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State v. Barrett

Supreme Court of Kansas

June 7, 2019

State of Kansas, Appellee,
Howard Barrett, Appellant.


         1. The "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.

         2. 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.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed August 12, 2016.

          Appeal 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.

          Steven 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.


          Stegall, J.

         This is 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.

         In this 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.

         Factual and Procedural Background

         One 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 beforehand.

         Hermann 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 apartments.

         Hermann 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 sense."

         Hermann 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.

         Barrett 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 defend himself.

         Officer 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.

         Law 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 death.

         Officer 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 "mentally handicapped."

         Officer 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 five minutes.

         Officer 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.

         The 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.

         Later 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 interview.

         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."

         A few 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 ...

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