State v. Aguirre, 119,529

Decision Date23 April 2021
Docket NumberNo. 119,529,119,529
Citation485 P.3d 576
Parties STATE of Kansas, Appellee, v. Luis Antonio AGUIRRE, Appellant.
CourtKansas Supreme Court

Clayton J. Perkins, of Capital Appellate Defender Office, argued the cause, and Meryl Carver-Allmond, of the same office, was with him on the briefs for appellant.

David Lowden, deputy county attorney, argued the cause, and Barry K. Disney, senior deputy county attorney, Barry R. Wilkerson, county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by Wilson, J.:

The present appeal represents Luis Antonio Aguirre's second appearance before this court. In State v. Aguirre , 301 Kan. 950, 349 P.3d 1245 (2015) ( Aguirre I ), a majority of the court reversed a prior jury verdict finding Aguirre guilty of capital murder in these two deaths based on the district court's failure to suppress his confession, which, the majority concluded, was obtained in violation of Miranda v. Arizona , 384 U.S. 436, 473-74, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Following a new trial on remand, a jury convicted Aguirre of voluntary manslaughter in the death of his ex-girlfriend, T.M., and of first-degree premeditated murder in the death of J.M., their one-year-old son. Aguirre again appeals. This time, although we conclude that Aguirre has identified error in the district court's decision to admit certain expert testimony, we find that the error was not reversible. Finding no other errors, we affirm Aguirre's convictions.


In September 2007, T.M. and her one-year-old son, J.M., left a homeless shelter in Chicago. A month later, their bodies were discovered in a shallow grave near Ogden, Kansas. Following several leads, law enforcement eventually brought Aguirre in for questioning. After additional investigation, the State of Kansas charged Aguirre with one count of capital murder for the two deaths. (A more detailed recitation of the facts was presented in Aguirre I .) We will discuss additional evidence presented at the second trial where pertinent to the issues.

The jury ultimately convicted Aguirre of voluntary manslaughter in the death of T.M. and of premeditated first-degree murder in the death of J.M. Aguirre appealed.


Aguirre raises eight issues for our consideration.

Voluntariness of Aguirre's statements to law enforcement

Aguirre first claims that his statements made to law enforcement after invoking his Miranda rights were involuntary. He asserts the district court erred in ruling that these statements were voluntary and could be used for impeachment purposes—though they were not, ultimately, presented to the jury.

Standard of Review
"An appellate court employs the same standard of review for determining the voluntariness of the waiver of Miranda rights as it does for assessing the voluntariness of a defendant's statement. The inquiry requires an examination of the totality of the circumstances, and an appellate court reviews the factual underpinnings of the trial court's decision by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard." State v. Mattox , 280 Kan. 473, Syl. ¶ 3, 124 P.3d 6 (2005).

The State bears the burden to establish voluntariness by a preponderance of the evidence. State v. Guein , 309 Kan. 1245, 1259-60, 444 P.3d 340 (2019).

"The essential inquiry is whether the statement was the product of an accused's free and independent will. The court looks at the totality of the circumstances surrounding the statement and determines its voluntariness by considering the following nonexclusive list of factors: (1) the accused's mental condition; (2) the manner and duration of the interrogation; (3) the ability of the accused to communicate on request 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.’ " State v. Stone , 291 Kan. 13, 21, 237 P.3d 1229 (2010).

However, these factors are not merely to be tallied up against one another, and any one factor may be sufficient to find that a confession was involuntary. Guein , 309 Kan. at 1260, 444 P.3d 340 (quoting State v. Sharp , 289 Kan. 72, 81, 210 P.3d 590 [(2009)] ). In evaluating voluntariness, " ‘an appellate court does not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence.’ " State v. Bridges , 297 Kan. 989, 1004, 306 P.3d 244 (2013) (quoting State v. Swanigan , 279 Kan. 18, 23, 106 P.3d 39 [(2005)] ).

