State v. Macomber
| Decision Date | 05 July 2013 |
| Docket Number | No. 107,206.,107,206. |
| Citation | 303 P.3d 726 |
| Parties | STATE of Kansas, Appellee, v. Stephen Alan MACOMBER, Appellant. |
| Court | Kansas Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Marshall District Court; John L. Weingart, Judge.
Stephen Alan Macomber, appellant pro se.
Michael J. Bartee, of Michael J. Bartee, P.A., of Olathe, for appellant.
Laura E. Johnson–McNisk, county attorney, Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., BUSER, J., and ERNEST L. JOHNSON, District Judge Retired, assigned.
Stephen Alan Macomber appeals his convictions and sentence in Marshall County District Court, case number 2010 CR 60. Macomber committed other crimes in Marshall County shortly before the crimes committed in this case. These earlier crimes were separately charged and tried in 2010 CR 59, and separately appealed in State v. Macomber, Case No. 107,205, unpublished opinion filed July 5, 2013. Having reviewed the record and considered the arguments of Macomber and the State, we affirm case number 2010 CR 60 in part, reverse and vacate in part, and remand with directions.
After committing the crimes described in Macomber, Case No. 107,205, Macomber drove the sheriffs patrol vehicle to the edge of Blue Rapids, encountering 67–year–old Hedy Saville, who testified she was “walking my cats” without a leash. Saville was puzzled to see a slow moving patrol vehicle with its lights flashing. When the vehicle pulled into her driveway, Saville approached it because “[w]e had a cat ordinance in Blue Rapids, and I assumed somebody had called the police because I had my cats out.”
Macomber stepped from the patrol vehicle and, according to Saville, pointed his pistol at her. Saville had already set the cats down, and when she wished to pick one up again, Macomber told her: “ ‘If you go for the cat, I'll shoot the cats.’ “ Saville's vehicle was in the driveway, and Macomber wished to move it so he could park the patrol vehicle in the garage of Saville's residence. Saville told Macomber to take her car and go, but Macomber refused, saying she would call the police. Macomber also told Saville that “as long as I did what he said, he wouldn't rough me—he didn't want to have to rough me up.”
Macomber took Saville inside the residence to retrieve the keys to her vehicle, and he then made her stand close by the patrol vehicle as he backed it into the garage. The record contains a video of some of these events, shot by a camera in the patrol vehicle. Macomber's coercive and threatening manner is evident on the video.
Macomber forced Saville to help him cover the garage windows. Macomber then led Saville into the basement. At some point, Macomber told Saville: “ ‘If they don't find us in three or four days, I'll just have you drive me to Oklahoma.’ “ Macomber said he would “ “
Saville said she did not want Macomber in her basement but that she did not oppose him “because he had a gun pointed at me.” Saville also said she did not try to escape for fear that Macomber would shoot her. At one point Macomber told Saville: “ ‘I have two bullets, and one is for me.’ “ Saville understood this to mean the other bullet was for her.
Telling Saville she was the last person he would ever see, Macomber asked to recount his life story. While he did so, several persons called, some of whom were checking on Saville's welfare based on news reports of the earlier shooting in Blue Rapids. Macomber spoke to one of the callers and eventually conversed with Marshall County Sheriff Dan Hargrave. This began a lengthy negotiation by telephone between law enforcement officers and Macomber.
Macomber released Saville just after midnight, but he remained inside the residence. A standoff ensued for several hours. Law enforcement officers eventually sent 60 canisters of tear gas through the windows of Saville's residence before Macomber finally emerged at 6:48 in the morning and was taken into custody.
The State brought the following charges against Macomber: Count I, kidnapping, (K.S.A.21–3420[a]–[c] ); Count II, aggravated burglary, (K.S.A.21–3716); Count III, aggravated assault, (K.S.A.21–3410[a] ); Count IV, criminal possession of a firearm, (K.S .A. 21–4204[a][2]; K.S.A. 21–4204[a][4] ); and Count V, criminal threat, (K.S.A.21–3419[a] [l] ). The jury returned guilty verdicts on all of the charged crimes.
