BY THE COURT
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 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.
instruction must be both legally and factually appropriate.
of the judgment of the Court of Appeals in an unpublished
opinion filed May 13, 2016.
from Wyandotte District Court; Michael A. Russell, judge.
Schirer, of Kansas Appellate Defender Office, argued the
cause and was on the briefs for appellant.
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.
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.
and Procedural Background
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.
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.
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.
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
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."
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
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.
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.
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.
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
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.
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.
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 ...