Opinion
113 767
08-12-2016
State of Kansas, Appellee, v. Howard Barrett, Appellant.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Barry R. Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
NOT DESIGNATED FOR PUBLICATION
Appeal from Riley District Court; David L. Stutzman, judge.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.
Barry R. Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before Arnold-Burger, P.J., Schroeder, J., and Jeffrey E. Goering, District Judge, assigned.
MEMORANDUM OPINION
Goering, J.
Howard Barrett was convicted by a jury of reckless second-degree murder. He appeals from that conviction raising three issues: (1) that the 6-year delay in bringing him to trial violated his constitutional right to a speedy trial; (2) that the district court committed error in failing to suppress incriminating statements made after Miranda warnings were read to him; and (3) that the district court committed error in failing to instruct the jury on the lesser included offense of imperfect self-defense voluntary manslaughter. Finding no reversible error, we affirm Barrett's conviction.
The facts of this case are truly tragic. Barrett has a lengthy history of mental illness. He has been previously diagnosed with schizophrenia and a personality disorder. Prior to the incident that gave rise to this case, Barrett had been hospitalized due to his mental illness on at least three different occasions.
Following an involuntary commitment to Osawatomie State Hospital (OSH), Barrett took up residence in an apartment in the small community of Leonardville, Kansas. The apartment complex where Barrett resided was sprayed monthly for bugs. On February 14, 2008, Thomas James, an exterminator, arrived at the apartment complex to perform his monthly bug spraying routine.
On that date, the property manager, Jeanette Hermann, knocked on the doors of each of 11 tenants of the apartment complex to remind them that James would be coming to spray their apartments. Barrett did not answer the knock on his door, so Hermann unlocked the door and let herself inside. Barrett was sitting in the lounge chair he would also use as his bed. Hermann told Barrett that James would be coming to spray his apartment. Barrett looked at her and said something that she was unable to understand, which was not unusual.
Hermann then left the apartment complex to run errands. When she returned approximately 10 minutes later, she noticed that James' truck was still parked at the complex. Hermann found this surprising since James normally left ahead of her to spray other apartments she managed in Clay Center. Hermann went inside the apartment complex and noticed the door to Barrett's apartment was partially open. When Hermann looked inside, she saw James' motionless body on the floor, propped up against the door. Barrett was also inside, talking loudly but not really making sense. Hermann was unable to get inside of Barrett's apartment, and she was not able to use her phone in the basement. Hermann called for Barrett's neighbor to take her phone and call 911.
Barrett had also called 911 asking for help for James. The conversation between Barrett and the 911 dispatcher was often off-topic and incoherent. Barrett pleaded with the dispatcher to send an ambulance immediately because there was an injured man who did not look like he was going to make it. At one point, Barrett mentioned civil permits for firearms, leading the dispatcher to wonder if there had been a shooting. Barrett eventually told the dispatcher he had to defend himself after the "bug man" came at him in his bedroom with a knife, pliers, and a bug sprayer, asking for a fight and attacking him.
Riley County Police Detective Julia Goggins was the first officer to arrive at Barrett's apartment. Goggins could see James' body through the partially open door. At her request, Barrett moved James' body away from the door so she could get inside. She asked Barrett to exit the apartment for safety reasons, but he became evasive. So Goggins grabbed him by the arm and took him into the hallway where she handcuffed him. Goggins asked Barrett's neighbor to stay with Barrett (who had calmed down) while she attempted lifesaving measures on James. Those efforts were not successful. Goggins notified dispatch that James was dead.
Goggins noted that the inside of the apartment was a "gruesome" scene. Blood was everywhere, including on the walls, floor, and tools that had been "haphazardly tossed around the room."
Officer Matt Gambrel eventually arrived on scene and took custody of Barrett. Ultimately, Barrett was transported to the Riley County Police Department for an interview. However prior to transport, Barrett made several statements about the event. When Goggins tried upon arrival to determine what had happened to James, Barrett told her that he woke up to find James in his apartment without permission. Later, after having been read his Miranda rights, Barrett told Gambrel calmly and coherently that he had stayed up the previous night fixing a typewriter. Barrett said that he later woke up to find a man spraying for bugs in his apartment. Barrett told Gambrel that his apartment was regularly sprayed but always with advance notice. According to Barrett, if such notice had been given by a knock at the door, he did not hear it because he was sleeping soundly. Barrett believed the man was in his apartment without permission. So without saying anything, Barrett got up, took a large steak knife from his closet, and used it to cut and stab James. At this point, Gambrel was informed that someone else would be taking Barrett to the police station for further questioning, so Gambrel stopped his questioning. Nevertheless, Barrett continued talking, telling Gambrel at one point that he was afraid that James would spray him, which "would affect him the way it affects the bugs and can make human beings more aggressive and possibly less intelligent."
Once at the police station, Detective William Schuck tried to interview Barrett. While Schuck attempted to advise Barrett of his Miranda warnings, Barrett repeatedly mumbled, sometimes incoherently, about off-topic matters. At various times during the interview, Barrett stated that he didn't hurt anyone, he just defended himself after someone came into his apartment and sprayed hazardous chemicals. At one point, Barrett asked to "reenact" in order to "get it out of [his] system." Barrett commented that he did not receive any notice that someone would be violating his privacy and coming in to spray. At several points during the interview, Barrett made statements that "[s]omebody must've attacked me"; "I didn't want to touch him so that's how I got him down to put him on the ground and defended myself from what he had in his hands"; and "I believe somebody just attacked me in my apartment."
When Schuck reached that part of the Miranda warnings which advised Barrett of his right to an attorney, Barrett expressed a desire to speak to an attorney. At that point, Schuck ended the interview. Later, when Barrett was told that he was being charged with murder, Barrett replied that he had to defend himself, stressing that he did not beat up or hit the man, he "just cut him." The following day the State charged Barrett with second-degree, unintentional murder.
