text:
    STATE of Kansas, Appellee, v. Macio Domingo PALACIO Jr., Appellant.
    No. 116,899
    Supreme Court of Kansas.
    Opinion filed June 7, 2019.
    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.
   The opinion of the court was delivered by 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 else.
"[Sergeant Feldman:] What's that?
"[Palacio:] Um, you want to take a seat.
"[Sergeant Feldman:] Do you want to continue talking?
"[Palacio:] Yea.
"[Sergeant Feldman:] Without an attorney present?
"[Palacio:] Yea, I'll do that.
"[Sergeant Feldman:] Okay.
"[Palacio:] Um, honestly, I was there.
"[Sergeant Feldman:] Mm-hmm.
"[Palacio:] I was there.
"[Sergeant Feldman:] Why don't you walk us through what happened then."

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.

ANALYSIS

Motion to Change Venue

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 connection of government officials with the release of the publicity; (8) the severity of the offense charged; and (9) the particular size of the area from which the venire is drawn.' " Longoria , 301 Kan. at 510, 343 P.3d 1128 (quoting State v. Carr , 300 Kan. 1, Syl. ¶ 1, 331 P.3d 544 [2014], rev'd and remanded on other grounds , 577 U.S. ----, 136 S. Ct. 633, 193 L.Ed. 2d 535 [2016] ).

The district court judge considered the nine-factor statutory test and made findings on each. She found that factors one and eight weighed "slightly in favor of a change in venue," and that factors two, three, seven, and nine did not weigh in favor of a change in venue. She also found that factors four, five, and six were inapplicable. Based on this she concluded that Palacio had not shown there was prejudice in the community significant enough to warrant a change in venue.

Palacio argues that the district court judge abused her discretion when it held that the eighth factor-the severity of the crime-weighed slightly in favor of a change of venue because no reasonable person would agree. He asserts that it weighed "overwhelmingly in favor of prejudice." Palacio has not persuaded us.

This court found that this factor weighed in favor of a change of venue in Carr , where the defendants were charged with multiple counts of capital murder and rape, among other severe crimes, and in Longoria , where the defendant was charged with capital murder. 300 Kan. at 81, 331 P.3d 544 ; 301 Kan. at 510, 343 P.3d 1128.

Palacio was charged with first-degree murder, attempted first-degree murder, criminal discharge of a firearm at an occupied vehicle, and conspiracy to commit aggravated battery.

Because one of these crimes was a homicide, it was reasonable to conclude that this factor favored a change of venue. But, because all of the crimes are lesser crimes than those in Carr and Longoria , it was also reasonable to find that they only slightly weighed in favor of a change of venue. The district court judge did not abuse her discretion when it came to this conclusion. Consequently, Palacio's challenge to the court's denial of his motion to change venue fails.

Motion to Suppress Confession

Palacio argues that the district court violated his Fifth Amendment rights under the United States Constitution when it denied his motion to suppress his confession. He primarily argues that officers violated his rights because they continued interrogating him after he asked for a lawyer. In the alternative, he argues that his confession was involuntary because the police used coercive tactics.

We use a bifurcated standard of review when considering a district court's decision on a motion to suppress evidence. State v. Patterson , 304 Kan. 272, 274, 371 P.3d 893 (2016). First, we review the district court's factual findings to determine whether they are supported by substantial competent evidence. In reviewing the factual findings, we do not reweigh the evidence or assess the credibility of witnesses. Second, we review the ultimate legal conclusion de novo. Patterson , 304 Kan. at 274, 371 P.3d 893.

Palacio's request to speak to an attorney

"The Fifth Amendment to the United States Constitution guarantees ... the right to have a lawyer present during custodial interrogation and the right to remain silent." State v. Walker , 276 Kan. 939, 944, 80 P.3d 1132 (2003) (citing Miranda v. Arizona , 384 U.S. 436, 479, 86 S. Ct. 1602, 16 L. Ed. 2d 694 [1966] ). Certain "procedural safeguards are necessary to protect" these rights. Rhode Island v. Innis , 446 U.S. 291, 297, 100 S. Ct. 1682, 64 L.Ed. 2d 297 (1980). "More specifically, ... 'the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.' " Innis , 446 U.S. at 297, 100 S.Ct. 1682 (quoting Miranda , 384 U.S. at 444, 86 S.Ct. 1602 ). These safeguards are now known as the Miranda warnings-statements from law enforcement officials informing defendants of their rights. Innis , 446 U.S. at 297, 100 S.Ct. 1682. Once these warnings have been given, " 'the subsequent procedure is clear. ... If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.' " Innis , 446 U.S. at 297, 100 S.Ct. 1682 (quoting Miranda , 384 U.S. at 473-74, 86 S.Ct. 1602 ); see also State v. Salary , 301 Kan. 586, 604, 343 P.3d 1165 (2015) (If "the accused has unambiguously invoked the right to counsel, questioning must cease immediately and may be resumed only after a lawyer has been made available or the accused reinitiates the conversation with the interrogator.").

Here, the district court judge made the following factual findings:

"[A]fter defendant asked to speak to an attorney, Sergeant Feldman 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 Sergeant Feldman inquired as to whether the defendant wished to speak to them without an attorney, the interrogation continued.
"The officers testified that defendant was asked whether he had any felony convictions or drug offenses, to determine whether he could be charged with being a felon in possession of a firearm."

Palacio does not challenge these findings. He challenges the district court's legal conclusions based on these findings. Those were as follows:

"The Court concludes that the responses the defendant gave to the officers as to whether he had any felony convictions or drug charges should be suppressed, as the questions were asked after the defendant invoked his right to counsel. The Court finds all other statements made by the defendant before he invoked his right to counsel and after he asked to continue to speak to them without an attorney were the product of his free and voluntary will and were made without any threats, coercion, or deceptive practices on the part of the officers. And so the parties will need to make the appropriate redactions."

Palacio asserts that the statements the officers made and the questions they asked him immediately after he invoked his right to counsel were interrogative and, consequently, a violation of his constitutional rights. Based on this conclusion, he argues that everything he said to the officers after he invoked his right to counsel should have been suppressed.

The State agrees that Palacio unambiguously invoked his right to counsel and that, as a result, all interrogation should have stopped until Palacio was provided a lawyer or he reinitiated the interrogation. But the State maintains that the questions the officers posed immediately after he asked for a lawyer were routine questions that did not amount to interrogation and were therefore permissible under the Fifth Amendment. They argue that Palacio then reinitiated the interrogation and thus any answers he provided to the line of questions that followed were admissible.

The question we face is whether the officers' statements and the questions they asked of Palacio immediately after he invoked his right to counsel were interrogation. If they were, then the officers stepped over the constitutional line, because "[o]nce the right to have counsel present during interrogation has been invoked, the courts impose a relatively rigid requirement that interrogation must cease." State v. Cosby , 285 Kan. 230, 242, 169 P.3d 1128 (2007). The interrogation can continue only after a lawyer has been made available or the suspect reinitiates the interrogation. Cosby , 285 Kan. at 242, 169 P.3d 1128. 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." Cosby , 285 Kan. at 242, 169 P.3d 1128 (citing Edwards v. Arizona , 451 U.S. 477, 482, 484-85, 101 S. Ct. 1880, 68 L. Ed. 2d 378 [1981] ).

The United States Supreme Court has described interrogation as "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." Innis , 446 U.S. at 301, 100 S.Ct. 1682.

Although Innis seems to hold that "explicit questioning" always constitutes interrogation, most courts have interpreted it differently. In United States v. Booth , 669 F.2d 1231, 1237 (9th Cir. 1981), the Ninth Circuit said that the Court's opinion in Innis

"appears to assume that direct questioning of a suspect in custody always constitutes interrogation. Other courts have so held. [Citations omitted.] However, we believe the reasoning supporting the Court's decision, indeed the very purpose behind Miranda itself, compels the conclusion that not every question posed in a custodial setting is equivalent to 'interrogation.' ... Many sorts of questions do not, by their very nature, involve the psychological intimidation that Miranda is designed to prevent." Booth , 669 F.2d at 1237.

