State v. Palacio , 442 P.3d 466 ( 2019 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 116,899
STATE OF KANSAS,
Appellee,
v.
MACIO DOMINGO PALACIO JR.,
Appellant.
SYLLABUS BY THE COURT
1.
Once the right to have counsel present during interrogation has been invoked, the
courts impose a relatively rigid requirement that interrogation must cease. The
interrogation can continue only after a lawyer has been made available or the suspect
reinitiates the interrogation.
2.
An officer's explicit questioning is not per se interrogation. Rather, it is subject to
the same test as an officer's other conduct. An officer's words or actions, including
explicit questioning, is interrogation only if the officer should have known that the
questioning was reasonably likely to elicit an incriminating response from the suspect.
3.
If officers stop interrogating a suspect upon the suspect's invocation of the right to
counsel, the suspect may waive the previously invoked right. To do so, the suspect must
provide statements that evince a willingness and a desire for a generalized discussion
about the investigation and are not merely a necessary inquiry arising out of the incidents
of the custodial relationship.
1
4.
Based on the Fifth Amendment right against self-incrimination and the Fourteenth
Amendment Due Process Clause, a coerced confession is inadmissible.
5.
Although rare, a confession can be coerced even if officers complied with
Miranda and the accused unambiguously waived the right to counsel. The primary
consideration when examining whether a confession was coerced is voluntariness.
Appeal from Saline District Court; RENE S. YOUNG, judge. Opinion filed June 7, 2019. Affirmed.
Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, argued the cause and was on the
brief for appellant.
Ellen Hurst Mitchell, county attorney, argued the cause, and Derek Schmidt, attorney general, was
with her on the brief for appellee.
The opinion of the court was delivered by
ROSEN, J.: A jury convicted Macio Palacio Jr. of first-degree murder under
theories of premeditation and felony murder, attempted first-degree murder, criminal
discharge of a firearm at an occupied vehicle, and conspiracy to commit aggravated
battery. We affirm his convictions.
FACTUAL AND PROCEDURAL BACKGROUND
On May 5, 2015, Stephen Gentry had an altercation with his girlfriend, Kaylee
Ovalle. The next day, Ovalle went to collect her personal items from their shared
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apartment. She brought three people with her—her mother, Amber Ovalle (Amber);
Amber's boyfriend, Chad Bennett; and Bennett's friend, Anthony Darby. They all drove
together in Ovalle's grandfather's green pickup truck. When they arrived at the apartment
complex, they encountered Gentry and another man in the parking lot. Bennett asked
Gentry to give him the keys to the apartment. This led to an argument, and Darby
punched Gentry in the face, breaking his glasses. After this incident, Ovalle, Amber,
Bennett, and Darby left.
Earlier in the day on May 6, 2015, Daniel Sims and Gentry were in Sims'
apartment, which was located across the hall from Gentry's and Ovalle's apartment. Sims
testified that on that day, he met Palacio when Palacio came to Sims' apartment with his
girlfriend and Andrew Woodring. Palacio had a handgun with him and stayed at the
apartment for about 30 minutes before leaving with his girlfriend and Woodring. After
the three left, Sims and Gentry went to a convenience store across the street. When they
returned, they encountered Bennett and Darby in the same parking lot where the earlier
argument had occurred.
A short time after this encounter, Sims went to Jerome Forbes' apartment, which
was also located in the same apartment complex. Gentry and Forbes were both there.
Gentry was very angry and wanted revenge. He wanted to fight Bennett and Darby.
Gentry began calling people to try to find a gun. Palacio and Woodring arrived at Forbes'
apartment, and Gentry asked Palacio, "Did you bring that?" Palacio responded, "I got
that."
Woodring, Forbes, Sims, Gentry, and Palacio drove in Woodring's Honda Civic to
where Bennett lived and parked a block away. When they noticed that no one was home,
they returned to the car. Before they left, headlights appeared in the street. Gentry wanted
to wait to see "if it was them." A truck appeared and slowed down as it passed them.
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Gentry told Palacio to shoot. Palacio fired five shots towards the truck. Sims and Forbes
ran away. Neighbors in the area testified to hearing gunshots around 9:30 p.m. on May 6,
2015, and then seeing a Honda Civic erratically speed away. One of the neighbors
recorded the car's license plate. The police traced this car to Woodring.
