State v. Barrett , 442 P.3d 492 ( 2019 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 113,767
STATE OF KANSAS,
Appellee,
v.
HOWARD BARRETT,
Appellant.
SYLLABUS BY THE COURT
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Review of the judgment of the Court of Appeals in an unpublished opinion filed August 12, 2016.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. Opinion filed June 7, 2019. Judgment of
the Court of Appeals affirming the district court is affirmed in part and reversed in part. Judgment of the
district court is affirmed in part and reversed in part and the case is remanded with directions.
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.
1
The opinion of the court was delivered by
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
2
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.
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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
4
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
5
in jail, and his competency deteriorated. By spring 2011, the court found Barrett was
incompetent again and civilly committed him a second time.
Before trial, Barrett filed two motions relevant to this appeal: (1) a motion to
suppress the statements he made to law enforcement after receiving the Miranda
warnings, and (2) a motion to dismiss the case on constitutional speedy trial grounds. In
his motion to suppress, Barrett claimed his mental illness made his post-Miranda
statements involuntary. The district court held a hearing where Officer Gambrel and
Detective Schuck testified for the State and a psychiatrist testified for the defense. In the
end, the court denied the motion, holding that Barrett's mental illness did not render his
statements involuntary, absent evidence of coercive police activity.
The district court also held a hearing on Barrett's motion to dismiss. Defense
counsel argued the State's failure to force-medicate Barrett when he refused to take his
antipsychotic medicine in jail caused his incompetency, and thus the delay, after July
2010. Testimony established that Barrett refused his medication in July 2010; the jail did
not force-medicate him; and the lack of medication likely caused him to lose his
competency. However, the district court rejected Barrett's forced-medication argument
and held his constitutional speedy trial rights were not violated because his incompetency
caused the delay.
The case finally went to trial in November 2014. The parties did not dispute that
Barrett killed James; that Barrett was suffering from untreated schizophrenia at the time
of the killing; and that Barrett had been hospitalized for his mental illness before. Indeed,
the expert witnesses agreed that Barrett had schizophrenia, which is "a psychotic disorder
that is characterized by disturbance in thinking" or "broken thoughts." As one expert
described, a person with schizophrenia often cannot "understand reality from non-reality"
and suffers from hallucinations, delusions, or paranoia.
6
Thus, the key question for the jury was whether a mental disease or defect
prevented Barrett from forming a culpable mental state. See K.S.A. 22-3220 ("It is a
defense to a prosecution under any statute that the defendant, as a result of mental disease
or defect, lacked the mental state required as an element of the offense charged."). To
answer this question, the parties presented an array of lay and expert witnesses to opine
on Barrett's mental condition.
Hermann and a local banker, Anita Bassett, testified about their interactions with
Barrett before the killing. Hermann explained that she had trouble understanding what
Barrett said and that he exhibited odd behaviors, like taking apart appliances in his
apartment. Bassett interacted with Barrett at the bank and around town. She recalled that
Barrett told farfetched stories about his past, threw rocks at people, and showed signs of
paranoia.
The defense presented two expert witnesses. Dr. William Albott, a clinical
psychologist, examined Barrett in February 2008 and February 2011. He testified that
schizophrenic conditions are not "steady states"; instead, a person with schizophrenia can
make a coherent statement one hour and an incoherent one the next. He explained that
forming criminal intent requires "some utilization of critical functioning, of critical
judgment" but people with schizophrenia are "almost operating on raw instinctual urges."
But, he added, they can form intent to start tasks.
Dr. Albott reported that in 2008, Barrett was "disorganized, nonresponsive to most
of my interview questions"; his "thinking was tangential at best, rambling"; and he "did
not make any sense." Dr. Albott believed that Barrett "probably popped out of his sleep
state in a very disorganized manner" and was "maybe even floridly psychotic at that
moment." Moreover, Dr. Albott hypothesized, Barrett's belief that someone tried to spray
harmful chemicals at him could be part of his delusional paranoia. Ultimately, Dr. Albott
7
concluded that during the killing "[Barrett's] functioning was psychotic, and . . . he would
not have a firm grasp on the realities that you and I might use to organize our lives."
