State v. Palmer

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NOT DESIGNATED FOR PUBLICATION

No. 112,262

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

GUY PALMER,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JOHN J. KISNER, JR., judge. Opinion filed January 8, 2016.
Affirmed.

Peter Maharry, of Kansas Appellant Defender Office, for appellant.

Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before ATCHESON, P.J., GARDNER, J., and BURGESS, S.J.

Per Curiam: Guy Palmer walked into the county jail and asked to be arrested.
After a back-and-forth exchange with one of the officers there, he revealed that he had
killed his wife, Debra Palmer. The case proceeded to jury trial, where Palmer testified
that he did not remember killing Debra, just listening to her describe her affair with
another man before emerging from a haze and discovering blood on his hands. A jury
convicted him of second-degree murder. We affirm.


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FACTUAL AND PROCEDURAL BACKGROUND

One morning while she worked in the front lobby of the Sedgwick County Jail, a
man approached Fabiola Torres and said he needed to be arrested. According to Torres,
the man—later identified as Palmer—appeared distressed and anxious. He also told
Torres that he needed a psychiatrist and an attorney. On the advice of another officer,
Torres called 911, and as she spoke to dispatch, Sergeant Jeremy Woodson approached
Palmer. To Woodson, Palmer appeared tired, "slightly disheveled," and possibly
homeless. He paced nervously. After Woodson introduced himself, Palmer again said that
"he needed to be booked into jail." Suspecting that Palmer simply wanted somewhere to
stay overnight, Woodson explained that he needed a reason to arrest him. Palmer again
replied that he just needed to be booked into the jail.

After Woodson patted Palmer down, they engaged in a back-and-forth before
Palmer admitted to hurting someone. Woodson attempted to elicit more information in
hopes of rendering assistance to this individual, but Palmer resisted, eventually telling
Woodson that he had "come to the wrong place." When Woodson pressed him again,
reiterating that he needed a reason to arrest Palmer and that he could call to assist the
injured person, Palmer finally admitted, "[W]ell, I killed my wife."

Uncertain as to the truth of this statement, Woodson decided to bring Palmer back
into a more secure portion of the jail that he and others referred to as the lobby. While
they waited for an officer from the Wichita Police Department to arrive, Woodson tried
to gather more information about Palmer's wife. Palmer said she was at their home but
provided few details. However, he did provide his personal information.

A short time later, Officer Juan Atondo of the Wichita Police Department arrived.
Atondo determined that the address Palmer gave to Woodson actually existed before
speaking to Palmer, who again stated that he killed his wife. Palmer also asked Atondo to
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place him in handcuffs. Atondo elicited more information from Palmer, including his
wife's name, date of birth, and the nature of their relationship. In fact, Palmer detailed
some of their marital issues to Atondo, including his wife's affair. Palmer said his wife
was in the basement of the home, along with "whatever he used" to kill her. When
Atondo discovered from the officers investigating Palmer's home that Palmer's wife was
indeed dead in the basement, Palmer reiterated that he had killed her. Atondo later
testified that Palmer behaved "[u]pset, angry" when discussing his wife but otherwise
was "very cordial" and occasionally tearful and remorseful.

Later, while the other officers completed their reports, Torres again spoke with
Palmer, this time while they both sat in the lobby. Torres attempted to talk to Palmer
about innocuous topics like his job, but as they spoke, "everything reverted back to his
wife." Torres later testified that whenever Palmer steered the conversation back to his
wife, she attempted to redirect him onto other topics. However, he continued to talk about
Debra, including how "she would call him and antagonize him . . . about the affair that
she had been having with another individual" while he went out with friends. At one
point, he even remarked that "he felt like she wanted him to kill her."

Ultimately, the State charged Palmer with the first-degree murder of his wife
Debra. Prior to trial, Palmer filed a motion to suppress all the statements he made at the
jail as he never received his Miranda warnings from the officers there. See Miranda v.
Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). After a hearing, the
district court determined that all the statements Palmer made to the officers, as well as to
a nurse who later examined him, were admissible.

