as the defendant walked away and returned. This court held that multiple blows 

may afford a defendant an opportunity to think, that the infliction of additional blows 

once a victim is already helpless can show premeditation, and that the prosecutor's 

comments on these subjects merely informed the jury that the defendant could have 

developed the plan to commit murder once his fight with the victim began. This theory 

was supported not only by the number of stomps but by a 911 tape recording in which the 

defendant could be heard telling the victim she would die. 286 Kan. at 950. 

In State v. Hall, 292 Kan. 841, 257 P.3d 272 (2011), the victim was shot once and 

then three more times in more rapid succession. The prosecutor argued that the defendant 

could have formed premeditation after the first trigger pull. We ruled the prosecutor 

committed misconduct by arguing that premeditation could be formed after the first 

trigger pull because all of the shots were still so closely spaced that the argument 

erroneously suggested that premeditation could be formed instantaneously. 292 Kan. at 

852.

In Marks, the defendant challenged the prosecutor's statement that premeditation 

could be formed "'during the act itself'" when the victim was stabbed eight times. 297 

Kan. at 137. We observed that the stabbing made the case more similar to Warledo and 
33

Anthony than to Hall because the act of stabbing someone eight times is not instantaneous 

like rapid gunfire can be. Nevertheless, the prosecutor's statement that premeditation 

could occur "'during the act itself'" meant "the prosecutor confused the formation of 

premeditation from what was instructed given the particular fact pattern in this case and 

the conflict in the evidence." 297 Kan. at 139. This meant there was error, but it was not 

reversible. 297 Kan. at 139-41.

This court has considered the fact that a victim was shot 11 times in rapid

succession to evidence premeditation. See State v. Qualls, 297 Kan. 61, 68, 298 P.3d 311 

(2013); see also State v. Cosby, 293 Kan. 121, 134, 262 P.3d 285 (2011) (evidence of 

premeditation in multiple shots fired at victim, including a pause between first and 

second shot). And in Jones, we decided that a prosecutor's discussion of the defendant's 

decision to put "'five-pound pressure'" on a trigger and discussion of the amount of time 

required to raise his arm and pull the trigger did not imply instantaneous premeditation. 

Rather, the prosecutor identified key factual intervals when the defendant had an

opportunity to think about the killing and proceed or change course. 298 Kan. at 336-37. 

Predictably, Brownlee relies on Marks and Hall. The State persuasively 

distinguishes this case from Marks because the prosecutor never stated or implied that 

"'intent can be formed during the act itself'" and did not imply that premeditation could be 

instantaneous. See 297 Kan. at 137. The State also distinguishes this case from Hall, in 

which all of the shots were fired in rapid succession. In that case, we explicitly left for 

another day consideration of the State's assertion that it was "'theoretically possible'" to 

fire one shot instantaneously and without premeditation and then to premeditate before 

firing additional shots. Hall, 292 Kan. at 852. 

In this case, the prosecutor's comments were within the bounds of the law because

they described the totality of the evidence regarding premeditation, i.e., the use of a 

deadly weapon, the dealing of lethal blows after the victim had been rendered helpless,
34

additional conduct before and after the killing, and the lack of provocation. Lloyd, 299 

Kan. 620, Syl. ¶ 5. After properly stating the definition of premeditation, the prosecutor 

pointed out key factual intervals supported by the evidence that established

premeditation: (1) the number and location of Irvin's gunshot wounds; (2) the process 

and reflection necessary to fire a gun; (3) the defensive wounds on the body; (4) the two 

distinct series of shots with a pause between them; (5) Brownlee's failure to calm down 

and his decision to follow Irvin outside; (6) Brownlee's firing of warning shots into the 

ground before shooting Irvin; (7) Brownlee's decision to continue to fire after Irvin was 

on the ground; (8) Brownlee's action in fleeing the scene after the shooting; and (9) the 

lack of provocation. The prosecutor's comments were not outside the wide latitude 

allowed in discussing the evidence of premeditation or the law governing the jury's 

evaluation of it. 

