IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 95,649
STATE OF KANSAS,
Appellee,
v.
MORGAN WADE,
Appellant.
SYLLABUS BY THE COURT
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.
Appeal from Chautauqua district court; RAWLEY J. (JUDD) DENT II, judge. Opinion filed July 13, 2007. Reversed and remanded.
James Pratt, of Monnat & Spurrier, Chtd., of Wichita, argued the cause and was on the briefs for appellant.
Kristafer R. Ailslieger, assistant attorney general, argued the cause, and Phill Kline, attorney general, was with him on the brief for appellee.
The opinion of the court was delivered by
JOHNSON, J.: 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?
"JUROR HADLEY: Hadley. H-A-D-L-E-Y.
"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 lines, yeah.
"JUROR HADLEY: If somebody else wants to explain it, they're more than welcome.
"JUROR FORD: On page 18 of the instructions, Your Honor, it states that first you shall consider whether the Defendant is guilty of murder in the first degree. If the Defendant is guilty of murder in the first degree, the presiding juror shall sign the applicable verdict form, and in addition, you shall then determine the alternative theory or theories contained therein. My interpretation of that is that we don't do the theories if we don't have a group that says–12 people that say he is guilty of first degree; is that correct or incorrect?
"MR. ROGERS: That's true.
"THE COURT: The first thing you need to do is decide unanimously if the State's proved its burden beyond a reasonable doubt for murder in the first degree, all right? It can be either one of the two theories, and then you simply designate which one of the two theories, or the third theory, if you cannot totally agree on one that you accept, all right? If you come to the premise that–that murder in the first degree has not been committed, then you move on to second degree murder. Okay. Yes, ma'am.
"JUROR KINCAID: My question then is, in my mind, to define what first degree murder is, I need to look at what the theories are to define that. Some people are not willing to discuss those theories, because they think we have to vote on what murder one is first. Well, how can I vote on it if I can't discuss what the theories are?
"THE COURT: Well, it all has to be discussed together.
"JUROR KINCAID: And so we can discuss the theories?
"THE COURT: Obviously.
"JUROR KINCAID: Okay. Thank you.
"JUROR HORST: Judge, is felony murder also considered premeditated?
"THE COURT: Well, I can't–the books are closed. I can't explain–I can't add any information to what we've already presented, all right, but the answer to that question is in the instructions. The instructions say, and I'll read them to you. Let's go to intruction 18. Now, your question was, is felony murder first degree murder?
"JUROR HORST: Is it premeditated murder.
"THE COURT: Well, look at your verdict form. Let me do this. Before you do that, look at instruction 11. Elements one, two, and three. Murder in the first degree. Element one, that the Defendant intentionally killed Kellye Juul. Two, that the killing was done with premeditation. Three, that it occurred on the 19th of June, okay? All right, look at 12. The Defendant is charged in Count I in the alternative with the crime of murder in the first degree, felony murder. The Defendant pleads not guilty. To establish this charge, each of the following claims must be proved. One, that the Defendant killed Kellye. Two, that the killing was done in the commission of a felony, and, three, that this act occurred on the 19th day of June, 2004. Premeditation is not there.
"JUROR HORST: But it's still first degree.
"THE COURT: That's what 18 tells us. It's still first degree. There's two theories, okay?
"JUROR KINCAID: I see.
"THE COURT: As far as time's concerned, it's up to you, but as far as first degree is concerned, you can't discuss it without discussing the theories, because that's the heart and soul of the charge, okay? And then if you can't come to an agreement, I can't tell you whether it should take 10 minutes or 10 hours. You all are going to have to–you know, you'll get to know each other pretty well back there, and you'll know when–when someone isn't–is going to stand by their convictions and isn't going to budge, and then move on to second degree, okay? There's no set limit. It's when you feel, knowing each other the way you will, in your heart, that you're wasting your time discussing theories one and two, and first degree murder, let's move on, okay? So that pretty much takes care of one and two.
"JUROR: I think that's everything, Your Honor.
"THE COURT: That takes care of one, two, three, four–now, the final one, I think we pretty much answered that, do intent and premeditation have to be part of first degree murder, right?
"JUROR HEMPEL: Felony murder. I think the question was supposed to be is intent and premeditation part of the felony.
