BY THE COURT
1. On a
motion for immunity under K.S.A. 2018 Supp. 21-5231, the
district court must consider the totality of circumstances,
weigh the evidence before it without deference to the State,
and determine whether the State carried its burden to
establish probable cause that the defendant's use of
force was not statutorily justified.
appellate court will apply a bifurcated standard of review to
a district court's determination of probable cause under
K.S.A. 2018 Supp. 21-5231. When a district court's ruling
entails factual findings arising out of disputed evidence, a
reviewing court will not reweigh the evidence and will review
those factual findings for supporting substantial competent
evidence only. The ultimate legal conclusion drawn from those
facts is reviewed de novo.
a defendant properly asserts a self-defense affirmative
defense, the State must disprove that defense beyond a
of the judgment of the Court of Appeals in an unpublished
opinion filed June 23, 2017.
from Shawnee District Court; David Debenham, judge.
Jonathan B. Phelps, of Phelps-Chartered, of Topeka, argued
the cause and was on the briefs for appellant; Stephen A.
Macomber, appellant was on a supplemental brief pro se.
E. Litfin, assistant solicitor general, argued the cause, and
Elizabeth A. Billinger, assistant district attorney, Chadwick
J. Taylor, district attorney, and Derek Schmidt, attorney
general, were on the brief for appellee.
A. Macomber shot and killed an unarmed man during a
confrontation in the man's driveway. The district court
denied Macomber's pretrial motion to dismiss based on
self-defense immunity. After a second trial, a jury convicted
him of involuntary manslaughter. A Court of Appeals panel
affirmed that conviction. Macomber seeks our review of two
defense arguments the panel rejected: (1) whether the
district court should have granted him self-defense immunity;
and (2) whether the district court's failure to instruct
on the statutory self-defense presumption requires reversal.
unanimously reject Macomber's claim the district court
erred when it denied him self-defense immunity under K.S.A.
2018 Supp. 21-5231. The State demonstrated with sufficient
evidence there was probable cause Macomber's use of
deadly force was not statutorily justified, so this presented
a jury question. On the second issue, a majority of the court
agrees with the panel that any error in not giving the
self-defense presumption instruction was harmless. The
judgment of the panel is affirmed on the issues subject to
and Procedural Background
killed Ryan Lofton outside Lofton's southeast Topeka
residence. Macomber fled to Marshall County, where he shot a
sheriff's deputy, fled in the deputy's patrol
vehicle, and took a hostage whom he held until eventually
surrendering. Macomber was prosecuted in this case for his
actions in Shawnee County. His additional crimes were
prosecuted in two Marshall County cases. See State v.
Macomber, No. 113, 869, 2014 WL 4723685, at *1 (Kan.
App. 2014) (unpublished opinion) (Macomber I).
Shawnee County case, with which this appeal is concerned, the
State charged Macomber with first-degree murder and criminal
possession of a firearm. There were two jury trials. In the
first, the jury convicted him of intentional second-degree
murder and criminal possession of a firearm. 2014 WL 4723685,
at *7. A Court of Appeals panel reversed and remanded for a
new trial. See 2014 WL 4723685, at *10, 12.
the second trial, Macomber attempted to dismiss the case,
asserting self-defense immunity under K.S.A. 2018 Supp.
21-5231. The district court held the State presented
sufficient evidence to establish probable cause that deadly
force was not statutorily justified.
evidence about what happened during the encounter between
Macomber and Lofton came from four eyewitnesses during the
retrial: Lofton's wife, Risa; Macomber; Cassandra Taylor;
and Joshua Kenoly. Their accounts conflicted. We detail that
testimony and the other evidence to decide the two issues on
testified she asked Macomber to pick her up at her home.
Macomber was leaving town and Risa wanted to get money from
him. She told Lofton he was taking her to a "dope
house" and she planned to steal money from Macomber.
Lofton was unhappy about this and did not think she would
return. According to Risa, Macomber pulled into the driveway
and stayed in his car. When he arrived, she was inside with
Lofton. She gathered her things and put them in the
driver's side back seat of Macomber's car. Lofton
stood at the passenger side window talking to Macomber. Risa
said Lofton was not yelling and she did not hear any threats.
