State v. McCullough (Updated April 4, 2012)

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 101,041

STATE OF KANSAS,
Appellee,

v.

CHERISH MCCULLOUGH,
Appellant.


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willingly engaged in mutual combat unless the defendant has withdrawn in good faith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
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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-
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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 (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.

Appeal from Sedgwick District Court; BENJAMIN L. BURGESS, judge. Opinion filed March 2,
2012. Affirmed.

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

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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
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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.
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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
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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 continues to argue that she was entitled to a self-
defense instruction but now asserts the self-defense instruction was also justified because
she was acting in defense of others. We hold that McCullough was not entitled to a self-
defense instruction under either theory of self-defense. McCullough engaged in mutual
combat and did not withdraw in good faith or utilize all available means to avoid the
killing.

Standard of Review

Generally, a defendant is entitled to instructions on the law applicable to his or her
defense theory if there is sufficient evidence for a rational factfinder to find for the
defendant on that theory. We view the evidence as to McCullough's claim that she was
entitled to a self-defense instruction under a defense-of-self theory in a light most
favorable to the defendant. See State v. Anderson, 287 Kan. 325, 331, 197 P.3d 409
(2008) (quoting State v. Oliver, 280 Kan. 681, 706, 124 P.3d 493 [2005], cert. denied 547
U.S. 1183 [2006]); Anderson, 287 Kan. at 334 (stating clarified standard). This is because
she requested this instruction at trial.

But a different standard applies to McCullough's newly asserted claim that a self-
defense instruction should have been given under a defense-of-others theory. Appellate
courts review a district court's failure to give an instruction for clear error when the
complaining party did not request an instruction or object to its omission. See K.S.A. 22-
3414(3); State v. Brown, 291 Kan. 646, 653-54, 244 P.3d 267 (2011). Instructions are
clearly erroneous only if the reviewing court is convinced there is a real possibility the
jury would have rendered a different verdict. 291 Kan. at 654 (quoting State v. Marler,
290 Kan. 119, 124, 223 P.3d 804 [2010]).
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McCullough was not entitled to a self-defense instruction

The right to use deadly force in self-defense is codified at K.S.A. 21-3211, which
states:

"(a) A person is justified in the use of force against another when and to the
extent it appears to such person and such person reasonably believes that such force is
necessary to defend such person or a third person against such other's imminent use of
unlawful force.
"(b) A person is justified in the use of deadly force under circumstances
described in subsection (a) if such person reasonably believes deadly force is necessary to
prevent imminent death or great bodily harm to such person or a third person."

This presents a two-prong self-defense test. The first is subjective and requires a
showing that McCullough sincerely and honestly believed it was necessary to kill to
defend herself or others. The second prong is an objective standard and requires a
showing that a reasonable person in McCullough's circumstances would have perceived
the use of deadly force in self-defense as necessary. See State v. Barnes, 263 Kan. 249,
265-66, 948 P.2d 627 (1997). The parties dispute whether these prongs were satisfied, but
the threshold question is whether self-defense can even be invoked.

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. 263
Kan. at 266. This rule does not destroy the right to self-defense in all mutual combat
cases; but for self-defense to justify the killing, the defendant must be acting "solely for
the protection of [the defendant's] own life, and not to inflict harm upon [the defendant's]
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adversary." State v. Burgess, 245 Kan. 481, 487, 781 P.2d 694 (1989) (quoting 40 Am.
Jur. 2d, Homicide § 142).

This court has defined mutual combat as "'[o]ne into which both the parties enter
willingly or voluntarily; it implies a common intent to fight, but not necessarily an
exchange of blows.'" State v. Coop, 223 Kan. 302, 306, 573 P.2d 1017 (1978) (quoting
Black's Law Dictionary 332-33 [Rev. 4th ed. 1968]). And this court has held that it does
not matter who initiated the confrontation when both parties willingly engaged in it,
stating:

"If the parties fought by mutual consent the circumstances of who committed the
first act of violence was immaterial; and, so long as each combatant persisted in his
original determination to vanquish his antagonist the aggressions were mutual. A
resistance which has for its real object the securing of an opportunity to mangle the
assailant is not legal self-defense." McNeil v. Mullin, 70 Kan. 634, 637, 79 P. 168 (1905).

It is clear from the video evidence that McCullough and Callaway engaged in
mutual combat. Several witnesses testified it was mutual. And because McCullough
returned to the store with a knife, the evidence does not support a finding that she
withdrew in good faith and did everything in her power to avoid killing Callaway. In
addition, McCullough was not entitled to the self-defense instruction because a
reasonable person in her position would not have believed deadly force was necessary to
defend herself or others. As the district court held, Callaway was attempting to continue a
fistfight, and there was no evidence McCullough needed to exercise deadly force to
prevent an imminent death or great bodily harm.

Having found that McCullough was not entitled to a self-defense instruction, two
other claims must fail. First, she was not entitled to an involuntary manslaughter
instruction based on a theory of imperfect self-defense. That theory requires the lawful
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exercise of self-defense, but with excessive force. K.S.A. 21-3404(c). And since
McCullough was not lawfully engaged in self-defense, she was not entitled to the
involuntary manslaughter instruction. Second, evidence of threats Callaway made while
hospitalized were properly excluded. McCullough claims this evidence was "integral to
the self-defense theory," but we hold that argument is inapplicable under the facts of this
case. These threats were not relevant to any material fact, as required by K.S.A. 60-
401(b).

ISSUE 2: RECKLESS INVOLUNTARY MANSLAUGHTER INSTRUCTION

McCullough next argues the district court erred by refusing to instruct the jury on
reckless involuntary manslaughter. The district court instructed the jury on the lesser
included offenses of second-degree murder and voluntary manslaughter, but it refused to
instruct the jury on involuntary manslaughter after finding the killing was not
unintentional. We agree with the district court's result.

Standard of Review

A trial court has a duty to instruct the 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 refusal to give a requested instruction, appellate courts must view the
evidence in the light most favorable to the requesting party. See K.S.A. 22-3414(3); State
v. Moore, 287 Kan. 121, 130, 194 P.3d 18 (2008).

