State v. Wade

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 101,548

STATE OF KANSAS,
Appellee,

v.

MORGAN D. WADE,
Appellant.


SYLLABUS BY THE COURT

1.
The district court has an obligation to respond to a jury's request to be informed on
a point of law.

2.
The determination of whether the trial court's response to a jury question was a
correct statement of the law necessarily presents a legal question, subject to unlimited
review on appeal. But the district court's selection of one legally correct response to a
jury question in lieu of another legally correct response is reviewed for an abuse of
discretion, i.e., whether no reasonable person would have given the response adopted by
the trial court.

3.
A trial court does not err in refusing to give a lesser included offense instruction
requested by the defendant where the evidence, viewed in the light most favorable to the
defendant, would not reasonably support a jury conviction on the lesser included crime.

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4.
A sudden quarrel is one form of provocation for a heat of passion killing and
involves an unforeseen angry altercation, dispute, taunt, or accusation. An orchestrated
confrontation or methodically planned encounter is the antithesis of a sudden quarrel.

5.
To be in the heat of passion, the actor must be experiencing an intense or
vehement emotional excitement of the kind that would prompt violent and aggressive
action. The hallmark of heat of passion is taking action upon impulse without reflection.
Premeditation and heat of passion are mutually exclusive concepts.

6.
Where the facts in the case clearly established that the shooting death of the victim
did not occur during a sudden quarrel, did not occur while the defendant was
experiencing an intense or vehement emotional excitement within the meaning of heat of
passion, and did not result from an action on impulse without reflection, the district court
properly refused to give the jury an instruction on voluntary manslaughter as a lesser
included offense of premeditated first-degree murder.

Appeal from Chautauqua District Court; ROGER L. GOSSARD, judge. Opinion filed October 26,
2012. Affirmed in part, vacated in part, and remanded with directions.

Matthew J. Edge, of Kansas Appellate Defender Office, argued the cause and was on the brief for
appellant.

Kristafer R. Ailslieger, deputy solicitor general, argued the cause and was on the brief for
appellee.


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The opinion of the court was delivered by

JOHNSON, J.: Morgan D. Wade's convictions for first-degree felony murder and
aggravated burglary were reversed by this court, and the case was remanded for a new
trial. State v. Wade, 284 Kan. 527, 161 P.3d 704 (2007). Upon retrial, the jury convicted
Wade of premeditated first-degree murder and aggravated burglary. In this direct appeal,
Wade argues that the district court erred in the following ways: (1) By failing to
adequately answer the jury's question about the definition of premeditation; (2) by
denying Wade's request for a lesser included offense jury instruction on voluntary
manslaughter; (3) by imposing an enhanced sentence based upon prior convictions that
were not included in the complaint or proved to the jury beyond a reasonable doubt; and
(4) by assessing attorney fees against Wade without adequately assessing his ability to
pay or the burden such a payment would impose. We affirm Wade's convictions and
sentences but vacate the Board of Indigents' Defense Services (BIDS) attorney fees
reimbursement order and remand with directions.

FACTUAL AND PROCEDURAL OVERVIEW

There is no dispute that, on June 19, 2004, Wade shot and killed Kellye Juul, his
former girlfriend and the mother of his son. The only dispute involves Wade's state of
mind and intent at the time of the shooting.

The couple had a tumultuous on-again/off-again relationship spanning the course
of several years. On June 17, Juul rejected Wade's advances and he did not take the
rejection well. Later that night and into the next morning, June 18, the former couple
spoke by telephone. Juul explained that she was seeing a therapist and wanted to "get her
act together" before getting back into a relationship with Wade. Juul subsequently
reported that during the conversation, Wade informed her that he wanted to come get
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their son and take the child back to Wade's home so that Wade could kill himself in front
of their son. Juul responded by telling Wade that he would have to "get some help before
he could see [their son] again." Juul reported that Wade responded by saying "she'd be
sorry . . . [or] something like that."

The following morning—the day of the shooting—Juul had another telephone
conversation with Wade in which she reiterated that Wade would not be allowed to see
his son. Thereafter, Wade, armed with his .357 caliber handgun, drove to the house of
Dale Coffman, where Juul and Wade's son were living. The length of time between the
telephone call and Wade's departure was not definitively established, but a law
enforcement officer testified that, using the fastest route, the trip from Wade's house to
the Coffman house could have taken as little as 11 minutes and 43 seconds.

