Opinion
No. 107,205.
2013-07-5
STATE of Kansas, Appellee, v. Stephen Alan MACOMBER, Appellant,
Appeal from Marshall District Court; John L. Weingart, Judge. Stephen Alan Macomber, appellant pro se. Michael J. Bartee, of Michael J. Bartee, PA., of Olathe, for appellant.
Appeal from Marshall District Court; John L. Weingart, Judge.
Stephen Alan Macomber, appellant pro se. Michael J. Bartee, of Michael J. Bartee, PA., of Olathe, for appellant.
Laura E. Johnson–McNish, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., BUSER, J., and ERNEST L. JOHNSON, District Judge Retired, assigned.
MEMORANDUM OPINION
PER CURIAM.
Stephen Alan Macomber appeals his convictions and sentence in Marshall County District Court case number 2010 CR 59. Macomber committed additional crimes in Marshall County shortly after the crimes committed in this case. These later crimes were charged in Marshall County District Court case number 2010 CR 60, and separately appealed in a related case. See State v. Macomber, No. 107,206, unpublished opinion filed July 5, 2013. Having reviewed the record and considered the arguments of Macomber and the State, we affirm the convictions and sentence in case number 2010 CR 59.
Factual and Procedural Background
On June 7, 2010, Marshall County Sheriff's Deputy Fernando Salcedo was driving a marked patrol vehicle on U.S. 77. A vehicle traveling towards him was speeding, so Deputy Salcedo turned around, activated his emergency lights, and went in pursuit. In response, the speeding vehicle, driven by Macomber, accelerated.
At trial, Macomber testified that at the time the deputy pursued him he was fleeing from Topeka, where he was wanted for other crimes, and was scheduled for a parole hearing the next day. Macomber “was planning on leaving the state.” Macomber thought he “was in a lot of trouble” when Deputy Salcedo turned around. Macomber believed “the cops probably everywhere wanted me,” and “they had an APB out on my car. And I thought that's why I was being pulled over.”
Macomber drove into the driveway of a house in Blue Rapids, stopping in front of the garage door. Deputy Salcedo pulled behind Macomber's vehicle, called in the license plate number, and left his patrol vehicle to speak with Macomber.
Macomber testified that he was “astonished ... the [deputy] didn't have his weapon drawn. And I guess he wasn't aware ... I was wanted for another crime.” At the time, Macomber was holding a loaded .357 revolver. Macomber testified to being “overwhelmed by the situation.” As Deputy Salcedo approached, Macomber opened the driver's side door but remained seated in the driver's seat.
Deputy Salcedo testified that Macomber “told me he didn't know what to do. And then he pulled a gun and held it to himself.” Macomber testified that he did think about shooting himself. He explained that he thought there was another deputy in the car, but when Deputy Salcedo told him he was just going to give him a warning, Macomber stepped out of the vehicle and “realized ... I had a chance to get away. I was hoping to get away.”
Macomber told Deputy Salcedo that he knew he had a bulletproof vest on, pointed the pistol at the deputy's head, and demanded the deputy's handgun. According to Macomber, “I knew that I had to get his pistol before I could get away, or otherwise he'd try to shoot me.” Deputy Salcedo refused to surrender his handgun, and Macomber was unable to pull it from the deputy's holster.
A video camera in Deputy Salcedo's patrol vehicle recorded this portion of the encounter. The video shows that after Macomber failed to take Deputy Salcedo's handgun, he edged the deputy back towards the driver's side of the patrol vehicle. Macomber testified to opening the door “to hear his radio to see if other units were responding, if they were calling his, his unit to ask him what was going on.”
Macomber testified that he told Deputy Salcedo to lie down “and let me get his pistol, because I got behind the [patrol] car door, thinking that he wouldn't be able to shoot me if he got his pistol out ... that I would be able to safely have him throw it to the side.” But the deputy refused and crouched down, facing Macomber. Macomber testified to firing a warning shot into the ground to convince Deputy Salcedo he was serious, but the deputy denied this at trial. Regardless, Deputy Salcedo arose from his crouched position and ran in front his patrol vehicle to the far side of Macomber's vehicle.
The evidence was conflicting regarding whether Deputy Salcedo reached for his handgun before Macomber started shooting. The deputy denied it at trial. However, Deputy Salcedo told Kansas Bureau of Investigation (KBI) Special Agent Steve Bundy while in the hospital that he had reached for his handgun. Macomber recalled the deputy “tried to get out of my sight and go for his [pistol] at the same time, ... which told me that he was going to come up firing .”
Macomber testified that “[a]s soon as [the deputy] started to crawl away, I lowered my pistol, and I fired twice, hoping to hit him somewhere in the vest area and maybe disable him long enough for me to get away.” Deputy Salcedo testified that Macomber fired as he started to move, striking him in the left wrist and the back. Both injuries required surgery.
Deputy Salcedo went to the front of Macomber's vehicle and returned fire with his .45 pistol, striking Macomber in the arm. Macomber ducked behind the patrol vehicle's dash and, according to him, fired once randomly over the dash to show Deputy Salcedo he still had ammunition. The deputy then ran from the front of Macomber's vehicle to Macomber's left, in front of a garage door, in full view of Macomber, who was seated in the driver's seat of the patrol vehicle with the door open.
