An Ellis County judge denied a woman’s motion to dismiss a charge of aiding and abetting in a February murder, but allowed her trial to be continued until a later date.
Attorney Joe Shepack said in a pre-trial hearing Thursday afternoon in Ellis County District Court that he had received new material through the discovery process earlier that day that could affect his strategy in defending Kylie Jo Waldschmidt.
She is charged with aiding and abetting a felony murder with an alternate charge of felony aggravated assault or aggravated battery, and interference with a law enforcement officer in connection with the Feb. 27 shooting of Diego Gallaway in Hays.
She was scheduled to go to trial on those charges Jan. 27-31. Bittel approved Shepack’s request to continue the trial after asking Waldschmidt if she agreed to waive her right to speedy trial.
Kansas law requires a defendant go to trial within 150 days of arraignment, which was in October for Waldschmidt. That would give a trial deadline of March 6, according to court documents. Shepack said he would need at least another 30 days to reschedule the trial.
Bittel’s ruling on the motion to dismiss the most serious charge against Waldschmidt was issued Tuesday. Arguments were heard on that motion on Dec. 23, 2019.
At question was whether or not the acts of aggravated assault and aggravated battery were distinct from shooting the gun.
Bittel cited facts as presented at Waldschmidt’s September preliminary hearing.
Waldschmidt and her co-defendant, Ryan Paul Thompson, had planned to go to Gallaway’s apartment and return a bank card. Waldschmidt and Gallaway had two children together from a relationship. She and Thompson may have tried to use the card to access funds from a tax return Gallaway had received, according to testimony.
Waldschmidt and Thompson had previously exchanged messages saying Gallaway needed to be beat up or have “his ass kicked,” according to testimony in the preliminary hearing.
About half an hour before meeting Gallaway, Thompson — who had a prior felony record — obtained a gun from Alysha K. Meade.
Meade was sentenced to probation in November for the misdemeanor charge of criminal distribution of a firearm, along with another misdemeanor charge of possession of marijuana, and 15 months in prison for a felony charge of possession of methamphetamine.
“Defendant stated in an interview that the reason the gun was present was that Gallaway had been abusive in the past and that she believed that Thompson may have just wanted to scare Gallaway and also made comments about protecting themselves,” Bittle’s ruling said.
Waldschmidt told police the initial plan had been for her to go to Gallaway’s apartment and slide the card under the door, but the plan changed. She called Gallaway to come to their vehicle in a parking lot behind his apartment building in the 2700 block of Indian Trail.
Thompson placed the bank card on the hood of the car. When Gallaway arrived, he started speaking with Waldschmidt, who was in the passenger seat.
“Thompson retrieved the gun, walked around the front of the vehicle, came up behind Gallaway and placed him in a headlock. There was a struggle. The struggle began by the car. Thompson ultimately shot Gallaway in the head and killed him. The body of Gallaway ended up several feet away from the car,” Bittle’s ruling said.
In December, Shepack argued the events were lineal. Pointing the gun is aggravated battery, which escalated to firing the bullet that killed Gallaway, Shepack said. He argued that meant the events fell under the Merger Doctrine, which 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.
Bittel’s ruling echoes the arguments of Ellis County Attorney Tom Drees, in that the aggravated assault and aggravated battery were separate incidents.
The state defines murder in the first degree as the “killing of a human being committed in the commission of, attempt to commit, or flight from any inherently dangerous felony,” the ruing notes, with aggravated assault or aggravated battery being the two the state relies on.
Those may be charged as an underlying felony for felony murder “when the felony is so distinct from the homicide … as to not be an ingredient of the homicide” the ruling said.
“A review of the facts elicited from the testimony at the preliminary hearing shows the elements of both the Aggravated Assault and Aggravated Battery are distinct from the act of shooting the gun, which ultimately killed Gallaway,” Bittel’s ruling said.
Thompson was sentenced in November to 24 years in prison after pleading to second-degree murder and possession of methamphetamine with intent to distribute.