Wade reported that as he drove toward the residence he could see Juul outside the
house but that she retreated back inside upon seeing his arrival. Undeterred, Wade
continued up the driveway, exited his truck, and approached the house. He entered the
house through a bedroom window and proceeded through the bedroom to a hallway in the
front room, where he approached Juul, who was standing by the front door. Without
saying anything, Wade shot Juul in the chest from a distance of 1 to 3 feet. The shooting
was witnessed by several children in the house, as well as by the homeowner, Coffman.

After shooting Juul, Wade gave the handgun to one of Juul's nephews and asked
for a towel, which he used to apply pressure to the wound. Wade told Juul not to worry,
that she had just been shot in the lung and that it was "'no big deal.'" Meanwhile, the
homeowner called 911, and when the police took Wade into custody, he admitted to
shooting Juul. Emergency medical technicians transported Juul to the local hospital,
which then transported Juul to a nearby airfield to be airlifted to a Wichita hospital. But
Juul's liver had been punctured, and she died at the airfield.
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At the first trial, the jury convicted Wade of felony murder and aggravated
burglary. Those convictions were reversed, and the case was remanded for a new trial.
Wade, 284 Kan. at 546.

At retrial, Wade argued for an instruction on the lesser included offense of
voluntary manslaughter because "there was a sudden quarrel . . . with . . . Juul . . . that
enraged him and . . . [he] was in a rage when he got there." The district court denied that
request based on the facts of the case.

While deliberating, the jury submitted the following question to the judge
regarding the definition of premeditated first-degree murder: "If the act of violence that
resulted in the death of the victim was pre-meditated but the defendant wasn't clear on
whether the act of violence would result in death, does this constitute pre-meditated
murder?" The district court solicited counsels' suggestions for a response. Defense
counsel argued for a simple "no" answer, but when the court rejected that idea, the
defense proposed that the court answer with the first sentence of Instruction 19, which
defined premeditation. The court agreed to refer the jury to Instruction 19 but declined to
single out anything less than the full text of that instruction.

The jury convicted Wade of premeditated first-degree murder and aggravated
burglary. He filed a motion for a new trial claiming, in part, that the district court gave an
improper response to the jury's question regarding the definition of premeditation which
created further confusion. At the hearing on the motion, the defense called the jury
foreman to testify about his personal understanding of the definition of premeditation
after receiving the court's response. The juror's testimony implied that after the judge's
answer was given, he understood that, in finding premeditation, "it didn't matter" whether
the defendant knew that the act of violence would result in death. The State objected to
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the testimony as invading the province of the jury, but the district court overruled that
objection. Ultimately, the motion for a new trial was denied.

The court sentenced Wade to a hard 25 life sentence for the murder conviction and
a consecutive sentence of 55 months for the aggravated burglary conviction. The court
also ordered that Wade reimburse BIDS attorney fees of approximately $6,400 based on
the BIDS fee table. Wade timely appealed.

RESPONSE TO JURY QUESTION

Wade argues that the district court erred by failing to adequately answer the jury's
question about the definition of premeditation. The court has an obligation to respond to a
jury's request to be informed on a point of law, pursuant to K.S.A. 22-3420(3), which
provides:

"After the jury has retired for deliberation, if they desire to be informed as to any
part of the law or evidence arising in the case, they may request the officer to conduct
them to the court, where the information on the point of the law shall be given, or the
evidence shall be read or exhibited to them in the presence of the defendant, unless he
voluntarily absents himself, and his counsel and after notice to the prosecuting attorney."

Standard of Review

We review a district court's answer to a jury question for an abuse of discretion.
State v. Moore, 274 Kan. 639, 643, 55 P.3d 903 (2002).

The State acknowledges that an abuse of discretion review is generally
appropriate. But then the State points to State v. Hoge, 276 Kan. 801, 816-17, 80 P.3d 52
(2003), to support its argument that Wade's objection to the court's answer at trial is
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different from his complaint on appeal, so that the clearly erroneous standard applicable
to unpreserved jury instruction claims should be applied. Even if we were to agree with
the State's premise that Wade presents a jury instruction issue here, we recently clarified
that "clearly erroneous" is not a standard of review at all. See State v. Williams, 295 Kan.
___, ___, ___ P.3d ___ (September 21, 2012) (slip op. at 12). Accordingly, we will apply
an abuse of discretion standard.

However, we recently expanded, or perhaps clarified, the scope of an abuse of
discretion review. In State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied
132 S. Ct. 1594 (2012), we recited:

"Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable,
i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is
based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion;
or (3) is based on an error of fact, i.e., if substantial competent evidence does not support
a factual finding on which a prerequisite conclusion of law or the exercise of discretion is
based."