Dr. Bradley Grinage, a forensic psychiatrist, examined Barrett a few months
before trial. At that time, he believed Barrett was competent to stand trial because of
medication. He testified that Barrett reported having auditory and visual hallucinations
and showed signs of paranoid delusions that people were out to hurt him. However, Dr.
Grinage disagreed with Dr. Albott about the vacillating nature of schizophrenia. Instead,
he explained, "[I]f a person has an active psychotic process, it's not like you are going to
be cogent and thinking one minute and psychotic the next and then back. . . . [P]sychotic
patients, unless it's drug induced, will stay in their acute psychotic phase until treated."
Dr. Grinage concluded that Barrett's actions were driven by the "kind of psychotic
non-reality" that "puts the person a slave to that particular thought process and does not
allow a willful, conscious desire." As Dr. Grinage explained, "[A] psychotic state like
that robs a person of being able to make conscious, subjective decision or intention." He
suggested there was no rational explanation for Barrett taking actions to defend himself—
other than Barrett being psychotic and paranoid.
The State called Dr. William Logan, a psychiatrist, in rebuttal. Dr. Logan
interviewed Barrett a few months before trial and reviewed his medical history. In his
opinion, Barrett showed the capacity to form intent. For example, Barrett proved he was
capable of planning activity because he was living independently; he called 911 and gave
an accurate description of the victim and the circumstances; and he acknowledged that he
had harmed the victim. Dr. Logan believed that Barrett's retrieval of the knife "indicates
purposeful activity. [It was significant] not only that he got the knife but that he used it."
Also, Dr. Logan explained, Barrett knew what was going on and why he harmed the
man—he knew the man was there to exterminate bugs, and he did not want him spraying
the apartment.
8
Thus, Dr. Logan concluded, although Barrett was "actively symptomatic" at the
time, "there was nothing to indicate that [Barrett] was responding to command
hallucinations or delusions that this individual in fact had it out for him in some unusual
way. He said in fact the man was just doing his job." And, "despite some irrational
thinking, there was also, at least in regard to this act, a fair amount of thinking that was
intact."
The district court instructed the jury on intentional second-degree murder, reckless
second-degree murder, and involuntary manslaughter, as well as the mental disease or
defect defense. Defense counsel requested a voluntary manslaughter instruction, but the
court denied it. The jury found Barrett guilty of reckless second-degree murder.
Barrett appealed, claiming the district court erred when it: (1) failed to give an
imperfect self-defense voluntary manslaughter instruction; (2) denied his motion to
suppress his post-Miranda statements; and (3) denied his motion to dismiss on
constitutional speedy trial grounds. The Court of Appeals upheld the denial of the motion
to suppress and the motion to dismiss. But the panel held the district court erred when it
failed to give the voluntary manslaughter instruction. The panel majority determined this
instructional error was harmless under the so-called "skip rule" because Barrett's
conviction for reckless second-degree murder "logically foreclose[d] the possibility of a
conviction for imperfect self-defense voluntary manslaughter," which required an
intentional killing. State v. Barrett, No. 113,767, 2016 WL 4262478, at *15 (Kan. App.
2016) (unpublished opinion). Judge Arnold-Burger dissented on this point, arguing the
skip rule should not be applied here and the error was reversible. 2016 WL 4262478, at
*18 (Arnold-Burger, J., dissenting).
We granted Barrett's petition for review of all three issues.
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ANALYSIS
The district court committed reversible error when it failed to give an imperfect self-
defense voluntary manslaughter instruction.
Barrett argues the district court committed reversible error when it denied his
requested jury instruction on imperfect self-defense voluntary manslaughter. He claims
the evidence reasonably showed he irrationally but honestly believed that a man was
attacking him and he needed to defend himself. We agree a jury question was presented.