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The evidence does not support a finding that the killing was unintentional

Reckless involuntary manslaughter is an unintentional killing committed
recklessly. K.S.A. 21-3404(a). A reckless killing is one done under circumstances
showing a realization of the imminence of danger and a conscious disregard of that
danger. State v. Jones, 287 Kan. 559, 572, 197 P.3d 815 (2008). The district court held
that the evidence did not support finding the killing was unintentional because a person
does not "bring a knife into the store and reengage in this altercation, rush past one of the
people, [and] thrust the knife out into the body of the victim" unintentionally.

McCullough argues the district court erred because it failed to distinguish between
an intentional stabbing and an intentional killing. She claims there is evidence supporting
a finding that the killing was unintentional because she only stabbed Callaway once and
the wound probably would not have been fatal if it were a few inches in another
direction. In other words, McCullough contends that an intentional stabbing committed
without regard for the consequences is reckless. She argues the district court erroneously
followed State v. Bailey, 263 Kan. 685, 691, 952 P.2d 1289 (1998), overruled on other
grounds State v. Davis, 283 Kan. 569, 158 P.3d 317 (2007), in which this court held that
the issue was whether the act, i.e., the stabbing or shooting, was intentional.

In Bailey, the defendant shot the victim in the head. He claimed self-defense but
also testified in his own defense that he shot with the intention of frightening the people
in the room and "in the process I guess I hit him." This court held that a "defendant's
actions in pointing a gun at someone and pulling the trigger are intentional rather than
reckless even if the defendant did not intend to kill the victim." 263 Kan. at 691. Based
on this, the court reasoned, the defendant was not entitled to a reckless involuntary
manslaughter instruction. 263 Kan. at 691.

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But McCullough correctly notes that this court has reached the opposite
conclusion and held that the issue is whether the killing was intentional, not whether the
shooting was intentional, in State v. Gregory, 218 Kan. 180, 542 P.2d 1051 (1975). See
also State v. Childers, 217 Kan. 410, 416, 536 P.2d 1349 (1975) (involuntary
manslaughter is a killing done unintentionally, not an unintentional act). In Gregory, the
defendant was charged with second-degree murder and convicted of involuntary
manslaughter after he shot and killed the victim outside a bar. The defendant testified in
his own defense that the victim approached him with a knife, threatening to kill him, and
he was afraid. The defendant reacted by retreating to the bar's door and fired one shot
after he discovered he could not open the door. He testified that he was "'trying to stop'"
the victim. 218 Kan. at 181. The Gregory court held that "there is no question that [the
defendant] intentionally shot [the victim], but the jury might well have believed he did
not intend to kill him but only, in his words, 'to stop him.' It was [the defendant] who first
suggested calling the police and an ambulance, further negating an intent to kill." 218
Kan. at 184.

McCullough is correct that the focus of the inquiry is whether the killing was
intentional. And the district court erred by relying on Bailey for its conclusion. See State
v. Deal, 293 Kan. ___, ___ P.3d ___ (Nos. 98,292 and 98,952, filed February 17, 2012).
But that does not resolve the issue because the test for whether an instruction should be
issued has always depended upon the evidence in the particular case under consideration.
State v. Bell, 266 Kan. 896, 906, 975 P.2d 239, cert. denied 528 U.S. 905 (1999). This
means our inquiry must be whether there is evidence to support a finding that the killing
was unintentional. Gregory is clearly distinguishable because there was some evidence
supporting a finding that the defendant was behaving in a "wanton" manner, as required
by the involuntary manslaughter statute that existed at that time. Gregory testified he did
not intend to kill the defendant and there was additional evidence to corroborate that
statement. There is no such evidence here.
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The facts in McCullough's case are more analogous to State v. Calderon, 270 Kan.
241, 13 P.3d 871 (2000). In Calderon, the defendant stabbed and killed Francisco Munoz
in a parking lot. Calderon and Munoz had a history of animosity. The night Munoz was
killed, he approached Calderon with three friends and threatened to hit him. Calderon
drew a knife and stabbed him in the abdomen, severing the aorta and causing Munoz to
bleed to death. Calderon fled the scene. During the police investigation, Calderon stated
that he had attempted to cut Munoz on the arm. On appeal, this court held that the district
court was not required to instruct on reckless involuntary manslaughter because there was
overwhelming evidence of intent and no evidence of recklessness. In doing so, this court
disregarded Calderon's "self-serving statement regarding his lack of intent" finding that it
was insufficient to justify the instruction. 270 Kan. at 256.

But there is no evidence in McCullough's case—even in the form of a statement
from the defendant about her purpose in stabbing the victim—to support a finding that
the killing of Callaway was unintentional. The facts simply are that after leaving the
physical altercation in the convenience store that McCullough immediately returned to
the store with a knife, reached around another person to be within close range to the
victim, and fatally stabbed Callaway in the abdomen. McCullough offered no evidence to
support a claim that the victim's resulting death was unintentional. The district court did
not err by refusing to issue a reckless involuntary manslaughter instruction.

ISSUE 3: THE MOTION FOR A MISTRIAL

Next, McCullough argues the district court improperly denied her motion for
mistrial because the State improperly elicited bad character evidence from McCullough's
cousin in violation of K.S.A. 60-447(b) (evidence of a trait of an accused's character
tending to prove guilt or innocence). McCullough argues this evidence was inadmissible
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because she had not put her good character in question. But the State argues that, even if
the question was improper, McCullough is not entitled to a new trial because the district
court mitigated the incident's impact by admonishing the jury to ignore the State's
question, rendering any error harmless.

Standard of Review

Under K.S.A. 22-3423(1)(c) a trial court may declare a mistrial if there was
prejudicial conduct either inside or outside the courtroom that makes it impossible for the
trial to proceed without injustice to either the defendant or the prosecution. This statute
creates a two-step process. First, the trial court must determine if there was some
fundamental failure of the proceeding. If so, the trial court moves to the second step and
assesses whether it is possible to continue without injustice. In other words, the trial court
must decide if the prejudicial conduct's damaging effect can be removed or mitigated by
an admonition, jury instruction, or other action. If not, the trial court must determine
whether the degree of prejudice results in an injustice and, if so, declare a mistrial. State
v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011); see State v. Race, 293 Kan. 69, 80, 259
P.3d 707, 715 (2011).

