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.
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.
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.
Based on the Fifth Amendment right against self-incrimination
and the Fourteenth Amendment Due Process Clause, a coerced
confession is inadmissible.
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.
from Saline District Court; Rene S. Young, judge. Affirmed.
E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, argued
the cause and was on the brief for appellant.
Hurst Mitchell, county attorney, argued the cause, and Derek
Schmidt, attorney general, was with her on the brief for
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.
and Procedural Background
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
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.
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."
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.
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.
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
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.
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
"[Lieutenant Cox:] Well, we'll have you have a seat
out here and get the paperwork together and get you next
"[Palacio:] I'd like to say something ...