Brownlee also argues that State v. Huddleston, 298 Kan. 941, 953, 318 P.3d 140 

(2014), supports his view that the prosecutor committed misconduct by saying: "Once 

someone falls to the ground and you continue firing at them, that's an opportunity to 

reflect and form the intent to kill, plan on killing that person . . . ." In Huddleston, the 

defendant killed the victim by injecting him with insulin, and prosecutors repeatedly 

mentioned events that occurred after the injection without stating that premeditation 

could be inferred from those events. We held that the suggestion that premeditation was 

going on after the homicidal act of giving the injection was a misstatement of the law

because premeditation cannot occur "after a defendant commits an act that results in a 

death." 298 Kan. 941, Syl. ¶ 1. 

Again, the State persuasively responds to Brownlee's argument. It asserts that 

there was no evidence here that Irvin was dead or even fatally wounded when he fell to 

the ground. The coroner testified that six of the nine shots were fatal, but he could not 

testify to the order in which the shots occurred. The coroner also testified it was hard to 

say, but Irvin probably was trying to use his right forearm to block the shot. He opined 
35

that Irvin "probably" fell down when he was shot in the back of the head, which would 

cause instantaneous death, and then a bullet "might have" hit the front side of his body. In 

Huddleston, the injection of insulin was unquestionably the homicidal act. 

This argument of Brownlee also lacks merit because "a prosecutor may properly 

point out that the number and order of blows could have given the defendant 'an 

opportunity to think about what he or she was doing' and that 'infliction of additional 

blows after the first blows' which rendered the victim helpless could evidence 

premeditation." Warledo, 286 Kan. at 950. In this case, in which evidence was presented 

of a pause between two sets of gunshots, of defensive wounds, and of shots fired while 

the victim was on the ground, the prosecutor was justified in discussing the additional 

shots fired after Irvin fell as evidence of premeditation.

Because we conclude that the prosecutor's challenged statements were not 

improper, it is unnecessary to consider harmlessness. See State v. Hunt, 285 Kan. 855, 

866, 176 P.3d 183 (2008).

MOTIONS FOR MISTRIAL AND NEW TRIAL

Brownlee next argues that the district judge erred by denying him a mistrial and/or 

new trial based on the improper statements from the detective and the firearm expert. 

Brownlee's objection to the detective's testimony was ruled on as a motion for mistrial 

during trial and as part of a motion for new trial between conviction and sentencing. As 

discussed above, no objection to the firearms expert's testimony was lodged at trial, but 

after Brownlee had been convicted, the defense asked the judge if the cumulative effect 

of both witnesses' testimony would have warranted a mistrial. Thus the firearms expert's 

testimony was ruled on at the motion for new trial hearing. Given these events below, we 

will address whether the detective's testimony warranted a mistrial or a new trial and 

whether the firearms expert's testimony, when considered in conjunction with the 
36

detective's testimony, warranted a new trial. See State v. Clay, 300 Kan. 401, 412-15, 329 

P.3d 484, cert. denied 135 S. Ct. 728 (2014) (mistrial, new trial standards of review 

applied to combination of alleged errors). 

This court reviews a district court's decision denying a motion for mistrial under 

an abuse of discretion standard. We ask: "(1) Did the trial court abuse its discretion when 

deciding if there was a fundamental failure in the proceeding? and (2) Did the trial court 

abuse its discretion when deciding whether the conduct resulted in prejudice that could 

not be cured or mitigated through jury admonition or instruction, resulting in an 

injustice?" State v. Waller, 299 Kan. 707, 726, 328 P.3d 1111 (2014).

"Under K.S.A. 22-3423(1)(c), a trial court may declare a mistrial if there was 

prejudicial conduct either inside or outside the courtroom that makes it impossible for the 

trial to proceed without injustice to either the defendant or the prosecution. This statute 

creates a two-step process. First, the trial court must determine if there was some 

fundamental failure of the proceeding. If so, the trial court moves to the second step and 

assesses whether it is possible to continue without an injustice. In other words, the trial 

court must decide if the prejudicial conduct's damaging effect can be removed or 

mitigated by an admonition, jury instruction, or other action. If not, the trial court must 

determine whether the degree of prejudice results in an injustice and, if so, declare a 

mistrial." Waller, 299 Kan. 707, Syl. ¶ 3.