The court held that explicit questioning is only interrogation if it is " 'reasonably likely to elicit an incriminating response from the suspect.' " Booth , 669 F.2d at 1237 (quoting Innis , 446 U.S. at 301, 100 S.Ct. 1682 ); see also United States v. Bogle , 114 F.3d 1271, 1275 (D.C. Cir.), cert. denied 522 U.S. 938, 118 S.Ct. 350, 139 L.Ed.2d 272 (1997) (express questioning is not always interrogation because "[a] question that is not likely to elicit an incriminating response is not inherently coercive and therefore should not trigger the protections of Miranda "). While other courts have interpreted Innis more literally, see United States v. Montgomery , 714 F.2d 201, 202 (1st Cir. 1983) (express questioning is always interrogation), the Ninth Circuit's interpretation is certainly the more common reading of Innis . Skelton & Connell, The Routine Booking Question Exception to Miranda, 34 U. Balt. L. Rev. 55, 69-70 (2004) (collecting cases and explaining that at the time, only the First Circuit followed a rule that express questioning was always interrogation).

This understanding comports with a plurality decision of the United States Supreme Court. In Pennsylvania v. Muniz , 496 U.S. 582, 601, 110 S. Ct. 2638, 110 L. Ed. 2d 528 (1990), it held that "[r]outine booking questions" are exempt from Miranda 's coverage. These include "questions to secure the 'biographical data necessary to complete booking or pretrial services,' " like questions regarding "name, address, height, weight, eye color, date of birth, and current age." Muniz , 496 U.S. at 601, 110 S.Ct. 2638.

This court has never directly addressed whether explicit questioning is always interrogation. But our cases have indicated that it is not. In State v. Hebert , 277 Kan. 61, 70, 82 P.3d 470 (2004), officers asked a suspect in custody whether he wanted to share his side of the story. This court considered the question to constitute interrogation not because it was a question, but because the officers should have known the defendant would respond in an incriminating manner. 277 Kan. at 70, 82 P.3d 470 ; see also State v. Ninci , 262 Kan. 21, 36, 936 P.2d 1364 (1997) (questions were interrogation because the officers should have known they were likely to elicit an incriminating response). And in State v.Garcia , 233 Kan. 589, 664 P.2d 1343 (1983), we confirmed that routine booking questions are not interrogation because they are not likely to elicit an incriminating response. Finally we have also explained that a request that subjects identify themselves is not interrogation. State v. Taylor , 231 Kan. 171, 174, 642 P.2d 989 (1982).

Today we confirm 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." Innis , 446 U.S. at 301, 100 S.Ct. 1682.

We now consider whether any of the things the officers said to Palacio after he invoked his right to counsel were interrogation. Whether words or actions are likely to elicit an incriminating response "focuses primarily upon the perceptions of the suspect, rather than on the intent of the police." Innis , 446 U.S. at 301, 100 S.Ct. 1682. Courts should review what officers "should have known." Innis , 446 U.S. at 302, 100 S.Ct. 1682.

In Hebert , this court concluded that an officer's question was interrogative when he asked whether the defendant would like to share his side of the story. 277 Kan. at 70, 82 P.3d 470. And in Ninci , the defendant was subject to interrogation when an officer asked him if he recognized a photograph of a primary suspect and why his car was in front of the victim's house during the same week as the murder.

In contrast, in Garcia , 233 Kan. at 607, 664 P.2d 1343, this court found that questions on a personal history sheet were not interrogative. The questions asked for the defendant's "name, address, physical description, description of his car, names and addresses of relatives, prior arrests, and his parole officer." 233 Kan. at 602, 664 P.2d 1343. In a similar vein, some courts have held that declarative statements about what charges would be pursued against the subject or the evidence against them were not interrogation. United States v. Payne , 954 F.2d 199, 202 (4th Cir. 1992) ; Shedelbower v. Estelle , 885 F.2d 570, 573 (9th Cir. 1989). In State v. Thurber , 308 Kan. 140, 152, 420 P.3d 389 (2018), there was no concern that discussion between the defendant and an officer who held the defendant in custody amounted to interrogation because it was "small talk unrelated to the investigation."

The comments and questions here were similar to the questions in Garcia and the discussions in Thurber . They 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. Consequently, the comments and questions were not interrogation and they did not violate Palacio's Fifth Amendment rights.

Because the officers did not continue to interrogate Palacio after he invoked his right to counsel, Palacio was free to waive his previously invoked right. An accused may do so with 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.' " Walker , 276 Kan. at 947, 80 P.3d 1132 (quoting Oregon v. Bradshaw , 462 U.S. 1039, 1045-46, 103 S. Ct. 2830, 77 L.Ed. 2d 405 [1983] ).

Palacio provided these statements here. The district court judge found that, after Palacio told the officers about his other convictions, "the officers stood up to leave and stated they would get the paperwork prepared." After they stood, Palacio "then stated he wanted to speak further to the officers and asked them to sit down. After Sergeant Feldman inquired as to whether the defendant wished to speak to them without an attorney, the interrogation continued."

Based on these findings, we conclude that Palacio knowingly and intelligently waived his previously invoked right. His statements "showed a desire ... to re-engage in dialogue with law enforcement about the investigation." Thurber , 308 Kan. at 156, 420 P.3d 389. As a result, the interrogation that followed was proper under the Fifth Amendment.

Voluntariness of Palacio's confession

In the district court, Palacio advanced an alternative argument-that, even if he waived his right to counsel, his eventual confession was involuntary because the police used coercive tactics.

Based on the Fifth Amendment right against self-incrimination and the Fourteenth Amendment Due Process Clause, a coerced confession is inadmissible. Dickerson v. United States , 530 U.S. 428, 433-34, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000). Although "rare," a confession can be coerced even if officers complied with Miranda and the accused unambiguously waived the right to counsel. Berkemer v. McCarty , 468 U.S. 420, 433 n.20, 104 S. Ct. 3138, 82 L.Ed. 2d 317 (1984).

The primary consideration when considering whether a confession was coerced is "voluntariness." State v. Swindler , 296 Kan. 670, 678, 294 P.3d 308 (2013). It is the State's burden to show "that a defendant's statements were voluntarily made." Swindler , 296 Kan. at 679, 294 P.3d 308. To decide whether a confession was involuntary, the court looks to the totality of the circumstances after considering a list of six nonexclusive factors:

" '(1) the accused's mental condition; (2) the duration and manner of the interrogation; (3) the ability of the accused 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. [Citations omitted.]' " State v. Swindler , 296 Kan. 670, 678, 294 P.3d 308 (2013) (quoting State v. Gilliland , 294 Kan. 519, 528-29, 276 P.3d 165 [2012] ).

In this case, the district court judge considered each of these factors before concluding that Palacio made his confession voluntarily. Palacio challenges the judge's decision with regard to the fifth factor only-the fairness of the officers in conducting the interrogation. The judge made the following findings and conclusions with regard to that factor:

"The Court finds based upon the recorded interrogation that the officers spoke to the defendant in a polite and conversational tone. The defendant did not at any time-or, excuse me. The officers did not at any time threaten, coerce, or engage in deceptive practices during the interview. No promises or threats were made. The Court finds that the defendant was treated fairly by the officers during the interrogation."

Palacio disagrees with the court's conclusion that the officers did not threaten or coerce him. He asserts it was coercive to tell Palacio what he was being charged with and to tell him to think of Saum's parents, and that the officers meant to threaten him when they told him about his girlfriend's charges and asked about his felony convictions. We disagree.