One of the shots hit Allie Saum, who had been sitting in the passenger seat of the
truck. Vince Johnson, Saum's boyfriend, had been driving the truck. Neither of them
knew Palacio or any of the codefendants. Saum died early the next morning.
When police responded to the scene, they found five spent shell casings in the
street and a projectile in the dash of Johnson's truck. Investigators eventually learned that
Palacio might have been connected to Saum's death. Officers went to Palacio's house
early in the morning on May 7, 2015 and took Palacio into custody. After they cleared the
house, the officers allowed Palacio's girlfriend, Azucena Garcia, to go back into the
house to get some belongings for her children. During one of her trips inside to collect
belongings, Garcia attempted to conceal a Glock model 30, .45 caliber handgun. When
officers discovered the gun, they also took Garcia into custody. A forensic scientist later
testified that the casings in the street and the projectile in Johnson's dash were fired from
this gun.
Sergeant James Feldman and Lieutenant William Cox interviewed Palacio in
connection with Saum's murder on May 7, 2015. The officers Mirandized Palacio before
asking him any questions, and Palacio agreed to speak to them without an attorney
present. Palacio told the officers that on the day in question, Woodring had asked him if
he wanted to go with him to find Gentry—who had been jumped—but that he declined.
Sergeant Feldman then told Palacio that he knew Palacio was at the shooting and that his
gun was used. Lieutenant Cox told Palacio "I think about some poor girl's parents." At
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that point, Palacio stated "[h]onestly, I just want to talk to my attorney." The following
interaction then took place:
"[Sergeant Feldman:] That's fine. You are being charged with felony murder and
shooting into an occupied vehicle. Your girlfriend is being charged with felony
obstruction and child endangerment.
"[Lieutenant Cox:] Do you have any felony convictions?
"[Palacio:] Um, I have pending charges right now.
"[Sergeant Feldman:] Drug convictions?
"[Palacio:] Yes, sir.
"[Sergeant Feldman:] Okay. So that's what's happening.
"[Lieutenant Cox:] Well, we'll have you have a seat out here and get the paperwork
together and get you next door.
"[Palacio:] I'd like to say something else.
"[Sergeant Feldman:] What's that?
"[Palacio:] Um, you want to take a seat.
"[Sergeant Feldman:] Do you want to continue talking?
"[Palacio:] Yea.
"[Sergeant Feldman:] Without an attorney present?
"[Palacio:] Yea, I'll do that.
"[Sergeant Feldman:] Okay.
"[Palacio:] Um, honestly, I was there.
"[Sergeant Feldman:] Mm-hmm.
"[Palacio:] I was there.
"[Sergeant Feldman:] Why don't you walk us through what happened then."
Palacio then told officers he had gone with Woodring to meet with Gentry and
then gone to the area where Ovalle lived. When they realized Ovalle was not there, the
others said they should leave, but then a truck passed by and everybody started "freaking
out." Eventually, Palacio admitted that he fired the gun towards the truck after Gentry
told him to shoot.
5
The State charged Palacio with first-degree murder under theories of
premeditation and felony murder for the killing of Saum, attempted first-degree murder
for the attempted killing of Johnson, criminal discharge of a firearm into an occupied
vehicle, and conspiracy to commit aggravated battery.
On October 7, 2015, Gentry filed a motion to change venue, arguing that
significant pretrial publicity made it impossible for him to receive an impartial jury in
Saline County. Gentry submitted numerous media articles covering the Saum murder
with this motion. After an evidentiary hearing, the district court denied the motion.
On February 22, 2016, Palacio filed a motion to suppress his confession. The
district court judge suppressed the statements Palacio made in-between the time he asked
for a lawyer and the time he told the officers he wanted to say something else. The judge
declined to suppress any of his other statements.
The case proceeded to trial, and the jury found Palacio guilty of first-degree
murder under theories of premeditation and felony murder, attempt to commit first-
degree murder, criminal discharge of a firearm, and conspiracy to commit aggravated
battery.
The district court judge sentenced Palacio to life imprisonment without the
possibility of parole for 50 years for the first-degree murder conviction, 234 months'
imprisonment for the attempted first-degree murder conviction, 59 months' imprisonment
for the criminal discharge of a firearm conviction, and 6 months' imprisonment for the
conspiracy to commit aggravated battery conviction. The judge ordered the three shortest
sentences to run concurrent to the life sentence.