Thereafter, significant delays in the prosecution of the case occurred after Barrett was declared incompetent to stand trial. Shortly after the charges were filed, efforts were made to restore Barrett's competency at Larned State Hospital (LSH). When those attempts failed, Barrett was involuntarily committed to OSH in separate civil proceedings.
OSH released Barrett in mid-2010 after he was deemed competent to stand trial. Barrett was then returned to the Riley County jail. Following a preliminary hearing, the district court bound Barrett over for trial on the amended charge of intentional second-degree murder. In the following year, Barrett's defense counsel requested continuances of the trial and sought further evaluations of Barrett's competency. In the meantime, Barrett decompensated, in part because he refused to take his medication while in jail. Ultimately, Barrett was again declared to be incompetent to stand trial in September 2011. He was again involuntarily committed to OSH.
In April 2014, the district court and the parties received notification from OSH that Barrett been restored to competency. The district court set the case for trial on July 7, 2014. On June 30, 2014, Barrett's attorney filed a motion to withdraw and to reset the jury trial. On July 1, 2014, the district court permitted Barrett's counsel to withdraw from the case. On the same date, the district court granted the request by Barrett's new counsel to continue the trial.
On September 14, 2014, Barrett's new counsel filed a motion to dismiss alleging that Barrett's constitutional right to a speedy trial had been violated. The district court conducted an evidentiary hearing on October 1, 2014. On October 27, 2014, the district court entered judgment denying Barrett's motion to dismiss.
The case finally proceeded to a jury trial on November 3, 2014. At trial, the parties presented conflicting evidence regarding Barrett's defense that his schizophrenia rendered him unable to form the requisite criminal intent. Ultimately, the jury rejected that defense and convicted Barrett of the lesser included offense of reckless second-degree murder. At sentencing, the district court imposed the standard presumptive sentence of 123 months in prison with a recommendation that the Kansas Department of Corrections provide Barrett the treatment necessary to help get him stabilized "so that when the day comes that he leaves KDOC supervision that he does not leave with more issues than when he went in with to the extent that anyone can help with that."
Barrett has timely appealed. Each of the issues that he raises in this direct appeal will be addressed in turn.
Did the 6-year delay in bringing Barrett to trial violate his constitutional right to a speedy trial?
Barrett argues that the State violated his constitutional right to a speedy trial by failing to bring him to trial until 6 years after his arrest for James' murder. "Whether a defendant's constitutional right to a speedy trial has been violated is a question of law subject to unlimited review." State v. Rivera, 277 Kan. 109, Syl. ¶ 2, 83 P.3d 169 (2004).
"'The constitutional protection of a speedy trial attaches when one becomes accused and the criminal prosecution begins, usually by either an indictment, an information, or an arrest, whichever first occurs.'" Rivera, 277 Kan. at 112 (quoting State v. Taylor, 3 Kan.App.2d 316, 321, 594 P.2d 262 [1979]). Accordingly, Barrett's constitutional right to a speedy trial attached when he was arrested for James' murder on February 14, 2008. The State bears the obligation of ensuring that Barrett is provided a speedy trial; Barrett has no obligation "to take any affirmative action to see this right is observed." State v. White, 275 Kan. 580, 598, 67 P.3d 138 (2003).
To determine whether a defendant's constitutional right to a speedy trial has been violated, Kansas applies the four factor test outlined by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). State v. Weaver, 276 Kan. 504, 505-06, 78 P.3d 397 (2003). Under the Barker test, the court is required to balance the following four factors: (1) the length of the delay, (2) the reason for the delay, (3) the defendant's assertion of his or her right to speedy trial, and (4) prejudice to the defendant. 276 Kan. at 506 (citing Barker, 407 U.S. at 533-34). The factors are interrelated. 276 Kan. at 506. None of them are controlling; rather, the factors are to be considered and weighed with respect to each other. 276 Kan. at 506.
As noted above, we conduct a de novo review of the ultimate legal conclusion regarding the violation of the constitutional right to speedy trial. However, the assessment of the relevant factors can at times depend upon factual determinations made by the district court. We generally review a district court's factual findings to determine whether they are supported by substantial competent evidence. See State v. Vaughn, 288 Kan. 140, 143, 200 P.3d 446 (2009). Substantial evidence refers to legal and relevant evidence that a reasonable person could accept as being adequate to support a conclusion. State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012). To determine whether the district court's factual determinations are supported by substantial competent evidence, we do not reweigh the evidence or reassess credibility. Vaughn, 288 Kan. at 143. With this standard of review in mind, we can now assess each of the four Barker factors.
1. The length of the delay:
"The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance." Barker, 407 U.S. at 530. In this case, the State concedes that the 6-year delay between Barrett's arrest on February 14, 2008, and his trial in November 2014 is presumptively prejudicial. As such, we will consider and balance the remaining factors:
2. The reason for the delay:
This is the factor on which the parties primarily focus their attention. Neither side disputes the primary reason for the delay was Barrett's fluctuating competence to stand trial. However, Barrett argues that the State is to blame for his decompensation in July 2010 and argues that this factor should weigh heavily against the State. The State argues that there is nothing that the State could have done to have prevented Barrett's decompensation. Some background facts help bring these arguments into sharper relief.
From July 2008 to June 2010 Barrett was civilly committed to OSH. On June 25, 2010, OSH deemed Barrett competent to stand trial. Barrett was then returned to the Riley County jail. In July 2010, Barrett refused to take his medication. After Barrett refused his medication for a 10-day period, the jail stopped offering the medication per instruction from the medical staff. On March 31, 2011, Barrett was again determined to be incompetent to stand trial. He was sent to LSH and eventually to OSH pursuant to a second involuntary civil commitment.