Obviously, to the extent that it is necessary to determine whether the district
court's response was a correct statement of the law, we are presented with a legal
question, subject to unlimited review. But when looking at which legally appropriate
response the court should have made, we accord the trial court the deference of looking to
whether no reasonable person would have given the response adopted by the trial court.

Analysis

The trial transcript contains the following discussion between the judge and
counsel regarding the response to the jury question:

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"THE COURT: . . . . The question: With regards to Instruction 12, the act of
violence that resulted in the death of the victim was premeditated but the Defendant
wasn't clear on whether the act of violence would result in death, does this constitute
premeditated murder?
. . . .
"[Defense]: . . . I think the answer to that is no.
. . . .
"THE COURT: Yeah, on this particular question I hesitate to give them a 'yes' or
a 'no' answer. Instruction No. 19—
"[Defense]: Yeah, the first paragraph covers that because it—you know, the
intent to kill must be formed before the shot is fired.
"THE COURT: The first paragraph of Instruction 19?
"[Defense]: Well, yeah.
. . . .
"[Defense]: . . . the least you could do is tell them to look over the Instruction
No. 19, but I think 'no' is the proper answer because, you know, that's the law. I think
intent must be there before the shot is fired or you don't have premeditated murder.
. . . .
"THE COURT: . . . What I propose to tell the jury is that . . . the answer to your
question is contained in the instructions given. Definitions are contained in Instruction
19.
. . . .
"[Defense]: I would request the first sentence of—
"THE COURT: No, I'm not going to single out any one—I'm not going to single
out a specific instruction—you know, specific language within an instruction. I don't
think that's appropriate for either side.
"[Defense]: I would just ask you to show my objection on the record.
. . . .
"THE COURT: The only thing you object to on what I propose to tell the jury is
you want me to single out the first full paragraph in 19?
"[Defense]: Right.
. . . .
"[Defense]: Well, first sentence in 19.
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"THE COURT: Well, I'm not going to.
"[Defense]: Okay.
"THE COURT: I mean, obviously the question is about premeditation and . . .
the other paragraph is the definition instruction of reckless and intentional. Obviously it is
the first paragraph. I'm not going to tell them the obvious. They ought to be able to read it
and see.
"[Defense]: Okay."

The Instruction 19 to which defense counsel and the court refer set forth
definitions, as follows:

"As used in these instructions:
"Premeditation means to have thought over the matter beforehand, in other
words, to have formed the design or intent to kill before the act. Although there is no
specific time period required for premeditation, the concept of premeditation requires
more than the instantaneous, intentional act of taking another's life.
"Intentionally means conduct that is purposeful and willful and not accidental.
Intentional includes the terms 'knowing,' 'willful,' 'purposeful' and 'on purpose.'
"Reckless conduct means conduct done under circumstances that show a
realization of the imminence of danger to the person of another and a conscious and
unjustifiable disregard of that danger. The terms 'gross negligence' and 'wantonness' are
included within 'reckless.'"

The trial court apparently determined that only the first paragraph of Instruction 19
was germane to the jury's question but that the jurors would obviously understand that the
remaining portions of the instruction simply did not apply. One might ponder how
obvious it would be to a lay juror that the judge would answer the jury's legal question
with definitions that had absolutely nothing to do with the question. The possibility
certainly exists that the superfluous and inapplicable parts of the answer could provide
sufficient misdirection to leave some jurors scratching their heads. That would be
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especially so, if the jurors were unaware of the common prophylaxis of using entire PIK
instructions as answers to jury questions to avoid reversal on appeal.

Nevertheless, in reviewing the district court's response to a jury question, we have
focused on the question of whether the answer was a correct statement of the law. State v.
Murdock, 286 Kan. 661, 683, 187 P.3d 1267 (2008). Wade does not argue that the district
court misstated the law. Rather, he argues that the better answer was a simple, "no." That
answer might have been the most helpful to the jury. But we have approved the tack of
simply directing the jury's attention back to the instructions. See, e.g., Moore, 274 Kan. at
645. In that vein, we cannot declare that the district court's answer to the jury question in
this case was arbitrary, fanciful, or unreasonable.

LESSER INCLUDED OFFENSE INSTRUCTION

Wade requested a lesser included offense instruction on voluntary manslaughter,
arguing the existence of a sudden quarrel and heat of passion, provoked by the telephone
call in which the victim said that Wade could not see his son. The State responded that
heat of passion involves "a spontaneously provoked intense emotional state," and there
was no spontaneity here because Wade had been angry since being forcibly removed
from Juul's residence 2 days prior to the shooting. The district court ruled that the facts
did not support a voluntary manslaughter instruction "either on sudden quarrel or heat of
passion." Wade continues to argue on appeal that he was provoked into a sudden quarrel,
resulting in a heat of passion killing, which would have supported the lesser included
offense instruction.