Generally, an appellate court reviewing a jury instruction challenge must
determine whether the issue was preserved; whether the instruction was legally and
factually appropriate; and whether any error was harmless. See, e.g., State v. Williams,
303 Kan. 585, 598-99, 363 P.3d 1101 (2016). Following this well-trod path, the panel
held that (1) Barrett preserved the issue for review; (2) the district court erred when it
omitted the imperfect self-defense voluntary manslaughter instruction; and (3) the error
was harmless because of the skip rule. See 2016 WL 4262478, at *11-15. The panel's
first two holdings are not before us because the State did not petition them for review.
See State v. Torres, 308 Kan. 476, 481-82, 421 P.3d 733 (2018) ("[T]his court generally
does not consider issues not raised in a petition for review or cross-petition."); Supreme
Court Rule 8.03(i)(1) (2019 Kan. S. Ct. R. 53). Thus, our review is limited to the last and
only contested holding—whether the error is reversible.
At oral argument, the parties agreed that the statutory harmless error standard
applies. So "the burden of demonstrating harmlessness is on the party benefitting from
the error. That party must show there is no reasonable probability the error affected the
trial's outcome in light of the entire record." State v. Preston, 294 Kan. 27, Syl. ¶ 3, 272
P.3d 1275 (2012); see K.S.A. 60-261; State v. Ward, 292 Kan. 541, 565, 256 P.3d 801
(2011). Given this, the precise question becomes: Has the State proven there is no
10
reasonable probability that the failure to give an imperfect self-defense voluntary
manslaughter instruction affected the trial's outcome? We conclude the State has not met
this burden, and, in reaching this decision, we revisit the "skip rule."
Originally, we described the skip rule this way: '"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.''' State v. Horn, 278 Kan. 24, 43, 91 P.3d 517 (2004) (adopting the rule and
coining the term for the first time in Kansas), overruled on other grounds by State v.
Neighbors, 299 Kan. 234, 328 P.3d 1081 (2014). But in recent years, we clarified that the
skip rule is not, in fact, a hard and fast rule. Instead, it is "'simply a logical deduction that
may be drawn from jury verdicts in certain cases.'" (Emphasis added.) State v. Plummer,
295 Kan. 156, 169, 283 P.3d 202 (2012). Moreover, we cautioned courts to make this
deduction only where it "reasonably (as opposed to mechanically) applies." Williams, 303
Kan. at 600; see State v. Pulliam, 308 Kan. 1354, 1370, 430 P.3d 39 (2018) (declining to
"mechanically apply the skip rule").
For example, in Plummer we declined to apply the skip rule automatically
"whenever a jury has rejected a higher severity level lesser included offense in favor of
the charged crime" because:
"Such an application would essentially condone a district court's failure to instruct on a
less severe lesser included offense for which there was 'some evidence,' even though the
statute says that a 'judge shall instruct the jury as to the crime charged and any such lesser
included crime.' (Emphasis added.) K.S.A. 22-3414(3). There is no readily discernible
reason for a court-made rule which would emasculate the clear statutory mandate to
instruct on all lesser included offenses that are supported by the evidence." 295 Kan. at
169.
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In other words, the skip rule isn't a "rule" at all—it is a logical deduction that may support
a finding of harmless error, along with the record in a particular case.
Here, the district court instructed the jury on intentional second-degree murder,
reckless second-degree murder, and reckless involuntary manslaughter. But the court
denied Barrett's request for an instruction on imperfect self-defense voluntary
manslaughter, a lesser included offense of intentional second-degree murder. See, e.g.,
State v. Sims, 308 Kan. 1488, 1499, 431 P.3d 288 (2018). At the time of the crime,
imperfect self-defense voluntary manslaughter was defined as "the intentional killing of a
human being committed . . . upon an unreasonable but honest belief that circumstances
existed that justified deadly force." K.S.A. 21-3403(b). Ultimately, the jury found Barrett
guilty of reckless second-degree murder.