Barrett argues that the State should have forcibly medicated him, and because the State failed to do so, the reason for the delay is primarily the fault of the State. The State points out that between the time that Barrett stopped taking his medication and the time that he was deemed to be incompetent for the second time, Barrett had sought and received a continuance of his arraignment, had sought and received a continuance of his jury trial that was scheduled to begin on January 5, 2011, and had waived his right to speedy trial on two occasions on the record. The State disputes the proposition that it should have been required to forcibly medicate Barrett and contends that the reason for the delay is a factor that should weigh against Barrett.
As explained in Barker, how heavily a delay should weigh against the government depends upon the reason the government advances to justify the delay. Barker, 407 U.S. at 531.
"A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay." 407 U.S. at 531.
Stated another way, "the reasons for the delay 'weighs against the government in proportion to the degree to which the government caused the delay.' [Citation omitted.]" United States v. Yehling, 456 F.3d 1236, 1244 (10th Cir. 2006).
In this case, the district court determined that "the reason for the delay has not been the [S]tate, which has objected to continuances requested by [Barrett] and has attempted to move the case to trial. [Barrett's] competence to proceed to trial has been the overriding issue preventing this case from moving to trial years earlier." There is substantial competent evidence to support these factual determinations. The continuances that were granted by the court were requested by Barrett. Notably, Barrett requested that his jury trial be continued during the period of time that he was competent to stand trial. While there were good reasons justifying that request, the State was not the party asking that the January 2011 jury trial be continued. Further, the primary reason for the delay was Barrett's incompetency, which after July 2010 was due in no small part to Barrett's refusal to take his medication.
The district court viewed Barrett's argument that the State should have forcibly medicated him as a "dubious proposition." We agree with the district court. The case Barrett primarily relies upon is Sell v. United States, 539 U.S. 166, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003). In Sell, the United State Supreme Court recognized:
"[T]he Constitution permits the Government involuntarily to administer antipsychotic drugs to a mentally ill defendant facing serious criminal charges in order to render that defendant competent to stand trial, but only if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the fairness of the trial, and, taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related interests." 539 U.S. at 179.
Sell stands for the proposition that in certain circumstances the State may involuntarily medicate a mentally ill defendant in order to render that defendant competent to stand trial. It does not stand for the proposition that the State is required to do so.
Moreover, in Sell, the Court addressed when it was appropriate to forcibly medicate a defendant who had already been determined to be incompetent to stand trial in order to restore competency. Here, Barrett argues that the State should have been required to forcibly medicate him during the time period that he was competent to stand trial in order to prevent him from decompressing into incompetency. Barrett cites no authority to support the proposition that the State can force medication on a competent defendant for the purpose of preventing future incompetency.
We do not believe that Barrett's lack of competency to stand trial should be weighed against the State for purposes of the Barker analysis. There is nothing that the State could have or should have done that would have brought Barrett to trial any sooner than he was. As the district court noted, when Barrett reached the point of incompetency, he was appropriately treated and restored to competency. The delay bringing Barrett to trial due to his incompetency was not caused by the State, and should not be weighed against the State.
3. Barrett's assertion of his right to speedy trial:
The Court in Barker emphasized the importance of the timely assertion of the right to speedy trial:
"Whether and how a defendant asserts his right is closely related to the other factors . . . . The strength of his efforts will be affected by the length of the delay, to some extent by the reason for the delay, and most particularly by the personal prejudice, which is not always readily identifiable, that he experiences. The more serious the deprivation, the more likely a defendant is to complain. The defendant's assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial." Barker, 407 U.S. at 531-32.
There is no dispute in this case that Barrett first raised the issue of speedy trial in September 2014, after he affirmatively requested repeated continuances during his period of competency prior to the second OSH commitment. As the State argues, had Barrett timely asserted his right to a speedy trial, his case would have gone to trial in January of 2011. Further, Barrett's request that his January 2011 trial be continued was opposed by the State. Accordingly, Barrett's failure to timely assert his right to speedy trial is a factor that must be weighed in favor of the State.
4. Prejudice to Barrett:
With regard to actual prejudice, Barrett did not argue to the district court, nor does he argue on appeal, that he had suffered any material prejudice by the delay in bringing his case to trial.
Balancing the four Baker factors discussed above, we conclude that the 6-year delay in bringing Barrett to trial did not violate his constitutional right to a speedy trial. While the length of the delay is presumptively prejudicial, the reasons for the delay are attributable entirely to Barrett, who waited over 5 years to assert his right to speedy trial after requesting numerous trial continuances. In spite of the lengthy period of time to bring Barrett to trial, he does not argue and we cannot find evidence that the delay caused actual prejudice to Barrett's defense of the case. The district court committed no error in denying Barrett's motion to dismiss on speedy trial grounds.
Did the district court commit error in denying Barrett's motion to suppress statements?
In his second issue on appeal, Barrett argues the district court should have granted his motion to suppress his incriminating statements to the police because his mental illness prevented him from voluntarily, knowingly, and intelligently waiving his Miranda rights.
The standard of review is well-settled:
"When reviewing a district court ruling on a motion to suppress a confession, an appellate court reviews the factual underpinnings of the decision under a substantial competent evidence standard. The ultimate legal conclusion drawn from those facts is reviewed de novo. The appellate court does not reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence." State v. Ransom, 288 Kan. 697, Syl. ¶ 1, 207 P.3d 208 (2009).
The State bears the burden of establishing by a preponderance of the evidence that under the totality of the circumstances, Barrett's statements were the product of his free and independent will. See State v. Randolph, 297 Kan. 320, 326, 301 P.3d 300 (2013); K.S.A. 22-3215(4). "The legal standard for voluntariness is whether the confession is 'the product of a rational intellect and a free will.' Blackburn v. Alabama, 361 U.S. 199, 208, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960)." State v. Waugh, 238 Kan. 537, 547, 712 P.2d 1243 (1986). Factors that a court considers in evaluating the voluntariness of a post-Miranda statement include, but are not limited to:
"'"(1) the accused's mental condition; (2) the manner and duration of the interrogation; (3) the ability of the accused to communicate on request with the outside world; (4) the accused's age, intellect, and background; (5) the fairness of the officers in conducting the interrogation; and (6) the accused's fluency with the English language. [Citations omitted.]'"" Ransom, 297 Kan. at 326.