Appellate courts review a district court's ruling on a motion for mistrial for an
abuse of discretion. Judicial discretion is abused if "judicial action: (1) is arbitrary,
fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted
by the trial court; (2) based on an error of law, i.e., if the discretion is guided by an
erroneous legal conclusion; or (3) 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." Ward, 292 Kan. at 550. In Ward, our court articulated
this standard by dividing the appellate court's abuse of discretion inquiry into two parts:
(1) Did the trial court abuse its discretion when deciding if there was a fundamental
15



failure in the proceeding? and (2) 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? 292 Kan. at 551.

The analysis of the first question varies with the nature of the alleged misconduct,
such as when the allegation is based on the actions of a witness, the actions of a
bystander, prosecutorial misconduct, or evidentiary error. 292 Kan. at 551. Appellate
courts reviewing the second part for an injustice may take a broader view than the trial
court because appellate courts may examine the entire record. The degree of certainty
required to conclude an injustice did not occur varies depending on whether the
fundamental failure infringes on a constitutional right or not. To declare a
nonconstitutional error harmless the appellate court must apply K.S.A. 60-261 and
K.S.A. 60-2105 to determine if there is a reasonable probability that the error will or did
affect the trial's outcome. And if the fundamental failure infringes on a right guaranteed
by the United States Constitution, the appellate court applies the constitutional harmless
error analysis defined in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d
705, reh. denied 386 U.S. 987 (1967). Ward, 292 Kan. at 570.

This case involves a violation of evidentiary limitations proscribed in K.S.A. 60-
447, not a constitutional right. Thus, we apply the statutory harmless error standard from
K.S.A. 60-261, which disregards errors that do not affect the substantial rights of the
parties, to determine if there is a "reasonable probability that error will or did affect the
outcome of the trial in light of the entire record." 292 Kan. at 569. And since this is our
first case post-Ward involving a statutory error, we must also determine who bears the
burden of persuasion as to whether the error was harmless.

Our caselaw has long held, with the recent exception set out in Ward and its
progeny concerning errors of a constitutional nature, that the party alleging an error based
16



on a statute dealing with admission of evidence, bears the burden of proving his or her
substantial rights to a fair trial were prejudiced by that statutory error. See State v. White,
284 Kan. 333, 342-43, 161 P.3d 208 (2007). But if we adhere to this general rule post-
Ward, we create potential for confusion. For example, if in a particular case we found a
mixture of constitutional and statutory errors, we could have the prosecution bearing the
burden of showing harmlessness from the constitutional errors, while that burden
remained on the defendant who alleged statutory errors were found—even when one
party in that case benefitted from all of those errors. And in cases involving a cumulative
error analysis, where all errors must be aggregated to determine their cumulative effect
and interrelationship, it would seem unnecessarily cumbersome to divide the burden of
proving harmlessness among the parties. See State v. Tully, 293 Kan. 176, 205-07, 262
P.3d 314 (2011) (cumulative error analysis in which errors being aggregated included
those that were constitutional in nature).

This possibility prompts us to revisit our caselaw that a party seeking reversal of a
judgment because of exclusion or admission of evidence bears the burden of
demonstrating both error and prejudice. And having done so, we ascertain little in the
way of rationale to justify continuation of the general rule. In one early civil case, our
court simply declared without citation to any authority that "[i]t is elemental that one
seeking reversal of a judgment because of exclusion of evidence has the burden of
demonstrating error, as well as prejudice, in the ruling complained of." Osborn v. Lesser,
201 Kan. 45, 47, 439 P.2d 395 (1968). In criminal cases, this assumption as to the
"elemental" nature of the rule was similarly followed, but again without a stated legal
basis. See, e.g., State v. Lee, 201 Kan. 177, 179, 440 P.2d 562 (1968) ("[o]ne seeking
reversal of judgment because of erroneous exclusion of evidence has the burden of
demonstrating prejudice, as well as error"); State v. Johnson, 201 Kan. 126, 132, 439
P.2d 86 (1968) ("this court has always been committed to the rule that one seeking
reversal of a judgment because of erroneous exclusion of evidence has the burden of
17



demonstrating prejudice, as well as error"); State v. Omo, 199 Kan. 167, 173, 428 P.2d
768 (1967) (defendant has burden to demonstrate prejudicial error from joinder).

As this court noted in Ward, recent United States Supreme Court decisions have
led us to conclude that the better practice is to apply the federal constitutional harmless
error standard such that the party benefitting from the error must prove beyond a
reasonable doubt that the error complained of did not affect substantial rights, meaning it
did not contribute to the verdict obtained. Ward, 292 Kan. at 568-69. Given this, we
similarly hold that it is the better practice for the party benefiting from the error to have
the burden of showing a lack of prejudice when a violation of K.S.A. 60-447, i.e., a
nonconstitutional error, is in dispute. 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.

The trial court properly denied the motion for mistrial

Turning to the facts in this case, the exchange at issue occurred during the State's
examination of McCullough's cousin. The State asked what her cousin thought about
seeing McCullough fighting. Defense counsel objected, and the objection was overruled.
Her cousin stated that he did not know. The State then asked, "Did you tell the police that
this was a normal thing for her?" Defense counsel objected again, but McCullough's
cousin stated, "No ma'am" before the district court sustained the objection. McCullough
immediately moved for a mistrial on the grounds that the State had improperly put her
bad character in issue. The district court denied the motion, but it admonished the jury to
disregard the question and answer.

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McCullough argues the error from the improper question was incurable because
the suggestion that she fought frequently was highly inflammatory. She also argues the
jury would assume she has a violent predisposition for fighting, despite her cousin's
denial that he told the police it was a normal occurrence, because the jury would assume
the State would only ask the question if it could prove it.

We agree the question about what the cousin may have told police was improper
and worded in such a way as to violate K.S.A. 60-447(b). The district court appropriately
sustained the objection and sought to cure any residual implication by advising the jury to
disregard both the question and the answer. But based on our review of the entire record,
we do not find the exchange significant enough to believe there was any reasonable
probability this inappropriate question affected the trial's outcome. This is particularly
true when McCullough had the benefit of the trial court's jury admonition to disregard the
improper question and the cousin's response, which contradicted the State's premise for
the inquiry. We find the district court did not abuse its discretion by denying
McCullough's motion for mistrial.