Additional Facts

During his first interview, Aguirre mentioned his need to return a child in his care to the child's family after the detectives revealed that T.M. was dead. The Aguirre I court set forth the relevant portion of the interview at length. See 301 Kan. at 955-56, 959-61, 349 P.3d 1245. Aguirre said that once the child was with his family, "I will be here as long as you want me to afterwards." The detectives immediately assured Aguirre that the child would be taken care of and continued asking questions. Aguirre then stated: "This is—I guess where I, I'm going to take my rights and I want to turn in [the child] to his family and I'll be back here. I mean, I would like to keep helping you guys I just want to—."

At this point in the interview, the Aguirre I court held Aguirre had invoked his rights, therefore further interrogation violated Miranda . Before the second trial, both parties filed motions seeking a ruling on the voluntariness of statements Aguirre made to law enforcement after this point in the interview. The State sought to use these statements if Aguirre were to "take the stand and testify inconsistent with what he told the police in his un-Mirandized portion." After a hearing, the district court found these statements to be voluntary and admissible for impeachment purposes.


The State first argues that Aguirre failed to preserve this issue by failing to make a proffer of the evidence that he would have presented if the district court had ruled that his statements were involuntary. K.S.A. 60-405 states:

"A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless it appears of record that the proponent of the evidence either made known the substance of the evidence in a form and by a method approved by the judge, or indicated the substance of the expected evidence by questions indicating the desired answers."

Aguirre correctly counters that K.S.A. 60-405 applies to scenarios involving the exclusion of evidence, not a ruling that evidence may be admissible for impeachment. For preservation purposes, this is important. "Failure to make a proffer of excluded evidence precludes appellate review because there is no basis to consider whether the trial court abused its discretion." State v. Evans , 275 Kan. 95, 100, 62 P.3d 220 (2003). Here, however, the record provides ample grounds to determine whether Aguirre's statement was voluntary.

Turning to the merits, Aguirre claims that his post-invocation statements during the first interview were involuntary because officers continued to question him after he invoked his Miranda rights, analogizing his case to the "bait and switch" tactics in State v. Swindler , 296 Kan. 670, 681, 294 P.3d 308 (2013), which lends credence to his argument because of the "added pressure" of the child in his care, whose "cries could be heard inside the interrogation room." Aguirre also references the Aguirre I majority's comment that this "was a case where the interrogators simply refused to scrupulously honor the suspect's right to cut-off questioning but instead coerced the suspect to continue the interrogation until they had the confession they sought." 301 Kan. at 960, 349 P.3d 1245.

The State correctly counters that Aguirre I is not dispositive of this issue. The Aguirre I majority's decision not to analyze the voluntariness of Aguirre's post-invocation statements consigns any reference to "coercion" in that opinion to the realm of dicta, at best. See 301 Kan. at 963, 349 P.3d 1245.

We are also unpersuaded by Aguirre's analogy to Swindler , which we find to be distinguishable. In Swindler , the court found a defendant's confessions involuntary based solely on "the unfairness of the officers in conducting the interrogation—specifically, their assurances that he was free to terminate the interrogation and leave at any time contrasted with their refusal to honor those assurances." 296 Kan. at 680, 294 P.3d 308. The court found it was "obvious that Swindler wanted to terminate the interview and leave the KBI office" "[f]rom the time that he said ‘I'm done. I want to go home. I'm done.’ " 296 Kan. at 681, 294 P.3d 308. The court also noted the presence of Swindler's girlfriend and two young children, and Swindler's desire to go to work to earn money for them, but the court's overall focus lay on the detectives' conduct: "The message of these investigators was unmistakable: If Swindler wanted to stop talking and leave, he needed to confess." 296 Kan. at 681, 294 P.3d 308.

In contrast, Aguirre never asked the detectives to stop the interrogation altogether. At most, he asked for a temporary cessation, after which he would "be here as long as you want me to afterwards," "be back here," and that he "would like to keep helping you guys." Thus, Aguirre was not placed in the position of being forced to confess so he could be returned to the child who had been in his care.

On balance, we do not find the detectives' actions during their first interview with Aguirre to be unfairly coercive in light of the totality of the circumstances. Aguirre voluntarily went to the police station without any threats by law enforcement. When the at-issue exchange arose, the detectives admittedly proceeded on with questioning, rather than inquire as to whether Aguirre was actually invoking his...

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