As our Supreme Court has explained:
"[T]hese factors are not to be weighed against one another . . ., with those favorable to a free and voluntary confession offsetting those tending to the contrary. Instead, the situation surrounding the giving of a confession may dissipate the import of an individual factor that might otherwise have a coercive effect. [Citation omitted.] Even after analyzing such dilution, if any, a single factor or a combination of factors considered together may inevitably lead to a conclusion that under the totality of circumstances a suspect's will was overborne and the confession was not therefore a free and voluntary act. [Citations omitted.]" State v. Sharp, 289 Kan. 72, 81, 210 P.3d 590 (2009).
At trial, the jury heard evidence of numerous statements made by Barrett on the day of the incident. On appeal, however, Barrett challenges only the district court's findings that his post-Miranda statements made to Gambrel and at the police station were voluntary. As such, we will confine our analysis to these statements.
Barrett advances two arguments in support of his claim that the district court erred in finding these statements were voluntary. First, Barrett argues the State failed to establish by a preponderance of evidence that his statements were voluntary. Second, Barrett argues that Gambrel failed to adequately advise him of his Miranda rights when Gambrel simply read him the Miranda rights but did not document a waiver. Each argument will be addressed in the order presented.
As to the voluntariness of his statements, Barrett relies solely on the testimony of his expert, Dr. Bradley Grinage, at the suppression hearing. In particular, Barrett highlights Grinage's testimony that when he made his statements to law enforcement, his psychotic state precluded his ability to "perceive what was going on around him, " rendering anything he said not purposeful or the product of free will. Barrett also points to Grinage's testimony that Barrett lacked the capacity to knowingly and intelligently waive his constitutional rights. For supporting legal authority, Barrett cites the United States Supreme Court's decision in Blackburn where the Court found that the confession of a defendant was not voluntary because, among other things, the defendant was not competent at the time the confession was made. Blackburn, 361 U.S. at 207.
However, the Blackburn case is factually distinguishable from this case. In Blackburn, the defendant Jesse Blackburn had been determined to be "100 percent 'incompetent'" due to a "diagnosis of 'schizophrenic reaction, paranoid type.'" 361 U.S. at 200-01. Blackburn had been institutionalized but was given a 10-day leave in the care of his sister. Blackburn failed to return from this 10-day leave and was subsequently charged with robbery. Following his arrest, Blackburn was questioned for 8 or 9 hours, which culminated in a written confession prepared by a deputy sheriff and signed by Blackburn.
In ruling that Blackburn's confession was involuntary, the United State Supreme Court found "the evidence indisputably establishes the strongest possibility that Blackburn was insane and incompetent at the time he allegedly confessed." 361 U.S. at 207. The Court further found:
"And when the other pertinent circumstances are considered-the eight-to nine-hour sustained interrogation in a tiny room which was upon occasion literally filled with police officers; the absence of Blackburn's friends, relatives, or legal counsel; the composition of the confession by the Deputy Sheriff rather than by Blackburn-the chances of the confession's having been the product of a rational intellect and a free will become even more remote and the denial of due process even more egregious." 361 U.S. at 207-08.
In the present case, Barrett was capable of independent living at the time he committed the offense for which he was convicted. The interview of Barrett conducted by Gambrel in his squad car, as well as the interview conducted at the police station, was relatively brief in comparison to the 8- to 9-hour interrogation in Blackburn. Finally, the statements that were admitted during Barrett's trial were Barrett's oral statements, not a written confession prepared by law enforcement and signed by the accused as in Blackburn. In short, the facts of this case are a long way from the egregious facts present in Blackburn.
Moreover, Barrett cherry picks the evidence presented to the district court that was favorable to him and ignores the detailed findings of fact and conclusions of law relied upon by the district court to find that Barrett's statements were voluntary. In its well-reasoned written opinion, the district court found:
"The first of the [State v.] Sharp factors, the accused's mental condition, is clearly a consideration. The evidence showed Defendant's apparent comprehension and lucidity deteriorated from the time he was given his Miranda warnings and questioned by Officer Gambrell, to the point of preparing for his formal interview at the LEC where his detachment from the proceedings made it difficult for Detective Schuck to get through a reading of Miranda rights.
"As presented in the testimony, the only actual interrogation was the Gambrell interview conducted in his patrol car not long after Defendant was taken into custody. Officer Gambrell testified that at that time Defendant was calm and he did not have difficulty advising him of his Miranda rights. There was no evidence of 'coercive police activity, ' either by promises or threats. The interview was brief and there was no suggestion that Defendant was deprived of any requests for contact or his comfort, or that he had problems comprehending the questions or presenting relevant responses.
"The test is not how deeply Defendant understood the implications of answering Officer Gambrell's questions or the level of his ability to weigh his options. An individualized and subjective analysis of those understandings for each person would descend into an attempt to find whether the person had 'enough' understanding of the possible outcomes from his Miranda choices, based on a corresponding decision about where the line for 'enough' should be drawn-sort of a standardized test for depth of understanding constitutional rights. . . .
"In State v. Perkins, 248 Kan. 760 (1991), our Supreme Court commented that: 'Understanding that one has the right to a lawyer or to not talk is enough to show a knowing and intelligent waiver of Miranda rights. To require more would void most waivers.' [248 Kan.] at 766.
"The test this court must apply looks at the actions of the agents of the state. The mental state and education of the interviewee is relevant in deciding whether officers used a defendant's mental health as an opening for taking unfair advantage. In the absence of coercive acts by state agents, the evidence is tested by the trier of fact for reliability and credibility in light of all circumstances.