About 15 seconds passed from Deputy Salcedo's first attempt to escape until he disappeared around the corner of the garage. A later forensic investigation would show two shots went through the garage door windows at about the height of Deputy Salcedo's head, and when Macomber's pistol was retrieved all six cartridges were spent.
Macomber drove from the scene in Deputy Salcedo's patrol vehicle. He was arrested the next day at a nearby residence and taken to a hospital. On the way from the hospital to the jail, Macomber told an officer: “ ‘If I had known you [expletive deleted] were going to treat me this way, I would have popped the officer in the head right off.” ’
On June 10, 2010, the State filed charges against Macomber in Marshall County. On June 11, 2010, Macomber made his first appearance in Marshall County, and William C. O'Keefe was appointed to represent him. A preliminary examination was scheduled for June 21, 2010.
On June 18, 2010, the State moved to continue the preliminary examination, claiming a “conflict.” On appeal, the State alleges that Macomber “initially agreed to a continuance that he did not revoke until September 1, 2010,” but the State does not cite the record.
The record contains several letters from O?eefe to Macomber or the county attorney regarding negotiations over the date of the preliminary examination and a possible reduction in the charges. The record also shows O'Keefe was on vacation during part of August 2010, and the Marshall County Attorney resigned at the end of the month. On September 1, 2010, O'Keefe filed a motion for preliminary hearing which was followed 14 days later by the filing of a motion to dismiss. He argued Macomber “has not been given a preliminary examination within 10 days of demanding a preliminary examination pursuant to K.S.A. 22–2902(2).”
On September 22, 2010, the district court appointed Jacqueline J. Spradling, from the Shawnee County District Attorney's office, as a Special Prosecutor for Marshall County. Two days later, the State responded to O'Keefe's motion to dismiss. Laura E. Johnson–McNish, the new Marshall County Attorney, alleged that Macomber had been charged with first-degree murder in Shawnee County and was in custody there. She asserted that “[g]ood cause exists to continue the preliminary hearing in the current matter until the Shawnee County case is resolved.”
About 2 months later, on November 19, 2010, O'Keefe filed a second motion to dismiss. In response, Johnson–McNish argued the charges in Shawnee County were “more severe” and “preceded the Defendant's flight and actions leading to charges in Marshall County .” Under these circumstances, she contended, “it makes sense to address the Shawnee County charges first, and Marshall County second,” adding that a “logical, sequential approach to these cases as opposed to simultaneous prosecution of them does not prejudice the rights of the Defendant.” She argued further that the Shawnee County prosecution was currently underway, with a trial setting for December 13, 2010. Johnson–McNish stated it “would be disruptive to transport the Defendant back to Marshall County for a preliminary hearing when a trial against him in Shawnee County is imminent,” and that the preliminary examination in Marshall County should be delayed until after the trial in Shawnee County. She also claimed Macomber was a “flight risk,” and transporting him between Shawnee County and Marshall County increased the chances he would “escape and flee again.”
A hearing on Macomber's motion was held in Marshall County on December 8, 2010. (A transcript of the hearing is not found in the record on appeal.) The journal entry records the magistrate judge's denial of the motions to dismiss but provides no analysis. The preliminary examination was continued to January 10, 2011.
On January 7, 2011, the State filed its First Amended Complaint. It charged Macomber with attempted first-degree murder (K.S.A.21–3401[a]–[b] ), aggravated battery on a law enforcement officer (K.S.A.21–3415[a][1] ), aggravated robbery (K.S.A.21–3427), aggravated assault on a law enforcement officer (K.S.A.21–3411[b] ), and criminal possession of a firearm (K.S.A. 21–4204[a][2] and K.S.A. 21–4204[a][4] ). A transportation order for Macomber to appear for the preliminary examination was issued, but the return shows Macomber was not transported due to bad weather. As a result, the magistrate continued the preliminary examination to February 14, 2011.
On February 14, 2011, the preliminary examination was held and Macomber was bound over on all counts. He was arraigned on March 8, 2011, and jury trial was scheduled for May 31, 2011. Although the magistrate's journal entry of the December 8, 2010, hearing indicated that she had denied O'Keefe's motions to dismiss, O'Keefe's comments at the preliminary examination suggested the issue would ultimately be decided by the district judge. On March 31, 2011, O'Keefe filed a motion with the district court to consider outstanding motions, including the motions to dismiss.
On May 27, 2011, O'Keefe filed another motion to dismiss for “failing to provide a timely preliminary hearing.” O'Keefe now argued that the delay violated Macomber's constitutional rights, which distinguished this motion from the earlier ones, which had alleged a violation of statutory rights. On May 31, 2011, the first day of trial, the State filed a lengthy response. When the motion to dismiss arose at trial, the trial court allowed Macomber to personally argue for an evidentiary hearing on the issue. The trial court agreed to an evidentiary hearing, but it was unwilling to interrupt the trial. Macomber agreed to a delay.
During the trial, Macomber testified regarding his views about the individual charges against him. Macomber admitted guilt to aggravated assault on a law enforcement officer and criminal possession of a firearm. He claimed he was not guilty of the aggravated robbery of Deputy Salcedo's patrol vehicle for two reasons. First, he denied taking the patrol vehicle with threat of bodily harm because he had already shot the deputy: “[T]hat is bodily harm. That's not a threat.” Second, he asserted that he had not taken the patrol vehicle from the deputy's presence because the officer had already fled.