Decisions on motions for new trial also are reviewed for abuse of discretion. 

Under K.S.A. 2014 Supp. 22-3501, a district judge should grant a defendant's request for 

a new trial when doing so is in "the interest of justice." The district judge abuses his or 

her discretion when the decision is (1) arbitrary, fanciful, or unreasonable; (2) based on 

an error of law; or (3) based on an error of fact. Clay, 300 Kan. at 414.
37

We turn first to the detective's testimony. 

It is undisputed that the detective violated the court's order by stating that several 

people had seen Brownlee with a gun in the past. Our motion for mistrial analysis thus 

shifts immediately to whether it was possible to continue the trial without an injustice. 

Waller, 299 Kan. 707, Syl. ¶ 3. 

"Appellate courts reviewing . . . for an injustice may take a broader view than the trial 

court because appellate courts may examine the entire record. The degree of certainty 

required to conclude an injustice did not occur varies depending on whether the 

fundamental failure infringes on a constitutional right. To declare a nonconstitutional 

error harmless, the appellate court must apply K.S.A. 60-261 and K.S.A. 60-2105 to 

determine if there was a reasonable probability that the error affected the trial's outcome. 

And if the fundamental failure infringes on a right guaranteed by the United States 

Constitution, the appellate court applies the constitutional harmless error analysis defined 

in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 

U.S. 987 (1967)." Waller, 299 Kan. at 726. 

Brownlee contends that the detective's testimony led the jury to believe that 

Brownlee had a propensity for carrying guns. He asserts that this was prejudicial and that 

the district judge did not protect his right to a fair trial. He summarily concludes that the 

State cannot meet its burden to show harmlessness under the constitutional standard.

The State, in response, directs our attention to "more egregious" cases that did not 

require reversal. In one of those cases, State v. Ransom, 288 Kan. 697, 207 P.3d 208 

(2009), a detective violated a pretrial limine order preventing discussion of gang 

affiliation at trial. The district judge denied a motion for mistrial, reasoning that the 

question posed to the witness had not been designed to elicit the impermissible response 

and that the jury had been properly admonished to ignore the reference. On appeal, we
38

found no substantial prejudice; we characterized the comment as brief and innocuous and 

said it had been cured by an admonition. 288 Kan. at 714-15. 

State v. Tatum, 281 Kan. 1098, 135 P.3d 1088 (2006), teaches a similar lesson. In 

it, the district judge denied a motion for mistrial when a detective testified that the 

defendant's name had come up during a prior homicide investigation and that the 

defendant had sold drugs in the past. We affirmed the district court, holding that the 

reference to the prior investigation was harmless because the defendant ultimately was 

not implicated in prior criminal activity, the evidence of his motive in the current case 

was abundant, and he had been identified as one of the shooters. 281 Kan. at 1111-12. 

We also ruled that the reference to previous drug sales was cured by an instruction, and 

we considered the existence of overwhelming evidence in holding that the defendant 

failed to establish substantial prejudice. 281 Kan. at 1113.

Here, the detective's improper testimony was fleeting, and it was unresponsive to 

the prosecutor's question. The district judge found neither the prosecutor nor the detective 

acted maliciously, and he agreed with defense counsel's decision not to seek an 

admonishment of the jury to avoid calling more attention to the problem. See State v. 

Rinck, 256 Kan. 848, 853-54, 888 P.2d 845 (1995) (no abuse of discretion in denying 

motion for mistrial when witness referred to defendant being in prison; statement 

singular, unsolicited; limiting instruction refused; statement could not have affected trial 

result); State v. Hall, 45 Kan. App. 2d 290, 310, 247 P.3d 1050 (2011) (district judge's 

refusal to draw more attention to brief, inadvertent, unsolicited testimony from detective 

by giving curative instruction considered; instruction would not have resulted in different 

verdict), aff'd on other grounds 297 Kan. 709, 304 P.3d 677 (2013).

We also note that in this case any prejudicial effect of the detective's improper 

testimony was diminished because several witnesses testified that Brownlee had a gun the 

night of the murder and that he shot Irvin several times. No reasonable probability exists
39

that the detective's testimony affected the trial's outcome; the district judge did not abuse 

his discretion in denying the motion for mistrial or the later motion for new trial on this 

ground. State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied 132 S. 