In addition to Torres, Woodson, and Atondo, crime scene investigator Andrew
Maul testified at trial about the crime scene, including the knife and blood spray
discovered there. Karen Wilson-Diehl, a forensic nurse examiner, testified about
performing a forensic examination of Palmer and collecting evidence from him. Wilson-
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Diehl testified that as she examined Palmer, he volunteered some information about his
relationship with his wife, like when she would send him to the basement. Detective Dan
Harty discussed his involvement in the investigation, including the collection of
evidence. Medical examiner Doctor Jaime Oeberst testified about the cause of Debra's
death, revealing that Debra died of six stab wounds, or "sharp force injuries," in various
places on her body. The parties also stipulated that blood consistent with Debra's was
discovered on the knife and a baseball cap Palmer wore.

After the State rested, Palmer testified on his own behalf. He explained that he and
Debra had been in a relationship since about 1991, marrying and divorcing in the early
1990s before deciding to hold themselves out as married again in 2005. Palmer estimated
that he and Debra split up about 10 times during the course of their relationship. In 2012,
Palmer began to suspect Debra of cheating on him, as she started leaving work in the
afternoon and sometimes stayed out until the wee hours of the morning. When
confronted, however, Debra denied the affair. After Debra stayed out all night in
December 2012, Palmer again confronted her, but she refused to talk to him. Palmer left
the house and drove around before returning home without talking to anyone.

Once at home, Palmer headed down to the basement and Debra came down a few
minutes later. According to Palmer, they started a conversation, but Debra's cell phone
interrupted them. Based on her side of the conversation, Palmer believed she was
speaking to a man. After she hung up, her brother-in-law called, and they spoke for some
time. Palmer testified that by the time Debra ended the second call she was angry. At that
time, Debra informed Palmer "she had been sleeping with a black man and that she knew
when she told [Palmer] that [he] wouldn't want to have anything to do with her anymore."
Palmer asked why she had cheated on him, and according to Palmer's testimony, she
replied that "she wanted a man who would listen to her. She wanted a man to talk to her.
She wanted a man who would sleep with her. She wanted a man who would make love to
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her. [She] wanted a real man." Palmer testified that this was the first time she had ever
said anything like this to him.

The very next thing Palmer recalled was standing over Debra with bloody hands
and a knife. He knew at that time she was dead.

Palmer described his recollection after that point as "fuzzy." He recalled going
upstairs to wash his hands, as well as putting the knife back in the basement and changing
his clothes. He remembered leaving the home, calling and meeting with his son, and
driving to Arkansas to find his aunt. In the end, though, he realized he did not know how
to find her and returned to Kansas, heading to the jail.

Ultimately, Palmer testified that he never planned on killing Debra. But he also
acknowledged that many of their breakups concerned affairs that they had both had in the
past. Palmer denied that Debra was afraid of him or that he was ever angry at her. In fact,
Palmer testified that Debra's statements to him about the affair only "made [him] sad."

Debra's brother-in-law, Roger Matthews, testified as a rebuttal witness for the
State. He explained that Debra and Palmer's living arrangement and relationship was
"[a]wkward." He recalled witnessing Palmer's general "anger and frustration," and him
swearing at Debra and "[c]all[ing] her vicious names." Matthews also testified that in the
days immediately before Debra's death, Palmer drove by the house, insisting that he
needed to talk to Matthews. Matthews believed Palmer's anger stemmed from Debra's
affair. According to Matthews, Debra feared Palmer and once said that "if anything ever
happens to me you know [Palmer] did it."

The man Debra had an affair with, Donald Baker, testified that on the day before
her death, Debra called him to tell him that she had revealed their affair to Palmer and
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that she was frightened of him. Baker, too, had witnessed Palmer being angry with Debra
before.

Prior to closing arguments, the district court and parties reviewed the jury
instructions, including Palmer's request for a voluntary manslaughter instruction. The
State argued that the evidence at trial did not support the requested instruction, while
Palmer insisted that the evidence showed that Debra questioned his "very manhood" in
such a way that anyone would feel angry. The district court denied Palmer's request.

The jury convicted Palmer of the lesser-included offense of second-degree murder.
The district court sentenced him to 285 months' imprisonment. He timely appealed.

ANALYSIS

Was Palmer entitled to a jury instruction on the lesser-included crime of voluntary
manslaughter?