The panel majority adopted the State's skip rule argument that "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." Barrett, 2016 WL 4262478, at *14. The majority's approach was
mathematical—it reasoned that if the jury already subtracted intent from the equation by
rejecting intentional second-degree murder, then there was no intent left to support a
conviction for a lesser intentional homicide. See 2016 WL 4262478, at *15. Along the
way, the majority substituted the skip rule for a full harmlessness analysis.
But the skip rule is not a replacement for our longstanding harmlessness tests. See
State v. Lowery, 308 Kan. 1183, 1216, 427 P.3d 865 (2018) (affirming that jury
instruction challenges raised for the first time on appeal are reviewed for clear error);
State v. Ward, 292 Kan. 541, 565-66, 256 P.3d 801 (2011) (defining the statutory and
constitutional harmlessness tests). And it is not an automatic harmlessness pass. Instead,
the logical deduction inherent in the skip rule is one factor, among many, to be
12
considered as part of the applicable harmlessness test. In her dissent, Judge Arnold-
Burger traced the history of the skip rule and correctly noted that we have often discussed
the rule along with finding the evidence was insufficient to support the disputed
instruction. 2016 WL 4262478, at *16 (Arnold-Burger, J., dissenting); see, e.g., State v.
Engelhardt, 280 Kan. 113, 135-36, 119 P.3d 1148 (2005). We clarify today that for a jury
instruction challenge, the touchstone of reversibility is the applicable harmlessness test.
To the extent prior decisions have suggested otherwise, we provide the necessary
corrective today.
Moreover, the skip rule is not amenable to mechanical (or mathematical)
application because—as jury nullification and inconsistent verdicts suggest—juries can
play a mitigating role in complex cases, such as this. As Judge Arnold-Burger astutely
observed, an imperfect self-defense voluntary manslaughter instruction would have
served as an alternative to the mental disease or defect defense, and the evidence could
have reasonably supported either theory. Barrett, 2016 WL 4262478, at *17-18 (Arnold-
Burger, J., dissenting). In other words, on the spectrum from an intentional second-degree
murder verdict to a mental disease or defect acquittal, an imperfect self-defense voluntary
manslaughter verdict would have fallen somewhere in the middle. In that scenario, the
jury could have reasonably concluded that Barrett's mental illness affected his intent but
did not negate his culpable mental state entirely.
We hold the failure to give the imperfect self-defense voluntary manslaughter
instruction was not harmless because there is a reasonable probability that it affected the
outcome of Barrett's trial. At trial, no one disputed that Barrett was suffering from
untreated schizophrenia when he killed James. That much was clear. The key question
was whether Barrett's mental illness prevented him from forming a culpable mental state.
Under the definition applicable to Barrett, imperfect self-defense voluntary manslaughter
was not just an intentional murder, but one based on "an unreasonable but honest belief
that circumstances existed that justified deadly force." K.S.A. 21-3403(b). And the jury
13
heard plenty of evidence that Barrett was unreasonably but honestly afraid that James
was attacking him with harmful chemicals and tools.
For example, Barrett told the 911 operator that the man was asking for an attack,
and he needed to defend himself. This is Barrett's first documented reaction to the crime,
minutes after it occurred. Barrett also told Officer Gambrel that he was afraid the
chemicals sprayed would harm his intelligence or make him more aggressive. Then
Barrett insisted to Detective Schuck that "somebody just attacked me in the apartment"
and "went into my bedroom at me." Experts later testified that Barrett suffered from
persecution paranoia.
Thus, without an imperfect self-defense voluntary manslaughter instruction, "[t]he
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." 2016 WL 4262478, at *18 (Arnold-Burger, J., dissenting). This error is
reversible because the jury could have reasonably convicted Barrett of voluntary
manslaughter. As a result, we reverse and remand for a new trial.