"Applying that standard to the sole interrogation of February 14, 2008, the state proved by a preponderance of the evidence that the Defendant's statements to Officer Gambrell were given freely and voluntarily. The motion to suppress those statements should be denied."
As to the statements made by Barrett at the police station, the district court found that these statements were made after Barrett was advised of his Miranda rights and that the statements "were not made in response to interrogation . . . or in response to statements, comments, or actions that the officers should have expected to elicit those kinds of statements." As such, the district court found that these statements were made voluntarily by Barrett and were admissible.
We conclude that there is substantial competent evidence in the record to support the findings of fact made by the district court. The district judge evaluated and weighed the testimony of Grinage, as well as the testimony of Gambrel and others, and concluded that the statements Barrett made were voluntary statements. Barrett focuses almost exclusively on his mental condition, while ignoring the other pertinent factors that were considered by the district court, chief among them the finding that there was no evidence of any "'coercive police activity, '" which "'is a necessary predicate to the finding that a confession is not voluntary.'" Sharp, 289 Kan. at 80-81 (quoting Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 [1986]). "Mental disability alone is not determinative of voluntariness." State v. Caenen, 270 Kan. 776, 786, 19 P.3d 142 (2001). In essence, Barrett asks us on appeal to reweigh the evidence that was presented to the district court. This we decline to do.
Barrett next argues that Gambrel failed to adequately advise him of his Miranda rights when Gambrel simply read him the rights and did not document a waiver of rights. Barrett did not raise this argument before the district court, and he has not asserted any exceptions as required by Kansas Supreme Court Rule 6.02(a)(5) (2015 Kan. Ct. R. Annot. 41) that would allow us to consider this issue for the first time on appeal. Because Barrett failed to raise this argument with the district court and because he has failed to articulate in his appeal brief any exception that would permit us to consider this argument for the first time on appeal, we choose not to reach the merits of this argument. State v. Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015); State v. Ochoa-Lara, 52 Kan.App.2d 86, 95, 362 P.3d 606 (2015).
Did the district court commit reversible error in failing to instruct the jury on the lesser included offense of imperfect self-defense voluntary manslaughter?
In his third and final issue on appeal, Barrett argues that he should receive a new trial because the district court erroneously denied his request for an instruction on the lesser included offense of imperfect self-defense voluntary manslaughter. The State does not concede that the district court erred but argues that if it was error not to have given this instruction, the error was harmless.
Appellate review of this claim of error involves several steps:
"'(1) determining whether the appellate court can or should review the issue, i.e., whether there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal; (2) considering the merits of the claim to determine whether error occurred below; and (3) assessing whether the error requires reversal, i.e., whether the error can be deemed harmless.'" State v. Bolze-Sann, 302 Kan. 198, 209, 352 P.3d 511 (2015) (quoting State v. Williams, 295 Kan. 506, 510, 286 P.3d 195 [2012]).
As to our preservation inquiry, there is no dispute that Barrett has preserved this issue by requesting an instruction on voluntary manslaughter based both on sudden-quarrel and imperfect self-defense. Accordingly, we turn our attention to the second step of our analysis.
Our evaluation of the merits of this claim is a two-step process. First we must determine whether the requested jury instruction was legally appropriate. State v. Plummer, 295 Kan. 156, 161, 283 P.3d 202 (2012). Under this step, appellate review is unlimited. 295 Kan. at 161. If we determine that the requested instruction was legally appropriate, we must then determine whether the instruction was factually appropriate. 295 Kan. at 161. "Such an inquiry is closely akin to the sufficiency of the evidence review." 295 Kan. at 162. "[W]here the defendant has requested the lesser included offense instruction, the evidence should be viewed in the light most favorable to the defendant." 295 Kan. at 162. "If an instruction is legally appropriate and factually supported, a district court errs in refusing to grant a party's request to give the instruction." 295 Kan. at 162.
Concerning the legal propriety of the requested instruction, our Supreme Court has consistently held that "voluntary manslaughter is a lesser included offense . . . of second-decree murder as a 'lesser degree' of those crimes under K.S.A. 21-3107(2)(a)." State v. Gallegos, 286 Kan. 869, 874, 190 P.3d 226 (2008). There is no question then that the requested instruction on imperfect self-defense voluntary manslaughter was legally appropriate.
The primary dispute between the parties is whether the requested instruction was factually appropriate. In State v. Harris, 293 Kan. 798, 803, 269 P.3d 820 (2012), our Supreme Court explained:
"When requested, a district judge has a duty to instruct a jury on any lesser included offense established by the evidence, regardless if that evidence is weak or inconclusive. But there is no duty to instruct on a lesser included offense if the jury could not reasonably convict the defendant of the lesser included offense based on the evidence presented."
We begin our analysis with the definition of imperfect self-defense voluntary manslaughter. At the time of the events at issue in this case, the crime of voluntary manslaughter based on the theory of imperfect self-defense was defined as the "intentional killing of a human being committed . . . upon an unreasonable but honest belief that circumstances existed that justified deadly force under K.S.A. 21-3211, 21-3212 or 21-3213 and amendments thereto." K.S.A. 21-3403(b). Therefore, to warrant an instruction on this offense, there needed to be some evidence showing Barrett had an honest belief that deadly force was necessary to defend himself, but that such belief was objectively unreasonable. See Harris, 293 Kan. at 804-05 (citing State v. Nelson, 291 Kan. 475, 481, 243 P.3d 343 [2010]). Such an instruction is factually appropriate where, for example, the defendant's honest belief in the circumstances leading to his or her use of deadly force "would have fit the statutory requirements for a perfect self-defense set forth in K.S.A. 21-3211 if the belief had been reasonable, i.e., if the circumstances believed to exist were true." State v. Roeder, 300 Kan. 901, 925-26, 336 P.3d 831 (2014) (citing State v. Qualls, 297 Kan. 61, 69-70, 298 P.3d 311 [2013]), cert. denied 135 S.Ct. 2316, reh. denied 136 S.Ct. 10 (2015).
