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State v. Wade

July 13, 2007


Appeal from Chautauqua district court; RAWLEY J. (JUDD) DENT II, judge.


1. Ordinarily, when an appellant has objected to the jury instructions below, the appellate court reviews whether the instructions given properly and fairly state the law as applied to the facts of the case and could not have reasonably misled the jury, even if the instructions may have been erroneous in some way. However, where the gravamen of appellant's complaint is a due process challenge, the appellate court exercises unlimited review.

2. An information charging burglary is defective in form if it fails to specify the ulterior felony the accused intended to commit when making the unauthorized entry. However, the failure to specify the ulterior intended felony in a burglary information will not constitute reversible error if the defendant was provided adequate notice of the alleged ulterior felony before trial.

3. A jury instruction on the elements of a crime which is broader than the information charging the crime is erroneous. Such an error may be excused only where the substantial rights of the defendant have not been prejudiced.

4. If a defendant's ability to prepare and present a defense has been compromised by an erroneously broadened jury instruction, the substantial rights of the defendant have been prejudiced. Likewise, the defendant's substantial rights are prejudiced if the defendant would not have testified if he or she had known that the erroneously broadened instruction would be given.

5. Our case law permits a jury instruction on felony murder where the evidence at trial supports the instruction even though the information only charged premeditated first-degree murder. However, a defendant must have fair notice of the State's intent to pursue a felony-murder theory such that the substantial rights of the defendant are not prejudiced.

6. A conviction upon an alternative theory of felony murder does not necessarily constitute an acquittal on the alternative theory of premeditated murder. Therefore, double jeopardy does not prevent a retrial upon reversal of the felony-murder conviction.

7. Where the jury instructions on the elements of separate charges refer to each other and are intertwined, the multiple-counts instruction in PIK Crim. 3d 68.07 is highly desirable, if not absolutely necessary, to avoid jury confusion.

8. Evidence relevant to the fact and manner of death is admissible in a murder trial, subject to the trial court's discretion to balance the prejudicial effect of the evidence against its probative value.

The opinion of the court was delivered by: Johnson, J.

Reversed and remanded.

Morgan Wade appeals his convictions for first-degree felony murder and aggravated burglary. He contends that the jury instruction on the elements of aggravated burglary broadened the scope of the charges against him in violation of due process; that the district court abused its discretion by omitting his requested multiple-counts instruction; that the district court admitted irrelevant, unduly prejudicial sympathy evidence; and that the combination of errors deprived him of a fair trial. Finding that Wade was denied a fair trial, we reverse and remand for a new trial.

The evidence is undisputed that Wade shot and killed Kellye Juul. Wade and Juul had been romantically involved on a sporadic basis for some time. They had a child together, albeit Juul had two other children. The shooting incident was precipitated by Juul's rejection of Wade and her threat to terminate Wade's contact with their son.

Juul and her children were sharing living space with a friend, Dale Coffman, who owned the house and who had freely given Wade access to the premises in the past. On the day of the shooting, Coffman, Juul, Juul's children, and several of Juul's nieces and nephews were on the premises.

Wade drove to the Coffman house, armed with a handgun. Upon seeing Wade's vehicle approach, Juul and the others retreated into the house and locked the doors. However, Wade was able to gain access through a bedroom window and proceed to the entry area, where Juul stood by the front door. Wade raised the handgun and fired, striking Juul in the abdomen. Wade then handed the weapon to a teenage nephew and administered first aid to Juul. When the police arrived, Wade admitted that he had shot Juul.

Emergency medical personnel responded, taking Juul first to the hospital and then to a nearby airfield for transport to a Wichita hospital. En route to the airfield, Juul died from the gunshot wound.

Wade was originally charged with aggravated burglary and first-degree premeditated murder. Eventually, the attorney general's office assumed control of the prosecution, and the case ultimately went to trial on the third amended complaint/information. That charging document alleged first-degree murder in Count 1 under the alternative theories of premeditation and felony murder. The inherently dangerous felony supporting the felony murder was aggravated burglary. Count 2 charged aggravated burglary, but failed to specify the felony Wade intended to commit upon entry into the house.

During a pretrial hearing, defense counsel advised the district court that the complaint/information was defective in failing to identify the felony which was the ulterior motive for the accused's unauthorized entry. The State responded by clarifying that the intended felony was first-degree murder. Subsequently, the State's initial proposed instruction on the elements of aggravated burglary identified the underlying intended felony to be first-degree premeditated murder.

In his proposed instructions, Wade requested a multiple counts instruction as set forth in PIK Crim. 3d 68.07. The instruction was not included in the final instructions given to the jury.

At trial, Wade defended on two bases. First, he contended that his entry into the house was not unauthorized because Coffman had previously given Wade free access to the premises. Second, Wade claimed that he did not intend to actually shoot Juul. He testified that another paramour of Juul's had successfully kept her in that relationship by utilizing physical intimidation. Therefore, Wade intended to scare Juul with the gunshot, but she accidentally moved into the line of fire.

After the close of the evidence, the State moved to amend the complaint/information to add aggravated assault as an alternative predicate felony for both the felony murder and aggravated burglary charges. Apparently, the district court did not amend the charging document, but permitted the elements instruction on aggravated burglary to read that the defendant made an unauthorized entry into the house "with the intent to commit a felony therein, first degree premeditated murder or aggravated assault." The instruction included the elements of aggravated assault. The proposed felony-murder elements instruction was not changed and included the claim that "the killing was done while in the commission of a felony, aggravated burglary."

During deliberations, the jury presented the trial court with three questions, which the trial court recited as follows:

"Question number one. Some jurors are not comfortable discussing the theories of murder one in order to decide if this is murder one, but we cannot decide and vote on it if it's murder one if we can't discuss it. Please clarify this for us. Some are saying that instruction 18 keeps us from discussing the theories, which tells them to discuss the theories.

"Question two. Some jurors fear that murder one is always premeditation. Felony murder would have to include this. Please clarify.

"Three, there is also concern about instruction 16 point three. There is concern about premeditation and intent under felony murder. Is felony murder considered premeditation? At what point do you wish us to move on if we cannot decide on first degree? Do intent and premeditation have to be a point of first degree murder?"

The jury was brought back into the courtroom, and the judge discussed the questions with the jury, with six of the jurors participating in the discussion, as follows:

"THE COURT: All right, Ladies and Gentlemen, who's the foreperson? They need to sign any more communications with me.

"JUROR HADLEY: I am. Jim Hadley.

"THE COURT: What's the last name?


"THE COURT: Okay. Well, I've got your questions. I'm a little bewildered. It's hard for me to understand them, because the answers to each of your questions are found within the instructions, themselves. But your first one concerns me. It says, some jurors are not comfortable discussing the theories of murder one in order to decide if this is murder one. What does that mean, Jim?

"JUROR HADLEY: Some people thought the way they read the instructions that they had to decide on first degree murder without considering the fact that they could go with felony murder or premeditated murder, and so on those conclusions, they just wouldn't--wasn't willing--they thought they were voting on something that they hadn't got to examine all the evidence, or all the possibilities. It wasn't my opinion, but some people were having a problem with that.

"THE COURT: Let me see if I understand this.

"JUROR HADLEY: Did I say it correctly?

"JUROR CLAPP: The first couple of ...

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