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Palacio appealed to this court.
ANALYSIS
Motion to Change Venue
In the district court, Palacio argued that he was entitled to a change of venue under
the Sixth and Fourteenth Amendments to the United States Constitution and Section 10
of the Kansas Bill of Rights because the pretrial publicity was so great he could not
receive a fair and impartial trial in Saline County. Palacio also appeared to assert that he
was entitled to a change of venue under K.S.A. 22-2616. The district court judge
disagreed and denied Palacio's motion. Palacio appealed that decision. At oral argument,
he stated that he only challenges the district court's conclusion with regard to his statutory
right to a change in venue.
We review the trial court's decision on a motion to change venue pursuant to
K.S.A. 22-2616(1) for an abuse of discretion. An abuse of discretion occurs "when the
trial court makes an error of law; bases its decision on facts not supported by the
evidence; or makes an arbitrary, fanciful, or unreasonable decision." State v. Longoria,
301 Kan. 489, 509, 343 P.3d 1128 (2015).
K.S.A. 22-2616(1) directs a trial court to grant a defendant's motion to change
venue if it "is satisfied that there exists in the county where the prosecution is pending so
great a prejudice against the defendant that he cannot obtain a fair and impartial trial in
that county." In determining whether these circumstances exist, the trial court considers
the following nine factors:
"'(1) the particular degree to which the publicity circulated throughout the community;
(2) the degree to which the publicity or that of a like nature circulated to other areas to
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which venue could be changed; (3) the length of time which elapsed from the
dissemination of the publicity to the date of trial; (4) the care exercised and the ease
encountered in the selection of the jury; (5) the familiarity with the publicity complained
of and its resultant effects, if any, upon the prospective jurors or the trial jurors; (6) the
challenges exercised by the defendant in the selection of the jury, both peremptory and
for cause; (7) the connection of government officials with the release of the publicity; (8)
the severity of the offense charged; and (9) the particular size of the area from which the
venire is drawn.'" Longoria, 301 Kan. at 510 (quoting State v. Carr, 300 Kan. 1, Syl.
¶ 10, 331 P.3d 544 [2014], rev'd and remanded on other grounds, 577 U.S. ___, 136 S.
Ct. 633, 193 L. Ed. 2d 535 [2016]).
The district court judge considered the nine-factor statutory test and made findings
on each. She found that factors one and eight weighed "slightly in favor of a change in
venue," and that factors two, three, seven, and nine did not weigh in favor of a change in
venue. She also found that factors four, five, and six were inapplicable. Based on this she
concluded that Palacio had not shown there was prejudice in the community significant
enough to warrant a change in venue.
Palacio argues that the district court judge abused her discretion when it held that
the eighth factor—the severity of the crime—weighed slightly in favor of a change of
venue because no reasonable person would agree. He asserts that it weighed
"overwhelmingly in favor of prejudice." Palacio has not persuaded us.
This court found that this factor weighed in favor of a change of venue in Carr,
where the defendants were charged with multiple counts of capital murder and rape,
among other severe crimes, and in Longoria, where the defendant was charged with
capital murder. 300 Kan. at 81; 301 Kan. at 510.
Palacio was charged with first-degree murder, attempted first-degree murder,
criminal discharge of a firearm at an occupied vehicle, and conspiracy to commit
8
aggravated battery. Because one of these crimes was a homicide, it was reasonable to
conclude that this factor favored a change of venue. But, because all of the crimes are
lesser crimes than those in Carr and Longoria, it was also reasonable to find that they
only slightly weighed in favor of a change of venue. The district court judge did not
abuse her discretion when it came to this conclusion. Consequently, Palacio's challenge
to the court's denial of his motion to change venue fails.
Motion to Suppress Confession
Palacio argues that the district court violated his Fifth Amendment rights under the
United States Constitution when it denied his motion to suppress his confession. He
primarily argues that officers violated his rights because they continued interrogating him
after he asked for a lawyer. In the alternative, he argues that his confession was
involuntary because the police used coercive tactics.