In State v. Swanigan , 279 Kan. 18, 39, 106 P.3d 39 (2005), this court held that the officers' repeated lie that a robbery suspect's fingerprints had been found on a window suggested a coerced confession. The officers also threatened to convey the suspect's lack of cooperation and charge him with additional crimes. Because the officers also took advantage of the suspect's low intellect and susceptibility to being overcome by anxiety, the totality of the circumstances showed that the resulting confession was involuntary. 279 Kan. at 39, 106 P.3d 39. In State v. Stone , 291 Kan. 13, 32, 237 P.3d 1229 (2010), this court again found that officers' tactics suggested coercion when they made untrue statements indicating the suspect's semen had been found on the pajamas of the victim.

Sergeant Feldman testified that he told Palacio what he would be charged with so Palacio would know the charges. Sergeant Feldman indicated that Palacio's girlfriend had also been arrested, so he told Palacio what she would be charged with so he was also aware of her charges. Lieutenant Cox testified that he asked Palacio if he had any other felony convictions because he was trying to determine if Palacio would also be charged as a felon in possession of a firearm. Sergeant Feldman testified that he then asked Palacio if he had drug charges because "someone addicted to drugs cannot also possess a firearm."

From this testimony, it appears that the officers did not tell any untruths, unlike the officers in Swanigan and Stone . Their statements could be perceived as threats-subtle hints that Palacio and his girlfriend are already in trouble and should talk to the officers. But the officers never explicitly threatened Palacio or promised to help him if he talked. This court made the same observation in State v. Sharp , 289 Kan. 72, 90, 210 P.3d 590 (2009), when considering whether officers had coerced a suspect's statements. Although it acknowledged that promises can be implicit, the officer's testimony indicated that he never intended to make an implicit promise. 289 Kan. at 90, 210 P.3d 590. Likewise, here, the officers both testified that they asked Palacio these questions because they wanted to know what other charges they could file against him-not as a threat, but as a matter of fact.

Palacio also argues that Lieutenant Cox's statement to Palacio that "I think about some poor girl's parents," was coercive. Lieutenant Cox said this immediately before Palacio asked for an attorney. But "[p]olice appeals to the defendant's sympathies, such as by the now-famous 'Christian burial speech' ploy, 'do not automatically render a confession involuntary.' " LaFave, 2 Criminal Procedure § 6.2(c) (4th ed. 2019) (quoting Stawicki v. Israel , 778 F.2d 380, 383 [7th Cir. 1985] ). Rather, "[t]heir use must instead be considered in conjunction with the rest of the circumstances." Stawicki , 778 F.2d at 383. Because Palacio does not suggest that any of the other factors suggested coercion, this single statement fails to render his confession involuntary-even if it was coercive.

Consequently, the district court judge did not err when she found that the officers did not threaten, coerce, or engage in deceptive practices, concluded that Palacio's confession was voluntary, and denied his motion to suppress.

We affirm the convictions.

Johnson, J., concurs in the result.


source: Caselaw Access Project

author: Per Curiam:

license: Public Domain

text:
    In the MATTER OF Thomas Caleb BOONE, Respondent.
    No. 120,744
    Supreme Court of Kansas.
    Opinion filed June 7, 2019.
    Stanton A. Hazlett, Disciplinary Administrator, argued the cause, and was on the formal complaint for the petitioner.
    John J. Ambrosio, of Morris, Laing, Evans, Brock & Kennedy, Chtd., of Topeka, argued the cause, and Thomas Caleb Boone, respondent, argued the cause pro se.
    ORIGINAL PROCEEDING IN DISCIPLINE
   Per Curiam:

This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Thomas Caleb Boone, of Hays, an attorney admitted to the practice of law in Kansas in 1982.

On November 20, 2017, the office of the Disciplinary Administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent timely filed an answer to the complaint on January 18, 2018. A proposed probation plan was filed January 22, 2018. Stipulations signed by respondent and the office of the Disciplinary Administrator were filed August 7, 2018. Upon motion to continue which was granted on March 7, 2018, a hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on August 28, 2018, where the respondent was personally present and was represented by counsel. The hearing panel determined that respondent violated KRPC 1.1 (2019 Kan. S. Ct. R. 295) (competence); 1.3 (2019 Kan. S. Ct. R. 298) (diligence); 8.4(c) (2019 Kan. S. Ct. R. 387) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); and 8.4(d) (engaging in conduct prejudicial to the administration of justice). Respondent stipulated to violating KRPC 3.4 (d) (2019 Kan. S. Ct. R. 353) (failure to comply with discovery request) and KRPC 8.4(d).

Upon conclusion of the hearing, the panel made the following findings of fact and conclusions of law, together with its recommendation to this court:

"Findings of Fact
....
"DA12201
"12. In 2010, the respondent filed suit on behalf of C.Z. against the Osawatomie State Hospital, the Kansas Secretary of SRS and the Director of the Osawatomie State Hospital in Miami County, for injuries sustained while C.Z. was a patient of the hospital in 2008.
"13. On October 31, 2011, defendants filed a motion to dismiss based on the respondent's failure to prosecute the case. In the motion, counsel for the defendants alleged:
'This case will soon have been on file for fifteen (15) months. Soon it will be a year since the Plaintiff made effort to serve the moving Defendants. No written discovery has been propounded to Defendants and no depositions have been scheduled or taken by Plaintiff. The moving Defendants are aware of no action Plaintiff's counsel has taken to pursue the prosecution of the above-captioned case.'
The record does not reference the court's order related to this motion.
"14. On January 3, 2012, the parties jointly moved to dismiss the case without prejudice. The court granted the motion. On August 20, 2012, under the savings statute, the respondent refiled the case.
"15. On March 24, 2014, the court issued a case management order which set the following deadlines:
a. the parties were required to exchange lists of proposed non-expert witnesses and exhibits by May 5, 2014;
b. the plaintiff was required to make his expert witness disclosure by June 16, 2014;
c. the plaintiff was to undergo the statutory medical examination by August 22, 2014;
d. the parties were to complete discovery by September 8, 2014; and
e. the parties were to file all dispositive motions by October 6, 2014.
"16. The respondent failed to comply with the court's case management order.
"17. On June 16, 2014, the court held another case management conference. According to the court's notes, the court set the following deadlines:
a. the respondent was required to prepare the case management conference order;
b. the plaintiff was required to provide a list of proposed non-expert witnesses and exhibits within five days;
c. the plaintiff was required to file a statement of monetary damages within five days;
d. the plaintiff was required to make its expert witness disclosure by August 1, 2014;
e. the plaintiff was to undergo the statutory medical examination by September 10, 2014;
f. the parties were to complete discovery by October 10, 2014; and
g. the parties were to file all dispositive motions by November 21, 2014. Finally, the court scheduled another case management conference for September 5, 2014.
"18. On June 20, 2014, the respondent filed a non-expert witness and exhibit list as required. The respondent failed to file the statement of monetary damages as required.
"19. The respondent also failed to draft a case management conference order as directed by the court. As a result, counsel for the defendants drafted a case management order on August 8, 2014.
"20. The respondent failed to disclose an expert witness by August 1, 2014, as ordered by the court. On August 18, 2014, the respondent filed a motion for an extension of time to disclose an expert witness.
"21. On September 5, 2014, the court held the next scheduled case management conference. The court ordered the parties to develop a new case management order. The parties agreed to the following deadlines:
a. the plaintiff was to file discovery responses by September 12, 2014;
b. the plaintiff was to file the written statement of monetary damages by September 12, 2014;
c. the plaintiff was required to make the expert witness disclosure by September 22, 2014;
d. the plaintiff was to undergo the statutory medical examination by November 7, 2014;
e. the parties were to complete discovery by December 8, 2014; and
f. the parties were to file all dispositive motions by January 19, 2015.
After agreeing to the new deadlines, on September 8, 2014, counsel for the defendant drafted a proposed case management conference order and emailed the proposed order to the respondent. The respondent failed to sign and return the case management order.
"22. The respondent failed to provide discovery by September 12, 2014. The respondent failed to provide a written statement of monetary damages by September 12, 2014. The respondent failed to disclose his expert witness by September 22, 2014.
"23. On October 2, 2014, counsel for the defendants filed a second motion to dismiss for failure to prosecute.
"24. On October 6, 2014, the respondent filed a designation of expert witness by fax. The respondent named Don Horton, R.N. as the expert witness. The respondent signed the designation. The respondent included certain factual allegations and the following to summarize Mr. Horton's opinions:
'The expert witness believes these Defendants negligently failed to promulgate policies, procedures and/or systems to ensure that the proper hospital personnel could take quick corrective action in this instance. In the alternative, the hospital personnel who did receive the warnings described above, failed to act prudently in light of these warnings and failed to protect the Plaintiff from three threatening male patients. The expert witness believes that the warnings which Tim and she timely gave to the Defendants and/or their employees were more than sufficient to enable them to act in a timely fashion to easily and effectively protect the Plaintiff by physically intervening and physically separating the male patients from her before she was finally attacked.'
"25. Also on October 6, 2014, the respondent filed plaintiff's statement of monetary damages.
"26. On October 24, 2014, the respondent filed a response to the defendant's motion to dismiss.
"27. On October 29, 2014, the court entered a second amended case management order which had previously been approved by the parties. It appears that the second amended case management order was drafted with the expectation that it would be entered in September, 2014. Many of the deadlines delineated in the order had passed by the time the order was signed. In addition, the court set the following deadlines:
a. the defendant was required to make expert witness disclosures by November 7, 2014;
b. the plaintiff was required to undergo the statutory medical examination by November 7, 2014;
c. the parties were required to complete all discovery by December 8, 2014; and
d. the parties were required to file all dispositive motions by January 19, 2015.
"28. On November 7, 2014, the respondent filed a second designation of expert witness, naming Gerald Gentry, Ph.D., as an expert in the case. The document contained the same opinion language as the designation of Mr. Horton. See ¶ 24, above. Again, the designation was signed by the respondent.
"29. Also on November 7, 2014, the court heard the defendants' motion to dismiss. During the hearing, the respondent indicated that he filed the second expert witness designation because Mr. Horton was unavailable. The court took the motion under advisement.
"30. The respondent provided counsel for the defendant authorization to contact Mr. Horton to discuss the initial expert witness designation. On November 17, 2014, the defendants filed an objection to plaintiff's expert witness designation because Mr. Horton 'never agreed to be an expert witness and [he] informed [the respondent] that he did not believe Plaintiff had a case.' The respondent responded indicating that he was negligent in taking notes of interviews with potential expert witnesses and attributed the statements of another to Mr. Horton.
"31. On April 29, 2015, the court took up the defendant's objection to the plaintiff's expert witness disclosure and a motion for sanctions. The parties were afforded an opportunity to argue the issues.
"32. On May 16, 2016, the court issued a written ruling on the objection and motion. The court found that the respondent failed to prosecute the plaintiff's case. The court found that it had been more than seven years since the date of the alleged injury and that the time lapse would affect the memory of witnesses and make it impractical, if not impossible, for the defendants to present a defense.
"33. The court found that the respondent missed numerous deadlines. The court stated that the 'Plaintiff has, with very rare exception, failed to comply with deadlines set by this Court or agreed to by Plaintiff.'
"34. The court noted that the 6th Judicial District Local Rule 14 requires a party designating an expert to submit, '[a] written report signed by the witness' which 'shall contain a complete statement of all opinions to be expressed and the bases and reasons therefore.' Neither untimely expert witness designation filed by the respondent complied with Local Rule 14. The district court concluded:
'... [expert witness designations] were neither signed by the expert holding the opinions, nor contained a complete statement of all opinions to be expressed and the bases and reasons therefore as evidenced by the false disclosure of Don Horton and the arguments by counsel regarding the deposition testimony of Gerald Gentry.'
The court further explained that had the respondent complied with the local rule, the respondent would not have provided the 'untrue witness designation of Mr. Horton because Mr. Horton would have had to review and sign the disclosure, affording Plaintiff the opportunity to realize the mistaken identity.'
"35. As a result, the court sanctioned the respondent by dismissing the case.
"36. On June 16, 2016, the respondent filed a request that the court alter or amend its judgment and/or grant a new hearing on the motion to dismiss and/or grant relief from judgment. The respondent's requests were denied.
"37. The respondent filed a notice of appeal in the case on September 23, 2016. The respondent filed three motions requesting extensions of time to file an opening brief. On August 4, 2017, the Kansas Court of Appeals affirmed the district court's decision.
a. The Kansas Court of Appeals found that the respondent failed to provide citations to the record as required by court rule to support his claim that the court found fraud on the part of the respondent as a basis for dismissing C.Z.'s case. The court stated that the respondent did not support his argument with citations because there was no evidence in the record that the district court based the dismissal on fraud.
b. The court also found that the delay caused prejudice to the defendants in the case. The court noted that defense counsel had contacted all eight employees of the hospital who were present at the time of the alleged incident with C.Z. Out of the eight, only two remembered C.Z. and none remembered the alleged incident.
c. Additionally, the court concluded that the respondent's conduct in repeatedly missing deadlines interfered with the judicial system.
d. Finally, the court found that there was 'ample evidence from which a reasonable person could have found that Boone failed to prosecute C.Z.'s case to such an extent that dismissal was warranted.'
"38. Three days after the Kansas Court of Appeals released its opinion, Chief Judge Arnold-Burger, of the Kansas Court of Appeals, reported the respondent's conduct in this case to the disciplinary administrator's office.
"39. On September 1, 2017, the respondent filed a motion for rehearing or modification. The court denied the respondent's motion for rehearing or modification with the Kansas Court of Appeals. The respondent filed a petition for review with the Kansas Supreme Court. On April 27, 2018, the court denied the respondent's petition for review.
"DA12772
"40. The president of Kape Roofing and Gutters retained Michael Alley to collect $ 5,100 from C.M.C. Mr. Alley filed a mechanic's lien against C.M.C.'s house and sent a demand letter to C.M.C. After Mr. Alley filed the mechanic's lien, C.M.C. placed signs in his yard critical of Kape's work.
"41. Later, Kape's president retained the respondent to file suit against C.M.C. and Community First National Bank (hereinafter 'the bank') in Dickinson County, Kansas, on behalf of himself and Kape (hereinafter 'the plaintiffs'). On July 9, 2012, the respondent filed suit in Dickinson County on behalf of the plaintiffs. On August 3, 2012, the respondent filed an amended petition. The respondent sought a permanent injunction against C.M.C. as well as damages for defamation, tortious interference with a prospective business advantage, and breach of contract. The respondent also sought to foreclose on the mechanic's lien. During the litigation, the respondent asserted that the plaintiffs' damages were $ 7,200,000 in lost income and profits and $ 250,000 for pain, suffering, and mental anguish.
