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Appeal denied for Kansas zombie who murdered his wife

November 16, 2012

On October 26, 2012, the Supreme Court of Kansas decided the appeal of the murder conviction of Morgan Wade. Wade shot and killed “his former girlfriend and the mother of his son” because he was angry, particularly at threats she would prevent him from seeing his son. Wade’s first conviction was overturned on appeal but then he was retried and convicted again:

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.

The appeal was denied as to the conviction and sentence, but the court does remand the case for reconsideration of attorney costs.

STATE OF KANSAS,
Appellee,
v.
MORGAN D. WADE,
Appellant.

No. 101,54
SUPREME COURT OF KANSAS

Filed, October 26, 2012.

Opinion by Judge Johnson:

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 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 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.

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