We use a bifurcated standard of review when considering a district court's decision
on a motion to suppress evidence. State v. Patterson, 304 Kan. 272, 274, 371 P.3d 893
(2016). First, we review the district court's factual findings to determine whether they are
supported by substantial competent evidence. In reviewing the factual findings, we do not
reweigh the evidence or assess the credibility of witnesses. Second, we review the
ultimate legal conclusion de novo. Patterson, 304 Kan. at 274.
Palacio's request to speak to an attorney
"The Fifth Amendment to the United States Constitution guarantees . . . the right
to have a lawyer present during custodial interrogation and the right to remain silent."
State v. Walker, 276 Kan. 939, 944, 80 P.3d 1132 (2003) (citing Miranda v. Arizona, 384
U.S. 436, 479, 86 S. Ct. 1602, 16 L. Ed. 2d 694 [1966]). Certain "procedural safeguards
9
are necessary to protect" these rights. Rhode Island v. Innis, 446 U.S. 291, 297, 100 S. Ct.
1682, 64 L. Ed. 2d 297 (1980). "More specifically, . . . 'the prosecution may not use
statements, whether exculpatory or inculpatory, stemming from custodial interrogation of
the defendant unless it demonstrates the use of procedural safeguards effective to secure
the privilege against self-incrimination.'" Innis, 446 U.S. at 297 (quoting Miranda, 384
U.S. at 444). These safeguards are now known as the Miranda warnings—statements
from law enforcement officials informing defendants of their rights. Innis, 446 U.S. at
297. Once these warnings have been given, "'the subsequent procedure is clear. . . . If the
individual states that he wants an attorney, the interrogation must cease until an attorney
is present.'" Innis, 446 U.S. at 297 (quoting Miranda, 384 U.S. at 473-74); see also State
v. Salary, 301 Kan. 586, 604, 343 P.3d 1165 (2015) (If "the accused has unambiguously
invoked the right to counsel, questioning must cease immediately and may be resumed
only after a lawyer has been made available or the accused reinitiates the conversation
with the interrogator.").
Here, the district court judge made the following factual findings:
"[A]fter defendant asked to speak to an attorney, Sergeant Feldman proceeded to advise
the defendant of the offenses he and his girlfriend were being charged with. The officers
then asked the defendant if he had any felony convictions or drug charges. After the
defendant answered these questions, the officers stood up to leave and stated they would
get the paperwork prepared. The defendant then stated he wanted to speak further to the
officers and asked them to sit down. After Sergeant Feldman inquired as to whether the
defendant wished to speak to them without an attorney, the interrogation continued.
"The officers testified that defendant was asked whether he had any felony
convictions or drug offenses, to determine whether he could be charged with being a
felon in possession of a firearm."
10
Palacio does not challenge these findings. He challenges the district court's legal
conclusions based on these findings. Those were as follows:
"The Court concludes that the responses the defendant gave to the officers as to whether
he had any felony convictions or drug charges should be suppressed, as the questions
were asked after the defendant invoked his right to counsel. The Court finds all other
statements made by the defendant before he invoked his right to counsel and after he
asked to continue to speak to them without an attorney were the product of his free and
voluntary will and were made without any threats, coercion, or deceptive practices on the
part of the officers. And so the parties will need to make the appropriate redactions."
Palacio asserts that the statements the officers made and the questions they asked
him immediately after he invoked his right to counsel were interrogative and,
consequently, a violation of his constitutional rights. Based on this conclusion, he argues
that everything he said to the officers after he invoked his right to counsel should have
been suppressed.
The State agrees that Palacio unambiguously invoked his right to counsel and that,
as a result, all interrogation should have stopped until Palacio was provided a lawyer or
he reinitiated the interrogation. But the State maintains that the questions the officers
posed immediately after he asked for a lawyer were routine questions that did not amount
to interrogation and were therefore permissible under the Fifth Amendment. They argue
that Palacio then reinitiated the interrogation and thus any answers he provided to the line
of questions that followed were admissible.
The question we face is whether the officers' statements and the questions they
asked of Palacio immediately after he invoked his right to counsel were interrogation. If
they were, then the officers stepped over the constitutional line, because "[o]nce the right
to have counsel present during interrogation has been invoked, the courts impose a
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relatively rigid requirement that interrogation must cease." State v. Cosby, 285 Kan. 230,
242, 169 P.3d 1128 (2007). The interrogation can continue only after a lawyer has been
made available or the suspect reinitiates the interrogation. Cosby, 285 Kan. at 242.