Macomber testified he was “not sure” of his guilt for aggravated battery on a law enforcement officer: “I know I caused the harm. I don't know what's considered great. I don't know, you know, what the judgment on that is. I guess that's for a jury, not for me.”
Finally, regarding the charge of attempted first-degree murder, Macomber agreed that his defense was that he shot the deputy but did not intend to kill him. Although Macomber admitted that he initially pointed his pistol at Deputy Salcedo's head because he “knew he had a bulletproof vest on,” he claimed he had not fired the weapon because “[t]hat wasn't what I was attempting to do that day. I wasn't trying to kill a law enforcement officer.” Instead, Macomber testified he “wanted to get away. That was my motivation.”
During the jury instructions conference, Macomber asked for an instruction on theft as a lesser-included offense to the aggravated robbery charge. O'Keefe argued “the person who owned the vehicle was not present at the time he drove off.” The trial court denied the instruction. The jury found Macomber guilty on all of the charges.
On July 1, 2011, the trial court allowed Macomber to present evidence on the preliminary examination issue. In a colloquy with the trial court, O'Keefe agreed that Macomber's complaint about the delay was constitutional and not statutory in nature.
The trial judge summarized the argument: “As I understand the Motion to Dismiss, the complaint ... is that [Macomber's] constitutional right to a speedy trial was violated by the delay between the time of arrest and time of preliminary examination. My understanding of the argument is there was no statutory violation of speedy trial provisions.” The trial judge concluded: “I don't think there's a constitutional violation, just because the preliminary hearing was not held until February of this last year. Therefore, the Court denies the defendant's Motion to Dismiss.”
Macomber was sentenced for Count I, attempted first-degree murder, to 620 months' imprisonment; for Count II, aggravated battery on a law enforcement officer, 59 months; for Count III, aggravated robbery, 59 months; for Count IV, aggravated assault of a law enforcement officer, 18 months; and for Count V, criminal possession of a firearm, 8 months. The trial court then stated:
“The Court orders that Counts III, IV, and V be served concurrently. The Court orders that Counts III, IV, and V be served consecutively to—excuse me, III, IV, and V—yes, III, IV, and V be served consecutively to Counts II and [Count] I.
“The Court orders that the sentence also be consecutive to Sedgwick County Case No. 85 CR 1405 and Reno County Case No. 92 CR 549.”
At the end of the hearing, after the trial court had imposed sentence in the companion case, 2010 CR 60, the trial court had the following exchange with O'Keefe:
“MR. O'KEEFE: Judge, I didn't understand one thing. III, IV, and V in your first case, 59?
“THE COURT: Yes.
“MR. O'KEEFE: Would run concurrently?
“THE COURT: Yes.
“MR. O'KEEFE: Then they're consecutively to I and II?
“THE COURT: Yes. I and II are consecutive, and III, IV, and V are consecutive to I and II. But III
“MR. O'KEEFE: I and II are consecutive to each other?
“THE COURT: Right. And III, IV, and V are concurrent.
“MR. O'KEEFE: Okay. Okay.
“THE COURT: Do you have any questions about the sentencing?
“(No one responded.)
“THE COURT: Okay, you're excused.”
Macomber filed a timely appeal.
Speedy Preliminary Examination/Speedy Trial
Macomber's appellate counsel contends that Macomber's “convictions should be reversed” for “violation of [his] right to a speedy preliminary examination” under the factors set out in Barker v. Wingo, 407 U.S. 514, 530, 33 L.Ed.2d 101, 92 S.Ct. 2182 (1972). Barker considered the right to “a speedy trial ... guaranteed the accused by the Sixth Amendment to the [United States] Constitution,” not a right to a speedy preliminary examination. 407 U.S. at 515. Indeed, our research revealed no published Kansas case has mentioned a constitutional right to a speedy preliminary examination. Our Supreme Court has “repeatedly declared that an adult's right to a preliminary hearing is simply a statutory right; a right neither mandated by general constitutional privileges nor implicating due process concerns. [Citations omitted .]” In re D.E.R., 290 Kan. 306, 312–13, 225 P.3d 1187 (2010).
Macomber has also filed a pro se brief, and he argues his “right to a speedy trial” was violated by the delay in holding the preliminary examination beyond the 10 days after arrest or personal appearance allowed by K.S.A. 22–2902(2). This appears to be the issue raised in the district court at the time of trial.
In support of his argument, Macomber cites State v. Rivera, 277 Kan. 109, 120, 83 P.3d 169 (2004), wherein our Supreme Court applied Barker to determine whether a defendant's “constitutional right to a speedy trial” was violated by a “failure to hold a timely preliminary hearing.” Rivera teaches:
“Instead of dismissing criminal charges when the 10–day period in K.S.A.2002 Supp. 22–2902(2) is not technically met, the court must consider the totality of the circumstances to determine whether a defendant's constitutional right to a speedy trial has been violated. If the court concludes that the defendant's constitutional right to a speedy trial has been violated, it must dismiss the charges against him or her.” 277 Kan. 109, Syl.
“To evaluate whether a defendant's Sixth Amendment right to speedy trial has been violated, Kansas applies the following four factors set out by the United States Supreme Court in Barker ...:(1) length of delay, (2) reason for the delay, (3) defendant's assertion of his or her right, and (4) prejudice to the defendant. None of these four factors, standing alone, is sufficient for finding a violation. Instead, the court must consider them together along with any other relevant circumstances.” 277 Kan. 109, Syl. ¶ 3.
