"skip rule" is a logical deduction that may support
a finding of harmless error when it reasonably applies. But
the skip rule does not replace our longstanding harmlessness
tests. Instead, the logical deduction inherent in the skip
rule is one factor, among many, to be considered as part of
the applicable harmlessness test.
Coercive police activity is a necessary predicate to finding
that a confession is not voluntary within the meaning of the
Due Process Clause of the Fourteenth Amendment.
of the judgment of the Court of Appeals in an unpublished
opinion filed August 12, 2016.
from Riley District Court; David L. Stutzman, judge.
Michelle A. Davis, of Kansas Appellate Defender Office,
argued the cause and was on the briefs for appellant.
J. Obermeier, assistant solicitor general, argued the cause,
and Barry R. Wilkerson, county attorney, and Derek Schmidt,
attorney general, were with him on the briefs for appellee.
a tragic case of severe mental illness. In 2008, Howard
Barrett attacked and killed a man who entered his apartment
to exterminate bugs. The evidence at trial showed that
Barrett suffered from schizophrenia and felt irrationally
threatened by the victim. The key question for the jury was
whether Barrett's mental condition precluded him from
forming a culpable mental state.
appeal, Barrett argues the district court committed
reversible error when it denied his request for an
instruction on imperfect self-defense voluntary manslaughter-
an intentional killing done with the unreasonable but honest
belief that circumstances existed justifying deadly force.
The Court of Appeals held the error was harmless under the
so-called "skip rule." We disagree and hold the
error is reversible because there is a reasonable probability
that it affected the trial's outcome. In so holding, we
revisit the skip rule and clarify that it is merely a logical
deduction that may be reasonably considered as part of the
applicable harmlessness test.
and Procedural Background
morning in February 2008, Jeannette Hermann arrived at a
small apartment building that she managed in Riley County.
She was there to remind residents that an insect
exterminator, Tom James, was on his way to treat the
apartments. The building was exterminated once a month. As
usual, Hermann had notified residents of the extermination by
letter and had posted signs around the building a couple days
arrived before the exterminator and began knocking on doors.
She worked her way through the building top to bottom, ending
with Barrett's apartment in the basement. She knocked
loudly on Barrett's door, but he did not respond. So
Hermann unlocked Barrett's door, went inside, and
hollered that the exterminator was coming. She found Barrett
in his bedroom sitting in a lawn chair, where he usually
slept. Barrett said something to Hermann, but she did not
understand his reply. Then Hermann left to go to the bank. As
she left, James was on his way down to the basement
was gone about 10 minutes. When she returned to the apartment
building, she was surprised to see James' truck still
parked outside, so she went inside to find him. She checked
Barrett's apartment first, because it was the last one
James would have visited. She found James lying on the floor
of Barrett's apartment, up against the front door. The
door was partially open, but Hermann could not open it
further because of James' body. She could not see Barrett
but heard him "talking loudly but not really making
got Barrett's next-door neighbor, Rick Stanley, to help.
Stanley called 911 while Hermann waited outside for the
police. Stanley told the 911 operator that Barrett attacked
the "bug man," and the bug man was bleeding all
over. He described Barrett as being "not real right in
the head." Stanley later testified that when he peeked
inside Barrett's apartment, he saw a man lying on the
ground and blood all over the floor. He recalled that Barrett
was mumbling incoherently at the time.
had called 911 just before Hermann arrived. Barrett told the
operator that a man entered his apartment unexpectedly,
walked into his bedroom, and came at him with a knife,
pliers, and a "bug spray thing." Barrett said the
man "is lying down here in a pool of blood,"
"doesn't have much chance of living," and
"needs an ambulance and he needs a stretcher." The
operator asked Barrett if he harmed the man. Barrett replied
that yes, he did, because the man was "asking for a
fight and asking for attacking," and Barrett had to
Julia Goggins was the first emergency responder to arrive at
the scene. She asked Barrett to move James' body so she
could get inside the apartment. Then she handcuffed Barrett
and asked Stanley to wait with him in the hallway while she
attempted lifesaving measures on James. But she soon realized
that James was dead.
enforcement found two toolboxes and a bug spray unit near
James' body. A bloody butcher knife was lying on top of a
toolbox, and blood was spattered on the walls. They also
discovered a knife set in the hallway leading to
Barrett's bedroom. The set was still in its plastic
packaging, but one knife was missing. The autopsy later
revealed that James sustained five injuries from a sharp
object. The two stab wounds to his chest were the cause of
Goggins later described the scene as "gruesome":
"There was blood on the walls, blood on the tools. It
was very chaotic and there was just tools haphazardly tossed
around the room. There was just a lot of blood." Officer
Goggins did not ask Barrett questions while she investigated,
but Barrett "kept saying that he was in his bedroom and
when he woke up there was a guy in his apartment." She
recalled that Barrett was mumbling a lot and difficult to
understand, and she wrote in her report that he might be
Matt Gambrel arrived shortly after Officer Goggins. He took
custody of Barrett and placed him in a patrol car. Officer
Gambrel advised Barrett of his Miranda rights and
then began to question Barrett. The interview lasted about
Gambrel asked what happened, and Barrett explained that his
typewriter broke the night before and he stayed up all night
trying to repair it. When Barrett awoke he found a man in his
apartment. Barrett said he attacked the man with a knife
because the man was in his apartment spraying for bugs
without his permission. Barrett admitted that the apartment
was sprayed for bugs often and it was possible the man had
knocked on his door but he was sleeping too heavily to hear
it. Officer Gambrel asked if it was also possible the man was
just doing his job, and Barrett said that was possible.
interview ended when the police captain told Officer Gambrel
to stop because a detective would interview Barrett later. At
that point, Officer Gambrel stopped asking questions, but
Barrett kept talking, mostly about random topics. After a
while, Barrett mentioned that he did not want the man to
spray his apartment because he was afraid the chemicals would
make him more aggressive or less intelligent.
that day at the Riley County police station, Detective
William Schuck tried to interview Barrett but had significant
trouble getting him to focus. The interview lasted about 10
minutes and was captured on video. As Detective Schuck
explained the Miranda warnings, Barrett kept
interrupting, mostly with tangential stories about his life.
But he also made several statements about what happened that
day. For example, Barrett said he had to protect himself from
the person spraying hazardous chemicals and waste in his
apartment. He also said the victim "went into my bedroom
at me." When Detective Schuck finished the
Miranda warnings, Barrett asked to speak to an
attorney. At that point, Detective Schuck ended the
State charged Barrett with second-degree intentional murder
the next day. When Detective Schuck informed Barrett about
the charge, Barrett commented "that he did not shoot
anybody" and he "just cut him."
days later, defense counsel requested a competency
evaluation. The trial was delayed over six years because
Barrett was not competent to stand trial. During that time,
Barrett was civilly committed twice. The first time, Barrett
was civilly committed until June 2010. That summer, the
district court found Barrett competent to stand trial, but it
was short-lived. In July 2010, Barrett refused to take his
antipsychotic medication in jail, and his ...