The district court did not err when it denied Barrett's motion to suppress.
Next, Barrett argues the district court erred when it denied his motion to suppress
the statements he made after Officer Gambrel gave him the Miranda warnings because
his mental illness rendered them involuntary. Precisely, he claims these statements were
involuntary because he was in a psychotic state and could not understand what was going
on at the time. He does not resurrect the other arguments for suppression that he made in
the Court of Appeals. The State concedes that Barrett preserved the objection below.
We use a bifurcated standard to review a district court's denial of a motion to
suppress: "We review factual findings for substantial competent evidence and exercise
14
unlimited review over the ultimate legal conclusions." State v. Mattox, 305 Kan. 1015,
1053, 390 P.3d 514 (2017).
At the suppression hearing, Officer Gambrel and Detective Schuck testified about
their interactions with Barrett. Officer Gambrel interviewed Barrett for five minutes in
his patrol car outside the apartment building. Officer Gambrel recalled that Barrett was
not upset, his demeanor was "pretty calm," and he did not appear to be under the
influence of any substance. Officer Gambrel testified that Barrett made some strange
statements but otherwise spoke coherently. Officer Gambrel also recalled that he read the
Miranda rights aloud to Barrett, and Barrett acknowledged that he understood them. Then
Barrett agreed to speak with Officer Gambrel.
Detective Schuck testified that he tried to interview Barrett for 10 minutes, but he
had difficulty advising Barrett of his Miranda rights because Barrett kept interrupting
with tangents about his life and comments about the killing. The video of the interview
shows that Barrett was talking almost nonstop. When Detective Schuck finally finished
explaining the Miranda rights, Barrett asked to speak to an attorney. At that point,
Detective Schuck stopped asking questions and sent Barrett to the jail.
Dr. Grinage testified for the defense. He had reviewed Barrett's medical history
and watched the interview with Detective Schuck. Dr. Grinage concluded that in the
video, it was clear that "this defendant certainly could not know or understand or perceive
what was going on around him such that he did not have the capacity to knowingly,
intelligently, voluntarily waive his Miranda warnings." He believed that Barrett's
statements were not the product of free will but of "an active, broken thought process."
The district court discussed these testimonies at length in its order denying
Barrett's motion to suppress. The court found that "the only actual interrogation was the
Gambrell [sic] interview conducted in his patrol car"; at that time, Barrett was calm; and
15
there was no evidence suggesting he had difficulty comprehending the questions or
responding appropriately. But the court found that Barrett's "apparent comprehension and
lucidity deteriorated" between the time Officer Gambrel gave him the Miranda warnings
and Detective Schuck tried to interview him at the station. Finally, the court found there
was no evidence of coercive police activity.
We conclude these findings accurately reflect the record and are backed by
substantial competent evidence. The district court apparently gave greater weight to
Officer Gambrel's testimony than to Dr. Grinage's testimony. But this court "do[es] not
weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions
of fact," and it "accept[s] as true all inferences to be drawn from the evidence which
support or tend to support the findings of the district court." State v. Reiss, 299 Kan. 291,
296, 326 P.3d 367 (2014).
The legal question at hand is whether Barrett's post-Miranda statements were
voluntarily made. The State bears the burden to prove the voluntariness of Barrett's
statements by a preponderance of the evidence. State v. Randolph, 297 Kan. 320, 326,
301 P.3d 300 (2013). "The essential inquiry in determining the voluntariness of a
statement is whether the statement was the product of the free and independent will of the
accused," based on the totality of the circumstances. State v. Swanigan, 279 Kan. 18, Syl.