Our review of these legal questions is unlimited. 277 Kan. 109, Syl. ¶ 2.
Length of delay
Macomber's counsel calculates 254 days between the arrest and preliminary examination, while Macomber personally calculates 251 days, and the State calculates 249 days. In Rivera, our Supreme Court held a delay of 244 days between service of an arrest warrant and the preliminary examination was “presumptively prejudicial.” 277 Kan. at 114. Given the delay of about 250 days, we will “consider all of the remaining Barker factors.” 277 Kan. 109, Syl. ¶ 4.
Reason for the Delay
Macomber argues the reasons the State gave below were not “good cause” for the delay in his preliminary examination. While the Kansas statute permits continuance of the preliminary examination beyond 10 days for “good cause shown,” K.S.A. 22–2902(2), that is not the test for constitutional violations of the right to a speedy trial. The United States Supreme Court described a sliding scale of reasons for delay in Barker, with some weighing more heavily against the State than others:
“Closely related to length of delay is the reason the government assigns to justify the delay. Here, too, different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighed heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighed less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.” 407 U .S. at 531.
Rivera contains a similar statement. See 277 Kan. at 114.
The first reason for the delay in the present case was plea negotiations between O'Keefe and the county attorney, which were drawn out by O'Keefe's vacation on the one hand and a change in county attorneys on the other. That delay does not weigh against the State. The negotiations ultimately failed, and the State clarified its intention to proceed with the Shawnee County case, which in our opinion was at least a neutral reason to delay the preliminary examination in Marshall County.
Macomber attacks the State's reasons, but there is no evidence the State delayed the preliminary examination to hamper Macomber's defense. On the contrary, this case was one of three ongoing, serious criminal cases pending against Macomber in two counties. These circumstances resulted in understandable delays unrelated to any improper intent by the State to compromise Macomber's defense. See State v. Smith & Miller, 224 Kan. 662, 663, 670–72, 585 P.2d 1006 (1978) (7–month delay between arrest and arraignment due to federal trial in Oklahoma did “not indicate the delay was due to a deliberate attempt on the part of the state to undermine defendant's theory of defense”). Certainly, the final delay due to inclement weather was a valid reason. We conclude the reasons for the delay “weigh equally” for Macomber and the State. See Rivera, 277 Kan. at 117.
Assertion of the right
The parties agree that Macomber asserted his right to a preliminary examination on September 1, 2010. Thus, as Macomber also acknowledges on appeal, there was “acquiescence by counsel” for the almost 3 months between his arrest on June 8, 2010, and September 1, 2010. Macomber asserted his right after that point in time which the State does not dispute.
Prejudice
“Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect.” Barker, 407 U.S. at 532. The first interest is to “prevent oppressive pretrial incarceration.” 407 U.S. at 532. Macomber, who was incarcerated on the Shawnee County charges while awaiting his preliminary hearing in this case, does not argue this interest on appeal.
Macomber does argue the second interest, “to minimize anxiety and concern of the accused.” 407 U.S. at 532. Macomber alleges, for example, that the State held his property, including a cell phone, and also recorded his telephone calls while in the Shawnee County jail. This concern is of little weight, however, since Macomber was incarcerated anyway, and these issues had nothing to do with the delay in the Marshall County preliminary examination.
Macomber also argues the third interest, “to limit the possibility that the defense will be impaired.” 407 U.S. at 532. The evidence against Macomber was overwhelming, but he points out that Deputy Salcedo had a different recollection at trial about reaching for his pistol than when he was interviewed in the hospital. Macomber argues the deputy's memory “faded,” but that is speculation. Deputy Salcedo was being treated with pain medication when interviewed at the hospital. The State speculates this fact could account for the discrepancy. Regardless, it is unknown what Deputy Salcedo would have said had the preliminary hearing been held within 10 days after Macomber's arrest or personal appearance. As it was, the discrepancy was fully aired at trial, and we conclude that the inconsistency in Deputy Salcedo's accounts regarding reaching for his handgun was of little importance and could only have worked in favor of the defense, not in impairment of it.
Finally, because Macomber was being prosecuted in Shawnee County simultaneously with the Marshall County prosecutions, he has not shown that the delay in the preliminary hearing in this case was the cause of any delay in the actual trial itself. We conclude that Macomber has not shown he was denied his constitutional right to a speedy trial because of the delay in his preliminary examination.
Prosecutorial Misconduct
Macomber argues he was denied a fair trial by prosecutorial misconduct. Macomber raises several instances, which we set out below. After considering the possible misconduct in each instance, we will then examine whether any prejudice occurred. See, e.g., State v. Hall, 292 Kan. 841, 846–854, 257 P.3d 272 (2011).
“Appellate review of an allegation concerning prosecutorial misconduct requires a two-step analysis. First, the court determines whether the prosecutor's comments were outside the wide latitude allowed in discussing the evidence. Second, the appellate court determines whether those comments prejudiced the jury against the defendant and denied the defendant a fair trial. This second step requires determining whether: (a) the misconduct was gross and flagrant; (b) the misconduct showed ill will on the prosecutor's part; and (c) the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of the jurors.” State v. Phillips, 295 Kan. 929, Syl. ¶ 4, 287 P.3d 245 (2012).