Finally, we note that in her reply brief McCullough for the first time characterized
the prosecutor's improper question as prosecutorial misconduct. In State v. Inkelaar, 293
Kan. 414, 428, 264 P.3d 81 (2011), this court held that a defendant may raise a
prosecutorial misconduct issue based on a prosecutor's improper question for the first
time on appeal if the defendant properly lodged the evidentiary objection required by
K.S.A. 60-404. In other words, the prosecutorial misconduct claim is sufficiently
preserved if the defendant made the evidentiary objections that serve as the basis for the
prosecutorial misconduct argument. But Inkelaar is distinguishable because McCullough
did not raise this issue at the first opportunity in her appellate brief. Instead, McCullough
improperly raised it in her reply brief. Kansas Supreme Court Rule 6.05 (2011 Kan. Ct.
R. Annot. 45) provides that a reply brief is reserved for responding to new material
19



contained in the appellee's brief. An appellant may not raise new issues in a reply brief.
City of Wichita v. McDonald's Corp., 266 Kan. 708, 724, 971 P.2d 1189 (1999) ("A reply
brief is an inappropriate vehicle for raising additional issues."). As such, this claim is not
properly before the court.

ISSUE 4: PROSECUTORIAL MISCONDUCT

McCullough raises four prosecutorial misconduct claims alleging misconduct
during closing argument: (1) improperly stating that the evidence introduced to prove
intent could also be considered to prove premeditation; (2) arguing facts not in evidence;
(3) misstating the definition of premeditation; and (4) misstating the definition of killing
in the heat of passion. We find error only with the prosecutor's definition of heat of
passion, but it was harmless.

Standard of Review

This court employs a two-step analysis when considering allegations of
prosecutorial misconduct during closing argument. First, the court determines whether
the prosecutor's statements exceed the wide latitude of language and manner afforded a
prosecutor in making closing arguments. Second, the court determines whether the
prosecutor's comments constitute plain error. This occurs when the statements are so
gross and flagrant that they prejudiced the jury against the defendant and denied the
defendant a fair trial. Inkelaar, 293 Kan. at 427; State v. Decker, 288 Kan. 306, 314, 202
P.3d 669 (2009).

The second step focuses on whether the misconduct was so prejudicial that it
denied the defendant a fair trial. This requires a harmlessness inquiry. Three factors are
considered: (1) whether the misconduct was so gross and flagrant it denied the accused a
20



fair trial; (2) whether the remarks showed ill will by the prosecutor; and (3) whether the
evidence against the defendant was of such a direct and overwhelming nature that the
prosecutor's statements would not have much weight in the jurors' minds. No individual
factor controls. Inkelaar, 293 Kan. at 427; Decker, 288 Kan. at 315. The harmless error
analysis required under the third factor was recently modified in our Inkelaar and Ward
opinions, which will be addressed in greater detail below. But we must first determine
whether any alleged error amounts to prosecutorial misconduct.

(1) The prosecutor did not err by stating the evidence establishing intent proved
premeditation

McCullough contends first that the prosecutor committed misconduct by
insinuating that evidentiary elements of premeditation and intent are the same and
ignored the fact that premeditation requires a particular state of mind. She cites State v.
Abu-Fakher, 274 Kan. 584, 610, 56 P.3d 166 (2002), in which this court held that an
intentional killing does not by itself establish premeditation. But while McCullough
recites a true statement of the law, it has no bearing on the prosecutor's actual comments
in this case.

In her closing, the prosecutor argued that the video established Callaway's killing
was intentional because the recording showed McCullough returning to her car; fiddling
with something, which the prosecutor suggests was McCullough retrieving her knife;
then walking back towards the store with the knife in her hand; and finally pushing her
stepbrother out of the way so that she could stab Callaway. The prosecutor then stated
"the same evidence" established premeditation. But the prosecutor clearly recognized that
intent and premeditation are separate elements of the crime and simply argued those same
facts could be used to establish both intent and the state of mind required for
21



premeditation. We find this statement to be within the wide latitude afforded to
prosecutors. McCullough's claim fails under the first prong of the analysis.

(2) The prosecutor did not argue facts not in evidence

McCullough next argues the following statement from the prosecutor's closing
argued facts not in evidence:

"[W]hile she was in the car, and I believe on one of those videos, if you look from one of
the cameras from inside the store outside into the parking lot, you can see her in the car
fiddling, she's getting the knife, is a reasonable conclusion."

McCullough contends the evidence presented at trial established that she carried a
pocketknife with her and there was no evidence establishing she returned to the car to get
the knife. But McCullough's claim lacks merit because the prosecutor acknowledged the
evidence she was referring to did nothing more than form the basis for a reasonable
conclusion or inference that the knife was retrieved from the car just before the stabbing.
In addition, McCullough agrees that the evidence showed only that she frequently carried
the knife in her pocket, not that she had the knife in her pocket when the encounter with
Callaway initially ensued. As such, the prosecutor's comments were directed at a point of
evidentiary contention and do not fall outside the wide latitude of proper comment.

(3) The prosecutor did not misstate the definition of premeditation

McCullough next argues the prosecutor misstated the definition of premeditation.
But McCullough's argument is predicated upon an isolated portion of the prosecutor's
closing argument. The prosecutor began the statements at issue by reiterating the
definition of premeditation, stating:
22




"[I]n order for you to find that [McCullough] is guilty of only second degree murder, you
have to find that she didn't have premeditation, that she didn't think about it. And
premeditation is defined to you as thinking about it, about the matter beforehand, form
the design or intent to kill, more than instantaneous. There's no definition about how long
it takes."

The district court had issued the following definition of premeditation from PIK
Crim. 3d 56.04 in conjunction with the instruction on first-degree murder prior to the
parties' closing arguments:

"Premeditation means to have thought over the matter beforehand, in other words, to
have formed the design or intent to kill before the act. The concept of premeditation
requires more than the instantaneous, intentional act of taking another's life."