Ct. 1594 (2012).

With regard to the firearms expert, the parties also agree that the district judge's

order was violated. The expert should have taken care not to imply that a firearm 

matching the casings found at the scene of the crime was eventually tested. So, again, our 

analysis shifts to whether Brownlee can establish substantial prejudice warranting a new 

trial in the interest of justice under K.S.A. 2014 Supp. 22-3501.

Brownlee provides minimal argument on this point, summarily contending that the 

expert's testimony was prejudicial and not harmless beyond a reasonable doubt. 

The State, for its part, argues that the testimony was fleeting and innocuous. We 

also note that the district judge took a break so that the witness could be advised by the 

prosecutor that he should not mention the tested firearm again. He followed this 

instruction. 

As with the detective's improper testimony, admonishing the jury about the 

comment would probably have done more harm than good, and overwhelming evidence 

supported Brownlee's convictions. Even when the erroneous testimony from both the 

detective and the firearm expert is considered together, Brownlee has failed to establish 

substantial prejudice warranting a new trial in the interest of justice under the statute. The 

district judge did not abuse his discretion in denying the motion for new trial on these 

grounds. 
40

CUMULATIVE ERROR

Finally, Brownlee asserts the cumulative effect of several errors warrants reversal 

of his convictions. 

"Cumulative trial errors, when considered collectively, may require reversal of 

the defendant's conviction when the totality of circumstances substantially prejudiced the 

defendant and denied the defendant a fair trial. Notably, cumulative error will not be 

found when the record fails to support the errors raised on appeal by the defendant. 

Furthermore, a single error cannot constitute cumulative error." Waller, 299 Kan. 707, 

Syl. ¶ 4. 

The only errors we have identified are a violation of Brownlee's statutory right to 

speedy trial, for which the legislature has eliminated a dedicated, individual remedy, and 

the detective's and firearm expert's inadmissible statements. Under the totality of the 

circumstances, these errors did not substantially prejudice Brownlee nor deny him a fair 

trial, particularly in light of the truly overwhelming evidence presented to support his 

convictions. Cumulative error does not necessitate reversal. 

CONCLUSION

Defendant Gustin Brownlee has not persuaded this court that his convictions of 

first-degree premeditated murder and criminal possession of a firearm were infected by 

reversible error. The judgment of the district court is affirmed. 

* * *

LUCKERT, J., dissenting: I dissent from the majority's holding on two issues: I 

would hold that (1) Gustin Brownlee's speedy trial rights were violated and (2) the 

district court erred by failing to instruct the jury on the lesser included offense of 

voluntary manslaughter. 
41

1. The speedy trial violation demands reversal.

The majority recognizes that Brownlee's trial did not begin within the speedy trial 

time limit of K.S.A. 2012 Supp. 22-3402 and that the district court erred by assessing 

time lost due to a continuance Brownlee did not personally request or approve. See 

K.S.A. 2012 Supp. 22-3402(g) ("If a defendant, or defendant's attorney in consultation 

with the defendant, requests a delay and such delay is granted, the delay shall be charged 

to the defendant . . . ."); State v. Vaughn, 288 Kan. 140, 144-45, 200 P.3d 446 (2009)

(affirming that a waiver of speedy trial extends to defendant's request for or agreement to 

a continuance). Nevertheless, the majority holds the speedy trial violation does not 

warrant reversal of Brownlee's conviction because of the operation of K.S.A. 2012 Supp. 

22-3402(g). I disagree with the majority's reading of that subsection and, more 

specifically, its disassociation of the first sentence from the second. I would hold that the 

entirety of subsection (g) relates to situations where "a defendant, or defendant's attorney

in consultation with the defendant, requests a delay." See K.S.A. 2012 Supp. 22-3402(g).

The difference between my position and the majority's obviously comes down to a 

dispute about statutory interpretation. As the majority points out, when interpreting 

statutes, "the touchstone is legislative intent," if that intent can be ascertained. State v. 