Closing Arguments Regarding Premeditation
Macomber argues Spradling's closing argument “equate[d] premeditation with intent and remove[d] any requirement of the essence of premeditation—that the matter be thought over ‘beforehand.” ’ “A defendant is denied a fair trial when a prosecutor misstates the law and the facts are such that the jury could have been confused or misled by the statement.” Phillips, 295 Kan. 929, Syl. ¶ 5.
The trial court instructed the jury on premeditation:
“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 .”
Spradling then argued premeditation as follows:
“Well ... what's premeditation? In [the] instruction ... that the Judge has read to you, here's what you got to decide. If the defendant intended to kill Fernando so he could get away, did he think about the killing beforehand? Because if he thought about it beforehand, that's premeditation. And under the law, premeditation means to have thought the matter over beforehand. In other words, to have formed the desire or intent to kill. Doesn't have to be deciding to kill before he fired the first one. At any time while he's firing, if he decides he's trying to kill, that's premeditation.
“Premeditation requires more than the instantaneous intent, intentional act.
“Think how long that videotape is. In State's Exhibit No. 1 that you've seen, you can watch it again if you want to. Send out a note that you need the equipment, and we'll send you in the TV. This was not instantaneous. It was more than instantaneous.”
O'Keefe addressed premeditation in his response:
“They talk about premeditation. [Macomber] could have killed that officer at any time. He knew where to shoot that officer. At any time. He didn't do that....
“No, that wasn't his intent, to kill that officer, at all. His intent was to make an escape. His intent was to leave. His intent was to disarm that officer. There's no question about it.”
O'Keefe returned to premeditation later:
“Now, if you want to accept the prosecutor ... [j]ust all it takes is a second, and you're done. You know, you committed murder at that point. That's all it takes, is a second. Just right like that.
“It doesn't when you haven't planned to. When you had not planned to from the start. Ever done that. That's not what it takes. It takes some planning to do it. It takes some planning to, to want to kill.”
In the State's rebuttal, Spradling contended it was unnecessary for premeditation that Macomber possessed an intent to kill “from the very beginning.” She suggested that Macomber did not shoot Deputy Salcedo initially because “[h]e's still thinking what to do. He's forming his premeditation. He's still figuring out what his options are. And what he decided his best option was, was to kill.” The prosecutor pointed out that when Macomber did exchange fire with the deputy, he eventually shot at head level as shown by the bullet holes in the garage door windows.
Spradling read the trial judge's instruction to the jury regarding premeditation. Moreover, she properly told the jury that Macomber had to think the matter over beforehand to constitute premediation. The question here is Spradling's further statement: “At any time while he's firing, if he decides he's trying to kill, that's premeditation.” We acknowledge “[i]n discussing premeditation, prosecutors must avoid forms of the word ‘instant’ or any synonym conveying that premeditation can develop instantaneously .” State v. Crosby, 285 Kan. 230, Syl. ¶ 7, 169 P.3d 1128 (2007). In context, however, Spradling's argument that Macomber could have considered and decided to kill Deputy Salcedo “at any time” meant he could have decided to kill “at some point” during the 15 seconds that elapsed during the exchange of gunfire.
Macomber relies on Hall, where the defendant approached the victim and shot her four times in the back. In closing argument the prosecutor argued: “ ‘You can even form premeditation after the pull of the first trigger, because remember, he pulls four times.” ’ 292 Kan. at 849. Stating it had “repeatedly disapproved” any suggestion that
premeditation can occur instantaneously,” our Supreme Court concluded the prosecutor had “misstated the law.” 292 Kan. at 849, 852. The “rapid succession” of the shots was very important in Hall, with our Supreme Court essentially treating the shots as a single act. 292 Kan. at 851–52.
The present case, however, is factually distinguishable from Hall and provides some support for Spradling's argument. The video confirms that the shots here were intermittent, with Macomber alternatively firing at Deputy Salcedo, taking cover, and then firing again. In short, we would not characterize the shots as coming in rapid succession. Moreover, the exchange of gunfire also distinguishes the present case from Hall.
Most importantly, there was evidence from which a jury could find that Macomber premeditated killing Deputy Salcedo after his initial shots. This premeditation was not instantaneous but was shown by the escalation in Macomber's targeting. Macomber testified that he initially shot Deputy Salcedo only to wound him and facilitate his escape. A rational jury could have accepted this testimony as true. Macomber also claimed that he took one shot over the dash at random, which the jury similarly could conclude was truthful testimony.
But the jury had before it photographs showing bullet holes in the garage door windows at about the height of a person's head. The photographs and the video taken together confirm that one of these holes was in a window near the edge of the garage door which Deputy Salcedo ran past just before rounding the corner. A rational factfinder could conclude beyond a reasonable doubt that during the initial exchange of gunfire it became evident to Macomber that merely wounding the deputy was not sufficient. This realization could have caused Macomber to formulate the design or intent to kill prior to later shooting his last bullets in the direction of Deputy Salcedo's head as he ran from cover and past the garage doors. Given this unique evidentiary context, we are persuaded that Spradling did not misstate the law regarding premeditation.
Mocking of Macomber's Testimony During Closing Argument
Next, Macomber contends Spradling “mocked [his] testimony” during her closing argument. The transcript shows Spradling stated: “Otherwise, to believe the defendant, you have to believe it went like this: (Pulling out gun.) Bam. Whoops. Bam. Pardon me. Bam. Excuse me. Bam. My bad. And a couple more bams in there.” Macomber contends this “mischaracterized the testimony and ridiculed [him].”