But McCullough premises her argument on the prosecutor's follow-up statement,
which was an attempt to apply the law of premeditation to the facts of this case. The
prosecutor stated:

"You know, we think of premeditation sometimes from the movies, where they
sit at the kitchen table and say okay, we're gonna plan to do this, we're gonna plan to do
that. The mere actions of arming yourself, of walking towards your target and then
plunging that deadly weapon into her center makes it the premeditation."

Defense counsel objected to this, arguing the prosecutor misstated the law. The
court overruled the objection and reminded the jury that arguments of counsel are not
evidence and that the court's definition of premeditation should guide its deliberations.
Then the prosecutor said, "That is the definition of premeditation."

23



On appeal, McCullough contends the prosecutor's comments were analogous to
stating premeditation can be instantaneous—language this court disapproved in State v.
Morton, 277 Kan. 575, 585, 86 P.3d 535 (2004). But the record does not support this
claim. It shows instead that the prosecutor accurately defined premeditation; explicitly
stated that premeditation could not be instantaneous; and then indicated that the acts of
getting a knife, walking back to Callaway, and stabbing her were sufficient to show
premeditation. Those actions could not be performed in an instant, so McCullough's
argument is without merit. As such, the prosecutor did not misstate the law, and this
argument fails under the first prong of the misconduct analysis.

(4) The prosecutor misstated the definition of killing in the heat of passion

As her last point to the prosecutorial misconduct arguments, McCullough claims
the prosecutor misstated the definition of heat of passion while discussing the voluntary
manslaughter count. This count was one of the lesser included offenses available for the
jury's consideration.

The district court instruction was from PIK Crim. 3d 56.05, which indicates that
voluntary manslaughter occurs if the defendant intentionally killed the victim during a
sudden quarrel, in the heat of passion, or upon an unreasonable but honest belief that
circumstances existed that justify deadly force in defense of self. But the jury was not
instructed on the definition of heat of passion, and neither party argues this omission was
clear error. PIK Crim. 3d 56.04(e) defines heat of passion as:

"[A]ny intense or vehement emotional excitement which was spontaneously provoked
from circumstances. Such emotional state of mind must be of such degree as would cause
an ordinary person to act on impulse without reflection."

24



This court has frequently described "heat of passion" as meaning "'any intense or
vehement emotional excitement of the kind prompting violent and aggressive action, such
as rage, anger, hatred, furious resentment, fright, or terror,' based 'on impulse without
reflection.'" (Emphasis added.) State v. Foster, 290 Kan. 696, 711-12, 233 P.3d 265
(2010) (quoting State v. Guebara, 236 Kan. 791, 796, 696 P.2d 381 [1985]); see also
State v. Coop, 223 Kan. 302, Syl. ¶ 1, 573 P.2d 1017 (1978); State v. Jones, 185 Kan.
235, Syl. ¶ 2, 341 P.2d 1042 (1959); State v. Linville, 148 Kan. 142, Syl. ¶ 2, 79 P.2d 869
(1938). In other words, this court often refers to anger as an example of what might be
considered heat of passion, along with the other descriptors of the actor's emotional state.

But during closing argument the prosecutor made the following comments about
heat of passion voluntary manslaughter. She stated, "Was it heat of passion? You know,
heat of passion, we think of the case where, you know a woman finds her husband in bed
with another woman." McCullough's counsel objected, arguing the prosecutor was trying
to define heat of passion based on other types of cases. After the court overruled the
objection and admonished the jury that a lawyer's arguments are not evidence, the
following exchanged occurred.

"[Prosecutor]: So that's what we think of heat of passion, you know, finding your
spouse in bed with another person. But you know what, in this case anger isn't passion."
"[McCullough's counsel]: Objection . . . the Court has defined what heat of
passion is, heat of passion defines itself. Arguing that anger is not passion is
objectionable."
"THE COURT: Well, its argument. Please continue.
"[Prosecutor]: Anger is not the heat of passion, anger is a motive to kill."
(Emphasis added.)

McCullough argues the emphasized language misstates Kansas law, citing this
court's repeated definition of heat of passion. We agree. The prosecutor's statement was
25



more than a simple fumble. It oversimplified the required analysis and denied that anger
could even be an example of heat of passion under any circumstances, despite our
caselaw to the contrary. For these reasons, the statement was misleading. Accordingly,
we must determine whether this error was harmless under the standard adopted in
Inkelaar and Ward.

The prosecutor's misstatement of the heat of passion does not require reversal

As noted above, this court considers three factors when determining whether
misconduct prejudiced the jury and denied the defendant a fair trial. First, it considers
whether the misconduct was gross and flagrant. To make this determination, the court
considers whether the prosecutor repeated or emphasized the conduct. Second, we
determine whether the misconduct suggests that the prosecutor acted with ill will. Like
the first factor, ill will can be demonstrated if there was deliberate and repeated
misconduct or an indifference to the court's rulings. Third, this court considers whether
the evidence was of such a direct and overwhelming nature that the misconduct would
likely have had little weight in the jurors' minds. Inkelaar, 293 Kan. at 429.

This court has long held that the third factor cannot override the first two factors
unless the harmless error tests of both K.S.A. 60-261 (inconsistent with substantial
justice) and Chapman, 386 U.S. 18 (conclusion beyond reasonable doubt that the error
had little, if any, likelihood of having changed the results of the trial), have been met.
See, e.g., Ward, 292 Kan. at 549; State v. Adams, 292 Kan. 60, 66-67, 253 P.3d 5 (2011);
State v. Tosh, 278 Kan. 83, 93, 91 P.3d 1204 (2004).

But this court recently recognized that the applicable level of certainty required
differs under state statutes and federal Constitution. If the fundamental failure infringes
on a constitutional right, appellate courts apply the federal constitutional standard, which
26



requires the party benefitting from the error to prove beyond a reasonable doubt that the
error complained of will not or did not affect the outcome of the trial in light of the entire
record. Ward, 292 Kan. at 568-69. And if a fundamental failure does not infringe a
constitutional right, appellate courts apply K.S.A. 60-261 and K.S.A. 60-2105 to
determine "if there is a reasonable probability the misconduct affected the outcome of the
trial." Inkelaar, 293 Kan. at 430; Ward, 292 Kan. at 569.