Palmer first objects to the district court's failure to give the requested voluntary
manslaughter instruction. Palmer insists that the facts supported the instruction and that
the district court erred in not including it. Our Kansas courts employ a four-step process
when addressing challenges to jury instructions:

"'(1) First, the appellate court should consider the reviewability of the issue from both
jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2)
next, the court should use an unlimited review to determine whether the instruction was
legally appropriate; (3) then, the court should determine whether there was sufficient
evidence, viewed in the light most favorable to the defendant or the requesting party, that
would have supported the instruction; and (4) finally, if the district court erred, the
appellate court must determine whether the error was harmless.' [Citation omiteed.]"
State v. Woods, 301 Kan. 852, 876, 348 P.3d 583 (2015).
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Palmer clearly requested the voluntary manslaughter instruction during the
instruction conference. Clearly, this issue is reviewable. The analysis for determining
whether the instruction is legally appropriate is equally straight-forward, as our Kansas
Courts "have held on numerous occasions that voluntary manslaughter is a lesser
included offense of both first-and second-degree murder as a 'lesser degree' of those
crimes under" what is now K.S.A. 2014 Supp. 21-5109(b)(1). State v. Gallegos, 286 Kan.
869, 874, 190 P.3d 226 (2008). The question of whether the district court erred turns on
the factual appropriateness of the proposed instruction.

K.S.A. 2014 Supp. 22-3414(3) provides in relevant part: "In cases where there is
some evidence which would reasonably justify a conviction of some lesser included
crime . . . the judge shall instruct the jury as to the crime charged and any such lesser
included crime." To put it another way, "'there must be actual evidence in the record,
together with reasonable inferences to be drawn from that actual evidence, that would
reasonably support a conviction for the lesser crime.' [Citation omitted.]" State v. Hayes,
299 Kan. 861, 865, 327 P.3d 414 (2014).

In Kansas, voluntary manslaughter is defined in relevant part as knowingly killing
a human being either "[u]pon a sudden quarrel or in the heat of passion." K.S.A. 2014
Supp. 21-5404(a)(1). Boiled down, the offense is comprised of two parts: "an intentional
killing and legally sufficient provocation." Hayes, 299 Kan. at 864. In his brief, Palmer
focuses on whether there existed enough evidence of provocation to sustain a voluntary
manslaughter conviction.

While analyzing a question of provocation, this court applies an objective test and
asks whether the provocation was "'sufficient to cause an ordinary man to lose control of
his actions and reason.' [Citation omitted.]" Gallegos, 286 Kan. at 875. Relevant to this
consideration, heat of passion is defined as "'any intense or vehement emotional
excitement of the kind prompting violent and aggressive action, such as rage, anger,
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hatred, furious resentment, fright, or terror,'" and is based "'on impulse without
reflection.' [Citation omitted.]" Hayes, 299 Kan. at 864. Similarly, a sudden quarrel arises
from "an unforeseen angry altercation, dispute, taunt, or accusation." State v. Wade, 295
Kan. 916, Syl. ¶ 4, 287 P.3d 237 (2012). Any confrontation that is orchestrated or
planned "is the antithesis of a sudden quarrel." 295 Kan. 916, Syl. ¶ 4. But that said,
"[m]ere words or gestures, however offensive, do not constitute legally sufficient
provocation for a finding of voluntary manslaughter." Hayes, 299 Kan. at 866.
Furthermore, "[m]ere evidence of an altercation . . . does not alone support a finding of
sufficient provocation." State v. Haddock, 257 Kan. 964, 987, 897 P.2d 152 (1995),
abrogated on other grounds by State v. James, 276 Kan. 737, 79 P.3d 169 (2003).

In Gallegos, the defendant's nephew Andrew called him to pick him up from a
party after he and another man, Pedro Reyes Cruz, had an argument. After locating
Andrew, Gallegos drove to Cruz' home and had Andrew knock on the front door.
Gallegos and Cruz started arguing about Andrew and Cruz' confrontation, which
culminated in Gallegos shooting Cruz. On appeal, Gallegos argued that the district court
should have instructed the jury on voluntary manslaughter, but our Supreme Court
rejected this argument. Instead, the court determined that "evidence of an argument
between Gallegos and Cruz immediately before Cruz' death fails to demonstrate any
legally sufficient provocation." 286 Kan. at 875. The court reasoned that the "brief verbal
exchange" between the two men—one that occurred while Gallegos stood on the
sidewalk and Cruz on the front porch—was insufficient to support a conviction for
voluntary manslaughter. As such, an instruction on this lesser-included offense was
unwarranted. 286 Kan. at 875.