Macomber cites State v. Abu–Fakher, 274 Kan. 584, 615, 56 P.3d 166 (2002), where a prosecutor “overstepped the bound of propriety by mimicking Abu–Fakher's foreign accent” during cross-examination. That was a different form of mockery, more akin to calling a defendant “little,” which is also improper. State v. Donaldson, 279 Kan. 694, 709–10, 112 P.3d 99 (2005) (“Making an argument based on height, weight, or other physical characteristic is not proper.”). Spradling's mockery was less personal and more relevant to the arguments before the jury. Compare State v. Anderson, 294 Kan. 450, 463, 276 P.3d 200 (2012) (where prosecutor called defendant “ ‘a little, little man” ’).
“A prosecutor is given wide latitude in the language and manner of presenting argument and may even use picturesque speech as long as he or she does not refer to facts not disclosed by the evidence.” State v. McCaslin, 291 Kan. 697, Syl. ¶ 14, 245 P .3d 1030 (2011). Spradling's meaning was unclear. Her comments were obviously exaggerated and perhaps designed to challenge Macomber's rather understated exculpatory testimony regarding his reasons for repeatedly firing a lethal weapon at Deputy Salcedo at close range—especially in the direction of his head. Though it was picturesque, the argument did not personally attack Macomber or O'Keefe. Rather, the overstated characterization of Macomber's testimony did address a point in contention at trial—Macomber's intent at repeatedly firing his handgun at Deputy Salcedo. We are persuaded that this argument was still within the outer bounds of the wide latitude given prosecutors in closing arguments.
Evoking Prejudice and Sympathy During Closing Argument
Spradling concluded her closing argument by telling the jury Macomber “gave it all he had to do the killing. Don't let him pull this over on you now. Tell Fernando that there's enough evidence in this case to find the defendant guilty.... You know why? Cause the defendant's guilty.” Macomber first characterizes the “pull this over on you now” statement as a “fog, smoke and mirrors argument.”
While the prosecutor in the case Macomber cites, State v. Lockhart, 24 Kan. 488, 490, 947 P.2d 461,rev. denied 263 Kan. 889 (1997), did use the words “ ‘fog, smoke and mirrors,” ’ the panel did not address them specifically. The issue in Lockhart was the prosecutor's repeated description of the defendant and defense counsel as liars, with which “ ‘fog, smoke, or mirrors” ’ could be synonymous. 24 Kan.App.2d at 490–92; see State v. Elnicki, 279 Kan. 47, 62, 105 P.3d 1222 (2005). Macomber does not make such an argument here, and we conclude Macomber has abandoned the point by raising it incidentally. See State v. Anderson, 291 Kan. 849, 858, 249 P.3d 425 (2011).
Macomber's argument on Spradling's statement, “ ‘[t]ell Fernando that there's enough evidence in this case to find the defendant guilty,” ’ is more substantive. Macomber argues Spradling's statement was “a call to send a message to the victim rather than decide the case based on the evidence and the law.” Macomber cites State v. Ruff, 252 Kan. 625, 631, 847 P.2d 1258 (1993), where a prosecutor stated, “ ‘Ladies and gentlemen of the jury, do not allow this conduct to be tolerated in our country,” ’ and “ ‘[s]end that message, ladies and gentlemen, come back with a verdict of guilty.” ’
In rejecting the propriety of this argument, our Supreme Court observed:
“The prosecutor's last statement to the jurors prior to their determination as to Ruffs guilt was that the jury had a duty to send a message to the community that certain conduct will not be tolerated. The prosecutor's statement implied that if the jury found Ruff not guilty, her conduct would be tolerated.” 252 Kan. at 636.
Spradling did not refer to the community or to community values, so Ruff is not directly on point. But she did, as did the prosecutor in Ruff, tell the jury to send a message, in this instance to Deputy Salcedo. The message, however, was to tell the deputy “there's enough evidence in this case to find the defendant guilty,” which was essentially a request to render guilty verdicts. Unlike Ruff, this message did not include a request to, apart from the evidence, take a stand against crime in the community. Still, as in Ruff, the problem is that Spradling encouraged the jury to do something more than it was sworn to do—render a verdict.
“[A] prosecutor commits misconduct during closing argument when, in effect, he or she asks the jury to base its deliberations on sympathy for the victim ... or to otherwise argue the impact of a crime on a victim.” State v. Simmons, 292 Kan. 406, 419, 254 P.3d 97 (2011). Moreover, “a prosecutor crosses the line of appropriate argument when that argument is intended to inflame the jury's passions or prejudices or when the argument diverts the jury's attention from its duty to decide the case on the evidence and controlling law. [Citation omitted.]” State v. Adams, 292 Kan. 60, 67, 253 P.3d 5 (2011). While not as egregious as the argument in Ruff we conclude that Spradling's comment was an attempt to appeal to the jury's sympathy for the victim and to divert its attention to extraneous matters rather than to simply render a verdict. It was, therefore, improper.