Although Palacio asked the officers to sit down and told them he wanted to talk without a
lawyer present after he listened to those statements and answered the questions, his
comments would not qualify as reinitiation if they occurred after interrogation. "A valid
waiver of a previously asserted right cannot be established by showing only that the
suspect responded to further police-initiated custodial interrogation, even if the suspect
has been advised of his rights." Cosby, 285 Kan. at 242 (citing Edwards v. Arizona, 451
U.S. 477, 482, 484-85, 101 S. Ct. 1880, 68 L. Ed. 2d 378 [1981]).
The United States Supreme Court has described interrogation as "express
questioning," or "any words or actions on the part of the police (other than those normally
attendant to arrest and custody) that the police should know are reasonably likely to elicit
an incriminating response from the suspect." Innis, 446 U.S. at 301.
Although Innis seems to hold that "explicit questioning" always constitutes
interrogation, most courts have interpreted it differently. In United States v. Booth, 669
F.2d 1231, 1237 (9th Cir. 1981), the Ninth Circuit said that the Court's opinion in Innis
"appears to assume that direct questioning of a suspect in custody always
constitutes interrogation. Other courts have so held. [Citations omitted.] However,
we believe the reasoning supporting the Court's decision, indeed the very purpose
behind Miranda itself, compels the conclusion that not every question posed in a
custodial setting is equivalent to 'interrogation.' . . . Many sorts of questions do
not, by their very nature, involve the psychological intimidation that Miranda is
designed to prevent." Booth, 669 F.2d at 1237.
12
The court held that explicit questioning is only interrogation if it is "'reasonably
likely to elicit an incriminating response from the suspect.'" Booth, 669 F.2d at 1237
(quoting Innis, 446 U.S. at 301); see also United States v. Bogle, 114 F.3d 1271, 1275
(D.C. Cir.), cert. denied 522 U.S. 938 (1997) (express questioning is not always
interrogation because "[a] question that is not likely to elicit an incriminating response is
not inherently coercive and therefore should not trigger the protections of Miranda").
While other courts have interpreted Innis more literally, see United States v.
Montgomery, 714 F.2d 201, 202 (1st Cir. 1983) (express questioning is always
interrogation), the Ninth Circuit's interpretation is certainly the more common reading of
Innis. Skelton & Connell, The Routine Booking Question Exception to Miranda, 34 U.
Balt. L. Rev. 55, 69-70 (2004) (collecting cases and explaining that at the time, only the
First Circuit followed a rule that express questioning was always interrogation).
This understanding comports with a plurality decision of the United States
Supreme Court. In Pennsylvania v. Muniz, 496 U.S. 582, 601, 110 S. Ct. 2638, 110 L. Ed.
2d 528 (1990), it held that "[r]outine booking questions" are exempt from Miranda's
coverage. These include "questions to secure the 'biographical data necessary to complete
booking or pretrial services,'" like questions regarding "name, address, height, weight,
eye color, date of birth, and current age." Muniz, 496 U.S. at 601.
This court has never directly addressed whether explicit questioning is always
interrogation. But our cases have indicated that it is not. In State v. Hebert, 277 Kan. 61,
70, 82 P.3d 470 (2004), officers asked a suspect in custody whether he wanted to share
his side of the story. This court considered the question to constitute interrogation not
because it was a question, but because the officers should have known the defendant
would respond in an incriminating manner. 277 Kan. at 70; see also State v. Ninci, 262
Kan. 21, 36, 936 P.2d 1364 (1997) (questions were interrogation because the officers
should have known they were likely to elicit an incriminating response). And in State v.
13
Garcia, 233 Kan. 589, 664 P.2d 1343 (1983), we confirmed that routine booking
questions are not interrogation because they are not likely to elicit an incriminating
response. Finally we have also explained that a request that subjects identify themselves
is not interrogation. State v. Taylor, 231 Kan. 171, 174, 642 P.2d 989 (1982).
Today we confirm that express questioning is not per se interrogation. Rather, it is
subject to the same test as an officer's other conduct. An officer's words or actions,
including explicit questioning, is interrogation only if the officer should have known that
the questioning was "reasonably likely to elicit an incriminating response from the
suspect." Innis, 446 U.S. at 301.