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Standard of Review

Recently, we attempted to set forth a more consistent procedure for reviewing jury
instruction issues, with applicable standards of review:

"For jury instruction issues, the progression of analysis and corresponding
standards of review on appeal are: (1) First, the appellate court should consider the
reviewability of the issue from both jurisdiction and preservation viewpoints, exercising
an unlimited standard of review; (2) next, the court should use an unlimited review to
determine whether the instruction was legally appropriate; (3) then, the court should
determine whether there was sufficient evidence, viewed in the light most favorable to
the defendant or the requesting party, that would have supported the instruction; and (4)
finally, if the district court erred, the appellate court must determine whether the error
was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292
Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012)." State v. Plummer,
295 Kan. __, Syl. ¶ 1, 283 P.3d 202 (2012).

Analysis

To fully preserve a claim that the district court erred in failing to give a lesser
included offense instruction, the defendant must distinctly state an objection to the
omission before the jury retires to consider its verdict. K.S.A. 22-3414(3). Here, Wade
proposed a lesser included offense instruction on voluntary manslaughter and
unequivocally objected to its omission during the instructions conference, arguing to the
court the grounds upon which he believed the instruction was proper. The issue is fully
preserved for our review.

Next, the requested instruction was legally appropriate. "We have held on
numerous occasions that voluntary manslaughter is a lesser included offense of both first-
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and second-degree murder as a 'lesser degree' of those crimes under K.S.A. 21-
3107(2)(a)." State v. Gallegos, 286 Kan. 869, 874, 190 P.3d 226 (2008).

Even when an instruction is legally appropriate, however, the lesser included
offense instruction is only required when "'there is some evidence which would
reasonably justify a conviction of [the lesser included offense.]'" Plummer, 295 Kan. at
___ (slip op. at 8). The evidence is viewed in the light most favorable to the defendant.
295 Kan. at ___ (slip op. at 8). But we give deference to the factual findings made by the
district court, in that we do not reweigh the evidence or pass on the credibility of
witnesses. 295 Kan. at ___ (slip op. at 8).

Under the theory propounded by Wade, voluntary manslaughter required "the
intentional killing of a human being committed: (a) Upon a sudden quarrel or in the heat
of passion . . . ." K.S.A. 21-3403. The language of that statute suggests that "a sudden
quarrel" and "in the heat of passion" are two separate concepts, and the district court
appeared to treat them as different ways in which to commit the crime. But this court has
previously held that a sudden quarrel is not separate and apart from heat of passion, but
rather it is simply "'one form of provocation for "heat of passion."'" State v. Johnson, 290
Kan. 1038, 1047, 236 P.3d 517 (2010) (quoting State v. Coop, 223 Kan. 302, 307, 573
P.2d 1017 [1978]). Nevertheless, the evidence in this trial, even when viewed in a light
most favorable to Wade, would not have reasonably justified a jury to find either that
Wade and Juul engaged in a sudden quarrel or that Wade intentionally killed Juul in the
heat of passion.

Johnson suggested that a sudden quarrel involves an "unforeseen angry
altercation, dispute, taunt, or accusation." (Emphasis added.) 290 Kan. at 1048. In
addition to the foreseeability component of the adjective, "sudden" also carries a temporal
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connotation, indicating that the quarrel occurred abruptly or was brought about in a short
time. See Webster's II New College Dictionary 1101 (1999).

Here, the confrontation between Wade and Juul at the time of the shooting would
not qualify as a quarrel, much less a sudden one. Immediately before Wade shot Juul,
there was no anger displayed; there were no taunting or accusatory words exchanged; and
there was no altercation or dispute. Moreover, Wade orchestrated the encounter which is
the antithesis of an unforeseen event. He drove to Juul's residence armed with a handgun
and climbed through a window to get face-to-face with the victim he had seen retreat into
her house upon his arrival. Wade foresaw what he wanted to do and methodically went
about effecting his plan. There was simply no evidence from which a rational jury could
find that the incident in Juul's residence was a "sudden quarrel."

Likewise, even if a provocation could be found somewhere other than from a
sudden quarrel, a jury could not have reasonably found that Wade intentionally killed
Juul in a heat of passion. We have defined "heat of passion" as meaning "'any intense or
vehement emotional excitement of the kind prompting violent and aggressive action.'"
State v. Vasquez, 287 Kan. 40, 54, 194 P.3d 563 (2008) (quoting State v. Guebara, 236
Kan. 791, 796-97, 696 P.2d 381 [1985]). The hallmark of heat of passion is taking action
upon impulse without reflection.