Macomber had a gun inside the car and trained it on Lofton
while Lofton was walking back toward the car.
went around to the driver's side window, which was rolled
down a couple of inches. Risa tried to pull Macomber's
arm away, but she could not get the gun from Macomber or get
him to point it away from Lofton. She got out and shut the
door. As soon as it shut, she heard a "pop," turned
around, and saw Lofton on the ground. Macomber left
did not see Lofton reach into Macomber's car or hear him
threaten Macomber. On cross-examination, she said Lofton was
upset when Macomber arrived but not angry. She did not see
what Lofton did while standing at the driver's side
made several statements about the incident. Hedy Saville
testified he went to her house after the shooting and said he
killed a man in Topeka. She said Macomber said the man was
going to shoot Macomber. In a telephone call with KBI agent
Mark Malick before his arrest, Macomber said he was
encountered by a man "'acting like a
fool.'" He told Malik the man threatened to shoot
him but did not have a gun. The man tried to grab
Macomber's gun, and when he did Macomber shot him. He
told Malik he did not intend for that to happen. He told
Malik the man said "you want to shoot me" and
indicated "like you're talking big and you don't
even have a gun and that was when he said it occurred."
The agent said Macomber told him "it was then that he
decided to fire off a round," and that the man
"kept talking shit like I was afraid of him so I shot
him." On cross-examination, Malick said Macomber
indicated "on a couple occasions" that the guy was
grabbing his gun. Malick also said Macomber was distressed
during their conversation and made suicide threats.
later interview with KBI agent Steve Bundy, Macomber
explained he went to pick up Risa and that Lofton came to the
car and started "some shit" with him, so he
threatened to shoot Lofton. He did not know if Lofton had a
gun but assumed he did. He told Lofton "well I've
got a fucking gun, right here." Lofton walked away but
returned and started "fucking with" him. Lofton
tried to snatch the gun. Macomber said the gun was in a Crown
Royal bag. He did not know which way the gun was pointed. He
said he planned to fire a round off to get Lofton off the
car. He said his windows were down and Lofton wanted to grab
the glass and break his window. He said he just wanted to go,
but Lofton would not let him. He "let a round . . . go
off" and guessed it hit Lofton. He said Lofton
threatened to shoot him and had a house full of people. He
claimed there were five recent neighborhood shootings.
recorded jailhouse telephone call with his father, Macomber
said he fired off one round into the air and hit a guy. And
in a call with someone named Theresa, he said he had a gun
because he knew what kind of area he was in. He said he went
over to the house to get Risa and as soon as he pulled up
Lofton came to the car and began questioning him and accusing
him of sleeping with Risa. He said Lofton threatened to shoot
him and there were four or five people inside and outside the
house on the porch. Lofton started going toward
Macomber's side of the car. He said he told Lofton he had
a gun, so if Lofton started shooting he would be shooting
too. He said Lofton began pulling on his door and trying to
grab his gun. He said he fired off a round to let Lofton know
it was a gun.
was in her car, which was parked in the driveway ahead of
Macomber's car. Joshua Kenoly was also in the car. A
short time after Taylor parked, Risa came out the front door
with bags in her hand. Macomber pulled in behind Taylor.
Watching in her rearview mirror, Taylor saw Risa pass her car
on the driver's side and put bags in Macomber's car.
Lofton followed Risa around arguing with her. She thought the
argument was over Lofton not wanting Risa to leave. Risa got
in Macomber's car on the passenger side. She saw Lofton
go to Macomber's car's passenger side. She saw a
flash and Lofton threw his arms up and said he was shot.
said she saw struggling inside the car before the flash. She
also said Lofton had his head in the car, and there was
struggling between Lofton and either Risa or Macomber. She
said Lofton was on the car's passenger side and facing
away at the time of the flash. On cross-examination, she said
she was positive she saw Lofton on the passenger side. She
described the argument between Lofton and Risa as angry
yelling. She saw a struggle between Lofton and Risa about
getting out of the car. Lofton stuck his head inside the car
at some point. On redirect, she said Lofton never got into
defense put on testimony from Kenoly, who said he did not
recall the incident or his earlier testimony, so his
preliminary hearing testimony was read. In that transcript,
Kenoly testified Macomber pulled up to the house and Risa got
into the car. Lofton came out and tried to keep her from
leaving. Lofton was outside the passenger door telling her he
did not want her to leave. Lofton started talking to
Macomber, then they got into "a little tussle."
