State v. Waldschmidt

546 P.3d 716

STATE of Kansas, Appellee,

v.Kylie Jo Elizabeth WALDSCHMIDT, Appellant.

No. 123,631

Supreme Court of Kansas.

Oral Argument Held December 13, 2022.

Opinion Filed April 12, 2024.

Syllabus by the Court

1. Under K.S.A. 2022 Supp. 21-5402(c)(2)(D) and (F), aggravated assault, as defined in K.S.A. 2022 Supp. 21-5412(b), and amendments thereto, and aggravated battery, as defined in K.S.A. 2022 Supp. 21-5413(b)(1), and amendments thereto, can both serve as predicate felonies for felony murder if they are so distinct from the killing as to not be an ingredient of the killing.

2. The merger doctrine examines whether an inherently dangerous felony is part of the killing, or if it stands as an independent predicate felony supporting a felony murder charge. This assessment hinges on factors such as the temporal and spatial proximity between the predicate felony and the killing, as well as the causal relationship between them.

3. Felony murder holds a defendant strictly liable for homicides occurring in the commission of, attempt to commit, or flight from any inherently dangerous felony. Consequently, self-defense can never be a legal justification for the killing itself; it may be asserted only in felony-murder cases to the extent it may negate an element of the underlying inherently dangerous felony.

4. Under K.S.A. 60-404, evidentiary claims, including those concerning questions and responses during witness examination, must be preserved for appellate review by a contemporaneous and specific objection at trial.

5. Prosecutors commit error by stating their opinions to the jury.

6. Under both the United States and Kansas Constitutions, a criminal defendant has the right to present their defense theory, and excluding evidence integral to that theory violates their fundamental right to a fair trial. To constitute error, the excluded evidence supporting the defense theory must be relevant, admissible, and noncumulative.

7. Under K.S.A. 60-407(f), all relevant evidence is admissible unless barred by statute, constitutional provisions, or caselaw. When a defendant's intent is in question, a trial court must allow the defendant to testify about the defendant’s motive and actual intent, or state of mind, provided that such testimony aligns with our legal principle.

8. K.S.A. 2022 Supp. 22-3414(3) provides that no party may claim as error the giving or failing to give an instruction unless that party timely objects by stating a specific ground for objection or unless the instruction or failure to give an instruction is clearly erroneous.

9. Unpreserved instructional issues that are not clearly erroneous may not be aggregated in a cumulative error analysis because K.S.A. 2022 Supp. 22-3414(3) limits a party’s ability to claim them as error. Our caselaw suggesting otherwise is disapproved.

Appeal from Ellis District Court; Glenn R. Braun, judge.

Corrine E. Gunning, of Kansas Appellate Defender Office, argued the cause, and Bryan W. Cox, of the same office, was with her on the briefs for appellant.

Aaron J. Cunningham, assistant county attorney, argued the cause, and Derek Schmidt, attorney general, was with him on the brief for appellee.

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

Kylie Waldschmidt directly appeals her convictions for aiding and abetting felony murder and interference with a law enforcement officer arising from the killing of Diego Gallaway by Ryan Thompson. We affirm.

We hold: (1) the district court did not err by rejecting Waldschmidt’s merger claim; (2) the court’s omission of a self-defense instruction was not clearly erroneous; (3) prosecutorial error occurred, although none of the errors require reversal either individually or collectively; (4) the district court did not violate Waldschmidt’s right to present her defense theory by sustaining an objection to a question about her intent; and (5) cumulative error does not require reversal. In so ruling, we determine that unpreserved instructional issues that are not clearly erroneous may not be aggregated in a cumulative error analysis because K.S.A. 2022 Supp. 22-3414(3) limits a party's ability to claim them as error. Our caselaw suggesting otherwise is disapproved.

Factual and Procedural Background

Gallaway and Waldschmidt began a romantic relationship in 2014. For several years, they were friends with Thompson. He sold them methamphetamine and all three regularly used the drug. About a week before his killing, Gallaway accused Thompson of having a sexual relationship with Waldschmidt. Thompson denied it because "at the time I wasn’t." But a few days later Thompson and Waldschmidt began an intimate relationship, and she stopped living with Gallaway and stayed with Thompson.

Waldschmidt expected money from Gallaway because he claimed their children on his tax return, but he threatened not to give it to her. She and Thompson discussed ways to get her share if he reneged, Thompson even called Gallaway’s bank, pretending to be him, and helped set up a PayPal account for a transfer. They never got the money before he died.

