An Ellis County judge will determine if a woman will go to trial next month on the most serious charge she faces for her alleged role in a February murder.
Judge Blake Bittel heard arguments Monday afternoon on a motion from Kylie Jo Waldschmidt, 24, to dismiss a charge of aiding and abetting a felony murder with an alternate charge of felony aggravated assault or aggravated battery.
Bittel did not immediately issue a ruling after the hearing.
Waldschmidt faces trial Jan. 27-31 on the aiding and abetting and a charge of interference with a law enforcement officer. The charges stem from the Feb. 27 shooting of Diego Gallaway, 26.
Her co-defendant in the crime, Ryan Paul Thompson, 34, pleaded guilty in September to second-degree murder and possession of methamphetamine with intent to distribute. He was sentenced in November to 24 years in prison.
At question in Monday’s hearing is whether or not the Merger Doctrine applies to the actions that led to Gallaway’s murder. The doctrine asserts that if a defendant commits a single act that simultaneously fulfills the definition of two separate offenses, the lesser offense will be dropped and the defendant will be charged with only the greater offense.
In preliminary hearings for both Thompson and Waldschmidt in September, testimony established that the pair had contacted Gallaway about returning a debit card to him on Feb. 27.
Waldschmidt — Gallaways’s ex-girlfriend and mother of his two children — told police their original plan was to go to Gallaway’s apartment in the 2700 block of Indian Trail, where she would slide the card under his door. However, that plan changed, and Thompson called Gallaway and told him to come to their car in a nearby parking lot.
Gallaway went to the passenger side of the vehicle and began to shout at Waldschmidt. Thompson got out of the car with a gun he had obtained less than an hour before and confronted Gallaway. The men began arguing, with Thompson placing Gallaway in a headlock from behind. They struggled. Thompson then placed the gun against the back of Gallaway’s head and pulled the trigger, killing him.
Waldschmdit initially told police she did not see the shooting, and officers testified in the preliminary hearing she changed her story several times throughout the investigation.
Waldschmidt’s appointed attorney, Joe Shepack, Great Bend, argued Monday that Thompson’s actions leading to the shooting were lineal and therefore fall under the Merger Doctrine.
Essentially, Ryan Thompson came out of the vehicle with the gun in hand and advanced on Gallaway, Shepack said. He cited the autopsy report, entered into evidence in the preliminary hearing. County Coroner Dr. Lyle Noordhoek had reported injuries to Gallaway’s hand indicated he and Thompson had struggled over the gun.
Pointing a gun is aggravated battery, Shepack said, and firing the bullet is part of the homicide.
But Ellis County Attorney Tom Drees argued the aggravated assault and aggravated battery were collateral elements of the crime.
“You don’t have to have aggravated assault or aggravated battery to commit this murder,” he said.
Had Gallaway been choked to death, the Merger Doctrine would apply, Drees said, as the aggravated assault — putting Gallaway into a chokehold — would have led to his death. Gallaway was shot, but the gun was not used in the aggravated assault or battery, Drees said.
“The murder was the single act of putting a gun to his head and firing,” he said.