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State v. Barlett

Supreme Court of Kansas

June 8, 2018

State of Kansas, Appellee,
v.
Daniel Barlett, Appellant.

         SYLLABUS BY THE COURT

         1.

         A defendant may not assert self-defense if the accused is already otherwise committing a forcible felony when he or she commits a separate act of violence, i.e., in purported self-defense.

         2.

         A self-defense instruction is not available when the parties are engaging in mutual combat. Mutual combat occurs when both parties enter into the combat willingly or voluntarily and implies a common intent to fight. It does not matter which party initiated the confrontation when both parties willingly engaged in it.

         3.

         A jury instruction must be both legally and factually appropriate.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed May 13, 2016.

          Appeal from Wyandotte District Court; Michael A. Russell, judge.

          Samuel Schirer, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

          Daniel Obermeier, assistant district attorney, argued the cause, and Sheryl L. Lidtke, chief deputy district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

          ROSEN, J.

         Daniel Barlett appeals from his conviction by a jury for one count of criminal discharge of a firearm into a vehicle under a theory of aiding and abetting.

         Factual and Procedural Background

         At trial, the witnesses presented varying and sometimes conflicting versions of the context that led to this prosecution. We have pared down the factual background to what we deem important for resolution of the issues.

         Around 2007, Barlett and Chad Ford formed a rap group called Wicked Wayz. Unable to agree on finances, Barlett and Ford ended their venture in 2010 or 2011. Barlett continued to perform under the name Wicked Wayz. The breakup was acrimonious, and the two men disparaged each other in social media and in their musical performances.

         Ford and Stephen Carson, a member of the Wicked Wayz performing group, had a chance encounter in the Kansas City municipal courthouse on the morning of September 24, 2012. Either Ford or Carson said to the other man, "I got something for you." Ford called his friends Billy Castle and Ross Farber and asked them for assistance in confronting Carson. Castle drove to the courthouse to provide protection for Ford. Farber arrived at the courthouse parking lot with a .38 revolver and a 9 mm pistol in his car "to even the odds" if a gunfight were to ensue.

         They were joined in the parking lot by Teresa Ford, who is Barlett's sister and was Ford's wife. Soon thereafter, they saw Carson and Joey Uziel pulling out of the parking lot in a white Buick. Ford and Farber ran to the car, screamed at Carson, and forced the passenger door open. Farber spat on Carson while Ford grabbed Carson's foot and attempted to drag him out of the car. Carson was able to shut the door, and Uziel drove the two of them away at high speed.

         Carson made several phone calls to Barlett, who got out of bed and woke up Mikey McKeehan, who was staying at his house. Barlett told McKeehan, "Mikey, wake up. Joe and Stephen is being chased by Chad and them, and they have guns." McKeehan and Barlett left in Barlett's car to find and back up Carson. McKeehan took his 9 mm pistol with him, because he was concerned about his safety in case there was a gunfight. Barlett's niece, Jessica Bryant, testified that Barlett's wife, Courtney Wilcox, told her over the phone that she should hurry over to the house, "because Daniel and Mikey just left armed to go get Chad."

         Ford, his wife, Farber, and Castle agreed to meet at another parking lot, where Ford and Farber got in Castle's black Chevy Blazer. Ford rode in the front passenger seat, and Farber rode in the back. Farber brought his handguns with him.

         As they drove toward Castle's house, Ford noticed Uziel and Carson's Buick. They started to follow the Buick, and Ford yelled out the window that Uziel should pull over. While Castle pursued Uziel, they passed Barlett and McKeehan coming the opposite direction. Barlett executed a U-turn and began to drive up behind Castle's car. Castle noticed Barlett quickly approaching from the rear. Ford was hanging out the window, flipping off Barlett and McKeehan and screaming at Carson and Uziel. Uziel took a left fork in the road, and Castle took the right fork, closely followed by Barlett. Barlett pulled his car up beside Castle's car, and Castle swerved in an attempt to ram Barlett's car. Barlett swerved to avoid him and applied the brakes so that he fell behind Castle's car.

         Testimony was conflicting as to what happened next. McKeehan testified that Ford was leaning out his car window with a gun in his hand, which was when McKeehan pulled out his gun and aimed it out the window toward Castle's car. According to Barlett's testimony at the preliminary hearing, Ford fired two shots toward his car. At the preliminary hearing, Farber testified that Ford had fired two shots toward Barlett and McKeehan, although he could not confirm that with certainty at the trial.

         According to McKeehan, after Ford started shooting, Barlett told McKeehan to shoot back. McKeehan emptied his 15-round clip in the direction of Castle's car. Castle testified that, as Barlett drove alongside Castle's car, he heard a gunshot, and more shots were fired a few seconds later. Ford then asked Farber for a gun. Farber gave Ford a revolver, and Ford leaned his body out the window while displaying the gun. He almost immediately fell back into the car. An autopsy would later show that Ford died almost instantly from a gunshot wound to the head. Ford's revolver dropped onto the street. Barlett stopped his car, and McKeehan got out and picked Ford's gun up off the street.

         Barlett and McKeehan both left town, and both subsequently turned themselves in to police after a day or two. McKeehan cleaned Ford's and his own guns and later turned them over to the police.

         On September 25, 2012, the State charged Barlett and McKeehan with felony murder and criminal discharge of a firearm. The first attempt at prosecution of Barlett ended in a mistrial because of the bad health of Barlett's trial counsel. A new trial commenced on March 10, 2014. McKeehan, having pled guilty to second-degree murder, firing into an occupied vehicle, and counts of aggravated assault, testified for the State at the second trial.

         The jury found Barlett guilty of criminal discharge of a firearm but split on the felony-murder charge, with seven jurors voting to convict and five voting to acquit. On April 25, 2014, the State agreed to reduce the felony-murder charge to voluntary manslaughter in exchange for Barlett's plea of guilty. The court ordered the manslaughter sentence and the firearm sentence to run consecutive, imposing a controlling sentence of 106 months for the two convictions.

         The Court of Appeals affirmed the criminal discharge of a fireman conviction in State v. Barlett, No. 112, 573, 2016 WL 2772842 (Kan. App. 2016) (unpublished opinion). We granted Barlett's petition seeking review of five issues that he raised to the Court of Appeals. Neither party sought review of issues regarding alleged prosecutorial error and an assertion that Barlett waived appellate review through a plea agreement for manslaughter, and those issues will not be addressed here. See State ...


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