In another case, the defendant shot a woman he had previously lived with after she
"said he was a bum and no good." State v. Dixon, 252 Kan. 39, 41, 843 P.2d 182 (1992),
superseded by statute on other grounds, State v. Shannon, 258 Kan. 425, 905 P.2d 649
(1995). Dixon had approached the house with intentions to scare her, but she repeatedly
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told him to leave "in strong terms." 252 Kan. at 40. The woman survived the attack, and
Dixon was convicted of attempted first-degree murder. On appeal, our Kansas Supreme
Court determined that a jury instruction for attempted voluntary manslaughter was
inappropriate because the woman did not threaten Dixon's safety and her "words did not
justify an assault." 252 Kan. at 46.

Here, even viewing the evidence in the light most favorable to Palmer, the facts do
not support a finding of sufficient provocation to justify a voluntary manslaughter
instruction. According to Palmer, Debra stayed out all night immediately before the
murder, and after she refused to speak to him, he drove around before returning home.
Once home, Palmer and Debra began the conversation that, after some interruption,
ended in Debra revealing her affair. Up until this point, Palmer only suspected that Debra
might be cheating on him. During the conversation, Debra angrily informed Palmer that
she "wanted a real man." The next thing Palmer knew, his hands were bloody and Debra
was dead.

Nothing in the record suggests that the interaction escalated past Debra's heated
words. In fact, Palmer testified that Debra was unarmed and that, as they spoke, he was
"sitting on the couch and she was sitting on the love seat." Nothing in Palmer's account of
the altercation indicates that Debra threatened him or escalated the interaction past
venomous words. This description of Palmer's final conversation with Debra resembles
the verbal exchanges in both Gallegos and Dixon—exchanges that, despite their heated
nature, failed to justify a voluntary manslaughter instruction. See Gallegos, 286 Kan. at
875; Dixon, 252 Kan. at 41.

Additionally, nothing in Palmer's testimony suggests that he felt the sort of
"'intense or vehement emotional excitement'" emblematic a man fueled by the heat of
passion. Hayes, 299 Kan. at 864. Palmer emphasized that he was never angry at Debra
and that their altercation only "made [him] sad." And although he testified that Debra was
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angry, he explained the anger was directed at her brother-in-law, not him. Palmer's
emotional state certainly falls short of the high level of emotional excitement required for
a voluntary manslaughter instruction.

On appeal, Palmer points to State v. Harman, No. 93,118, 2006 WL 2337210
(Kan. App.) (unpublished opinion), rev. denied 282 Kan. 793 (2006), in support of his
proposition that Debra's revelations about the affair provided sufficient provocation.
Although that opinion fails to set out the facts in detail, it appears that Harman discovered
his wife and another man entangled in an intimate moment in that other man's truck.
After recognizing that "the circumstances in the present case (a husband finding his wife
with another man) might generally be considered sufficient provocation," this court
determined that the defense at trial was inconsistent with the requested instruction and
that Harman never claimed to be "suddenly enraged or angry" by what he saw. 2006 WL
2337210, at *2.

Here, Palmer never witnessed the affair. Instead, Debra only admitted to cheating
on him—a far cry from discovering her in the arms of another man. To say that her strong
words about wanting a different kind of man than Palmer are equal in emotional impact
as discovering the affair in full swing directly conflicts with the long-standing rule in
Kansas that words and gestures alone are insufficient to support a finding of adequate
provocation. See Hayes, 299 Kan. at 866.

