Judges Hear Appeal in Johnny McBee Case Over Bifurcation, Waiver and Sufficiency of Evidence

A three-judge panel heard oral argument in the appeal of Johnny McBee, who contends that errors at trial — including a refusal to bifurcate a felon-in-possession issue and disclosure of a prior felony — unfairly prejudiced the jury and warrant reversal.

Appellate counsel Chelsea Moore told the court that McBee, who she said was at his niece’s house when the shooting occurred, “took the only action that he thought he had to save his own life, while simultaneously accidentally discharging the weapon.” Moore asked the court to consider a sufficiency challenge to an unlawful-possession-of-a-firearm conviction and to find that the trial court erred by refusing to separate (bifurcate) the prior-conviction evidence from the jury’s consideration of other charges.

The state, represented by Katherine Redding, said the record shows the stipulation entered at trial stated only that McBee had a prior felony that disqualified him from possessing a firearm, and that the trial court acted within its discretion in denying bifurcation. Redding summarized the state’s sufficiency argument for first-degree murder, pointing to what it described as motive, a verbal threat, the defendant’s alleged return with a firearm and three shots fired — one striking the victim in the neck — followed by disposal of the gun and flight. The state asked the court to affirm the conviction.

The panel pressed both sides on preservation and briefing. Judges repeatedly queried whether the unlawful-possession sufficiency argument had been waived because the briefs lacked citations to controlling elements and authority, and whether defense counsel’s tactical choice to accept a stipulation rather than press for bifurcation effectively left no contemporaneous objection on the record. Defense counsel acknowledged a briefing omission but urged the court to exercise its discretion under appellate rules to decide the issue on the merits.

Moore conceded in rebuttal that her brief had mischaracterized the stipulation language and that the record’s stipulation “just says prior felony,” but she argued the revelation of a prior felony at trial nonetheless created juror prejudice given inconsistent witness accounts and credibility disputes. Neither side asked the court to hold additional argument; the panel took the matter under advisement and said it would issue an opinion.

Key facts from the hearing that the court discussed: witnesses described inconsistent accounts about whether McBee had a gun before leaving the first location; the weapon was not recovered despite the defendant reportedly showing officers a location where he had taken it; the defendant testified and was impeached with prior convictions; and the state emphasized that, viewed in the light most favorable to the prosecution, a reasonable jury could find intentional killing and premeditation.

The court did not announce a decision at the argument. It called the next case after taking the matter under advisement; an opinion is expected to follow from the panel.