Since our cases require that both standards be satisfied in the prosecutorial
misconduct context, the State, as the party who benefitted from the misconduct, bears the
burden to establish beyond a reasonable doubt that the error did not affect the defendant's
substantial rights, i.e., there is no reasonable possibility the error affected the verdict. 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. Inkelaar, 293 Kan. at 431.

Turning to the facts in this case, the prosecutor's simplistic misstatement that anger
cannot constitute heat of passion in contradiction of repeated statements from this court
to the contrary is gross and flagrant, but it occurred only once and was preceded by an
interrupted statement from the prosecutor that anger was not applicable in this case.
Taken together, we do not find deliberate misconduct or indifference to any district court
rulings. As to the third factor, whether the evidence against the defendant was of such a
direct and overwhelming nature that the misconduct would likely have had little weight
in the minds of the jurors, we hold there is no reasonable possibility that the error
affected the verdict. In this case, the videotape of the actual crime as it was committed
permitted the jury to evaluate fully the circumstances. The prosecutor's misstatement of
the law was isolated and could not have overridden the other evidence in the case,
particularly the video of the crime as it occurred.

27



ISSUE 5: MCCULLOUGH'S BATSON CHALLENGE

Next, McCullough argues that the State's exercise of a peremptory challenge to
strike M.S., the only African-American male, from the jury panel violated the Equal
Protection Clause of the Fourteenth Amendment to the United States Constitution under
Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). She makes two
alternative arguments. First, she contends the district court failed to complete the required
third step of the Batson analysis, so the case must be remanded for a full Batson hearing.
Second, and in the alternative, McCullough argues the State's proffered reason for
striking M.S. was pretextual, demonstrating purposeful discrimination, which entitles her
to a new trial.

Standard of Review

Batson challenges are subject to a three-step analysis. Each step is governed by its
own standard of review. State v. Hill, 290 Kan. 339, 358, 228 P.3d 1027 (2010); State v.
Pham, 281 Kan. 1227, 1237, 136 P.3d 919 (2006). Under the first step, the party
challenging the strike must make a prima facie showing that the other party exercised a
peremptory challenge on the basis of race. Appellate courts utilize plenary or unlimited
review over this step. Hill, 290 Kan. at 358. But if that prima facie case is established, the
burden shifts to the party exercising the strike to articulate a race-neutral reason for
striking the prospective juror. This reason must be facially valid, but it does not need to
be persuasive or plausible. The reason offered will be deemed race neutral unless a
discriminatory intent is inherent in the explanation. The opponent of the strike continues
to bear the burden of persuasion. 290 Kan. at 358.

In the third step, the district court determines whether the defendant has carried the
burden of proving purposeful discrimination. This step hinges on credibility
28



determinations because usually there is limited evidence on the issue, and the best
evidence is often the demeanor of the party exercising the challenge. As such, it falls
within the trial court's province to decide, and that decision is reviewed under an abuse of
discretion standard. Pham, 281 Kan. at 1237; see Hill, 290 Kan. at 358-59.

The district court did not abuse its discretion

To establish her prima facie case, McCullough notes that M.S. was the only
African-American male, and he was struck from the jury panel even though his answers
were consistent with those given by other jurors. McCullough argues the decision to
strike M.S. must be race based because M.S. displayed two traits typically considered
favorable to the prosecution—family members who were police officers and a family
member who was a victim of a crime.

In response to the challenge made at trial, the State proffered that it struck M.S.
because he was almost 20 minutes late to court after the lunch recess the first day of voir
dire and a member of his family was the victim of a gang-related homicide. The State
argued these reasons were applied race neutrally because it struck a non-African-
American juror for the same tardiness issue and it would have struck another juror
because of that juror's involvement in a violent crime, except defense counsel struck her
first. To counter the State's proffered reasons, McCullough argued M.S.'s tardiness was
excusable because M.S. said he had trouble parking that day and had arrived early one
morning while some other jurors were late. McCullough did not identify which other
jurors were late or respond to the prosecutor's claim that the tardiness explanation was
applied race neutrally. Regarding the prosecutor's second reason for striking M.S., there
was some dispute as to how closely related M.S. was to the victim of violent crime, but
McCullough's counsel essentially argued the crime was remote in time and the familial
relationship with a crime victim was distant.
29




After hearing these arguments, the district court held:

"[T]he ruling centers on whether or not the strike was based on race or other
gender protected areas, as distinguished from having a racial neutral . . . reason for
making a strike. There were yesterday 45 people subject to examination, 43 of them
apparently did arrive back from the recess on time. So the fact that [M.S.] is one of two
and that the other person was struck, as well, does establish some racial neutral basis,
whether or not one might disagree with it.
"There's a second reason that was given with regard to [M.S.] being the victim of
a crime. And [the prosecutor] indicated there were two, I believe, other people who she
would have struck or did strike for those same reasons. And I find that she has stated a
racial neutral reason for striking [M.S.] and the Batson challenge will be denied."
(Emphasis added.)

McCullough's first challenge is to the sufficiency of the district court's findings.
She argues the trial court prematurely terminated its analysis at the second step and the
matter should be remanded to determine whether McCullough carried her burden of
establishing purposeful discrimination in the third step. This claim has some merit
because the record does not contain a clearly articulated analysis of the third step, even
though the district court clearly considered the issue and tried to follow the established
procedure. But the district court's express holding that the prosecutor articulated a race-
neutral reason for striking the juror relates only to the second step. And under our
caselaw, the prosecution's ability to articulate a race-neutral explanation simply advances
the discussion to the third step for the trial court to decide whether defendant has carried
the burden of proving purposeful discrimination.

But McCullough's argument still fails on two grounds. First, McCullough failed to
preserve the issue for appeal by objecting to the district court's analysis of this issue. In
State v. Angelo, 287 Kan. 262, 278, 197 P.3d 337 (2008), this court held a party must
30



object to the district court's failure to complete the third step to preserve the issue because
a timely objection gives the trial court an opportunity to clarify or cure the defect.
Second, and even if the issue is preserved, McCullough's claim fails because the district
court's analysis of the third step can be implied from its consideration of the prosecutor's
reasons and the defendant's rebuttal of them before overruling the Batson challenge.

