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State v. Palacio

Supreme Court of Kansas

June 7, 2019

State of Kansas, Appellee,
Macio Domingo Palacio Jr., Appellant.


         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.

         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. 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.


          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 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.

          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 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 ...

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