Kansas Peace Officers Association

"Co-operation and Justice"

State v. Palacio; No. 116,899

06/30/2019 3:11 PM | Colin Wood (Administrator)

 State v. Palacio; No. 116,899

Macio Palacio Jr. was involved in a disturbance where he fired shots at the wrong vehicle and an innocent female passenger was killed.  Palacio was arrested and interviewed at the station.  Because Palacio was in arrest custody, and was being asked questions concerning the criminal event, the interviewing officers Mirandized him.  He agreed to speak to them.  One of the interviewers told Palacio that he knew Palacio was at the shooting and that Palacio’s gun had been used.  Another interviewer said, “I think about some poor girl’s parents.”  In response, Palacio said, “[h]onestly, I just want to talk to my attorney.”

The trial judge later found: “[A]fter defendant asked to speak to an attorney, [the Sergeant] 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 [the Sergeant] inquired as to whether the defendant wished to speak to them without an attorney, the interrogation continued.”

After restarting the interview, Palacio admitted to being the shooter.  After being charged, he requested that the trial court suppress all of his statements made after he asked to speak to his attorney.  Following a hearing, the trial judge suppressed only the statements made by Palacio between the time that he asked to speak to an attorney and when he told officers that he wanted to speak further with the officers.  Palacio was convicted and appealed saying that the statements of the officers, and the questions that they asked immediately after Palacio had invoked his right to counsel, were interrogative and thus a constitutional violation.  In essence, Palacio argued that the interrogation never ended.

The Kansas Supreme Court first noted that “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 . . . 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.”

Interrogation is “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.  The Supreme Court then held 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.”

The comments and questions in Palacio’s case 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 [about speaking to an attorney].  The officers did not violate Palacio’s Fifth Amendment rights.

As for asking for the interview to continue, the Supreme Court agreed with the trial court that Palacio knowingly and intelligently waived his previously invoked right, and that his statements, “showed a desire . . . to re-engage in dialogue with law enforcement about the investigation.”

Then, the Supreme Court took up the issue of whether Palacio’s confession as the shooter was voluntarily given.  To decide that question, Kansas courts look at the following factors: 1) the accused’s mental state; 2) the duration and manner of interrogation; 3) the ability of the accuse 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.  Palacio argued only the fifth factor: that the officers conducted the interrogation unfairly.

The Supreme Court again agreed with the trial judge who had earlier found based upon the recorded interview that “the officers spoke to the defendant in a polite and conversational tone . . . The officers did not at any time threaten, coerce, or engage in deceptive practices during the interview.  No promises were made . . . the defendant was treated fairly by the officers . . .”

The Supreme Court did note that Palacio also complained that the interviewing officer’s statement “I think about some poor girl’s parents” was coercive.  But, “[p]olice appeals to the defendant’s sympathies, such as the now-famous ‘Christian burial speech’ ploy, ‘do not automatically render a confession involuntary.  Rather, “[t]heir use must instead be considered in conjunction with the rest of the circumstances.”  Because none of the other factors in the test for voluntariness suggested coercion, that single statement, even if it was coercive, failed to render the confession involuntary.

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