State v. McCullough

Decision Date02 March 2012
Docket NumberNo. 101,041.,101,041.
Citation270 P.3d 1142,293 Kan. 970
PartiesSTATE of Kansas, Appellee, v. Cherish McCULLOUGH, Appellant.
CourtKansas Supreme Court

OPINION TEXT STARTS HERE

Syllabus by the Court

1. Mutual combat is a fight both parties enter willingly or voluntarily. It implies a common intent to fight, but not necessarily an exchange of blows.

2. The doctrine of self-defense cannot excuse a killing done when the defendant willingly engaged in mutual combat unless the defendant has withdrawn in good faith and done everything in the defendant's power to avert the necessity of the killing.

3. A district judge has a duty to instruct on any lesser included offense established by the evidence, even if that evidence is weak or inconclusive. But there is no duty to instruct on a lesser included offense if the jury could not reasonably convict on that lesser included offense based on the evidence presented.

4. K.S.A. 22–3423(1)(c) permits a trial court to declare a mistrial if there was prejudicial contact inside or outside the courtroom that makes it impossible to proceed without injustice to a defendant or the prosecution. To follow the statute, a district judge must engage in a two-step analysis: (a) decide whether there was some fundamental failure of the proceeding; and (b) if so, determine whether it is possible to continue without an injustice. This second step requires assessing whether the damaging effect of any prejudicial conduct can be removed or mitigated through jury admonition or instruction. If that is not possible and the degree of prejudice would result in an injustice, a mistrial is necessary.

5. An appellate court reviews a trial court's decision denying a motion for mistrial under an abuse of discretion standard. Judicial discretion is abused if judicial action (a) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (b) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (c) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.

6. Appellate review of a mistrial issue considers two questions: (a) Did the trial court abuse its discretion when deciding whether there was a fundamental failure in the proceeding? and (b) 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?

7. To determine whether an error makes it impossible to proceed with the trial without injustice, a court must assess whether the fundamental failure affected a party's substantial rights under Kansas' harmless error statutes, K.S.A. 60–261 and K.S.A. 60–2105, if a right guaranteed by the United States Constitution is not implicated, or under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, reh. denied 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967), if such a constitutional right is implicated.

8. An appellate court reviews a district court's denial of a motion for mistrial that was predicated upon a violation of K.S.A. 60–447 under the statutory harmless error standard in K.S.A. 60–261, which disregards errors that do not affect the substantial rights of the parties. Under K.S.A. 60–261, an appellate court determines if there is a reasonable probability that the error will or did affect the outcome of the trial in light of the entire record.

9. Under the nonconstitutional harmlessness standard of K.S.A. 60–261, the burden of demonstrating harmlessness is on the party benefitting from the error. That party must show there is no reasonable probability the error affected the trial's outcome in light of the entire record.

10. Kansas Supreme Court Rule 6.05 (2011 Kan. Ct. R. Annot. 45) provides that a reply brief is reserved for responding to new material contained in the appellee's brief. An appellant may not raise new issues in a reply brief.

Richard Ney, of Ney, Adams & Sylvester, of Wichita, argued the cause and was on the briefs for appellant.

Boyd K. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Steve Six, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by BILES, J.:

Cherish M. McCullough and LaShonda Callaway got into a fistfight at a Wichita convenience store. After other store patrons broke up the fight, McCullough went to her car, returned with a knife, maneuvered around another person, and fatally stabbed Callaway in the abdomen. McCullough was convicted of premeditated first-degree murder. Our principal issue on appeal is whether the jury should have been instructed on self-defense. Under Kansas law, if McCullough willingly engaged in mutual combat she would not be entitled to claim self-defense unless she made a good-faith withdrawal and did everything within her power to avoid the killing. McCullough did not take either step. She reengaged in the conflict by returning to the store with a knife, and we hold she was not entitled to a self-defense instruction. We also reject the other issues raised on appeal and affirm her conviction.

Factual and Procedural Background

On June 23, 2007, Callaway, the victim, was inside a neighborhood convenience store when McCullough entered with her stepbrother and cousin. McCullough remained near the doorway, talking to her boyfriend on her cell phone. But as Callaway left, she walked past McCullough and they began fighting.

The convenience store had multiple cameras in the store and parking lot that recorded the fight and its aftermath. The videos were played at trial. They depict Callaway and McCullough shoving each other and engaging in what is fairly described as a fistfight. Some other customers intervened and separated the pair, and then one customer blocked the doorway, preventing Callaway from leaving, while McCullough's stepbrother escorted McCullough to her car. Then, the stepbrother returned to the store to retrieve the cousin.

Callaway appears on the video sporadically trying to push her way past the customer, while McCullough remained in the car. But after a short period, McCullough can be seen getting out of the car and walking back to the doorway, where her stepbrother and Callaway were yelling at each other. McCullough positioned herself behind her stepbrother, and also began yelling at Callaway over her stepbrother's shoulder. Callaway had her fists up, when the stepbrother pushed her back. McCullough then lunged forward, reached around her stepbrother, and stabbed Callaway. The view of the stabbing itself is obstructed on the video, but McCullough can be seen stepping back as she held a knife up at around shoulder height while again speaking to Callaway. At this point, McCullough and her stepbrother ran out to the car and their cousin quickly followed. The video shows Callaway swaying for a few seconds before she grabs her abdomen and falls to the floor.

Callaway was taken to a hospital, where she died 6 hours later from the stab wound. The evidence showed her wound was about 4 1/2 inches deep and almost reached the back inner wall of her torso. The victim's liver and kidney were damaged.

There is conflicting testimony about how the fight between McCullough and Callaway began, but evidence was admitted at trial that the women previously knew each other. There also was evidence that about 6 months before she was killed, Callaway was admitted to a psychiatric hospital for 9 days and then transferred to a state hospital by court order. While hospitalized, Callaway was diagnosed with bipolar affective disorder, which can result in depressed or manic episodes. Her hospital records indicated that she made several threats that she would kill members of her family and the hospital's staff while she was institutionalized.

The trial evidence indicated that McCullough had some knowledge of Callaway's condition because she was friends with Callaway's ex-boyfriend, Monty Alford, who testified he told McCullough that Callaway called him while institutionalized in the state hospital and that Callaway was “talkin' real off.” Alford also testified that he told McCullough about an argument he and Callaway had when Callaway learned he was cheating on her. During that argument, he said, Callaway pulled a kitchen knife and cut Alford's hand as he grabbed it from her. Alford testified that he told McCullough to watch out for Callaway because she was “a little off” and kept a knife with her.

McCullough was charged with premeditated first-degree murder. The jury was instructed on first-degree premeditated murder, second-degree murder, and voluntary manslaughter. But the district court denied McCullough's request for instructions on self-defense, reckless involuntary manslaughter, and involuntary manslaughter based on imperfect self-defense.

The jury convicted McCullough of first-degree premeditated murder. A motion for new trial was denied. That motion raised the same issues asserted on appeal, except for those identified below that are brought now for the first time. McCullough was sentenced to life imprisonment with a mandatory minimum of 25 years. She filed a timely notice of appeal. This court has jurisdiction under K.S.A. 22–3601(b)(1) (direct appeal for off-grid crime; life sentence).

Issue 1: The Self–Defense Instruction

At trial, McCullough requested a self-defense instruction under a defense-of-self theory. The district court declined to issue that instruction on two grounds. First, the court found that McCullough and Callaway had engaged in mutual combat and McCullough did not use all available means to avoid killing Callaway. Second, the court held that a reasonable person in McCullough's position would not have believed deadly force was necessary. On appeal, McCullough...

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