¶ 2, 106 P.3d 39 (2005). In this inquiry, we generally consider the following
nonexclusive voluntariness factors:
"(1) the defendant's mental condition; (2) the duration and manner of the interrogation;
(3) the defendant's ability on request to communicate with the outside world; (4) the
defendant's age, intellect, and background; (5) the fairness of the officers in conducting
the interrogation; and (6) the defendant's fluency with the English language. Any one
factor or a combination of factors may show that the defendant's statement was
involuntary under the totality of the circumstances. [Citations omitted.]" State v. Walker,
308 Kan. 409, 421-22, 421 P.3d 700 (2018).
16
But here, Barrett contests just one factor: his mental condition. Thus, we must
determine whether Barrett's mental state, alone, rendered his statements involuntary.
Barrett claims his post-Miranda statements were involuntary because he was
"'insane and incompetent'" when he confessed, like the defendant in Blackburn v.
Alabama, 361 U.S. 199, 207, 80 S. Ct. 274, 4 L. Ed. 2d 242 (1960). In Blackburn, the
defendant suffered from schizophrenic psychosis and committed a robbery during a
period of unauthorized absence from a mental hospital. After his arrest, an Alabama court
declared him to be insane and hospitalized him for treatment. At trial four years later, the
defendant lodged an insanity defense and contested the voluntariness of his confession.
Experts opined that the defendant was insane when he confessed. And the evidence
revealed that law enforcement interrogated the defendant for 8-9 hours, and eventually,
the sheriff drafted the written confession the defendant signed.
The United States Supreme Court held the defendant's confession was involuntary
for two main reasons. One, "the evidence indisputably establishe[d] the strongest
probability that Blackburn was insane and incompetent at the time he allegedly
confessed." 361 U.S. at 207. And two:
"[W]hen 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.
But Blackburn is readily distinguishable from the facts before us. As our Court of
Appeals persuasively explained:
17
"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." Barrett, 2016 WL 4262478, at *9.
In addition, the State directs us to a more recent Supreme Court case, Colorado v.
Connelly, 479 U.S. 157, 107 S. Ct. 515, 93 L. Ed. 2d 473 (1986), which is controlling. In
Connelly, the defendant walked up to a police officer and said he murdered someone and
wanted to talk about it because his conscience was bothering him. The officer gave the
defendant the Miranda warnings, and the defendant confessed to the crime. The next day,
the defendant became disoriented and talked about voices directing him to confess; the
evidence later showed that the defendant was receiving command hallucinations. The
Colorado Supreme Court held the confession was involuntary on this basis.
The United States Supreme Court reversed, holding that "coercive police activity
is a necessary predicate to the finding that a confession is not 'voluntary' within the
meaning of the Due Process Clause of the Fourteenth Amendment." 479 U.S. at 167. The
Court clarified that Blackburn did not rule that a deficient mental condition automatically
renders a confession involuntary. Instead, Blackburn recognized that "police
overreaching" was an "integral element" to finding that a confession was involuntary. 479
U.S. at 164. Thus, the Court declared that "while mental condition is surely relevant to an
individual's susceptibility to police coercion, mere examination of the confessant's state
of mind can never conclude the due process inquiry." 479 U.S. at 165.
We have recognized Connelly as controlling precedent. See Randolph, 297 Kan. at
330 (citing Connelly for the rule that "it is well established that low intelligence alone
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does not preclude a finding that an accused knowingly and voluntarily waived his or her
Miranda rights"); State v. Brown, 286 Kan. 170, 173, 182 P.3d 1205 (2008) ("In
Connelly, the Court held that coercive police activity is necessary for finding that a
confession is not voluntary within the meaning of the Due Process Clause of the
Fourteenth Amendment."). The district court was thus correct to follow Connelly and
look for evidence of coercive police activity. Finding none, the district court ruled that
Barrett's post-Miranda statements to police were voluntarily made. We agree. Barrett's
statements were not rendered involuntary based on his mental condition alone, in the
absence of coercive police activity. Therefore, we affirm the denial of his motion to
suppress.
Barrett's constitutional speedy trial rights were not violated.
