State v. Macomber

441 P.3d 479

STATE of Kansas, Appellee,

v.Stephen Alan MACOMBER, Appellant.

No. 113,869

Supreme Court of Kansas.

Opinion filed May 17, 2019

Jonathan B. Phelps, of Phelps-Chartered, of Topeka, argued the cause and was on the briefs for appellant; Stephen A. Macomber, appellant was on a supplemental brief pro se.

Jodi E. Litfin, assistant solicitor general, argued the cause, and Elizabeth A. Billinger, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

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

Stephen A. Macomber shot and killed an unarmed man during a confrontation in the man's driveway. The district court denied Macomber's pretrial motion to dismiss based on self-defense immunity. After a second trial, a jury convicted him of involuntary manslaughter. A Court of Appeals panel affirmed that conviction. Macomber seeks our review of two defense arguments the panel rejected: (1) whether the district court should have granted him self-defense immunity; and (2) whether the district court's failure to instruct on the statutory self-defense presumption requires reversal.

We unanimously reject Macomber's claim the district court erred when it denied him self-defense immunity under K.S.A. 2018 Supp. 21-5231. The State demonstrated with sufficient evidence there was probable cause Macomber's use of deadly force was not statutorily justified, so this presented a jury question. On the second issue, a majority of the court agrees with the panel that any error in not giving the self-defense presumption instruction was harmless. The judgment of the panel is affirmed on the issues subject to our review.

FACTUAL AND PROCEDURAL BACKGROUND

Macomber killed Ryan Lofton outside Lofton's southeast Topeka residence. Macomber fled to Marshall County, where he shot a sheriff's deputy, fled in the deputy's patrol vehicle, and took a hostage whom he held until eventually surrendering. Macomber was prosecuted in this case for his actions in Shawnee County. His additional crimes were prosecuted in two Marshall County cases. See State v. Macomber , No. 113,869, 2014 WL 4723685, at *1 (Kan. App. 2014) (unpublished opinion) ( Macomber I ).

In this Shawnee County case, with which this appeal is concerned, the State charged Macomber with first-degree murder and criminal possession of a firearm. There were two jury trials. In the first, the jury convicted him of intentional second-degree murder and criminal possession of a firearm. 2014 WL 4723685, at *7. A Court of Appeals panel reversed and remanded for a new trial. See 2014 WL 4723685, at *10, 12.

Before the second trial, Macomber attempted to dismiss the case, asserting self-defense immunity under K.S.A. 2018 Supp. 21-5231. The district court held the State presented sufficient evidence to establish probable cause that deadly force was not statutorily justified.

The evidence about what happened during the encounter between Macomber and Lofton came from four eyewitnesses during the retrial: Lofton's wife, Risa; Macomber; Cassandra Taylor; and Joshua Kenoly. Their accounts conflicted. We detail that testimony and the other evidence to decide the two issues on review.

Risa Lofton's statements

Risa testified she asked Macomber to pick her up at her home. Macomber was leaving town and Risa wanted to get money from him. She told Lofton he was taking her to a "dope house" and she planned to steal money from Macomber. Lofton was unhappy about this and did not think she would return. According to Risa, Macomber pulled into the driveway and stayed in his car. When he arrived, she was inside with Lofton. She gathered her things and put them in the driver's side back seat of Macomber's car. Lofton stood at the passenger side window talking to Macomber. Risa said Lofton was not yelling and she did not hear any threats. Macomber had a gun inside the car and trained it on Lofton while Lofton was walking back toward the car.

Lofton went around to the driver's side window, which was rolled down a couple of inches. Risa tried to pull Macomber's arm away, but she could not get the gun from Macomber or get him to point it away from Lofton. She got out and shut the door. As soon as it shut, she heard a "pop," turned around, and saw Lofton on the ground. Macomber left immediately.

Risa did not see Lofton reach into Macomber's car or hear him threaten Macomber. On cross-examination, she said Lofton was upset when Macomber arrived but not angry. She did not see what Lofton did while standing at the driver's side window.

