State v. McCullough, 270 P.3d 1142

Background

McCullough fatally stabbed Callaway after a mutual-fight in a Wichita convenience store, returning to the store with a knife and killing Callaway; trial video evidence supports mutual combat and lack of withdrawal; court instructed on murder charges but denied self-defense instructions; district court found no self-defense and refused reckless involuntary manslaughter instruction; jury convicted of first-degree murder andLife sentence with 25-year minimum; issues on appeal include self-defense, involuntary manslaughter, mistrial, prosecutorial misconduct, and Batson challenge.
Video evidence showed a fistfight with others intervening; McCullough reentered with a knife and stabbed Callaway; Callaway died from a 4.5-inch stab wound; Callaway had bipolar disorder and had threats while hospitalized; McCullough had some knowledge of Callaway’s condition but no evidence supporting self-defense withdrawal.
Court held no self-defense instruction was warranted because mutual combat persisted and McCullough did not withdraw in good faith or use all means to avoid killing, and a reasonable person wouldn’t view deadly force as necessary.
Court held no involuntary manslaughter instruction was warranted because no evidence showed the killing was unintentional; Calderon and Gregory comparisons discussed; Bailey and Deal cited as controlling on intent vs. recklessness.
Court affirmed conviction and denied motions for mistrial and other relief; Batson challenge found district court did not abuse discretion; five jurors-for-cause issue found non-prejudicial; spectator outbursts not preserved or shown to affect outcome.
Court concluded the trial record showed disturbances but insufficient record to prove prejudice; no reversal on prosecutorial misconduct except a single misstatement about heat of passion deemed harmless.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Self-defense instruction warranted?	McCullough sought self-defense; argues mutual combat rule requires withdrawal.	State contends mutual combat bars self-defense unless withdrawal and avoidance are proven.	Not entitled to self-defense instruction; mutual combat and no good-faith withdrawal.
Reckless involuntary manslaughter instruction?	Argues there was evidence the killing was unintentional and reckless.	District court correctly refused; no evidence of recklessness.	Refusal proper; no basis to instruct on reckless involuntary manslaughter.
Mistrial for bad character evidence?	State elicited improper character evidence via cousin; prejudicial.	District court admonished jury; error harmless.	No reversible error; mistrial not warranted.
Prosecutorial misconduct in closing?	Prosecutor misstated heat of passion and argued facts not in evidence.	Mostly within broad closing argument; misstatement deemed harmless?	One misstatement about heat of passion; harmless error.
Batson challenge—racially motivated strike?	State struck the only African-American male juror; prima facie case and pretext alleged.	Proffered race-neutral reasons; district court found no purposeful discrimination.	District court did not abuse discretion; no Batson violation.

Key Cases Cited

State v. Coop, 223 Kan. 302 (1978) (mutual combat definition; focus on combat rather than who initiated)
State v. Calderon, 270 Kan. 241 (2000) (rereckless involuntary manslaughter; sufficiency of intent evidence)
State v. Gregory, 218 Kan. 180 (1975) (involves intent vs. unintentional killing; involuntary manslaughter standard)
State v. Bailey, 263 Kan. 685 (1998) (premeditation; whether act is instantaneous versus thoughtful)
State v. Deal, 293 Kan. _, 269 P.3d 1282 (2012) (test for evaluating harmlessness of nonconstitutional error)
Ward v. State, 292 Kan. 541 (2011) (standard for harmless error analysis post-Ward)
Inkelaar v. State, 293 Kan. 414 (2011) (harmless error standard for nonconstitutional evidentiary error)
State v. Omo, 201 Kan. 167 (1967) (pre-ward authority on burden/ prejudice)