"42. C.M.C. filed an answer and counterclaim alleging fraud and the tort of outrage. The bank filed an answer on November 15, 2012.
"43. On December 31, 2012, the bank served the plaintiffs with discovery. The respondent did not timely respond to the request for discovery. Counsel for the bank conferred with the respondent on several occasions regarding the production of timely discovery. However, the respondent did not timely file the responses to discovery nor did the respondent lodge an objection to the discovery requests. On April 4, 2013, the bank filed a motion to compel discovery.
"44. On January 24, 2013, C.M.C. served discovery on the plaintiffs. The respondent did not timely provide the discovery. Counsel for C.M.C. conferred with the respondent on numerous occasions to secure discovery and avoid court action. On April 5, 2013, counsel for C.M.C. sent a Golden Rule letter. However, the respondent did not timely file responses to discovery nor did he make any objections. On April 15, 2013, C.M.C. filed a motion to compel discovery.
"45. The court scheduled a hearing on the motions to compel discovery for April 26, 2013. The respondent had a schedule conflict with that date. The respondent called counsel for C.M.C. and asked her to agree to an order continuing the case. Counsel for C.M.C. refused to do so. Additionally, counsel for the bank did not agree to continue the hearing.
"46. On April 25, 2013, the respondent's father, Thomas [C.] Boone, an attorney licensed in Kansas, filed a motion to continue the case. The respondent's father, however, had not entered an appearance in the litigation. The court did not grant the senior Boone's motion.
"47. The respondent did not appear at the hearing held April 26, 2013.
"48. Following the hearing, the court entered an order that if the respondent failed to provide the discovery within 10 days, the court would strike the plaintiffs' pleadings and dismiss the case. The court ordered the respondent to pay $ 1,300 to counsel for C.M.C. and $ 1,125 to counsel for the bank. The respondent did not provide discovery as ordered but the respondent did file a timely motion for an extension of time. Thereafter, the parties engaged in discovery.
"49. On January 27, 2014, the defendants filed a motion for summary judgment. The court scheduled a pretrial conference for March 7, 2014.
"50. In advance of the scheduled pretrial conference, on February 19, 2014, the respondent contacted opposing counsel and asked for their agreement to a continuance of the pretrial conference because he was scheduled to be out-of-state taking a deposition. Opposing counsel agreed to a continuance to a date certain in April, 2014. However, the respondent failed to file a motion and set forth the reason for the continuance. Additionally, the respondent also failed to circulate a proposed order to opposing counsel.
"51. Because the respondent failed to file a motion and circulate a proposed order, on February 26, 2014, counsel for C.M.C. sent the respondent an electronic mail message, reminding him to file a motion and proposed order. The respondent failed to do so.
"52. On March 3, 2014, counsel for C.M.C. spoke with the respondent and again reminded him to file a motion and proposed order. The respondent did not file a motion or provide a proposed order continuing the pretrial conference.
"53. The court held the pretrial conference as scheduled. The respondent failed to appear. Counsel for C.M.C. moved to strike the pleadings filed by the respondent on behalf of the plaintiffs. The court granted the defendants' joint motion for partial summary judgment, the court denied the plaintiffs' motion for punitive damages, the court granted C.M.C.'s motion to add claims for punitive damages, and the court struck the plaintiffs' pleadings, including the plaintiffs' answer to C.M.C.'s counterclaims. The plaintiffs lost their cause of action because the respondent failed to file a motion to continue the pretrial conference.
"54. On May 20, 2014, the respondent filed a motion asking the court to provide his client relief from what he described as the default judgment entered by the court as a result of the hearing which occurred on March 7, 2014. The respondent also requested permission to file an interlocutory appeal. On May 28, 2014, C.M.C. responded by pointing out that the court had not entered a default judgment. The court denied the respondent's motion.
"55. The court scheduled a jury trial on C.M.C.'s counterclaims for July 17, 2014. The court ordered the parties to exchange proposed jury instructions. The respondent failed to exchange proposed jury instructions.
"56. On June 25, 2014, the respondent filed an untimely motion for summary judgment.
"57. At a subsequent status conference, the district court ordered that the trial be a bench trial rather than a jury trial because the respondent failed to file proposed jury instructions. The court refused to consider the respondent's motion for summary judgment because it was untimely.
"58. At the July 17, 2014, bench trial, the court granted judgment in favor of C.M.C. The court rejected the plaintiffs' advice of counsel defense and reaffirmed the previous finding that the mechanic's lien claim was improper and out of time. The court found that the plaintiffs caused C.M.C. substantial financial loss, engaged in outrageous conduct, and intentionally and maliciously committed deceptive acts. The court ordered the plaintiffs to pay compensatory damages of $ 88,000, punitive damages in the amount of $ 10,000, a civil penalty of $ 10,000, and $ 20,000 for attorney fees.
"59. The respondent appealed the court's decisions. In affirming in part and reversing in part, the Kansas Court of Appeals stated:
'Our policy in Kansas is to try lawsuits on their merits and not to award judgments based on the inaction of trial counsel. Unfortunately, this case is an example of the struggle a trial judge has when a lawyer fails to do what he is supposed to do in a timely way. A Kansas judge, keeping in mind the rights of the parties, has the authority and duty to sanction parties and lawyers as needed in order to bring a legal action to a just conclusion. Justice seldom arises from letting a case remain idle. In doing so, however, the judge must establish appropriate sanctions with an eye on what was done or not done. When setting sanctions, the judge must also consider the consequences of that lawyer's inaction. The more flagrant, harmful, foul deserve the more serious sanction.
'We see no evidence in the record that Kape Roofing and Gutters, Inc. was complicit in Caleb Boone's failure to appear for a pretrial conference. We vacate the ultimate sanction of striking Kape's pleadings. We remand for reconsideration of imposing a more reasonable sanction.
....
'Contemplating this string of not doing things when they needed to be done makes us understand why the judge was exasperated with Boone's recurrent inattention to the case and his duty to move it forward. We understand the frustration the trial judge experienced when counsel delayed the resolution of this lawsuit.
'We cannot tell from this record whether Boone did all of this deliberately or was simply negligent. If it was deliberate, then he was disrespectful of the very system he has sworn to uphold. If he was negligent, then he did his client a grave disservice.
'Further, we cannot tell from this record if Boone's client participated in a strategy of delay. This concerns us because the sanction of striking pleadings affects Kape the most. Should a litigant be penalized for the negligence of its agent? If Kape was in no way responsible for Boone's inaction, failure to appear, or move for a continuance, is it reasonable to punish his client? If there is evidence of complicity then we see where imposing the ultimate sanction is appropriate. We just cannot affirm such an action with the record we have before us.
....
'We affirm that Boone's failure to appear at the pretrial conference was subject to sanction. But we vacate the striking of all of Kape's pleadings on Count II as unreasonable in the light of the record submitted on appeal and remand the matter for the court's reconsideration of a more appropriate sanction.'
"60. During the appellate process the plaintiffs were required to file a $ 150,000 supersedeas bond to stay the execution of the judgments. When the case was remanded by the Kansas Court of Appeals to the district court for further proceedings, the parties settled the case. The plaintiffs paid C.M.C. and his attorneys $ 30,000 from the supersedeas bond in exchange for a mutual release.
"Conclusions of Law
"61. The respondent stipulated that he violated KRPC 1.1 (competence), KRPC 1.3 (diligence), and KRPC 8.4(d) (conduct prejudicial to the administration of justice). In addition, based on the above findings of fact, the hearing panel concludes that the respondent also violated KRPC 8.4(c) (dishonest conduct). Accordingly, the hearing panel concludes that the respondent violated KRPC 1.1 (competence), KRPC 1.3 (diligence), KRPC 8.4(c) (dishonest conduct), and KRPC 8.4(d) (conduct prejudicial to the administration of justice), as detailed below.
" KRPC 1.1
"62. Lawyers must provide competent representation to their clients. KRPC 1.1. 'Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.'
"63. The respondent stipulated that his failure to comply with Local Rule 14 in designating an expert witness in C.Z.'s case, violated KRPC 1.1. Local Rule 14 requires '[a] written report signed by the witness' which 'contain[s] a complete statement of all opinions to be expressed and the bases and reasons therefore.' Both untimely expert witness designations were signed by the respondent and not by the experts. Also, both untimely expert witness designations did not contain a complete statement of the bases and reasons for the opinions.
"64. Additionally, on appeal, the respondent asserted that the court found that he engaged in fraud and that was the basis for the dismissal of C.Z.'s case. The Kansas Court of Appeals noted that the respondent failed to provide citations to the record as required by court rule to support his claim that the court based the dismissal of C.Z.'s case on the respondent's fraud. The Kansas Court of Appeals explained that the respondent could not have provided citations to the record as required by court rule because the district court did not base the dismissal on the respondent's fraud. The respondent exhibited a lack of competence in alleging that the district court's dismissal was based on fraud when it was not.
"65. Finally, in the appeal the respondent filed in the Kape litigation, the respondent argued that the district court improperly granted the defendant default judgment. The court did not grant the defendant default judgment. Rather, the district court sanctioned the respondent by striking the plaintiffs' pleadings. The respondent exhibits a lack of competence in alleging that the district court's action was a default judgment when it was a sanction leveled because of the respondent's lack of diligence.
"66. Accordingly, the hearing panel concludes that the respondent violated KRPC 1.1.
" KRPC 1.3
"67. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. The respondent failed to diligently and promptly represent his clients.
"68. The respondent stipulated that his failure to timely prosecute C.Z.'s case amounted to a violation of KRPC 1.3. The respondent's failure to prosecute C.Z.'s case led to the defendant's filing their first motion to dismiss.
"69. The respondent also stipulated that his failure to comply with multiple case management orders in C.Z.'s case also violated KRPC 1.3. The respondent failed to provide witness and exhibits lists, have the plaintiff submit to the statutory medical examination, timely make an appropriate expert witness designation, timely respond to discovery requests, and timely file the statement of monetary damages. As a result of the respondent's repeated failures to comply with case management orders, on October 6, 2014, the defendants filed a second motion to dismiss for failure to prosecute the case. The respondent's lack of diligence in represent[ing] C.Z. was so extreme that the district court granted and the Kansas Court of Appeals upheld the unusual sanction of dismissal.
"70. The respondent also failed to prepare a case management order as directed by the court. The respondent's failure to prepare a case management order exhibited a lack of diligence in violation of KRPC 1.3.