In Angelo, the trial court performed the same perfunctory analysis attacked in
McCullough's appeal and held that the prosecutor stated a race-neutral reason for striking
the juror. It then overruled the objection. This court found that the trial court "impliedly
held" the defendant failed to satisfy his burden to prove purposeful discrimination
because the trial court "essentially performed its analysis under the third Batson step" by
listening to the State's reasons and the defendant's rebuttal before overruling the
objection. 287 Kan. at 274-75. But the Angelo court did note that the better analysis for a
district court faced with a Batson challenge would be to identify and follow each step,
concluding where applicable that the defendant "'has not carried his burden of proving
purposeful discrimination.'" 287 Kan. at 278. Likewise, the trial court's consideration of
the rebuttal argument in McCullough's Batson challenge can be implied from the fact that
McCullough was given an opportunity to rebut the State's proffered race-neutral reasons
and the district court did not rule until after the rebuttal argument was heard.

McCullough also challenges the ultimate determination that a Batson violation did
not occur. She argues the State's proffered reasons were obviously pretextual and the
failure to present a nonpretextual reason supports a finding that it was purposeful
discrimination, entitling her to a new trial. As to this claim, McCullough is essentially
challenging the district court's determination of the third Batson step, which is somewhat
problematic since this court is faced with an "implicit holding" as opposed to any express
analysis of the issue. But as discussed above, this court reviews the third step under an
abuse of discretion standard. That standard is set out in Ward, 292 Kan. at 550.
31




Courts may consider several factors when determining whether a defendant met
his or her burden of purposeful discrimination, including the presence of other members
of the same minority on the jury and whether "white potential jurors were removed for
the same reasons African-Americans were removed." Angelo, 287 Kan. at 274. And even
though it was not addressed by the district court, the first factor supports the district
court's finding because an African-American female was empanelled on the jury, along
with several other ethnic minorities. In addition, the State heavily emphasized its similar
treatment across race when it noted that it also struck the only other potential juror who
was late during the first day of voir dire and that juror was not an African-American. The
district court clearly considered this factor because it noted 43 of the 45 jurors returned
on time and the State struck both tardy jury members. Attempts by McCullough to rebut
this consideration by arguing some potential jurors were late the next morning fail
because she did not show any were white and that prosecutors declined to use peremptory
challenges to strike them.

The district court also acknowledged credibility for the State's claim that M.S. was
struck because his family member was a crime victim because other jurors were struck
for the same reasons. This is consistent with the State's race-neutral explanation that it
intended to strike another juror for the same reason, but defense counsel struck that juror
first. McCullough's rebuttal to this focused on the remoteness of the family member
subject to the crime, but she did not allege the prosecutor declined to strike a similarly
situated white juror. These facts support the race-neutral explanation proffered by the
State. We conclude the district court did not abuse its discretion by overruling
McCullough's Batson challenge.

32



ISSUE 6: REFUSAL TO STRIKE FIVE JURY PANEL MEMBERS FOR CAUSE

McCullough next argues the district court erred by denying her motion to strike
five jurors for cause. All five jurors were removed by peremptory challenge. The State
struck two of them, and McCullough struck the other three jurors. McCullough then
exercised nine other peremptory challenges and passed the remaining jurors for cause.
But she argues that the erroneous denial of her challenge for cause was prejudicial
because she would have exercised one of those peremptory challenges to remove M.V.

Standard of Review

To prevail, McCullough must establish the trial court erred and that she was
prejudiced. See State v. Ransom, 289 Kan. 373, 389, 212 P.3d 203 (2009). Appellate
courts review the trial court's ruling on a challenge for cause for an abuse of discretion
because the trial court is in a better position to view the prospective jurors' demeanors as
they are questioned. The party asserting an abuse of discretion bears the burden of
establishing it. 289 Kan. at 389. But even if we assume McCullough can show the trial
court abused its discretion, it is unnecessary for this court to determine whether these
jurors should have been removed for cause because McCullough did not establish
prejudice.

Prejudice cannot be established through the loss of a peremptory challenge alone.
"'[T]he loss of a peremptory challenge [does not] constitute[] a violation of the right to an
impartial jury.'" State v. Crawford, 255 Kan. 47, 51-52, 872 P.2d 293 (1994) (quoting
Ross v. Oklahoma, 487 U.S. 81, 88, 108 S. Ct. 2273,101 L. Ed. 2d 80, reh. denied 487
U.S. 1250 [1988]). Peremptory challenges are simply a means to achieve an impartial
jury, and the true inquiry is whether the jury that ultimately sits is impartial. State v.
Heath, 264 Kan. 557, Syl. ¶ 17, 957 P.2d 449 (1998).
33




The district court did not err in denying the motion to strike

McCullough argues the jury was not impartial because M.V., a teacher, indicated
M.V. had discussed "not the crime itself, but the aftermath" with some of her school
classes. M.V. was referring to news stories reported by several media outlets that no one
in the store at the time of the stabbing tried to assist Callaway while she lay bleeding
before the ambulance arrived. Instead, the news accounts indicated, some customers
stepped around Callaway to complete their purchases, and one even took Callaway's
picture with a camera phone.

But this coverage was not relevant to the trial because McCullough had already
left the store's parking lot, and she was not involved. The attorneys, however, inquired
during voir dire whether anyone had seen the media coverage to determine whether that
knowledge would prevent the juror from being impartial. And although M.V. was aware
of the coverage and she had discussed it at her school, she indicated her knowledge of the
"aftermath" would not affect how she viewed the case. The discussion during voir dire
was:

"[Counsel]: . . . [H]aving that knowledge, at least that's what was reported in the
media about this, would that affect how you'd perceive this case as it relates to Cherish
McCullough?
"[M.V.]: No, because even when we discussed it in my class with my students it
was the actions of those individuals that we were discussing, you know, with no
knowledge of what had happened that lead up to, you know, what caused it. See, I in no
way decided it had anything to do with the case in general, it was just those people's
reactions.
34



"[Counsel]: So you'd be able to follow the judge's instructions, if he gives them
to you, to disregard that as it relates to this case?
"[M.V.]: Yes."