The parties are in agreement and the record reflects that the district court neglected to conduct any analysis on the propriety of the lesser included offense of imperfect self-defense voluntary manslaughter. Nevertheless, the State argues that the district court's reasoning in support of its denial of Barrett's request for an instruction on heat-of-passion voluntary manslaughter applies with equal force to an instruction on imperfect self-defense voluntary manslaughter. The State argues in its brief:
"Whether 'heat of passion' or 'honest but unreasonable belief that circumstances existed that justified deadly force, ' the analysis undertaken by a trial court would be similar under either alternative of intentional manslaughter. There is the subjective belief set forth in K.S.A. 21-3403(b) upon an unreasonable but honest belief that circumstances existed that justified deadly force under K.S.A. 21-3211, 21-3212. The Kansas appellate courts have consistently determined that the subjective belief set forth in the intentional manslaughter statute is still subject to the reasonableness requirement as set forth in the self-defense or defense of property statutes . . . . Moreover, the district court found that the subjective part of the analysis related to the unreasonable but honest belief language of K.S.A. 21-3403 but that 'when we return to the statutory elements under K.S.A. [21-] 3211, those become objective.' State v. Roeder, 300 Kan. 901, 920 (2014)."
The State concludes that Barrett's belief that lethal force was necessary would not have been reasonable if the circumstances that Barrett believed existed regarding the victim's presence in his apartment were, in fact, true.
The principal flaw in the State's argument is that the evidence in support of the lesser included imperfect self-defense voluntary manslaughter instruction must be viewed in the light most favorable to Barrett. Viewed in that light, there was evidence produced at trial that would have supported the giving of such an instruction. In his conversation with the 911 dispatcher, Barrett at one point stated that he had to defend himself after the "bug man" came at him in his bedroom with a knife, pliers, and a bug sprayer, asking for a fight and attacking him. In his rambling statements given to law enforcement at the police station, Barrett on several occasions claimed he had been attacked and that he had to defend himself.
The question then becomes if the circumstances that Barrett believed to have existed were true-that a man came into his bedroom unannounced and uninvited, asking for a fight, and attacking him with a knife, pliers and a bug sprayer-would those circumstances fit the statutory requirements for a perfect self-defense set forth in K.S.A. 21-3211? We believe that they would. Thus we conclude that the requested instruction on the lesser included offense of imperfect self-defense voluntary manslaughter was factually appropriate, and it was error for the district court not to have given this instruction.
We must then move to the third step in our analysis and determine whether this error requires reversal. We begin this analysis by looking at the offenses on which the district court instructed the jury and the verdict that was ultimately reached by the jury. In this case, the district court instructed the jury on the charged offense of intentional second-degree murder as well as the lesser included offenses of reckless second-degree murder and involuntary manslaughter. As noted above, the jury convicted Barrett of reckless second-degree murder.
The only difference between intentional second-degree murder and reckless second-degree murder is that the former is an intentional killing while the latter is an unintentional killing that is recklessly done under circumstances that show extreme indifference to the value of human life. Compare K.S.A. 21-3403(a) and (b). The jury was instructed in Instruction No. 6, in part, as follows: "If you do not agree that the defendant is guilty of intentional second degree murder, you should then consider the lesser included offense of reckless second degree murder." We presume that the jury followed the instructions that were given by the district court. State v. Tague, 296 Kan. 993, 1008, 298 P.3d 273 (2013). Accordingly we presume the jury first considered whether Barrett was guilty of intentional second-degree murder and was not able to reach agreement that Barrett intentionally killed James. Because it was not able to conclude that the killing was intentional, the jury next considered the lesser included offense of reckless second-degree murder. On this charge, the jury did reach unanimous agreement. We can thus safely determine that the jury concluded beyond a reasonable doubt that Barrett did not intentionally kill James.
The lesser included offense of imperfect self-defense voluntary manslaughter, as it was defined at the time of the events at issue in this case, required that the jury find that Barrett intentionally killed James "upon an unreasonable but honest belief that circumstances existed that justified the use of deadly force under K.S.A. 21-3211, 21-3212 or 21-3213 and amendments thereto." K.S.A. 21-3403(b). As the State persuasively argues, in order for the jury to have found Barrett guilty of imperfect self-defense voluntary manslaughter, the jury would have been required to find that the killing was intentionally done-a finding logically inconsistent with the jury's verdict finding Barrett guilty of reckless second-degree murder.
This implicates the so-called "skip rule":
"The skip rule '"is not really a rule at all in the sense that it must be invariably or even routinely applied. . . . It is, rather, simply a logical deduction that may be drawn from jury verdicts in certain cases."' State v. Plummer, 295 Kan. 156, 169, 283 P.3d 202 (2012) (quoting and affirming State v. Plummer, 45 Kan.App.2d 700, 711, 251 P.3d 102 [2011]). Those certain cases are ones in which 'the elements of the crime of conviction, as compared to a rejected lesser included offense, necessarily shows that the jury would have rejected or eliminated an even lesser offense.' When these circumstances exist, the skip rule provides 'a route to harmlessness.' [Citations omitted.]" State v. Longoria, 301 Kan. 489, 515-16, 343 P.3d 1128 (2015).
In this case, the jury's determination that Barrett did not intentionally kill James was no trivial finding-that is the fundamental difference between intentional second-degree murder and reckless second-degree murder. And while there was evidence presented at trial to support a determination that the killing was an intentional killing, there was also ample evidence presented to support the jury's determination that the killing was not intentional. Shortly after Barrett stabbed James, he called 911 asking for help for James. Barrett pleaded with the dispatcher to send an ambulance because there was an injured man who did not look like he was going to make it. Several of the statements Barrett would later make to law enforcement could be interpreted by a jury as an intent on the part of Barrett to injure, but not kill, James. Barrett made statements that suggested that he was angry at James for being in his apartment without his permission in violation of his privacy. When Barrett was advised that he would be charged with murder, Barrett commented that he did not beat up or hit James, he "just cut him."