"71. The respondent stipulated that his failure to comply with discovery in the Kape litigation and his failure to file a motion to continue the March 7, 2014, hearing violated KRPC 1.3. Because the respondent failed to file a motion to continue the March 7, 2014, hearing, the court dismissed his clients' pleadings. And, while the Kansas Court of Appeals reversed the district court on this point, the respondent's failure to file the motion negatively impacted his clients nonetheless.
"72. Because the respondent failed to act with reasonable diligence and promptness in representing his clients, the hearing panel concludes that the respondent violated KRPC 1.3.
" KRPC 3.4
"73. In litigation, an attorney must comply with court orders and cooperate in the discovery phase of the case. When an attorney fails to do what he is supposed to do, the attorney's client and the administration of justice are not served. KRPC 3.4(d) prohibits attorneys from, 'mak[ing] a frivolous discovery request or fail[ing] to make a reasonably diligent effort to comply with a legally proper discovery request by an opposing party.'
"74. The respondent stipulated that he violated KRPC 3.4(d) in representing C.Z. and the plaintiffs in the Kape litigation by failing to promptly comply with discovery requests. The respondent's failure to comply with discovery requests resulted in significant delays in both cases.
" KRPC 8.4(c)
"75. 'It is professional misconduct for a lawyer to ... engage in conduct involving dishonesty, fraud, deceit or misrepresentation.' KRPC 8.4(c).
"76. In this case, the respondent filed an expert witness designation which attributed certain opinions to Don Horton, R.N., which Mr. Horton did not hold. The hearing panel does not find the filing of the expert witness designation to be a violation of the rule, as the hearing panel accepts the respondent's explanation that he failed to take accurate notes and confused which individual had agreed to serve as an expert witness. However, on November 7, 2014, the respondent argued that he filed a second expert witness designation, not because he inadvertently included the wrong name, but because Mr. Horton was unavailable. The respondent's statement to the court was dishonest. Accordingly, the hearing panel concludes that the respondent violated KRPC 8.4(c).
" KRPC 8.4(d)
"77. 'It is professional misconduct for a lawyer to ... engage in conduct that is prejudicial to the administration of justice.' KRPC 8.4(d).
"78. The respondent engaged in conduct that was prejudicial to the administration of justice when he filed an expert witness designation naming Mr. Horton as an expert witness when Mr. Horton did not agree to be an expert witness and when Mr. Horton did not hold the opinions which the respondent attributed to him.
"79. The respondent stipulated that his conduct in failing to prosecute C.Z.'s case violated KRPC 8.4(d). The respondent's conduct in representing C.Z. caused significant delay and resulted in the dismissal of her cause of action, prejudice to the defendants, and prejudice to the administration of justice.
"80. As such, the hearing panel concludes that the respondent violated KRPC 8.4(d).
"American Bar Association Standards for Imposing Lawyer Sanctions
"81. In making its recommendation for discipline, the hearing panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter 'Standards'). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer's mental state, the potential or actual injury caused by the lawyer's misconduct, and the existence of aggravating or mitigating factors.
"82. Duty Violated . The respondent violated his duty to his clients, the legal profession, and the legal system.
"83. Mental State . The respondent knowingly violated his duties.
"84. Injury . As a result of the respondent's misconduct, the respondent caused actual injury to his clients, the legal profession, and the legal system.
"Aggravating and Mitigating Factors
"85. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following aggravating factors present:
a. Prior Disciplinary Offenses . The respondent has been previously disciplined on four occasions, as detailed below:
1) On June 16, 2000, the Kansas Supreme Court placed the respondent on two years' probation for having violated KRPC 1.3 (diligence), KRPC 3.1 (meritorious claims and contentions), KRPC 3.2 (expediting litigation), KRPC 3.4(c) (disobey obligation), KRPC 3.4(d) (discovery), and KRPC 8.4(d) (conduct prejudicial to the administration of justice).
2) On October 26, 2001, the disciplinary administrator informally admonished the respondent for having violated KRPC 1.1 (competence).
3) On May 1, 2001, the Kansas Supreme Court issued an order to the respondent to show cause why his probation should not be revoked. The respondent appeared before the Kansas Supreme Court and established that he had taken steps to resolve the problems. The Court extended the respondent's probation for an additional three years.
4) On April 18, 2003, the Kansas Supreme Court extended the respondent's probation for an additional five years for having violated KRPC 1.3 (diligence), KRPC 1.4 (communication), KRPC 3.1 (meritorious claims and contentions), and KRPC 4.2 (represented party).
5) On November 13, 2009, the Kansas Supreme Court discharged the respondent from probation.
6) On April 3, 2018, the disciplinary administrator informally admonished the respondent for having violated KRPC 8.4(d) (conduct prejudicial to the administration of justice).
b. Dishonest or Selfish Motive . The respondent provided false information to the court in C.Z.'s case when he told the court that a second expert witness designation was necessary because Mr. Horton was not available. The respondent's misconduct in this regard was motivated by dishonesty.
c. A Pattern of Misconduct . The respondent failed to appear in court twice and repeatedly failed to timely comply with deadlines in both cases. As such, the hearing panel concludes that the respondent engaged in a pattern of misconduct.
d. Multiple Offenses . The respondent committed multiple rule violations. The respondent violated KRPC 1.1 (competence), KRPC 1.3 (diligence), KRPC 3.4(c) (disobey obligation), KRPC 3.4(d) (discovery), KRPC 8.4(c) (dishonest conduct), and KRPC 8.4(d) (conduct prejudicial to the administration of justice). Accordingly, the hearing panel concludes that the respondent committed multiple offenses.
e. Vulnerability of Victim . C.Z. was vulnerable to the respondent's misconduct.
f. Substantial Experience in the Practice of Law . The Kansas Supreme Court admitted the respondent to practice law in the State of Kansas in 1982. At the time of the misconduct, the respondent had been practicing law for more than 30 years.
"86. Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the hearing panel, in this case, found the following mitigating circumstances present:
a. Personal or Emotional Problems if Such Misfortunes Have Contributed to Violation of the Kansas Rules of Professional Conduct . During the period of time when the respondent engaged in the misconduct, the respondent's father became ill. The respondent provided care for his father until his father's death. The respondent's personal situation contributed to his misconduct.
b. The Present and Past Attitude of the Attorney as Shown by His or Her Cooperation During the Hearing and His or Her Full and Free Acknowledgment of the Transgressions. The respondent fully cooperated with the disciplinary process. Additionally, the respondent admitted the facts and several rule violations.
c. Remorse . At the hearing on this matter, the respondent expressed genuine remorse for having engaged in the misconduct.
d. Remoteness of Prior Offenses. The discipline imposed in 2000 and 2001 is remote in time but not in character to the misconduct in this case.
"87. In addition to the above-cited factors, the hearing panel has thoroughly examined and considered the following Standards:
'4.42 Suspension is generally appropriate when:
(a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or
(b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.
'6.11 Disbarment is generally appropriate when a lawyer, with the intent to deceive the court, makes a false statement, submits a false document, or improperly withholds material information, and causes serious or potentially serious injury to a party, or causes a significant or potentially significant adverse effect on the legal proceeding.
'6.12 Suspension is generally appropriate when a lawyer knows that false statements or documents are being submitted to the court or that material information is improperly being withheld, and takes no remedial action, and causes injury or potential injury to a party to the legal proceeding, or causes an adverse or potentially adverse effect on the legal proceeding.
'6.22 Suspension is [generally] appropriate when a lawyer know[ingly] ... violat[es] a court order or rule, and [there is] injury or potential injury to a client or a party, or [causes] interference or potential interference with a legal proceeding.
'7.2 Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional, and causes injury or potential injury to a client, the public, or the legal system.
'8.2 Suspension is generally appropriate when a lawyer has been reprimanded for the same or similar misconduct and engages in further acts of misconduct that cause injury or potential injury to a client, the public, the legal system, or the profession.'
"Recommendations of the Parties
"88. The disciplinary administrator recommended that the respondent's license be indefinitely suspended. Counsel for the respondent recommended that the respondent's license be indefinitely suspended but that the suspension be suspended and that the respondent be placed on probation.
"Consideration of Probation
"89. When a respondent requests probation, the hearing panel is required to consider Kan. Sup. Ct. R. 211(g)(3), which provides:
'(3) The Hearing Panel shall not recommend that the Respondent be placed on probation unless:
(i) the Respondent develops a workable, substantial, and detailed plan of probation and provides a copy of the proposed plan of probation to the Disciplinary Administrator and each member of the Hearing Panel at least fourteen days prior to the hearing on the Formal Complaint;
(ii) the Respondent puts the proposed plan of probation into effect prior to the hearing on the Formal Complaint by complying with each of the terms and conditions of the probation plan;
(iii) the misconduct can be corrected by probation; and
(iv) placing the Respondent on probation is in the best interests of the legal profession and the citizens of the State of Kansas.'
"90. The respondent developed a workable, substantial, and detailed plan of probation. The respondent provided a copy of the proposed plan of probation to the disciplinary administrator and each member of the hearing panel at least 14 days prior to the hearing on the formal complaint. The respondent put the proposed plan of probation into effect prior to the hearing on the formal complaint by complying with each of the terms and conditions of the probation plan.
"91. However, some of the misconduct, in this case, cannot be corrected by probation. Specifically, dishonest conduct cannot be effectively supervised. See In re Stockwell , 296 Kan. 860, 868, 295 P.3d 572 (2013) ('Moreover, this court is generally reluctant to grant probation where the misconduct involves fraud or dishonesty because supervision, even the most diligent, often cannot effectively guard against dishonest acts.').
"92. And, finally, placing the respondent on probation is not in the best interests of the legal profession and the citizens of the State of Kansas. The respondent has an extensive disciplinary record. Specifically, the respondent spent nine years on probation for having violated many of the same rules the respondent violated in [t]his case. Any benefits to be gained by supervision should have already been realized. Accordingly, the hearing panel concludes that probation is not appropriate in this case.
"Recommendation of the Hearing Panel
"93. Based upon the findings of fact, conclusions of law, and the Standards listed above, the hearing panel unanimously recommends that the respondent's license be indefinitely suspended.
"94. Costs are assessed against the respondent in an amount to be certified by the Office of the Disciplinary Administrator."

