District Attorney Nola Tedesco Foulston announces today that the investigation and review
of a Law-enforcement involved incident occurring on March 18, 2004 has been completed.
The incident giving rise to this investigation and
review occurred at Kingston Cove Apartment Complex, 2806 S. Osage, Apt. #102
Wichita, Sedgwick County Kansas, involving officers of the Wichita Police
Department and a citizen, Steven A. McCullough, who died as a result of the
incident.
As required by protocol established by the Office of the
District Attorney and under its authorization, a joint investigatory team
consisting of the Kansas Bureau of Investigation and Wichita Police Department
determined the following facts upon which this opinion is based:
Factual
Summary
The Dispatch Call
At approximately 11:07am on March 18th, 2004, Steven
McCullough called 911 Sedgwick County Emergency Dispatch from his apartment at
2806 S. Osage #102, reporting that someone was in his apartment. The dispatch
operator attempted to keep McCullough on the line. He told the dispatcher that
he had not seen anyone in his apartment, but had heard noises and he was going
into the bathroom. He then hung up on 911. The dispatcher called back and
attempted to get McCullough back on the phone line but could not reach him.
Simultaneously, two Wichita Police Officers were dispatched by 911 to
McCullough’s apartment to “check his welfare”. Officers arrived at
11:11a.m. for a possible burglary in progress.
Responding to the Apartment
Two Wichita Police Officers, hereinafter referred to as
Officer One and Officer Two, were the first officers to arrive at the apartment.
Officer One knocked on the door of 2806 S. Osage #102, a basement apartment of a
three-story complex. This basement level apartment is accessed by a short
exterior stairwell. McCullough’s apartment door was to the left of the
stairwell. When Officer One knocked on the door, he heard a male voice say, “Come
in, the door is open”. Officer One then drew his gun and opened the door.
Officer One observed a heavy set white male without a shirt standing in the
living room by a sliding glass door approximately 20 feet from Officer One. The
man was holding a knife in his right hand, with the blade open and sticking up.
Officer One announced to the white male that they were the police and to
put
the knife down. The white male, later determined to be Steven McCullough,
said “NO” and began looking in the direction of the hallway bathroom.
Officer One believed that McCullough looked scared and was looking in that
direction because he might have been guarding someone in the bathroom.
Officer One then asked McCullough if this was his place
and he responded, “Yes.” Officer One again stated they were the
police, they would take care of the situation and again requested that he put
down the knife and allow them to come in. McCullough again replied, “No,
I’m not putting it down, come in, come inside.”
Officer One again repeated his request and McCullough
stated, “you’re gonna have to shoot me if you want me to put it
down.” Officer One again told him to “put the knife down and let’s
talk about it.” McCullough said “No, I want to die.” Officer
One began negotiating with McCullough, telling him whatever problems he had it
was not worth his life. McCullough responded that he had “too many problems
and life was not worth it.” Officer One told McCullough that he was here
to help. At this time McCullough stated, “You’re gonna have to
shoot me” and began walking towards Officer One. Officer One grabbed the
doorknob and closed the door leaving it slightly ajar so he could keep
McCullough in his sight.
The Altercation
When Officer One
partially closed the apartment door, McCullough began backing up. Officer One
continued negotiating with McCullough and indicated to McCullough that he had
holstered his gun and just wanted to talk. McCullough laid the knife down on a
table and sat down on a sofa chair inside the apartment. Officer One was able to
see McCullough’s reflection in a small television positioned in the living
room. Officer One planned that he could enter the apartment to mace and tackle
McCullough to prevent further harm. Officer One suggested to McCullough that he
come over so they could talk. McCullough stood up and stepped toward the door.
Officer One then stepped just inside the doorway and tried to mace McCullough.
The officer’s mace hit him in the back and in the face. McCullough responded
verbally saying, “what are you gonna do with that shit?” McCullough
then ran to the table where the
knife was laying, picked up the knife and charged at Officer One. Officer One
turned and ran out of the door into the closed stairwell, located directly in
front of the apartment door. McCullough continued his charge and followed the
officer out of the door into the stairwell.