"THE COURT: Well, read instruction number 12. You read instruction number 12, and the answer's right there. One, two, and three, okay? And then you can read instruction number 11 to see the other side. The answer's just as plain as day right there. All of these questions, and I don't want you to think that I'm PO'd or anything like that or ever not encouraging you to write questions, but you need to understand up front that the–basically, other than what we've talked about trying to get you oriented about how to discuss the charge, you know, what kind of a framework you discuss the charge, try to help you there, although, that is in instruction 18, but most of the answers to your questions, I'll tell you up front, are going to be referring you back to the instructions. That's your Bible, so to speak, and the answers are normally there, if you look hard enough, and you can–you can start with instruction 11, and you really only have about six instructions that are important. The rest of them are just preliminary stuff, but starting with instruction 11 is the premeditated murder instruction on first degree. 11 through 18 are the instructions that you really have to worry about that tell you what to do, what the elements of the charge are, and they're the ones when you come back with a question that I'm going to refer you back to read.
"I'm not saying–in saying that, I'm not telling you don't send me any questions, because I'm just going to send you back in there to read the instructions, but I'm trying to tell you that, you know, try real hard to see in those five instructions whether you can find your answer before you come out here. Okay, anything else?
"(NO RESPONSE.)
"THE COURT: Okay. We'll be in recess."
The verdict form for Count 1, first-degree murder, gave the jury three options to find the defendant guilty: (1) unanimously on the theory of premeditated murder (Theory 1[a]); (2) unanimously on the theory of felony murder (Theory 1[b]); or (3) being unable to agree on the first two theories, unanimously on the combined theories of premeditated murder and felony murder (Theory 1[c]). The jury unanimously found Wade guilty under the felony-murder theory. The jury also found Wade guilty of aggravated burglary, albeit the verdict form did not require a designation of the underlying intended felony.
ELEMENTS INSTRUCTIONS
Wade first contends that the district court's elements instructions broadened the scope of the felony murder and aggravated burglary charges and deprived him of notice and a fair opportunity to prepare his defense, i.e., denied him due process. His specific complaint is the addition of aggravated assault as an alternative ulterior intended felony in the elements instruction for aggravated burglary, which he contends permitted the State to pursue a theory of guilt which was not alleged in the clarified amended complaint/information. Further, because the felony-murder elements instruction, Instruction No. 12, referred the jury to the elements instruction for aggravated burglary, Instruction No. 16, Wade contends that the defective Instruction No. 16 invalidated his felony-murder conviction.
Ordinarily, when a defendant objects to the jury instructions, we look to whether the instructions properly and fairly state the law as applied to the facts of the case and could not have reasonably misled the jury, even if they may be erroneous in some way. See State v. Edgar, 281 Kan. 47, 54, 127 P.3d 1016 (2006). However, here, the gravamen of Wade's complaint is a constitutional due process challenge, for which we exercise unlimited review. See State v. Murry, 271 Kan. 223, 224, 21 P.3d 528 (2001).
Both parties make certain concessions. The State agrees that the initial charging document was defective in omitting the intended felony upon which the aggravated burglary charge was predicated. See State v. Lora, 213 Kan. 184, 187-88, 515 P.2d 1086 (1973) ("An information charging burglary is defective in form unless it specifies the ulterior felony intended by an accused in making the unauthorized entry."); cf. State v. Linn, 251 Kan. 797, Syl. ¶ 2, 840 P.2d 1133 (1992) ("An instruction as to the offense of aggravated burglary is defective unless it specifies and sets out the statutory elements of the offense intended by an accused in making the unauthorized entry.").
Wade acknowledges that the prosecutor cured the complaint defect by advising the court and the defense prior to trial that the State was relying on first-degree premeditated murder as the offense Wade intended to commit when he made unauthorized entry into the house. See Lora, 213 Kan. at 188-89 ("If the ulterior felony intended in a burglary is made clear at the preliminary hearing or by the context of the other charge or charges in the information the failure to allege the specific intended felony does not constitute reversible error.").
The State also acknowledges that the aggravated burglary instruction was "technically in error" for violating the general rule that instructions should not be broader than the information. See State v. Turbeville, 235 Kan. 993, 997, 686 P.2d 138 (1984). However, the State seeks to excuse the violation by convincing us that Wade's substantial rights were not prejudiced. See Turbeville, 235 Kan. at 997 ("Instructions given in violation of the rule, however, have been excused in cases where the substantial rights of the defendant have not been prejudiced.").