Lastly, Barrett claims the State's failure to force-medicate him, or at least do
something more to medicate him, when he refused his antipsychotic medication in jail
caused the trial to be delayed another four years, which violated Barrett's constitutional
speedy trial rights. Though his road to trial was long, Barrett only contests the part from
July 2010-onward, when he refused his medication in jail. After that, Barrett's
competency deteriorated and he was civilly committed a second time, until he was
competent to stand trial in 2014.
In Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), the
United States Supreme Court set forth a four-factor balancing test to determine whether a
defendant's Sixth Amendment right to a speedy trial has been violated: "Length of delay,
the reason for the delay, the defendant's assertion of his right, and prejudice to the
defendant." 407 U.S. at 530; see In re Habeas Corpus by Snyder, 308 Kan. 615, 619, 422
P.3d 1152 (2018). Here, the parties focus on one factor: the reason for the delay. As to
the remaining factors, Barrett did not assert his right until the eve of trial, in September
2014, and the State admits that the length of delay is presumptively prejudicial.
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We assume without deciding that the length of delay and prejudice factors weigh
in Barrett's favor. But even so, we conclude Barrett's constitutional speedy trial rights
were not violated because the sole reason for the delay after July 2010 was Barrett's
incompetency. As we recently held in Snyder, "Delays attributable to a defendant's
incompetency to stand trial do not infringe upon his or her Sixth Amendment speedy trial
rights." 308 Kan. 615, Syl. ¶ 2. To circumvent this, Barrett argues the State bore the
burden to maintain his competency by either force-medicating him or by giving him
some other, unspecified, medical attention.
In district court, defense counsel argued the State should have force-medicated
Barrett to maintain his competency in jail, citing Sell v. United States, 539 U.S. 166, 123
S. Ct. 2174, 156 L. Ed. 2d 197 (2003), in support. In that case, the defendant was
hospitalized at a treatment facility and refused the antipsychotic medicine necessary to
make him competent for trial. The facility staff then sought permission to administer the
medication against his will. On appeal, the United States Supreme Court recognized that
defendants have "a 'significant' constitutionally protected 'liberty interest' in 'avoiding the
unwanted administration of antipsychotic drugs.'" 539 U.S. at 178 (quoting Washington
v. Harper, 494 U.S. 210, 221, 110 S. Ct. 1028, 108 L. Ed. 2d 178 [1990]). That said, the
Court held a state could force-medicate a defendant under certain narrow circumstances:
"[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." (Emphasis added.) 539 U.S. at 179.
By its own terms, Sell does not stand for the rule that a state must force-medicate a
defendant to maintain his or her competency for trial. On the contrary, Sell holds that a
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state may involuntarily medicate an incompetent defendant under narrow circumstances.
We also agree with the State that "[t]he clear underpinning[] of Sell is that courts should
proceed with caution before interfering with a person's liberty interest in refusing
medication." And even more so here. Dr. Grinage testified about the dangerous, even life-
threatening side effects from the medicine Barrett was taking. We reject the notion that
the Sixth Amendment required the State to force-medicate Barrett with potentially life-
threatening medication to maintain his competency to stand trial.
Barrett also argues, for the first time on appeal, that the State should have, at least,
provided Barrett with more medical attention to help him take his medication. But we
decline to speculate what more the State could have done without an evidentiary record
on this point and without adequate briefing. See State v. McCullough, 293 Kan. 970, 999,
270 P.3d 1142 (2012) ("The party claiming an error occurred has the burden of
designating a record that affirmatively shows prejudicial error."); see also Nguyen v.
State, 309 Kan. 96, 108, 431 P.3d 862 (2018) ("Our general rule is that an issue not raised
or briefed is deemed waived and abandoned."). Therefore, we affirm the denial of
Barrett's motion to dismiss on speedy trial grounds.
In sum, we affirm the denial of Barrett's motion to suppress and his motion to
dismiss. But we reverse and remand for a new trial because the district court failed to
instruct the jury on imperfect self-defense voluntary manslaughter.
Affirmed in part, reversed in part, and remanded with directions.
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