Summary
The Supreme Court of Kansas affirmed Cherish McCullough's conviction for premeditated first-degree murder arising from a fatal stabbing after a fistfight. The court held that McCullough was not entitled to a self-defense instruction because she engaged in mutual combat, did not withdraw in good faith, and did not establish that deadly force was necessary. The court also upheld the denial of involuntary manslaughter instructions and a motion for mistrial based on an improper character-evidence question.
Topics
Practice areas
Questions Presented
- Whether McCullough was entitled to a self-defense instruction based on defense of herself or defense of others after voluntarily engaging in mutual combat.
- Whether McCullough was entitled to an involuntary manslaughter instruction based on imperfect self-defense.
- Whether evidence of threats Callaway made while hospitalized was relevant and admissible to support self-defense.
- Whether the district court erred in refusing to instruct on reckless involuntary manslaughter.
- Whether the district court abused its discretion by denying a mistrial after the State elicited an improper character-related question.
- Whether the State committed prosecutorial misconduct during closing argument.
- Whether the State's peremptory strike of the only African-American male on the jury panel violated Batson v. Kentucky.
- Whether the district court erred in refusing to strike five prospective jurors for cause and whether McCullough was prejudiced.
- Whether spectator comments and emotional outbursts deprived McCullough of a fair trial despite the lack of a contemporaneous objection and an adequate appellate record.
Holdings
- A defendant who willingly engages in mutual combat is not entitled to a self-defense instruction unless the defendant withdraws in good faith and does everything within the defendant's power to avoid the killing. McCullough did neither because she returned to the store with a knife and reengaged in the conflict.
- McCullough was not entitled to a self-defense instruction under a defense-of-others theory.
- A defendant who was not lawfully exercising self-defense is not entitled to an involuntary manslaughter instruction based on imperfect self-defense.
- Evidence of threats Callaway made while hospitalized was properly excluded because it was not relevant to a material fact under the circumstances.
- The district court properly refused to instruct on reckless involuntary manslaughter because the evidence did not support a finding that the killing was unintentional.
- The district court did not abuse its discretion in denying a mistrial after the State asked an improper question suggesting McCullough's fighting was normal, because the objection was sustained, the jury was admonished, and there was no reasonable probability the question affected the verdict.
- The prosecutor did not commit misconduct by arguing that the same evidence established intent and premeditation, by drawing a reasonable inference that McCullough retrieved the knife from her car, or by applying the definition of premeditation to the evidence. The prosecutor did misstate the law by asserting that anger cannot constitute heat of passion, but the error was harmless beyond a reasonable doubt and did not require reversal.
- The district court did not abuse its discretion in denying McCullough's Batson challenge to the State's peremptory strike of M.S.
- McCullough was not entitled to relief based on the refusal to strike five jurors for cause because she failed to establish prejudice; the loss of a peremptory challenge alone does not establish a constitutional violation.
- The claim that spectator comments and emotional outbursts denied McCullough a fair trial was not preserved, and the appellate record was inadequate to determine whether any disturbance prejudiced the jury.
Key quotations
“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.” (1152)
“McCullough is correct that the focus of the inquiry is whether the killing was intentional.” (1153)
“Therefore, we hold in McCullough's case that the State, as the party that arguably would benefit from an improper admission of evidence under the statute, carries the burden to show there is no reasonable probability that such error affected the outcome of the trial in light of the entire record.” (1156)
“In short, the third factor cannot override the first two factors unless we are able to say the Chapman constitutional error standard has been met.” (1160)
Factual background
McCullough and Cherish Callaway engaged in a fistfight at a Wichita convenience store, after which other patrons separated them. McCullough went to her car, returned to the store with a knife, maneuvered around another person, and stabbed Callaway in the abdomen. Callaway died approximately six hours later from the wound, which damaged her liver and kidney. Video evidence showed the confrontation and stabbing, and the jury convicted McCullough of premeditated first-degree murder.
Procedural history
McCullough was charged with premeditated first-degree murder in the district court. The jury was instructed on first-degree premeditated murder, second-degree murder, and voluntary manslaughter, but the court denied requested instructions on self-defense, reckless involuntary manslaughter, and involuntary manslaughter based on imperfect self-defense. After the jury convicted her, the district court denied her motion for a new trial, and McCullough timely appealed.