These statements do not support McCullough's assertion now on appeal that M.V.
could not act impartially or without prejudice. This conclusion is bolstered by the fact
that McCullough's counsel later passed M.V. for cause. McCullough was not prejudiced
by the trial court's refusal to strike the five jurors for cause.

ISSUE 7: DID OUTBURSTS FROM TRIAL SPECTATORS PREJUDICE
THE DEFENDANT'S RIGHT TO A FAIR TRIAL

For the first time on appeal, McCullough claims that comments and emotional
outbursts from trial spectators prejudiced her right to a fair trial and now require remand
for a new trial. The State claims this issue was not preserved or, in the alternative, that
McCullough failed to make an adequate record of the disturbances to merit review. We
agree and hold that this assertion of error was not preserved. We also find the record
inadequate to address the question, even if it could be reached.

Trial courts have a duty to maintain order and ensure that justice is not obstructed
by a person or persons. State v. McNaught, 238 Kan. 567, 577, 713 P.2d 457 (1986).
Emotional outbursts and demonstrations often occur, particularly in homicide cases.
Nevertheless, emotional outbursts, weeping, fainting, applause, or other demonstrations
can prejudice a defendant's right to a fair trial. See State v. Franklin, 167 Kan. 706, 709-
10, 208 P.2d 195 (1949). Trial courts are granted broad discretion to determine whether
the jury was or could have been influenced by a disturbance. That discretion will not be
disturbed on appeal unless it appears prejudice occurred. McNaught, 238 Kan. at 577-78.

35



While McCullough indicated there were problems with spectators at several points
during the trial, she never requested the trial court to admonish the jury or sought a
mistrial. McCullough also failed to argue these outbursts violated her right to a fair trial
in her motion for new trial. Generally, appellate courts do not address constitutional
issues for the first time on appeal. For an appellate court to proceed under these
circumstances, it is necessary for the party raising the constitutional issue to satisfy one
of three recognized exceptions to the general rule, which are: (1) The newly asserted
claim involves only a question of law arising on proved or admitted facts and is
determinative of the case; (2) consideration of the claim is necessary to serve the ends of
justice or to prevent the denial of fundamental rights; or (3) the district court is right for
the wrong reason. State v. Gomez, 290 Kan. 858, 862, 235 P.3d 1203 (2010).

McCullough argues this court considered this issue for the first time on appeal in
Franklin and the claim therefore is properly before this court. But while McCullough is
correct that the defendant in Franklin did not request an admonition or move for mistrial
after a spectator's outburst, Franklin is distinguishable because the defendant raised the
issue in a motion for new trial. In addition, Franklin predates this court's more assiduous
approach to preservation of error issues. See State v. King, 288 Kan. 333, 349, 204 P.3d
585 (2009) (stressing the importance of the legislative mandate in K.S.A. 60-404).

A contemporaneous effort by counsel to address courtroom outbursts on the record
is important because the trial court witnessed the outburst, viewed the jury's reaction, if
any, and its determination of whether the circumstances justify intervention gives the
situation context that is beneficial for appellate review. A timely trial objection also helps
ensure that a sufficient record is created for appeal. The party claiming an error occurred
has the burden of designating a record that affirmatively shows prejudicial error. State v.
Nguyen, 285 Kan. 418, 430, 172 P.3d 1165 (2007).

36



The record from McCullough's trial discloses several instances when disturbances
to the court proceedings are referenced—several times during voir dire and three at trial.
Outside the presence of the jury pool, McCullough's counsel indicated that three
members of the victim's family had rushed from the courtroom in tears at different times
during the final 2 days of voir dire. The district court indicated it did not see any
spectators leave, instructed the State to admonish its witnesses and spectators to maintain
courtroom decorum, and assured McCullough's counsel it would remove any spectators
that were unwilling to comply.

At trial, McCullough's counsel indicated that the victim's family was sitting behind
him in close proximity to the jury and he could hear them talking and laughing during his
cross-examination of a detective. He also stated that someone was crying earlier that day.
The State appears to concede one of the victim's family members had run out of the
courtroom in tears the previous day, and the prosecutor had instructed them not to do that
again. But she claimed the defendant's family was also making audible "sighs and stuff"
during trial. The district judge indicated he was unable to hear any conversations, but he
agreed to admonish all spectators to behave with decorum. McCullough's counsel
responded, "I think that's appropriate." With that statement, defense counsel appeared
fully satisfied with the trial court's suggested outcome.

The only contemporaneous record of a disturbance occurred later while
McCullough's counsel questioned a witness. The district court stated sua sponte, "Let's
have the other lady also step out, ma'am." At which point an unidentified spectator stated,
"I don't want to go, I want to see everything. I have her kids, I want to stay and see
everything." After the spectator agreed to respect courtroom decorum, the trial proceeded
without further discussion. There is no record of what caused the trial court to admonish
this spectator or whether the jury had any knowledge of a disturbance before the trial
court spoke. And while it is possible the spectator's comments referred to the victim's
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children, there is nothing establishing this point or even explaining how it would matter.
Defense counsel did not request any additional remedial action the court should have
taken.

The last discussion about disturbances occurred during the instructions conference
when McCullough's counsel indicated he could hear comments by spectators during his
examination of witnesses. Counsel indicated he was concerned because spectators were
within 10 feet of the jury. He then warned that he would file a motion for mistrial if it
occurred during closing argument. But again, counsel did not identify which spectators
were making the comments, and there is no record regarding the substance of the
disturbance. The decision by McCullough's counsel not to file a motion for mistrial as
threatened is a strong indication that there was not another disturbance and that the
concern did not materialize.

In short, at no time did defense counsel lodge an objection to the manner in which
the district court was handling an obviously emotional trial setting. The failure to pose an
objection is a failure to preserve the issue. Gomez, 290 Kan. at 862. We also find no basis
to consider any of the possible exceptions. The appellate record establishes there were
some disruptions at trial, but the record is inadequate to determine whether McCullough's
right to a fair trial was violated. The spectators causing the disturbance were rarely
identified, the substance and extent of the disturbance is unknown, and it is unclear
whether the jury even was aware of the disturbances.

Affirmed.

MORITZ, J., not participating.
LEBEN, J., assigned.