We now consider whether any of the things the officers said to Palacio after he
invoked his right to counsel were interrogation. Whether words or actions are likely to
elicit an incriminating response "focuses primarily upon the perceptions of the suspect,
rather than on the intent of the police." Innis, 446 U.S. at 301. Courts should review what
officers "should have known." Innis, 446 U.S. at 302.
In Herbert, this court concluded that an officer's question was interrogative when
he asked whether the defendant would like to share his side of the story. 277 Kan. at 70.
And in Ninci, the defendant was subject to interrogation when an officer asked him if he
recognized a photograph of a primary suspect and why his car was in front of the victim's
house during the same week as the murder.
In contrast, in Garcia, 233 Kan. at 607, this court found that questions on a
personal history sheet were not interrogative. The questions asked for the defendant's
"name, address, physical description, description of his car, names and addresses of
relatives, prior arrests, and his parole officer." 233 Kan. at 602. In a similar vein, some
courts have held that declarative statements about what charges would be pursued against
14
the subject or the evidence against them were not interrogation. United States v. Payne,
954 F.2d 199, 202 (4th Cir. 1992); Shedelbower v. Estelle, 885 F.2d 570, 573 (9th Cir.
1989). In State v. Thurber, 308 Kan. 140, 152, 420 P.3d 389 (2018), there was no concern
that discussion between the defendant and an officer who held the defendant in custody
amounted to interrogation because it was "small talk unrelated to the investigation."
The comments and questions here were similar to the questions in Garcia and the
discussions in Thurber. They were either declarative statements meant to inform Palacio
of the reasons he and his girlfriend were in custody, or they were questions that did not
otherwise concern Palacio's involvement in or knowledge of the crimes the officers were
investigating. The officers were not offering any information for Palacio to consider or
pressuring him to change his mind. Consequently, the comments and questions were not
interrogation and they did not violate Palacio's Fifth Amendment rights.
Because the officers did not continue to interrogate Palacio after he invoked his
right to counsel, Palacio was free to waive his previously invoked right. An accused may
do so with statements that "evince 'a willingness and a desire for a generalized discussion
about the investigation'" and are "'not merely [] a necessary inquiry arising out of the
incidents of the custodial relationship.'" Walker, 276 Kan. at 947 (quoting Oregon v.
Bradshaw, 462 U.S. 1039, 1045-46, 103 S. Ct. 2830, 77 L. Ed. 2d 405 [1983]).
Palacio provided these statements here. The district court judge found that, after
Palacio told the officers about his other convictions, "the officers stood up to leave and
stated they would get the paperwork prepared." After they stood, Palacio "then stated he
wanted to speak further to the officers and asked them to sit down. After Sergeant
Feldman inquired as to whether the defendant wished to speak to them without an
attorney, the interrogation continued."
15
Based on these findings, we conclude that Palacio knowingly and intelligently
waived his previously invoked right. His statements "showed a desire . . . to re-engage in
dialogue with law enforcement about the investigation." Thurber, 308 Kan. at 156. As a
result, the interrogation that followed was proper under the Fifth Amendment.
Voluntariness of Palacio's confession
In the district court, Palacio advanced an alternative argument—that, even if he
waived his right to counsel, his eventual confession was involuntary because the police
used coercive tactics.
Based on the Fifth Amendment right against self-incrimination and the Fourteenth
Amendment Due Process Clause, a coerced confession is inadmissible. Dickerson v.
United States, 530 U.S. 428, 433-34, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000).
Although "rare," a confession can be coerced even if officers complied with Miranda and
the accused unambiguously waived the right to counsel. Berkemer v. McCarty, 468 U.S.
420, 433 n.20, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984).
The primary consideration when considering whether a confession was coerced is
"voluntariness." State v. Swindler, 296 Kan. 670, 678, 294 P.3d 308 (2013). It is the
State's burden to show "that a defendant's statements were voluntarily made." Swindler,
296 Kan. at 679. To decide whether a confession was involuntary, the court looks to the
totality of the circumstances after considering a list of six nonexclusive factors:
"'(1) the accused's mental condition; (2) the duration and manner of the interrogation; (3)
the ability of the accused on request to communicate with the outside world; (4) the
accused's age, intellect, and background; (5) the fairness of the officers in conducting the
interrogation; and (6) the accused's fluency with the English language. [Citations
16
omitted.]'" State v. Swindler, 296 Kan. 670, 678, 294 P.3d 308 (2013) (quoting State v.