Brown, 295 Kan. 181, 193, 284 P.3d 977 (2012). The most fundamental rule of statutory 

interpretation is that we attempt to discern that intent from the language used by the 

legislature. See State v. Stallings, 284 Kan. 741, 742-43, 163 P.3d 1232 (2007) 

(explaining this plain language inquiry). If we find that language ambiguous, we turn to 

canons of statutory construction or look to extrinsic aids such as legislative history or 

background considerations. Brown, 295 Kan. at 193; see also State v. Raschke, 289 Kan. 

911, 914, 219 P.3d 481 (2009) ("Should a statute's meaning not be evident from its plain 

language, we move from interpretation to construction . . . .").
42

The legislature chose to use the following words when enacting K.S.A. 2012 

Supp. 22-3402(g): 

"(g) If a defendant, or defendant's attorney in consultation with the defendant, 

requests a delay and such delay is granted, the delay shall be charged to the defendant 

regardless of the reasons for making the request, unless there is prosecutorial misconduct 

related to such delay. If a delay is initially attributed to the defendant, but is subsequently 

charged to the state for any reason, such delay shall not be considered against the state 

under subsections (a), (b) or (c) and shall not be used as a ground for dismissing a case or 

for reversing a conviction unless not considering such delay would result in a violation of 

the constitutional right to a speedy trial or there is prosecutorial misconduct related to 

such delay."

Both the text and structure of this subsection create an ambiguity in that it is not 

explicit whether a delay that might be initially attributed to the defendant but is later 

charged to the state (as referenced in the second sentence) must first be a delay requested 

by the defendant (as laid out in the first sentence). I would conclude, reading the statute 

in its entirety and considering the provision in context, that the legislature intended for 

the first sentence to define when the second sentence applies. 

The structure of a statute often provides a clue regarding legislative intent. See 

Brown, 295 Kan. at 196 (considering structure to discern whether legislature intended to 

create alternative means of committing a crime); see also, e.g., Meredith v. Federal Mine 

Safety and Health Review, 177 F.3d 1042, 1053 (D.C. Cir. 1999) ("[W]e find that the text 

and structure of the Mine Act, as well as the legislative history, inexorably lead to a 

single conclusion."). Typically, sentences within the same subsection relate to one 

another and should be read together. See Brown, 295 Kan. at 196. Also, courts do not 

consider parts of an act in isolation but are instead required to construe all parts together. 
43

Board of Miami County Comm'rs v. Kanza Rail-Trails Conservancy, Inc., 292 Kan. 285, 

322-23, 255 P.3d 1186 (2011). This rule holds especially true when applied to words in 

the same subsection and, even more, to words in contiguous sentences under the canon of 

construction known as noscitur a sociis—that is, the meaning of a word is or may be 

known from its accompanying words. 

Applying these considerations to subsection (g) suggests to me that the first 

sentence should be read to define the circumstances under which the second sentence 

operates. Thus, when both the first and second sentences refer to "a delay," they mean a 

delay requested by or agreed to by the defendant. 

This conclusion is further reinforced by the structure of other provisions adopted 

by the legislature along with subsection (g). See L. 2012, ch. 157, sec. 4. Subsection (g) 

relates to only one of seven situations where the speedy trial limit may be either tolled or 

assessed to one party or the other. Other subsections address the other six situations and 

each provides its own rules for calculating the time. Subsection (d) relates to a defendant 

who absconds. Subsection (e) covers three situations: delays that result from proceedings 

to determine a defendant's competency, situations where material evidence is not 

available, or continuances necessitated by a congested court calendar. Subsection (f) 

addresses what happens if a mistrial has been declared. Subsection (g), or at least its first 

sentence, covers a defendant's request or agreement to a continuance and codifies this 

court's holding that a delay because of a continuance can only be assessed against a 

defendant if requested or agreed to by the defendant. See Vaughn, 288 Kan. at 144-45. 

Subsection (h) applies when a trial is timely scheduled but is delayed because "a party 

has made or filed a motion, or because the court raises a concern on its own" motion. 

K.S.A. 2012 Supp. 22-3402(h). Finally, subsection (i) addresses calculation of time when 

"the state requests and is granted a delay for any reason provided in this statute." K.S.A. 