In the end, the jury was asked to sort through the facts of a bizarre killing committed by an individual with a lengthy history of mental illness. That Barrett killed James was not a fact in dispute. The principal issues facing the jury were whether Barrett intentionally killed James, or unintentionally but recklessly killed James, or was so afflicted by mental illness that he lacked any culpable mental state. The resolution of these core issues served to direct the jury down one of three alternative pathways: (1) the intentional killing pathway, which would lead to a conviction for either intentional second-degree murder or imperfect self-defense voluntary manslaughter (had that lesser included instruction been given); (2) the unintentional but reckless killing pathway, which would lead to a conviction for reckless second-degree murder or involuntary manslaughter; or (3) the lack of culpable mental state pathway, which would lead to an acquittal by reason of mental disease or defect.
In this case, the jury determined beyond a reasonable doubt that Barrett did not intentionally kill James. Because that verdict logically forecloses the possibility of a conviction for imperfect self-defense voluntary manslaughter, we conclude that the error committed by the district court in failing to instruct the jury on imperfect self-defense voluntary manslaughter was harmless. Given the jury's resolution of the central questions of fact that were presented in this case, we are convinced the verdict would have been the same had the instruction on imperfect self-defense voluntary manslaughter been given.
Affirmed.
Arnold-Burger, J., dissenting
I must respectfully disagree with my colleagues with regards to one key conclusion in this case. I am unable to conclude, beyond a reasonable doubt, that the failure to give Howard Barrett's requested instruction on the offense of voluntary manslaughter-imperfect self-defense was harmless error.
To decide whether the trial court's failure to instruct the jury on voluntary manslaughter based on the theory of imperfect self-defense was harmless error, this court must apply the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012). See State v. Woods, 301 Kan. 852, 876, 348 P.3d 583 (2015). In Ward, our Supreme Court held that to find an error harmless under K.S.A. 60-261, K.S.A. 60-2105, and the United States Constitution, a Kansas court must be able to declare the error "did not affect a party's substantial rights, meaning it will not or did not affect the trial's outcome, " i.e., "there is no reasonable possibility that the error contributed to the verdict." 292 Kan. at 565-66.
As the party benefiting from the error, the State bears the burden of convincing this court the instructional error was harmless. State v. Herbel, 296 Kan. 1101, 1110, 299 P.3d 292 (2013). Because this instructional error implicates Barrett's right under the state and federal constitutions to present the theory of his defense, this court can declare this error harmless only if the State proves "beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., proves there is no reasonable possibility that the error affected the verdict." Ward, 292 Kan. at 569 (citing Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, reh. denied 386 U.S. 987 [1967]); see State v. Evans, 275 Kan. 95, 102, 62 P.3d 220 (2003) (recognizing defendant's constitutional right to present theory of defense); see also State v. Brown, 298 Kan. 1040, 1051, 318 P.3d 1005 (2014) (if constitutional harmless error standard is met, then lower statutory standard under K.S.A. 60-261 is also satisfied).
There is no dispute that Barrett's defense in this case was based on his honest belief, albeit unreasonable, that James was threatening him with physical harm. Accordingly, the majority properly concedes, as do I, that the requested instruction was both legally and factually appropriate. However, the majority then relies on the "skip rule" to find that the error was harmless. I disagree.
The term "skip rule" was first coined in Kansas jurisprudence in 2004 in State v. Horn, 278 Kan. 24, 43, 91 P.3d 517 (2004), overruled on other grounds by State v. Neighbors, 299 Kan. 234, 328 P.3d 1081 (2014). In Horn, the Kansas Supreme Court found the district court did not err where the crime of conviction was first-degree murder and the lesser included offense instruction omitted was for voluntary manslaughter. Although the court found that, in essence, the evidence was insufficient to support a finding of voluntary manslaughter it went on to note, in dicta, what it described as the well-established rule "'that when a defendant has been charged with and convicted of murder in the first degree, the correctness of instructions relating to manslaughter becomes immaterial.'" 278 Kan. at 43 (quoting State v. Metcalf, 203 Kan. 63, 67, 452 P.2d 842 [1969]). The court also cited State v. Spencer, 186 Kan. 298, 303-04, 349 P.2d 920 (1960), as in accord and Ross v. State, 482 A.2d 727, 736 (Del. 1984) (substantial body of law in other jurisdictions that a finding of guilt to a greater offense renders harmless any error in instructions on lesser included offenses). Horn, 278 Kan. at 43. The court concluded by quoting from an Arkansas case that it found to be directly on point.
"'When a lesser included offense has been the subject of an instruction, and the jury convicts of the greater offense, error resulting from failure to give an instruction on another still lesser included offense is cured. [Citations omitted.] This is commonly referred to as "the skip rule."' [Easter v. State, 306 Ark. 615, 620, 816 S.W.2d 602 (1991)]." 278 Kan. at 43.