Gilliland, 294 Kan. 519, 528-29, 276 P.3d 165 [2012]).
In this case, the district court judge considered each of these factors before
concluding that Palacio made his confession voluntarily. Palacio challenges the judge's
decision with regard to the fifth factor only—the fairness of the officers in conducting the
interrogation. The judge made the following findings and conclusions with regard to that
factor:
"The Court finds based upon the recorded interrogation that the officers spoke to the
defendant in a polite and conversational tone. The defendant did not at any time—or,
excuse me. The officers did not at any time threaten, coerce, or engage in deceptive
practices during the interview. No promises or threats were made. The Court finds that
the defendant was treated fairly by the officers during the interrogation."
Palacio disagrees with the court's conclusion that the officers did not threaten or
coerce him. He asserts it was coercive to tell Palacio what he was being charged with and
to tell him to think of Saum's parents, and that the officers meant to threaten him when
they told him about his girlfriend's charges and asked about his felony convictions. We
disagree.
In State v. Swanigan, 279 Kan. 18, 39, 106 P.3d 39 (2005), this court held that the
officers' repeated lie that a robbery suspect's fingerprints had been found on a window
suggested a coerced confession. The officers also threatened to convey the suspect's lack
of cooperation and charge him with additional crimes. Because the officers also took
advantage of the suspect's low intellect and susceptibility to being overcome by anxiety,
the totality of the circumstances showed that the resulting confession was involuntary.
279 Kan. at 39. In State v. Stone, 291 Kan. 13, 32, 237 P.3d 1229 (2010), this court again
17
found that officers' tactics suggested coercion when they made untrue statements
indicating the suspect's semen had been found on the pajamas of the victim.
Sergeant Feldman testified that he told Palacio what he would be charged with so
Palacio would know the charges. Sergeant Feldman indicated that Palacio's girlfriend had
also been arrested, so he told Palacio what she would be charged with so he was also
aware of her charges. Lieutenant Cox testified that he asked Palacio if he had any other
felony convictions because he was trying to determine if Palacio would also be charged
as a felon in possession of a firearm. Sergeant Feldman testified that he then asked
Palacio if he had drug charges because "someone addicted to drugs cannot also possess a
firearm."
From this testimony, it appears that the officers did not tell any untruths, unlike the
officers in Swanigan and Stone. Their statements could be perceived as threats—subtle
hints that Palacio and his girlfriend are already in trouble and should talk to the officers.
But the officers never explicitly threatened Palacio or promised to help him if he talked.
This court made the same observation in State v. Sharp, 289 Kan. 72, 90, 210 P.3d 590
(2009), when considering whether officers had coerced a suspect's statements. Although
it acknowledged that promises can be implicit, the officer's testimony indicated that he
never intended to make an implicit promise. 289 Kan. at 90. Likewise, here, the officers
both testified that they asked Palacio these questions because they wanted to know what
other charges they could file against him—not as a threat, but as a matter of fact.
Palacio also argues that Lieutenant Cox's statement to Palacio that "I think about
some poor girl's parents," was coercive. Lieutenant Cox said this immediately before
Palacio asked for an attorney. But "[p]olice appeals to the defendant's sympathies, such as
by the now-famous 'Christian burial speech' ploy, 'do not automatically render a
confession involuntary.'" LaFave, 2 Criminal Procedure § 6.2(c) (4th ed. 2019) (quoting
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Stawicki v. Israel, 778 F.2d 380, 383 [7th Cir. 1985]). Rather, "[t]heir use must instead be
considered in conjunction with the rest of the circumstances." Stawicki, 778 F.2d at 383.
Because Palacio does not suggest that any of the other factors suggested coercion, this
single statement fails to render his confession involuntary—even if it was coercive.
Consequently, the district court judge did not err when she found that the officers
did not threaten, coerce, or engage in deceptive practices, concluded that Palacio's
confession was voluntary, and denied his motion to suppress.
We affirm the convictions.
JOHNSON, J., concurs in the result.
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