2012 Supp. 22-3402(i). 
44

Through these various subsections, the legislature has covered all—or at least the 

more common and significant—situations that cause a trial delay. And each subsection 

provides unique rules for assessing the delay to either the State or the defendant and for 

calculating the delay's impact on the speedy trial limitation. This structure suggests that 

each subsection has a unifying feature and signals that the legislature likewise intended 

the second sentence of subsection (g) to relate only to the situation where a defendant 

requests or agrees to a delay. 

Moreover, "in interpreting statutes we frequently point to parallel statutes [or 

provisions] and note that the language in one statute [or provision] may illustrate that the 

legislature knows how to state something that is omitted in another statute [or 

provision]." Cady v. Schroll, 298 Kan. 731, 749, 317 P.3d 90 (2014). Comparing 

subsection (i), which relates to tolling when the State requests and is granted a delay, to 

subsection (g), relating to the defendant's request, is telling. K.S.A. 2012 Supp. 22-

3402(i) provides:

"If the state requests and is granted a delay for any reason provided in this 

statute, the time elapsing because of the order granting the delay shall not be 

subsequently counted against the state if an appellate court later determines that the 

district court erred by granting the state's request unless not considering such delay would 

result in a violation of the constitutional right to a speedy trial or there is prosecutorial 

misconduct related to such delay." (Emphasis added).

In contrast, subsection (g) does not refer to "a delay for any reason provided in this 

statute" but merely to "a delay." Clearly, the legislature knew how to create a catch-all 

provision; it did so in subsection (i). But it did not do so in subsection (g). The majority, 

in effect, reads the above italicized phrase from subsection (i)—or at least the words "for 

any reason"—into subsection (g), in contravention of our general rule that we "will not 
45

read into the statute something not readily found in it." Cady, 298 Kan. at 738-39.

Without this added, expansive language, the second sentence of subsection (g) refers only 

to the delay allowed by the first sentence—a delay requested or agreed upon by the 

defendant. 

The State's burden of ensuring compliance with the speedy trial statute may have 

motivated the statutory distinction between delays requested by a defendant and those 

charged to the State. See State v. Adams, 283 Kan. 365, 369, 153 P.3d 512 (2007). 

According to the "Supplemental Note on Substitute for Senate Bill No. 307" prepared by 

the Legislative Research Department, the bill that led to the 2012 amendments to the 

speedy trial statute "was introduced by the Senate Judiciary Committee at the request of 

the Kansas County and District Attorneys Association (KCDAA)." Also, given that 

subsections (c), (d), (e), (f), and (h) address rules for most other delays caused by a 

defendant, there is just no need for a catch-all clause in subsection (g). Compare K.S.A. 

2012 Supp. 22-3402(d) (defendant absconds), with State v. Hess, 180 Kan. 472, 475, 304 

P.2d 474 (1956) (stating that the speedy trial statute "'does not operate in favor of a 

fugitive from justice'"); K.S.A. 2012 Supp. 22-3402(e) (delays because of competency 

proceedings), with State v. Davis, 277 Kan. 309, 333, 85 P.3d 1164 (2004) (charging all 

delays in proceedings relating to a competency challenge, including the time between 

filing a motion to determine competency and the decision on the motion, and any time 

spent in treatment, to the defendant).

In light of these various considerations, I would conclude that the savings 

provision in K.S.A. 2012 Supp. 22-3402(g) applies only when a defendant has requested 

or agreed to a delay. Here, Brownlee had clearly and repeatedly expressed disagreement 

with any delays and he was not consulted about the specific continuance at issue. Without 

the savings provision of subsection (g), the mandate of subsection (a) applies, and 
46

Brownlee is "entitled to be discharged from further liability to be tried for the crime 

charged." See K.S.A. 2012 Supp. 22-3402(a). 

2. Reversible error occurred in failing to instruct on the lesser included offense.

In addition, I disagree with the majority's conclusion that the district court did not 

err in failing to instruct the jury on the lesser included offense of voluntary manslaughter. 

The majority correctly identifies the stair-step analysis that controls this issue, 

citing State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012). Applying that 

analysis, the majority appropriately disposes of steps one and two by determining: (1) 

Brownlee objected and thus fully preserved this issue and (2) it would have been legally 

appropriate to have instructed the jury on voluntary manslaughter as a lesser included 

offense of first-degree premeditated murder. The majority then holds a voluntary 

manslaughter instruction was not factually appropriate. I disagree with this holding. 