Wade urges us to consider that the telephone conversation on the morning of the
shooting, in which Juul reiterated that Wade would not be permitted to see his son, could
have caused such an intense anger that it prompted him to intentionally shoot Juul,
notwithstanding the time lag between the provocation and the action. We decline the
invitation to speculate about hypothetical scenarios. We do not permit juries to ruminate
upon what might have happened; we require the State to prove the elements of a crime
beyond a reasonable doubt. Accordingly, for a lesser included offense to be factually
14



appropriate, there must be actual evidence in the record, together with reasonable
inferences to be drawn from that actual evidence, that would reasonably support a
conviction for the lesser crime. Here, such evidence does not exist.

First, and foremost, Wade's appearance and demeanor during the shooting incident
belie the notion that he was suffering under any intense or vehement emotional
excitement. Eyewitnesses described Wade as being "like a zombie." Wade did not refute
that impression, and it comports with the fact that Wade's anger had apparently begun to
build 2 days before the shooting. Although Juul's denial of access to their son may well
have provided a motive for Wade to shoot her, it did not provide sufficient provocation
for that shooting to be in the heat of passion in this case. A slow burn is not heat of
passion.

Next, his behavior leading up to the shooting could not reasonably support a
finding that the shooting was an act performed without reflection. To the contrary, the
evidence, even when viewed in the light most favorable to Wade, could only prove a
calculated act. See Vasquez, 287 Kan. at 56 ("Premeditation and heat of passion are
mutually exclusive concepts."). He armed himself with the handgun before leaving home,
implying that he planned to use it in some manner during the encounter with Juul. He had
time to contemplate his actions while he drove to Juul's residence. Then, upon arriving at
Juul's residence and seeing her go into the house, he had to devise a plan to gain entry
into the house in order to confront his retreating prey.

Finally, Wade's own theory of defense refutes the elements of voluntary
manslaughter requiring an intentional killing in the heat of passion. Wade contended that
he never intended to kill Juul, but rather he only wanted to scare her so she would come
back to him. Granted, "inconsistent theories of defense are permissible." State v. Trussell,
289 Kan. 499, 505, 213 P.3d 1052 (2009). But Wade's theory of defense actually
15



corroborates the evidence in the case which supports that the shooting was part of a plan
of action, rather than an action without reflection.

In denying Wade's motion for new trial based upon a denial of the voluntary
manslaughter lesser included offense instruction, the trial court found: "[T]he facts were
absolutely and overwhelmingly clear that what happened that day was not a sudden
quarrel, was not in the heat of passion, was not an act on impulse without reflection." We
agree. The district court did not err in refusing to give the instruction.

USE OF CRIMINAL HISTORY AT SENTENCING

Wade argues that the district court violated his rights under the Sixth and
Fourteenth Amendments to the United States Constitution by imposing an enhanced
sentence, based on prior convictions, without proving those convictions to the jury
beyond a reasonable doubt. This issue has already been decided adversely to Wade's
position. See State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002) (concluding that trial
court's use of prior convictions to enhance guidelines sentencing was constitutionally
acceptable even though convictions were not proven beyond a reasonable doubt). Wade
provides no new arguments that would warrant our revisiting that well-settled rule of law.

BIDS ATTORNEY FEES

K.S.A. 22-4513 requires that before a district court may require a defendant to
reimburse BIDS for attorney fees, the court must consider on the record at the time of
assessment the extent of the defendant's financial resources and the burden upon the
defendant that will result from such a payment order. See State v. Richardson, 290 Kan.
176, 186, 224 P.3d 553 (2010); State v. Robinson, 281 Kan. 538, 543, 546, 132 P.3d 934
16



(2006). This requirement includes an explicit record of how those considerations are
weighed in the court's decision. Robinson, 281 Kan. at 546.

Both Wade and the State agree that the district court failed to satisfy the Robinson
requirements in this case. Although the court ascertained that Wade is employable and
does work when he is not in prison, it did not ascertain his financial resources or the
burden such reimbursement would cause him. Consistent with our prior cases, we vacate
the order to reimburse BIDS for attorney fees and remand to the district court for
reconsideration. The district court is directed to support any subsequent reimbursement
order with explicit findings on the record, pursuant to our decision in Robinson, 281 Kan.
at 543-46.

Convictions and sentences affirmed. Attorney fees reimbursement order vacated
and remanded with directions.