Misstating Evidence In Closing Argument
Macomber raises two instances wherein he contests that Spradling misstated evidence during closing argument. During closing arguments, Spradling addressed at some length the “great bodily harm” element of aggravated battery on a law enforcement officer. Of course, the elements instruction for aggravated robbery also mentioned “great bodily harm.” Spradling argued:
“[Macomber] told you that he did all, committed all of the elements of aggravated robbery ... if it's great bodily harm. So if you find that Fernando's injuries were pretty, pretty significant, great bodily harm. Then not only is the defendant guilty of aggravated battery, great bodily harm; he's also guilty of aggravated robbery.”
Spradling later stated: “Now, the defendant says—I think what he's saying is, I'm guilty of everything but the first charge [attempted premeditated murder]. That might shorten up your deliberations. It's still going to be an important one. And it's important because there's a big difference on that first charge.”
Macomber argues Spradling “misstated the evidence, telling the jury that Macomber told it he committed all the elements of robbery, when he specifically denied that he committed a robbery during his testimony; and telling the jury that she thought he was saying he was guilty of everything but the first charge.” Macomber is correct, and the State makes little response beyond a simple denial. Misstating evidence is improper because the prosecutor thereby argues from facts not in evidence. See State v. Tahah, 293 Kan. 267, 276–78, 262 P.3d 1045 (2011). This misstatement was improper.
Macomber argues in his pro se brief that Spradling also misstated the evidence on the number of times he fired his pistol. Macomber points to places in Spradling's closing arguments where she stated he shot six times at Deputy Salcedo. Spradling made the allegation in support of her argument that Macomber intended to kill Deputy Salcedo. Macomber maintains the evidence showed only four shots, with “some controversy as to a possible fifth shot ... but never a sixth shot.”
Macomber does not deny that all six cartridges had been fired when his pistol was eventually recovered. He argues, however, that he fired the remaining round or two during the stand-off with police at issue in the related case. Macomber cites evidence from this case in support, but that evidence is not in the record on appeal. Absent a record affirmatively showing error, the claim of error fails. See State v. McCullough, 293 Kan. 970, 999, 270 P.3d 1142 (2012). Considering the evidence admitted here, along with the “considerable latitude in discussing the evidence and drawing reasonable inferences from that evidence,” Spradling's argument was not improper. McCaslin, 291 Kan. 697, Syl. ¶ 14.
Interception of Confidential Communications
Macomber makes additional arguments for prosecutorial misconduct in his pro se brief. The State does not respond to these arguments.
First, Macomber contends the State intercepted his confidential communications with O'Keefe. At sentencing on July 1, 2011, the trial court allowed Macomber to present evidence regarding this alleged violation of his attorney-client privilege. Macomber called Spradling, who testified her office had subpoenaed calls Macomber made while in the Shawnee County Jail. Spradling said that under a prior policy, the jail would not have produced any attorney-client communications. Beginning in October 2010, however, the jail began providing all calls, including attorney-client communications, in response to subpoenas. Spradling testified that her office was not notified of this change in policy but that “[o]nce I heard the defendant asking for Bill, I stopped listening.” Spradling testified that she had never listened to any “jailhouse calls between legal counsel and a client.”
Macomber argues on appeal that Spradling received recordings of the calls, but he does not address her testimony explaining that she did not listen to any privileged communications. Macomber has raised this point incidentally, thereby waiving it on appeal. See Anderson, 291 Kan. at 858. On this record, we do not find any prosecutorial misconduct.
Prejudice
As mentioned earlier, in evaluating prosecutorial misconduct claims an appellate court must consider the second step of the analysis which consists of three factors. These are whether: “(a) the misconduct was gross and flagrant; (b) the misconduct showed ill will on the prosecutor's part; and (c) the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of the jurors.” Phillips, 295 Kan. 929, Syl. ¶ 4.
None of the three factors is controlling. State v. Burns, 295 Kan. 951, 287 P.3d 261 (2012). “ ‘Further, the third factor can never override the first two factors until the harmlessness tests of both K.S.A. 60–261 (prosecutor's statements were inconsistent with substantial justice) and Chapman v. California, 386 U.S. 18, 22, 17 L.Ed.2d 705, 87 S.Ct. 824,reh. denied386 U.S. 987 (1967) ... have been met.’ [Citations omitted.]” 295 Kan. at 958–59. With respect to Chapman, “[i]f a defendant establishes error of a constitutional magnitude, the State—as the party benefitting from the error—has the burden to prove beyond a reasonable doubt that the error did not affect the defendant's substantial rights.” Phillips, 295 Kan. 929, Syl. ¶ 6.
“Factors to be considered in determining if a prosecutor's misconduct was so gross and flagrant as to deny the defendant a fair trial include whether the misconduct was repeated, was emphasized, violated a long-standing rule, violated a clear and unequivocal rule, or violated a rule designed to protect a constitutional right.” State v. Marshall, 294 Kan. 850, Syl. ¶ 6, 281 P.3d 1112 (2012).
The statement which Macomber complains of regarding premeditation was accompanied by correct statements and arguments of the law, including Spradling's effort to direct the jury to the trial court's instructions. See State v. Naputi, 293 Kan. 55, 62, 260 P.3d 86 (2011) (“Where a prosecutor makes both a misstatement of the law and a correct recitation of the applicable law in closing argument, we have been loathe to characterize the misstatement as gross and flagrant misconduct.”). With regard to Spradling's closing argument using ironic exclamations between “bams” this was responsive to the arguments of the trial and did not raise an objection or admonishment.
