Evidence of later homicide is improper bad acts evidence

Joseph A. Desch won in State v. Macomber, No. 108,301 (Kan. App. Sept. 19, 2014)(unpublished), obtaining a new trial in a Shawnee County second-degree murder prosecution.  Mr. Macomber was accused of several crimes in three separate prosecutions.  In one prosecution, a jury had convicted him of attempted first-degree murder, criminal possession of a firearm, and other charges in Marshall County.   In another Marshall County prosecution, a jury convicted Mr. Macomber of kidnapping, aggravated burglary, criminal possession of a firearm, and other charges.  All of these offenses were alleged to have happened after Mr. Macomber fled from crimes committed in Shawnee County, the instant appeal.  In a third trial in Shawnee County, the state charged Mr. Macomber with first-degree murder and criminal possession of a firearm; a jury convicted Mr. Macomber of criminal possession of a firearm and second-degree murder, given as a lesser.

On appeal, Mr. Macomber claimed the Shawnee County criminal possession of a firearm prosecution violated the Double Jeopardy Clause.  The COA agreed:

Macomber's possession of a firearm consists of a unitary course of conduct, and because the legislature intended that the minimum unit of prosecution for violating K.S.A. 21–4204 is a single continuous act of possession, Macomber was subject to double jeopardy in this case and his conviction for criminal possession a firearm must be reversed.

During trial, the district court admitted evidence of the Marshall County homicide hours after the Shawnee County incident ostensibly to show the gun  in question worked.   The COA also agreed with Mr. Macomber that such evidence was irrelevant:

Here, we have no difficulty concluding that virtually none of the evidence presented to the jury concerning the encounter between Macomber and Salcedo was relevant to proving the particular disputed material fact—i.e., whether Macomber's gun was susceptible to an accidental discharge. Salcedo's professional history, Macomber's speeding, the ensuing chase, Macomber's aggressive assault and eventual shooting of Salcedo in the back, the damaged bulletproof vest, and Salcedo's lengthy recovery—none of this has any bearing whatsoever on the mechanical state of Macomber's gun.

Even if there was some vestigial relevance of the bare fact that the gun was discharged properly within a few hours of the Lofton shooting, when it is shorn of the irrelevant context, the evidentiary value of that fact approaches zero. As such, the evidence had virtually no probative value. On the other hand, it was highly prejudicial in character. The State presented evidence that Macomber pointed a gun at the head of a sympathetic young police officer (who thought he might die), forced him onto the ground, and shot the officer twice, once in the back. As such, the district court abused its discretion when it determined that the probative value of the evidence outweighed its potential for undue prejudice.

The COA held that because of the nature of the evidence and the repeated emphasis on that evidence, the error was not harmless and reversed the second-degree murder conviction and remanded for a new trial.

[Update: the state did not file a PR and the mandate issued on October 23, 2014.]