State v. Palacio
| Citation | 442 P.3d 466 |
| Decision Date | 07 June 2019 |
| Docket Number | No. 116,899,116,899 |
| Parties | STATE of Kansas, Appellee, v. Macio Domingo PALACIO Jr., Appellant. |
| Court | United States State Supreme Court of Kansas |
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.
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.
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:
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.
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.
Palacio appealed to this court.
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 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...
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...in custody and under interrogation, that officer violates that defendant's rights under the Fifth Amendment. See State v. Palacio , 309 Kan. 1075, 1081-82, 442 P.3d 466 (2019) (citing Innis , 446 U.S. at 297, 100 S.Ct. 1682 ). So incriminating pre- Miranda statements obtained during a custo......
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