Thus, we are presented with an erroneous jury instruction on the elements of aggravated burglary. Now, we must decide whether to excuse the error in order to affirm Wade's conviction for aggravated burglary, and further decide how the error impacts the felony-murder conviction. As the State acknowledged at oral argument, our precedent on felony-murder instructions suggests the rather troubling irony that the State had a stricter obligation to advise Wade of its prosecution theory on the burglary charge than it had on the first-degree murder charge. Therefore, we will look at each charge separately.
Aggravated Burglary
The question of whether Wade's aggravated burglary conviction must be reversed rests solely on our determination of whether his substantial rights were prejudiced by the erroneous instruction. We answer that question by finding sufficient prejudice to preclude excusing the error.
The State informed Wade, as well as the district court, that it would prove that Wade committed aggravated burglary by making an unauthorized entry into Coffman's house with the premeditated intent to kill Juul. The State tried the case on that basis.
Wade prepared for trial and presented his defense with the understanding that he could obtain an acquittal on the aggravated burglary charge if he convinced the jury that he did not have a premeditated intent to kill Juul when he entered Coffman's house. Wade made the critical decision to testify at trial, based upon everyone's understanding of what the State had assumed the responsibility of proving. The modified instruction permitted by the trial court relieved the State of its obligation to prove a premeditated intent to kill as an element of aggravated burglary. Rather, the State could meet its burden by convincing the jury that Wade entered the Coffman 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 an alternative ulterior felony, transformed Wade's defense testimony into an after-the-fact confession.
The State reviews a number of cases and suggests that they indicate "that prejudice will not be found where the challenged instructions are supported by the evidence, do not charge an additional crime, do not surprise the defendant, and do not mislead the defendant in the preparation of his defense." Where the State falters is in its assessment of the surprise and misdirection created by the erroneous instruction.
The State contends that Wade should have known "that other felonies, if supported by the evidence, could have supported the charge" of aggravated burglary. While Wade's attorney may well have been aware that the case could have been charged differently, the State has acknowledged that the law requires the charging document to identify the felony which is alleged to support the burglary charge. We do not make one accused of aggravated burglary speculate on the State's theory of guilt.
The State's argument that Wade should have known that an amendment to the charging document might be forthcoming strikes us as circular. K.S.A. 2006 Supp. 22-3201(e) allows for a complaint amendment only where the defendant's substantial rights are not prejudiced. Therefore, the State's argument appears to be that Wade was not prejudiced because he should have known that an amendment was possible if he was not prejudiced.
Likewise, we reject the State's assertion that Wade could not have been surprised by the amended instruction, and in fact invited it by providing the testimony that supported aggravated assault as the ulterior felony. Apparently, the State believes that a criminal defendant must foresee and assume the risk that a trial judge will sanction an erroneous jury instruction. To the contrary, a defendant should be permitted to rely on the premise that the jury instructions will comport with the notice requirements of due process.
Further, we are not persuaded by the State's attempt to refute that Wade's decision to testify was impacted by the error by contending that Wade had no choice but to testify. That assertion is belied by defense counsel's statement at the instructions conference that adding aggravated assault to the instructions was tantamount to a directed verdict for the State and that counsel "would not have put him on had I known that were going to happen." At the very least, one cannot presume that Wade's decision to waive his Fifth Amendment rights was based on the knowledge that the district court would give an erroneous instruction, and it would be difficult to declare that waiver to be knowingly and intelligently made.
Finally, the State complains that it could not have anticipated Wade's testimony and that public policy mandates that we not allow a defendant to get away with a crime based on one predicate felony by confessing to another felony. First, one might be somewhat skeptical of the notion that a prosecutor could not anticipate a defendant declaring, "I didn't mean to do it." More to the point, however, our public policy is that the State has the burden to prove, beyond a reasonable doubt, that the defendant is guilty of the crimes charged, and the defendant carries the presumption of innocence. If the State's proof is challenged by the defendant's self-serving testimony, then it is the jury's function to weigh the evidence and assess the defendant's credibility. 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.