The trial court imposed the following sentences in open court: Count I, 233 months; Count II, 32 months; Count III, 12 months; Count IV, 8 months; and Count V, 6 months. The trial court then stated:
When the trial court filed the sentencing guidelines journal entry of judgment, however, the trial court ran Counts I and II consecutive to each other, and Counts III, IV, and V consecutive to Counts I and II. The trial court did not indicate in the journal entry that any of the counts were concurrent with each other. Macomber filed a timely appeal.
Although Case No. 107,205 and the present case were tried separately, some pretrial matters were considered jointly. One example was Macomber's challenges to a delay in the preliminary examination. As described in Case No. 107,205, Macomber filed a motion for preliminary examination in both cases on September 1, 2010, and renewed the motion several times thereafter. See Macomber, Case No. 107,205. The joint preliminary examination was not held until February 14, 2011.
In this appeal, Macomber's arguments regarding the delay are identical to his arguments in Macomber, Case No. 107,205. His appellate counsel argues for “a violation of Macomber's right to a speedy preliminary examination ” and Macomber argues in a pro se brief that his “right to a speedy trial has been violated.” (Emphasis added.) For the reasons set out in Macomber, Case No. 107,205, we conclude there was no violation of Macomber's constitutional rights under either theory.
Macomber was first convicted of criminal possession of a firearm in Case No. 107,205. See Macomber, Case No. 107,205. The trial in the present case was then held, and at an instructions conference, William C. O'Keefe, Macomber's court-appointed defense counsel, argued that Macomber was being subjected to double jeopardy by having to stand trial once again for criminal possession of a firearm. O'Keefe pointed out that Macomber had “already been found guilty of possession of a gun in Marshall County.” The trial court disagreed and instructed the jury to consider the crime of criminal possession of a firearm.
Macomber reprises his double jeopardy argument on appeal. The convictions in both cases were under K.S.A. 21–4204(a)(2) and K.S.A. 21–4204(a)(4), which defined “[c]riminal possession of a firearm” in relevant part as “possession of any firearm by a person” with a qualifying criminal history. The State argues that Macomber accomplished two separate possessions of a firearm in the two cases, “separated by time, distance and fresh impulse.”
Macomber relies upon the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, which applies to the states through the Fourteenth Amendment. See Hudson v. State, 273 Kan. 251, 253, 42 P.3d 150 (2002). The clause provides: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const. Amend. V. Macomber also cites § 10 of the Kansas Constitution Bill of Rights in his pro se brief, but State v. Thompkins, 271 Kan. 324, 336, 21 P.3d 997 (2001). “When an appellate court reviews a ruling on a double jeopardy ... issue, an unlimited scope of appellate review applies.” State v. Appleby, 289 Kan. 1017, 1026, 221 P.3d 525 (2009).
Both parties cite State v. Schoonover, 281 Kan. 453, 496, 133 P.3d 48 (2006), where the issue was “cumulative punishments imposed in one case.” Schoonover's facts did not “raise a question about a successive prosecution,” but our Supreme Court surveyed the law, nevertheless. 281 Kan. at 464. In its summary, our Supreme Court recognized the category at issue here, “a unit of prosecution case arising from successive prosecutions.” 281 Kan. at 478.
In a unit of prosecution case, “the defendant is charged with multiple violations of the same statute.” 281 Kan. at 464. A double jeopardy issue is raised in these cases when the alleged multiple violations are based on a “unitary” act or course of conduct, as opposed to “discrete and separate acts or courses of conduct.” 281 Kan. at 464. If the act or course of conduct is unitary, the next step is to identify the “ ‘allowable unit of prosecution,’ “ meaning “the minimum scope of the conduct proscribed by the statute.” 281 Kan. at 464, 471.
281 Kan. at 472. Since the “statutory definition of the crime determines the minimum scope of the conduct proscribed,” the “key ... is legislative intent.” 281 Kan. at 471. Finally, courts apply a rule of lenity in favor of defendants when the legislative intent is unclear. See 281 Kan. at 470–72; see also State v. Holman, 295 Kan. 116, Syl. ¶ 23, 284 P.3d 251 (2012) ().
Was Macomber's criminal possession of a firearm on June 7, 2010, in Marshall County a unitary act or course of conduct, as opposed to discrete and separate acts or...
To continue reading
Request your trial