Most of the cases after 2004 that discuss the skip rule by name, do so in dicta after holding that the evidence was insufficient to support the giving of the lesser included instruction. Only seven reported Kansas Supreme Court cases actually rule on the application of the skip rule to the facts before it as necessary to the decision. Of those, five cases find that the skip rule applies and all involve a conviction for first-degree murder, an instruction given on intentional second-degree murder, and an instruction omitted on unintentional second-degree murder. In each case the court found that by convicting the defendant of first-degree murder and rejecting intentional second-degree murder, the possibility of a conviction for unintentional second-degree murder, an even lesser offense, would be logically inconsistent with the jury's findings. See State v. Williams, 303 Kan. 585, 600, 363 P.3d 1101 (2016) (skip rule applied to hold no clear error in failing to instruct on unintentional second-degree murder where jury had been instructed on lesser included offense of intentional second-degree murder but convicted defendant of greater offense of first-degree murder); see also State v. Longoria, 301 Kan. 489, 516, 343 P.3d 1128 (2015) (same); State v. Engelhardt, 280 Kan. 113, 136, 119 P.3d 1148 (2005) (same); State v. Robertson, 279 Kan. 291, 306, 109 P.3d 1174 (2005) (same). Only two Supreme Court cases to date have found that the skip rule did not apply to the circumstances before it. See State v. Plummer, 295 Kan. 156, 170, 283 P.3d 202 (2012) (skip rule could not save conviction when conviction for aggravated robbery shed no light on how the jury would have ruled on the lesser included offense of theft); State v. Simmons, 295 Kan. 171, 179-80, 283 P.3d 212 (2012) (skip rule does not lead to harmlessness when jury convicted of severity level 7 aggravated battery-requiring only bodily harm-but court refused to instruct on simple battery).
But the Supreme Court has cautioned that
"the skip rule is not amenable to mechanical application and that it should be viewed as simply providing a route to finding harmless error in those cases in which the elements of the crime of conviction, as compared to a rejected lesser included offense, necessarily show that the jury would have rejected or eliminated a still lesser included offense." State v. Hayes, 299 Kan. 861, 866, 327 P.3d 414 (2014).
In fact, "[t]he skip rule '"is not really a rule at all in the sense that it must be invariably or even routinely applied."'" Longoria, 301 Kan. at 515. The facts of this case make it clear that this is not a case in which the skip rule should be routinely or mechanically applied, even though it may technically fit the standard first set out in Horn.
First, Barrett sought an instruction on voluntary manslaughter-imperfect self-defense, in effect, as an alternative theory to his defense of mental disease or defect. An instruction was given to the jury on mental disease or defect. Our Supreme Court has held that because a court is required to instruct the jury on the law applicable to defendant's theories for which there is supporting evidence, instructing on alternative theories of mental disease or defect and voluntary manslaughter is not error if there is evidence to support both. See State v. White, 284 Kan. 333, 349-50, 161 P.3d 208 (2007). Accordingly, the skip rule should not be applied to prevent an instruction that our Supreme Court has approved as an alternative to a mental disease or defect instruction.
Second, the jury was instructed on intentional second-degree murder (intentional killing), reckless second-degree murder (unintentional killing done recklessly under circumstances that show extreme indifference to human life), and involuntary manslaughter (unintentional killing done recklessly). On the other hand, an instruction for voluntary manslaughter would have advised the jury that it would be required to find an intentional killing done upon an unreasonable but honest belief that circumstances existed that justified deadly force in defense of a person. PIK Crim. 3d 56.05, alternative B; see K.S.A. 21-3403. The majority posits that because the jury found Barrett guilty of an unintentional crime-reckless second-degree murder-any intentional crimes were logically precluded. But the sole supporting authority cited by the State, who bears the burden of establishing harmlessness is inapposite.
In State v. Robinson, 261 Kan. 865, 883, 934 P.2d 38 (1997), our Supreme Court held the trial court did not err in failing to instruct on the lesser included offense of voluntary manslaughter because "there was no way in which the jury could have found [the defendant] guilty of voluntary manslaughter, a crime which requires an intentional killing." To support such a conclusion, the court noted that although Robinson had repeatedly asserted that he acted in self-defense, the jury was provided a self-defense instruction and obviously rejected that theory. In addition, Robinson testified at trial that he did not intentionally kill the victim. In other words, the instruction was not factually appropriate in the case. The court did not rely on or even mention the skip rule, but instead relied on whether the evidence presented supported the requested instruction.
As already discussed above, and contrary to the finding by the district court judge, the proposed but omitted instruction in this case was factually appropriate, i.e., there was a way in which the jury could have found Barrett guilty of voluntary manslaughter under the theory of imperfect self-defense. In fact, the evidence was undisputed that Barrett reported that James had come into his bedroom and attacked him with a knife, pliers, and bug sprayer. If the circumstances that Barrett believed to exist were true, they would have fit the statutory requirements for perfect self-defense set forth in K.S.A. 21-3211. To hold that failure to enter a verdict on an intentional crime precludes consideration of an instruction that clearly and undisputedly fits the facts of this case seems to convert the judicially created skip rule into a mandatory rule requiring a finding of harmless error. Even Arkansas, the only other state to describe the failure to give lesser offense instructions in terms of a skip rule, has held that it is not always applicable if the jury could have found a set of facts to make the requested lesser included offense applicable. See Rainey v. State, 310 Ark. 419, 426, 837 S.W.2d 453 (1992).
More importantly, the patterned instruction for voluntary manslaughter anticipates its use as a lesser included offense instruction to second-degree intentional murder.
"In determining whether the defendant is guilty of murder in the second degree, you should also consider the lesser offense of voluntary manslaughter. Voluntary manslaughter is an intentional killing done . . . (upon an unreasonable but honest belief that circumstances existed that justified deadly force in defense of [a person] . . .)." PIK Crim. 3d 56.05, alternative B.
The reason for such an instruction is clear. Perfect self-defense excuses an intentional killing entirely, rendering it noncriminal. The jury here was deprived of that critical aspect of the relevant criminal law and would not have been able to consider the requisite mitigation with respect to intentional second-degree murder. That is, Barrett's honest if unreasonable belief in the need for self-defense should have been weighed in considering intentional second-degree murder because that would (if accepted) mitigate the killing to manslaughter.
In sum, I do not believe that the jury's finding that Barrett acted recklessly under circumstances that show extreme indifference to human life logically establishes beyond a reasonable doubt that that the jury would not have instead found Barrett guilty of voluntary manslaughter-imperfect self-defense had it been properly instructed on that offense. Accordingly, I would reverse and remand for a new trial.