DISCUSSION

In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. Attorney misconduct must be established by clear and convincing evidence. In re Foster , 292 Kan. 940, 945, 258 P.3d 375 (2011) ; see Supreme Court Rule 211(f) (2019 Kan. S. Ct. R. 257). Clear and convincing evidence is " 'evidence that causes the factfinder to believe that "the truth of the facts asserted is highly probable." ' " In re Lober , 288 Kan. 498, 505, 204 P.3d 610 (2009) (quoting In re Dennis , 286 Kan. 708, 725, 188 P.3d 1 [2008] ).

Respondent was given adequate notice of the formal complaint to which he filed an answer. Respondent was also given adequate notice of the hearing before the panel and the hearing before this court. He filed no exceptions to the hearing panel's final hearing report. With no exceptions before us, the panel's findings of fact are deemed admitted. Supreme Court Rule 212(c), (d) (2019 Kan. S. Ct. R. 261). Furthermore, the facts before the hearing panel establish by clear and convincing evidence the charged misconduct in violation of KRPC 1.1 (2019 Kan. S. Ct. R. 295) (competence); 1.3 (2019 Kan. S. Ct. R. 298) (diligence); 3.4(d) (2019 Kan. S. Ct. R. 353) (failure to comply with discovery request); 8.4(c) (2019 Kan. S. Ct. R. 387) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); and 8.4(d) (engaging in conduct prejudicial to the administration of justice). The evidence also supports the panel's conclusions of law. We therefore adopt the panel's findings and conclusions.

The only remaining issue before us is the appropriate discipline for respondent's violations. The hearing panel unanimously recommended that respondent be suspended indefinitely from the practice of law. At the hearing before this court, at which the respondent appeared, the office of the Disciplinary Administrator also recommended that the respondent be indefinitely suspended. The respondent requested indefinite suspension, that the suspension be stayed, and that respondent be placed on probation according to his proposed plan of probation.

Given the serious nature of the respondent's conduct underlying the allegations in this case coupled with his lengthy prior history of disciplinary offenses, we deny his request to be placed on probation in lieu of suspension. In particular, as pointed out by the Disciplinary Administrator at oral argument before this court and by the hearing panel, the misconduct in this case is not amenable to probation. Specifically, dishonest conduct cannot be effectively supervised. See In re Stockwell , 296 Kan. 860, 868, 295 P.3d 572 (2013) ("Moreover, this court is generally reluctant to grant probation where the misconduct involves fraud or dishonesty because supervision, even the most diligent, often cannot effectively guard against dishonest acts."). We therefore adopt both the hearing panel's and the Disciplinary Administrator's recommendation of indefinite suspension and order that he be subject to a reinstatement hearing under Supreme Court 219 (2019 Kan. S. Ct. R. 270) before his suspension may be lifted.

CONCLUSION AND DISCIPLINE

IT IS THEREFORE ORDERED that Thomas Caleb Boone be and he is hereby disciplined by indefinite suspension in accordance with Supreme Court Rule 203(a)(2) (2019 Kan. S. Ct. R. 240) effective upon the date of filing of this opinion; that he not be granted probation; and that he undergo a reinstatement hearing under Rule 219(d).

IT IS FURTHER ORDERED that the respondent comply with Supreme Court Rule 218 (2019 Kan. S. Ct. R. 268).

IT IS FURTHER ORDERED that the costs of these proceedings be assessed to the respondent and that this opinion be published in the official Kansas Reports.

Nuss, C.J., and Beier, J., not participating.