The Stairwell
Officer Two, who had arrived on the scene with Officer
One, was standing behind Officer One while he was attempting to negotiate with
McCullough. Officer Two heard the verbal exchange between Officer One and
McCullough. The area outside the apartment door was very small and when
McCullough charged at Officer One with the knife, Officer Two dove behind a
laundry room door to get out of the way. A third Wichita Police Officer,
hereinafter referred to as Officer Three, arrived at the scene at approximately
11:13a.m. and positioned himself at the bottom of the stairs leading down to
McCullough’s apartment. He and Officer One discussed the plan to mace and
tackle McCullough. Officer Three remained outside the apartment with his gun
drawn to cover Officer One. Officer Three saw McCullough coming toward Officer
One and himself at full charge with the knife. Officer Three heard McCullough
yell, “you motherfuckers”
and observed him continue to charge at the officers. Officer Three backed
to the foot of the stairs as Officer One ran out of the doorway. Officer Three
believed McCullough was going to stab Officer One or himself and began to fire
shots at McCullough. As he was firing, Officer Three fell back against the
stairs. Officer Three fired four shots hitting McCullough three times.
EMS Transports
Officers at the scene made attempts to aid and
resucitate McCullough until EMS arrived and took over the attempts to revive
him. He was transported by ambulance to St. Francis Hospital where additional
attempts were made to revive him. McCullough was pronounced dead at 12:03p.m.
Crime Scene Investigation
Crime Scene Investigators from the Wichita Police
Department arrived at the scene to photograph,
diagram and preserve evidence. The apartment and the small confined
stairwell, approximately 7 feet wide and 7 feet deep, where the final
altercation took place were examined. The knife McCullough used to charge the
officers was located on the cement floor of the stairwell in close proximity to
the body of McCullough. The knife was a folding buck knife with a wooden and
brass handle and 4” blade. Investigators determined that four [4] .40 caliber
shots were fired from the same gun, a Glock 22, issued by the Wichita Police
Department.
Four shell casings were recovered. The scene revealed
that one of the four shots missed McCullough and the bullet was located in a
wall of the apartment.
Civilian Witnesses
Maintenance personnel and management of the apartment
complex were in the vicinity during the altercation and were interviewed by
investigators. One individual indicated that he heard Officer One trying to calm
down McCullough for approximately three to four minutes and was doing a good
job. This same individual indicated he had prior contacts with McCullough and
McCullough could be easily and quickly agitated. This individual also indicated
that during the past week he noticed a change in McCullough’s attitude. A
second witness indicated they overheard Officer One asking McCullough “Why he
wanted to kill himself” but did not witness any other part of the altercation.
Medical History and Autopsy Results
Steven McCullough was forty-two years old and had been
diagnosed and was being treated for schizophrenia, paranoid type, a condition he
had suffered with for approximately twenty years. He also suffered from heart
disease.
An examination of the body at autopsy revealed
McCullough was shot three times. One distant gunshot wound to the right thigh
which exited his body. Two additional gunshot wounds also fired at a distant
range were located in the trunk of the body and did not exit. One entered the
right side of the chest and perforated the liver and intestines; the second
entered the back of the right shoulder and perforated the right lung, liver and
small intestines. Toxicology screens revealed the presence of the drugs
prescribed to McCullough for the treatment of schizophrenia and heart disease.
The Law
In Kansas all persons, including law enforcement
officers, are entitled to defend themselves and others against the use of
unlawful force. The law provides that a person is justified in the use of force
against an aggressor when and to the extent it appears to him and he reasonably
believes that such conduct is necessary to defend himself or another against
such aggressor’s imminent use of unlawful force. An officer is justified in
using force likely to cause death or great bodily harm only and to the extent
that it appears to him and he reasonably believes that such conduct is necessary
to defend himself or another against such aggressor’s imminent use of unlawful
force.
The use of force by Officer Three against Steven
McCullough did not constitute unlawful use of force. The firing of four shots at
McCullough was a reasonable use of force in defense of a person and defense of
others. The investigation reveals that McCullough, a large man with a deadly
weapon, was charging and continuing his pursuit of the officers into the
stairwell outside his apartment. Prior to the charge on the officers with the
weapon, McCullough had indicated his agitation and his desire to die by having
the officers shoot him.
The officers took reasonable steps to dissuade
McCullough’s verbalized intent.
Under Kansas law, the use of deadly force in defending a
person is judged on a “case by case” basis. Only such force as is reasonably
needed to defend against another’s imminent use of unlawful force will be
legally permissible.