In summary, the instruction on the elements of aggravated burglary was erroneous in adding an ulterior felony for which the defendant had no notice prior to the completion of the evidentiary portion of the trial. The error adversely affected the defendant's ability to prepare for and present his defense and prejudiced the defendant's critical decision to waive his Fifth Amendment rights and testify. The error cannot be excused in this case. Wade's conviction for aggravated burglary must be reversed and the case remanded for a new trial.
Felony Murder
The State points out that the felony-murder elements instruction did not change the inherently dangerous felony identified in the complaint/information; both named aggravated burglary as the underlying felony. Therefore, the State suggests that the instructions did not technically stray from the charging document. However, the State recognizes that the felony-murder elements instruction told the jury that "[t]he elements of aggravated burglary are set forth in Instruction No. 16" and that Instruction No. 16 was "technically in error." Wade argues that the incorporation by reference of an erroneously broadened aggravated burglary elements instruction effected an impermissible broadening of the felony-murder instruction. Wade's point is persuasive.
The State counters that, although there is no Kansas case dealing with the specific issue, the precedent dealing with felony murder is "at odds with the case law . . . regarding burglary." While an information charging burglary must specify the intended ulterior felony, Lora, 213 Kan. at 187-88, it is unnecessary for the State to charge or identify the elements of the underlying felony in order to convict a defendant of felony murder. See State v. Hall, 246 Kan. 728, 749, 793 P.2d 737 (1990). Indeed, we have found that it does not violate due process to instruct on felony murder even where the information did not charge the defendant with felony murder. See State v. Young, 277 Kan. 588, Syl. ¶ 5, 87 P.3d 308 (2004). The prosecutor apparently recognized the inconsistencies in the State's charging obligations when making the following argument at the instructions conference:
"Your Honor, I would be perfectly happy to abandon any request to amend the Information, itself, to include the aggravated assault as an alternative for the burglary. However, that does not impact the State's ability to proceed in the felony murder with the alternatives of first degree murder and aggravated assault as the basis for the aggravated burglary, strictly as it relates to the felony murder." (Emphasis added.)
Nevertheless, the elements instruction for felony murder was not separately modified and the elements of aggravated burglary were not defined differently for purposes of the felony-murder charge. Therefore, we must consider whether the same aggravated burglary instruction can support the felony-murder conviction, while requiring the reversal of the aggravated burglary conviction.
In Young, the defendant shot and killed a man during a payment dispute following the delivery of crack cocaine. Young was charged with first-degree premeditated murder in connection with the dead victim. Nevertheless, on its own initiative, the trial court instructed the jury: "'If you do not agree the defendant is guilty in count one of murder in the first degree-premeditated, you should then consider the lesser offense of murder in the first degree-felony murder.'" 277 Kan. at 592-93. The underlying felony was identified as the sale of cocaine. 277 Kan. at 596. Young did not object to the felony-murder instruction, triggering a clearly erroneous standard of review on appeal. 277 Kan. at 593; see K.S.A. 2006 Supp. 22-3414(3).
The Young court found that the district court had incorrectly stated Kansas law because felony murder is not a lesser included offense of premeditated murder. "In fact, felony murder and premeditated murder define the same crime–first-degree murder–committed by alternative means." 277 Kan. at 593. The court further explained that "[t]he felonious conduct proved in a felony-murder prosecution stands in for the deliberation and intent ordinarily required to be proved in a premeditated murder case." 277 Kan. at 594. Nevertheless, Young determined that "[t]he district court's misstatement was literally but not legally 'clearly erroneous' because the remainder of the instruction's content and its inclusion in the case were proper." 277 Kan. at 594.
Young specifically found no error in having the jury consider felony murder as an alternative to a premeditation theory, even though felony murder was not described in the information. In doing so, Young relied heavily on State v. Foy, 224 Kan. 558, 582 P.2d 281 (1978), declaring that the Foy court had "rejected the defendant's argument that the jury could not be instructed on felony murder because the charge against him had been limited to a premeditation theory." 277 Kan. at 594. To support that statement, Young recited the following statement from Foy:
"'[A]n information in the ordinary form charging that a killing was done with malice aforethought, deliberation, and premeditation is sufficient to sustain a conviction of murder in the first degree committed in perpetration of a robbery or bur