Background
Billy Shane Barker and Levi Porter had an on-and-off working relationship beginning around 2019, during which Porter performed odd jobs for Barker and helped sell vehicle parts. Their friendship deteriorated after Porter twice sold parts without authorization and kept the proceeds. In the months before the fatal incident, Barker made explicit threats against Porter: he told his cousin he would “shoot him in the head,” and just hours before the shooting he visited Porter’s grandparents’ home, warned Porter’s grandmother he would “do something he would regret,” and accompanied the statement with a stabbing gesture.
Barker later found Porter under one of his trucks at a vehicle storage lot and confronted him about the stolen parts. Barker claimed the altercation turned physical when Porter grabbed for his concealed firearm, which discharged as both men fell to the ground. Porter suffered a fatal gunshot wound to the back of the head at very close range. The State charged Barker with first-degree premeditated murder and related weapons offenses. At trial, forensic evidence showed the shot was fired from behind at close range, perpendicular to Porter’s head, and bloodstain analysis undercut the claim of an accidental discharge during a struggle. The jury rejected Barker’s self-defense theory and convicted him on all counts.
Barker appealed directly to the Kansas Supreme Court, raising two issues: (1) the district court’s failure to instruct the jury on lesser included homicide offenses, and (2) alleged prosecutorial error in closing argument regarding the legal definition and scope of premeditation.
The Court’s Holding
The Kansas Supreme Court unanimously affirmed the conviction. On the instructional issue, the court held the district court did err by failing to instruct on second-degree intentional murder, second-degree reckless murder, reckless involuntary manslaughter, and excessive force involuntary manslaughter — all of which were both legally and factually appropriate based on the evidence. However, because Barker never requested those instructions at trial, he bore the burden under the clear error standard to firmly convince the court that the jury would have reached a different verdict had the instructions been given. He failed to meet that burden in each instance, given the overwhelming evidence of premeditation and intentional killing.
The court also rejected the State’s argument that invited error barred appellate review. Distinguishing cases where defense counsel affirmatively refused an offered instruction or requested its omission, the court held that Barker’s counsel merely declining to request the instructions — without more — did not constitute invited error. There was no causal connection between defense counsel’s conduct and the court’s decision to omit the instructions.
On prosecutorial error, the court found no error. The prosecutor’s closing argument accurately described Kansas premeditation law — that premeditation requires only that the intent to kill be formed beforehand, with no minimum time requirement — and permissibly drew reasonable inferences from witness testimony. Barker’s contrary reading of State v. McLinn, arguing premeditation must be temporally contemporaneous with the killing act, was rejected as incorrect.
Key Takeaways
- The invited error doctrine requires affirmative conduct — asking the court to omit an instruction or rejecting the court’s offer to give one — not merely failing to request it; a defense counsel’s “no” when asked whether additional instructions are wanted does not trigger the doctrine.
- A lesser included offense instruction is factually appropriate whenever any evidence from any source, viewed in the light most favorable to the defendant, would reasonably justify conviction on the lesser offense, even if other evidence strongly supports the greater charge.
- Under Kansas’s clear error standard, a defendant who failed to request a lesser included instruction must firmly convince the appellate court the outcome would have differed; overwhelming evidence of the greater offense’s distinguishing elements (here, premeditation and intent) will defeat that showing.
- Kansas premeditation requires only that the intent to kill was formed before the act — there is no requirement that the premeditated thought be contemporaneous with or continuously sustained up to the moment of the killing.
Why It Matters
This decision reinforces the asymmetry between the district court’s duty to instruct on lesser included offenses sua sponte and a defendant’s ability to obtain relief for the omission on appeal. Even when a trial court clearly errs by omitting factually supported lesser included instructions, a defendant who did not request them faces a steep appellate burden — particularly where the State’s evidence on the distinguishing element is overwhelming. Defense attorneys should actively evaluate and request lesser included instructions rather than rely on the court’s independent obligation, recognizing that silence at trial sharply narrows appellate options.
The court’s treatment of premeditation also has practical significance for Kansas homicide prosecutions. By reaffirming that prior threats made weeks or months before a killing can establish premeditation — and that no temporal continuity of murderous intent is required — the decision confirms that prosecutors may rely on a wide evidentiary window when proving this element, while defendants face a high bar in arguing such evidence is too remote to be probative.