Spradling's improper statements were not repeated to any degree or emphasized. Although improper, Spradling's violations were not gross and flagrant. In the argument for sympathy, for example, Spradling directed the jurors to the evidence, as the State points out, in the same sentence that she invoked Deputy Salcedo's name. Spradling's mischaracterization of Macomber's testimony was made in passing, and Spradling alerted the jury to her uncertainty by telling the jury, “I think what he's saying is....”
As for evidence of ill will, Spradling did not persist in her statements over objections or trial court admonishments, which are often present in cases where ill will is found. See McCaslin, 291 Kan. at 721–22;Elnicki, 279 Kan. at 66. Nothing else here shows ill will.
Finally, with regard to the third factor of the second part of the analysis, the evidence was so substantial that any prosecutorial misconduct was harmless. Macomber admitted to most of the elements of the crimes, and most of the material facts were captured on video. We conclude Macomber was not deprived of substantial justice, and the State has shown beyond a reasonable doubt that any prosecutorial misconduct did not affect Macomber's substantial rights.
Failure to Give a Lesser–Included Offense Instruction on Theft
Macomber renews his argument for an instruction on theft as a lesser included offense of aggravated robbery. Macomber argues “he obtained control over the [patrol] vehicle after [Deputy] Salcedo had left the area.” The State responds that “[n]o rational juror” could have convicted on theft.
“When requested, a district judge has a duty to instruct a jury on any lesser included offense established by the evidence, regardless 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 the defendant of the lesser included offense based on the evidence presented. When reviewing a district judge's refusal to give a requested instruction, this court must view the evidence in the light most favorable to the requesting party. [Citation omitted.]” State v. Harris, 293 Kan. 798, 803, 269 P.3d 820 (2012).
“To determine whether a robbery has occurred as opposed to a theft with attendant violence, the individual factual circumstances must be carefully reviewed.” State v. Bosby, 29 Kan.App.2d 197, Syl. ¶ 1, 24 P.3d 193,rev. denied 271 Kan. 1038 (2001). “When a victim's possession and control of property is severed by force or threat of bodily harm, the taking is from the victim's ‘presence’ as that term is used in statutes defining robbery, although the taking is not within the victim's immediate view.” State v. Hays, 256 Kan. 48, Syl. ¶ 9, 883 P.2d 1093 (1994).
In Hays, four men entered a house, forcibly held a resident in one room, and removed items from other rooms. After the men left, the resident discovered the items were missing. Our Supreme Court began by observing, “ ‘[t]o constitute the crime of robbery, it is necessary that the violence ... must either precede or be contemporaneous with the taking of the property.” ’ 256 Kan. at 64 (quoting State v. Dean, 250 Kan, 257, Syl. ¶ 2, 824 P.2d 978 [1992] ). That was the case in Hays, the victim's separation from the items taken notwithstanding, and in support our Supreme Court cited two prior aggravated robbery cases. The key was whether the “possession and control” of the property was “severed” by the violence, not whether the victim could see the property as it was taken. 256 Kan. at 65.
In the present case, Macomber's violence preceded or was contemporaneous with the taking and severed Deputy Salcedo's possession and control of the patrol vehicle. Thus, even construing the facts in Macomber's favor, he forcibly took the patrol vehicle from the deputy's presence. The trial court did not err by failing to give a lesser included offense instruction on theft.
Sentencing
Macomber asserts that at sentencing the tiral court failed to state whether his sentences for Count I (attempted first-degree murder) and Count II (aggravated battery of a law enforcement officer), were concurrent with or consecutive to each other. Since the journal entry shows they were ordered to run consecutively, Macomber concludes a disparity exists by operation of K.S.A. 21–4608(a), which provides that silence at the sentencing hearing means concurrent sentences were imposed.
As the facts set out in the Factual and Procedural Background showed, the trial court clarified this point at the end of the sentencing hearing. Following a question by O'Keefe, the district court stated in open court, in Macomber's presence, that his sentences in Counts I and II were consecutive to each other. There is, therefore, no disparity between the journal entry and the pronouncement of sentence.
Ineffective Assistance of Counsel
Finally, Macomber argues in his pro se brief that O'Keefe provided ineffective assistance of counsel. Macomber asks this court to either reverse the convictions or remand for a hearing pursuant to State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 (1986). The State argues the “issue of ineffective counsel was not raised below and therefore should not be considered by this court.”
Appellate courts generally do not consider ineffectiveness claims raised for the first time on appeal. Wimbley v. State, 292 Kan. 796, 807, 275 P.3d 35 (2011).
“Only under extraordinary circumstances, i.e., where there are no factual issues and the two-pronged ineffective assistance of counsel test can be applied as a matter of law based upon the appellate record, may an appellate court consider an ineffective assistance of counsel claim without a district court determination of the issue. [Citation omitted.]” 292 Kan. at 807.
We do not find extraordinary circumstances here.
Macomber also has not shown that he did “more than read the record and then determine that he ... would have handled things differently.” Van Cleave, 239 Kan. at 120. “Except in the most unusual cases, to assert a claim of ineffective assistance of counsel without any independent inquiry and investigation apart from reading the record is questionable to say the least.” 239 Kan. at 120–21. Accordingly, we decline to remand for a Van Cleave hearing, which is only “an alternative remedy to K.S.A. 60–1507.” 239 Kan. at 121.
Affirmed.