Next, Kenoly said, he heard Lofton ask, "What are you
going to do, shoot me?" Lofton was still standing by the
driver's side window. Kenoly thought Lofton was less than
a foot away from Macomber and did not think Lofton was
touching the car. Kenoly heard a gunshot and ducked. When he
got up, Lofton was on the ground. On cross-examination,
Kenoly said he believed the car's windows were down. He
said the tussle lasted maybe five seconds. He defined a
"tussle" as "a little bodily movement with
Roger Smith, who interviewed Kenoly the day of the shooting,
said Kenoly told him Lofton had a heated conversation with
Risa, then went to the driver's side to talk to Macomber.
He said the conversation was heated, then got even more
heated and more aggressive. Lofton reached inside the car at
Macomber. They tussled for a few moments. Kenoly heard Lofton
say, "[S]o now you're gonna shoot me, huh, mother
fucker?" He heard one gunshot. Lofton staggered back and
defense investigator who interviewed Kenoly the week before
the retrial said Kenoly told him he was at the house with
Lofton and that Risa arrived with Macomber. Afterward, Lofton
came out and was upset Risa showed up with Macomber, who
remained in the car. There was a heated argument, and
Lofton's demeanor was aggressive. Kenoly saw a tussle
between Macomber and Lofton. He saw Lofton reach inside the
vehicle and saw pushing and pulling motions. Lofton was
standing outside on the driver's side. Kenoly said he was
on the porch facing away from the vehicle when he heard a
shot. He said Lofton was the aggressor.
autopsy confirmed Lofton died from a gunshot that entered his
back on the left side beneath the shoulder blade. The deputy
coroner who performed the autopsy said there was no
indication the gun was fired at close range, meaning within
24-35 inches. There was no stippling soot or unburned powder
on Lofton's clothing, and no stippling on Lofton's
body. He said either the gun was farther away, or there was
more clothing he was unaware of. A defense firearms examiner
said the Crown Royal bag from Macomber's car had damage
consistent with a gun discharging from inside it.
jury found Macomber guilty of involuntary manslaughter. The
district court sentenced him to 136 months' imprisonment.
On appeal, Macomber initially challenged his conviction on
three grounds: (1) the district court should have granted his
pretrial motion to dismiss based on statutory self-defense
immunity; (2) the district court should not have instructed
the jury on involuntary manslaughter because he claims there
was insufficient evidence to convict him; and (3) the
district court incorrectly instructed the jury on
self-defense. A Court of Appeals panel affirmed. State v.
Macomber, No. 113, 869, 2017 WL 2713209, at *14 (Kan.
App. 2017) (unpublished opinion) (Macomber II).
petitioned for review on two issues: (1) whether the panel
erred by concluding the district court appropriately denied
his pretrial motion to dismiss on self-defense immunity
grounds; and (2) whether the panel erred in determining any
error in the self-defense instructions was harmless. We
granted review. Jurisdiction is proper. See K.S.A. 20-3018(b)
(providing for petitions for review of Court of Appeals
decisions); K.S.A. 60-2101(b) (Supreme Court has jurisdiction
to review Court of Appeals decisions upon petition for
argues the district court should have dismissed the case
based on self-defense immunity under K.S.A. 2018 Supp.
21-5231. The court held the State showed probable cause that
deadly force was not justified. We discern no error.
argued immunity was warranted based on these factual
assertions keyed to the record from his first trial:
• his statements that Lofton threatened to shoot him,
was reaching into the car, was possibly trying to unlock the
door, was grabbing at the gun, and at one ...