Macomber's statements

Macomber made several statements about the incident. Hedy Saville testified he went to her house after the shooting and said he killed a man in Topeka. She said Macomber said the man was going to shoot Macomber. In a telephone call with KBI agent Mark Malick before his arrest, Macomber said he was encountered by a man " ‘acting like a fool.’ " He told Malik the man threatened to shoot him but did not have a gun. The man tried to grab Macomber's gun, and when he did Macomber shot him. He told Malik he did not intend for that to happen. He told Malik the man said "you want to shoot me" and indicated "like you're talking big and you don't even have a gun and that was when he said it occurred." The agent said Macomber told him "it was then that he decided to fire off a round," and that the man "kept talking shit like I was afraid of him so I shot him." On cross-examination, Malick said Macomber indicated "on a couple occasions" that the guy was grabbing his gun. Malick also said Macomber was distressed during their conversation and made suicide threats.

In a later interview with KBI agent Steve Bundy, Macomber explained he went to pick up Risa and that Lofton came to the car and started "some shit" with him, so he threatened to shoot Lofton. He did not know if Lofton had a gun but assumed he did. He told Lofton "well I've got a fucking gun, right here." Lofton walked away but returned and started "fucking with" him. Lofton tried to snatch the gun. Macomber said the gun was in a Crown Royal bag. He did not know which way the gun was pointed. He said he planned to fire a round off to get Lofton off the car. He said his windows were down and Lofton wanted to grab the glass and break his window. He said he just wanted to go, but Lofton would not let him. He "let a round ... go off" and guessed it hit Lofton. He said Lofton threatened to shoot him and had a house full of people. He claimed there were five recent neighborhood shootings.

In a recorded jailhouse telephone call with his father, Macomber said he fired off one round into the air and hit a guy. And in a call with someone named Theresa, he said he had a gun because he knew what kind of area he was in. He said he went over to the house to get Risa and as soon as he pulled up Lofton came to the car and began questioning him and accusing him of sleeping with Risa. He said Lofton threatened to shoot him and there were four or five people inside and outside the house on the porch. Lofton started going toward Macomber's side of the car. He said he told Lofton he had a gun, so if Lofton started shooting he would be shooting too. He said Lofton began pulling on his door and trying to grab his gun. He said he fired off a round to let Lofton know it was a gun.

Cassandra Taylor's statements

Taylor was in her car, which was parked in the driveway ahead of Macomber's car. Joshua Kenoly was also in the car. A short time after Taylor parked, Risa came out the front door with bags in her hand. Macomber pulled in behind Taylor. Watching in her rearview mirror, Taylor saw Risa pass her car on the driver's side and put bags in Macomber's car. Lofton followed Risa around arguing with her. She thought the argument was over Lofton not wanting Risa to leave. Risa got in Macomber's car on the passenger side. She saw Lofton go to Macomber's car's passenger side. She saw a flash and Lofton threw his arms up and said he was shot.

Taylor said she saw struggling inside the car before the flash. She also said Lofton had his head in the car, and there was struggling between Lofton and either Risa or Macomber. She said Lofton was on the car's passenger side and facing away at the time of the flash. On cross-examination, she said she was positive she saw Lofton on the passenger side. She described the argument between Lofton and Risa as angry yelling. She saw a struggle between Lofton and Risa about getting out of the car. Lofton stuck his head inside the car at some point. On redirect, she said Lofton never got into the car.

Joshua Kenoly's statements

The defense put on testimony from Kenoly, who said he did not recall the incident or his earlier testimony, so his preliminary hearing testimony was read. In that transcript, Kenoly testified Macomber pulled up to the house and Risa got into the car. Lofton came out and tried to keep her from leaving. Lofton was outside the passenger door telling her he did not want her to leave. Lofton started talking to Macomber, then they got into "a little tussle." Next, Kenoly said, he heard Lofton ask, "What are you going to do, shoot me?" Lofton was still standing by the driver's side window. Kenoly thought Lofton was less than a foot away from Macomber and did not think Lofton was touching the car. Kenoly heard a gunshot and ducked. When he got up, Lofton was on the ground. On cross-examination, Kenoly said he believed the car's windows were down. He said the tussle lasted maybe five seconds. He defined a "tussle" as "a little bodily movement with each other."

Detective Roger Smith, who interviewed Kenoly the day of the shooting, said Kenoly told him Lofton had a heated conversation with Risa, then went to the driver's side to talk to Macomber. He said the conversation was heated, then got even more heated and more aggressive. Lofton reached inside the car at Macomber. They tussled for a few moments. Kenoly heard Lofton say, "[S]o now you're...