On February 27, 2019, the day of the homicide, Waldschmidt planned to return Gallaway’s debit card she used with his consent during their relationship. She said she intended to drop it off at Gallaway’s apartment because he was "angry" about it and her relationship with Thompson. She asked Thompson to go with her.

On their way to Gallaway’s, Waldschmidt drove to Alysha Meade’s residence, where Thompson sold Meade methamphetamine and got a gun. Waldschmidt waited in the car. Thompson testified he took the pistol out of his pocket when he re-entered the car and put "it down on the floorboard and jacked a few rounds through it, just to make sure it wouldn’t jam, and then checked the safety."

When police interviewed Thompson after the killing, he said Waldschmidt was "relieved" he brought the gun and felt safer knowing he had it. He also said she "freaked out" about the gun when he was "function-checking" it. He put the gun between the passenger seat and console after chambering a bullet. At trial, he told a different story. He claimed Waldschmidt said nothing about the gun and may not have even seen it because "she was driving, it was dark, and I was down on the floorboard" hidden behind the "big center console." He denied showing her the gun. She denied ever seeing it in the car.

When they arrived at Gallaway’s apartment about 10 p.m., Thompson told Waldschmidt to back into a parking spot "so they could get away should things go south." She parked near a shed "right next to the back door of [the] apartment." Thompson got out and smoked a cigarette. He put Gallaway’s debit card on the car hood and then swapped places with Waldschmidt, so she sat in the passenger’s seat. He called Gallaway using Waldschmidt’s phone to tell him they were there to return the debit card. When Gallaway came out, he ignored the card and went straight for the vehicle’s passenger side.

Thompson and Waldschmidt gave similar accounts about what happened next. She said at trial:

"I just remember [Gallaway] coming out and coming to my window and yelling and screaming at me, trying to open the door, and [Thompson] came up to him. I do remember there was some words exchanged between the two of them. [Thompson] told him to get his card and go back in the house. And [Gallaway] said, ‘What the fuck are you going to do about it, man?’ And that’s when a physical confrontation ensued.

"And I—I saw them struggle. I couldn’t hear them though after a little bit, because they were not in earshot anymore, so I don’t know if there were more words exchanged. I don't know. I heard a pop, and I seen somebody fall to the ground. And that’s when I got out of the car and seen [Gallaway] laying there on the ground, and I immediately ran up to him. And [Thompson] told me, ‘Don’t look at him, go inside and call 9-1-1.’ And so I did."

She saw Thompson throw the gun into the snow. She went into the apartment to call 911. She did not see Thompson leave. During the 911 call, Waldschmidt told the dispatcher her "ex-boyfriend just came at my boyfriend with a gun."

Police found a .22 caliber pistol near Gallaway’s body. An officer attempted CPR, but Gallaway died moments later. An autopsy confirmed he died from a single gunshot to the baek of the head. The wound had an irregular shape consistent with the gun barrel being pushed up against the skin. His index finger was lacerated, his face showed swelling, and his shoulder had abrasions. The coroner speculated Gallaway injured his hand by reaching back to grab the gun barrel before it fired, although he observed no soot in the wound.

The State charged Waldschmidt with one count of aiding and abetting felony murder during the commission of aggravated assault or aggravated battery and one count of interference with law enforcement by giving false information. Thompson pled guilty to second-degree murder in a separate case. The jury found Waldschmidt guilty as charged. The district court imposed a hard 25 life sentence for the murder and a six-month consecutive prison term for the interference. Waldschmidt directly appeals.

Merger of the Predicate Felonies

[1] Felony murder is the killing of a human being "in the commission of, attempt to commit, or flight from any inherently dangerous felony." K.S.A. 2022 Supp. 21-5402(a)(2). If a death occurs in the context of an inherently dangerous felony, all participants are guilty of felony murder, irrespective of who actually killed the person. State v. Pattillo, 311 Kan. 995, 1000, 469 P.3d 1250 (2020).

[2, 3] Aggravated assault and aggravated battery can both serve as predicate felonies for felony murder if they are "so distinct from the homicide … as to not be an ingredient of the homicide." K.S.A. 2022 Supp. 21-5402(c)(2)(D), (c)(2)(F). This means both are subject to the merger doctrine, which examines whether the underlying felony is part of the killing as opposed to an independent predicate...