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Kansas Supreme Court Selected Opinion Summaries
State v. Morgan Wade, Docket 95649
July 13, 2007

Summaries and press releases are prepared by Ron Keefover, Office of Judicial Administration, Kansas Judicial Center, 301 West 10th, Topeka, KS 66612-1507 (785-296-2256), e-mail: keefoverr@kscourts.org.


RE: Appeal No. 95,649: State v. Morgan Wade

The Supreme Court today ordered a new trial in a Chautauqua County felony murder case based upon an erroneous jury instruction relating to the underlying felony charge used to support the murder count.

In a unanimous decision authored by Justice Lee A. Johnson, the Court ordered a new trial for Morgan Wade, who was convicted of felony murder and aggravated battery in the 2004 shooting death of Kellye Juul, Cedar Vale, with whom he had a child.

Juul was shot once during a confrontation in the entryway of the residence where Juul was standing by the front door she had locked upon seeing his vehicle approach. The defendant gained access through a bedroom window. Following the shooting, he attempted to administer first aid, but she died while en route via air ambulance to Wichita.

Justice Johnson noted that the defendant testified during his trial he fired a handgun, but did not intend to shoot her. He said he only intended to scare her, but she stepped in the line of fire.

Justice Johnson said in the opinion that the defendant was charged with first-degree felony murder with aggravated burglary as the underlying felony to support the murder count. The charges alleged that the defendant entered the residence with intent to commit first-degree premeditated murder. However, at trial the jury was instructed that the aggravated burglary count could be established if the jury found either that he entered the residence with intent to commit first-degree murder or with intent to commit aggravated assault. The defendant did not have notice of the addition of the alternative motivation for the burglary prior to preparing and presenting his defense, the Court ruled.

"The modified instruction permitted by the trial court relieved the State of its obligation to prove premeditation to kill as an element of aggravated burglary. Rather, the State could meet its burden by convincing the jury that Wade entered the house with the intent to scare Juul with the handgun, which, of course, was exactly what Wade had admitted on the witness stand. In other words, the erroneous instruction, adding aggravated assault as the ulterior felony, transformed Wade's defense testimony into an after-the-fact confession," he wrote.

"We do not change the rules of engagement, after the fact, to dilute the State's burden and make a conviction more likely. The integrity of the process is the cornerstone of our criminal justice system," the Court concluded in remanding the case for a new trial.

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