Under K.S.A. 2014 Supp. 22-3414(3), a lesser included offense instruction is 

required "where there is some evidence which would reasonably justify a conviction of 

some lesser included crime." In Plummer, we explained that a court's evaluation of 

whether the evidence sufficiently meets this standard is "akin" to an assessment of the 

sufficiency of the evidence. Plummer, 295 Kan. at 161-62. Given that Brownlee 

requested the voluntary manslaughter instruction, the district court, in applying the 

sufficiency standard, should have viewed the evidence in the light most favorable to 

Brownlee—in this circumstance, in the light justifying the instruction—and asked if a 

rational factfinder could have found Brownlee guilty of voluntary manslaughter. See 295 

Kan. at 162. 
47

The majority determines the evidence falls short of this standard because it did not 

sufficiently prove, from an objective standpoint, that Brownlee lost self-control or acted 

out of passion rather than reason. The majority instead concludes that a dispute between 

Tony "Black" Irvin and other partygoers had merely "simmered" throughout the day and 

into the evening. State v. Brownlee, ___ Kan. ___, slip op. at 29 (citing State v. Hayes, 

299 Kan. 861, 866, 327 P.3d 414 [2014]). Granted, the evidence generally showed that 

for most of the evening Brownlee had remained out of the fray and had, in fact, twice 

tried to calm others and diffuse tensions. But the evidence also shows that this situation 

changed just before the shooting. 

At that point, the anger escalated and several individuals, including Irvin and 

Brownlee, moved outside the house. According to Brownlee's sister Shaella the tension 

was so high that Kenneth Brinson shot the ground three times, saying, "[Y]'all gonna 

calm down or I'm—I'm gonna start acting crazy." Shaella then saw Irvin speak to 

Brownlee and heard Brownlee say that he was not going to fight, though she also testified 

that her sister Brandie was trying to calm Brownlee down and telling him to "stay out of 

it." According to Shaella, someone fired some more shots, this time into the air, and she 

ran upstairs. A few minutes later she came back downstairs and saw Irvin and Brownlee 

physically fighting each other and "rassling." Other evidence supports the conclusion that 

the situation involving Brownlee escalated once he was confronted by Irvin outside. 

Shaella testified Brandie went outside to "try[] to calm [him] down." And John Doran, as 

well as Shaella, testified that Irvin and Brownlee argued outside the house and that Doran 

stepped between them to try and break up the argument. Gunshots soon followed. 

From these accounts, a rational factfinder could have found beyond a reasonable 

doubt that Brownlee shot Irvin intentionally upon a sudden quarrel or in the heat of 

passion. See K.S.A. 2014 Supp. 21-5404(a). This evidence indicates that while much of 

the evening's tension had been between Irvin and people other than Brownlee, once they 
48

were outside things between the two of them became heated. At least one person saw 

Irvin say something to Brownlee that suggested Irvin wanted to fight—though Brownlee 

initially responded that he would not fight. But a fight began anyway. 

Again, since Brownlee requested the voluntary manslaughter instruction, the 

district court should have viewed the evidence in the light most favorable to him and in 

the light justifying the instruction. See Plummer, 295 Kan. at 161-62. I would conclude 

the above-described testimony, viewed in this light, constitutes evidence of heat of 

passion, which we have defined to include "'"any intense or vehement emotional 

excitement of the kind prompting violent and aggressive action."' [Citations omitted.]" 

State v. Wade, 295 Kan. 916, 925, 287 P.3d 237 (2012); see State v. Story, 300 Kan. 702, 

711, 334 P.3d 297 (2014) (discussing definition of "heat of passion"); State v. Coop, 223 

Kan. 302, Syl. ¶ 1, 573 P.2d 1017 (1978) (heat of passion "'includes an emotional state of 

mind characterized by anger, rage, hatred, furious resentment, or terror'"). Thus, I would 

hold the district court erred in failing to give the voluntary manslaughter instruction. 

JOHNSON, J., joins the foregoing dissenting opinion.