Daniel Cahill and Steven C. Montgomery, District Judges, assigned.

      REPORTER'S NOTE: District Judge Cahill and District Judge Montgomery were appointed to hear case No. 120,744 vice Chief Justice Nuss and Justice Beier respectively under the authority vested in the Supreme Court by K.S.A. 20-2616 and by art. 3, § 6(f) of the Kansas Constitution.


text:
    STATE of Kansas, Appellee, v. Clyde Lacy NEWTON Jr., Appellant.
    No. 116,098
    Supreme Court of Kansas.
    Opinion filed June 7, 2019
    Kai Tate Mann, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.
    Anna M. Jumpponen, assistant county attorney, argued the cause, and Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, were with her on the briefs for appellee.
   The opinion of the court was delivered by Biles, J.:

Clyde Lacy Newton Jr. argues the person felony classification given to his prior California robbery conviction made his sentence in this Kansas criminal case illegal when determining his criminal history score. He urges us to follow State v. Wetrich , 307 Kan. 552, 561-62, 412 P.3d 984 (2018) (elements of the out-of-state crime must be identical to, or narrower than, the elements of the Kansas crime to which it is being referenced). The State argues Wetrich is inapplicable, noting the Legislature amended the statute governing motions to correct an illegal sentence to provide that "a change in the law that occurs after the sentence is pronounced" does not make a sentence " 'illegal.' " K.S.A. 2018 Supp. 22-3504(3). But this appeal's resolution does not lay at the end of either of those analytical paths.

Instead, we follow State v. Murdock, 309 Kan. 585, 591, 439 P.3d 307 (2019) ( Murdock II ) (holding sentence that was legal when pronounced does not become illegal if the law subsequently changes). And based on that, Newton's 1977 California robbery conviction was properly classified as a person felony under our caselaw in 2008 when his sentence in the Kansas case became final. See State v. Vandervort , 276 Kan. 164, 179, 72 P.3d 925 (2003) (holding "the comparable offense" was "the closest approximation" to the out-of-state crime), overruled on other grounds by State v. Dickey , 301 Kan. 1018, 350 P.3d 1054 (2015). Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Newton pleaded guilty to one count of attempted rape, a severity level 3 person felony. At sentencing, the district court determined he had a criminal history score of B, in part due to a 1977 California robbery conviction, which the Kansas court classified as a person felony. The court granted Newton's motion for durational departure and sentenced him in 2008 to 168 months in prison and lifetime postrelease supervision. Newton did not appeal his sentence.

In 2014, Newton filed a motion to correct an illegal sentence. He argued the district court incorrectly calculated his criminal history score by classifying some pre-1993 convictions as person felonies contrary to State v. Murdock , 299 Kan. 312, 323 P.3d 846 (2014) ( Murdock I ), overruled by State v. Keel , 302 Kan. 560, 357 P.3d 251 (2015). The court denied the motion, concluding Murdock I did not apply retroactively. Newton appealed.

Before Newton filed his opening appellate brief, Keel overruled Murdock I . Adapting, he claimed his sentence was illegal for two other reasons: (1) his 1977 California robbery conviction could not be classified as a person felony without engaging in improper fact-finding in violation of Apprendi v. New Jersey , 530 U.S. 466, 120 S. Ct. 2348, 147 L.Ed. 2d 435 (2000) ; and (2) the district court improperly imposed mandatory lifetime postrelease supervision. The panel rejected both arguments. State v. Newton , No. 116098, 2017 WL 3113025 (Kan. App. 2017) (unpublished opinion).

As to Newton's criminal history score, applying Vandervort the panel held the district court properly scored his California conviction as a person felony. In doing so, it noted Kansas law classifies robbery as a person offense, but that California's robbery statute is broader than the Kansas crime because it includes threats to a person or property. Nevertheless, the panel held the crimes were similar enough in the nature and type of criminal conduct covered so the district court did not err. 2017 WL 3113025, at *2. The panel further concluded the classification did not violate Apprendi and then rejected his second issue regarding postrelease supervision. 2017 WL 3113025, at *2-3.

Newton petitioned for review. While review was pending, we decided State v. Wetrich , 307 Kan. 552, 562, 412 P.3d 984 (2018), which held the elements of the out-of-state crime cannot be broader than the elements of the Kansas crime to be comparable to an offense under the Kansas criminal code within the meaning of K.S.A. 2017 Supp. 21-6811(e)(3). We granted review of Newton's criminal history challenge but denied review of his postrelease supervision argument.

In our review order, we directed the parties to respond to the Wetrich development, which they did. Newton agrees Wetrich controls, but the State disagrees. It notes in 2017 the Legislature amended the statute authorizing corrections of illegal sentences to provide that "a change in the law that occurs after the sentence is pronounced" does not render that sentence illegal. K.S.A. 2018 Supp. 22-3504(3) ; L. 2017, ch. 62, § 9. The State characterizes Wetrich as a change in the law and maintains the 2017 amendment operates retroactively to Newton's 2014 motion to correct an illegal sentence. Newton responds Wetrich did not change the law, and even if it did, the statutory revision should not apply retroactively because that would create several constitutional issues, such as violating the Ex Post Facto Clause of the United States Constitution.

Jurisdiction is proper. See K.S.A. 20-3018(b) (providing for petitions for review of Court of Appeals decisions); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon petition for review).

ANALYSIS

Under the Kansas Sentencing Guidelines Act, K.S.A. 21-4701 et seq., a prior out-of-state conviction must be classified as either a "person" or "nonperson" crime. K.S.A. 21-4711(e) provides:

"Out-of-state convictions and juvenile adjudications will be used in classifying the offender's criminal history. An out-of-state crime will be classified as either a felony or a misdemeanor according to the convicting jurisdiction. If a crime is a felony in another state, it will be counted as a felony in Kansas. The state of Kansas shall classify the crime as person or nonperson. In designating a crime as person or nonperson comparable offenses shall be referred to. If the state of Kansas does not have a comparable offense, the out-of-state conviction shall be classified as a nonperson crime . Convictions or adjudications occurring within the federal system, other state systems, the District of Columbia, foreign, tribal or military courts are considered out-of-state convictions or adjudications. The facts required to classify out-of-state adult convictions and juvenile adjudications must be established by the state by a preponderance of the evidence." (Emphasis added.)

In Murdock II , the district court sentenced the defendant three times. The second was in response to our mandate after Murdock I . The district court followed that mandate, and the State did not appeal and the second sentence became final. Six months later, we decided Keel , which overruled Murdock I . A few days after that, the State moved to correct Murdock's sentence based on Keel , and the district court sentenced him for the third time.

The Murdock II court reversed, repudiating the State's effort at a third sentencing. The Murdock II court held:

"[T]he legality of a sentence under K.S.A. 22-3504 is controlled by the law in effect at the time the sentence was pronounced. The legality of a sentence is fixed at a discrete moment in time-the moment the sentence was pronounced. At that moment, a pronounced sentence is either legal or illegal according to then-existing law. Therefore, for purposes of a motion to correct an illegal sentence, neither party can avail itself of subsequent changes in the law." 309 Kan. at 591, 439 P.3d 307.

At the time Newton was sentenced, Kansas caselaw construed K.S.A. 21-4711(e) to mean "[f]or purposes of determining criminal history, the offenses need only be comparable, not identical." Vandervort , 276 Kan. at 179, 72 P.3d 925. "[T]he comparable offense" was "the closest approximation" to the out-of- state crime. 276 Kan. at 179, 72 P.3d 925. In Murdock II 's wake, he cannot argue Wetrich makes his sentence, which was legal when it was imposed, illegal.

Affirmed.

Luckert, J., not participating.

Michael J. Malone, Senior Judge, assigned.

      REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 116,098 vice Justice Luckert under the authority vested in the Supreme Court by K.S.A. 20-2616.