Viewed in the light most favorable to Palmer, the evidence at trial does not
reasonably support a conviction for voluntary manslaughter. Although the facts do
indicate that Palmer was affected by Debra confirming her affair and her choice words on
their own relationship, Palmer's testimony makes clear that their conversation never
escalated beyond words and never caused him to feel any emotion other than sadness.
None of this evidence is sufficient to support an instruction of voluntary manslaughter.
While there might be a conceivable situation where extreme words of a revelatory nature
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delivered in a vicious or cruel manner might be considered sufficient provocation, this is
not that case. See State v. Paulson, No. 108,795, 2015 WL 6444314, at 5-6 (Kan. App.
2015) (unpublished opinion). Because the facts do not support the instruction, the district
court did not err in denying Palmer's request.

Did the district court err in not suppressing the statements Palmer made to law
enforcement?

Next, Palmer challenges the admissibility of the statements he made to law
enforcement officers within the Sedgwick County jail. Because he never received
Miranda warnings, he reasons that the statements are all inadmissible. Palmer moved to
exclude these statements, but the district court rejected his motion.

The hearing before the district court

At the hearing, Torres testified first, again detailing her conversations with Palmer
and his initial request to be arrested. As for her second conversation with Palmer, Torres
testified that she attempted to keep him calm by talking about innocuous topics such as
Palmer's job. However, Palmer continually steered the conversation back to Debra.
Although she knew that Palmer had admitted to killing Debra, Torres never asked any
questions about the crime and focused exclusively on small talk.

Woodson next testified about his encounter with Palmer, which began in the
unsecured foyer area. Like with Torres, Palmer initially told Woodson that he needed to
be put in jail. Palmer also said he needed a lawyer and a psychiatrist. The two engaged in
a long back-and-forth conversation, during which Palmer eventually admitted that he hurt
someone but without providing details. Palmer did allow Woodson to pat him down and
provided some identifying information. Otherwise, Palmer repeated the same battery of
requests (arrest, lawyer, psychiatrist) until he admitted to killing his wife.

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Because of Palmer's serious demeanor, Woodson decided he needed more
information and asked Palmer to join him in the secured lobby area. At the hearing,
Woodson explained that although the lobby is locked from the outside, someone inside
the lobby can easily exit. Woodson actually brought Palmer in through the open exit
doors and sat him in one of the lobby chairs. In the lobby area, Palmer provided a bit
more information about his wife, such as where she was located and how to enter his
home. However, Woodson had no idea how true this information actually was.

When Atondo arrived at the jail, he took over the investigation, and Woodson's
involvement became minimal. Woodson noted that his questions focused on the welfare
of Palmer's wife and not on any of the details surrounding her death. Woodson admitted
that Palmer had asked for an attorney but emphasized that he kept asking about Debra "so
we could go do a welfare check on her."

In his testimony, Atondo explained that he first spoke to Woodson, who briefed
him on the situation. When he approached Palmer, however, Palmer "looked to be upset"
with "an angry expression about his face." In order to defuse the situation, Atondo "told
him to take it easy" and asked what was going on, at which point Palmer said that "he
was there to turn himself in that he had killed his wife." He also asked to be placed in
handcuffs, read his Miranda warnings, and provided a lawyer. Atondo complied with the
first request, which "seemed to calm [Palmer] down." He elected against the Miranda
warnings, explaining, "I honestly did not—at the time I didn't believe that [Palmer killing
his wife] actually may have occurred. And I didn't know if it was a crime that had
occurred." Instead, he believed that Palmer was possibly homeless or suffering from
mental illness, and he wanted to continue talking to test the credibility of Palmer's
statements.

Aside from Palmer being somewhat emotional, Atondo described their interaction
as "just a normal conversation" in which Palmer "spoke quite a bit" and kept repeatedly
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"just giving [him] information." For example, when Atondo asked questions about
Debra—her name, how they met, whether they had children—Palmer answered but also
provided information about their rocky marriage. A short while later, after Atondo asked
how Palmer got to the jail, Palmer volunteered the details of his trip "to tell goodbye to
an aunt."

As the conversation continued, Atondo contacted dispatch to confirm that Palmer's
address actually existed and to send officers to that location. When officers confirmed the
existence of a house at Palmer's address, Atondo "started believing that something may
have occurred there with his wife." As they waited for officers to enter Palmer's house,
Atondo asked Palmer about any safety hazards there. Again, Palmer answered the
question before providing additional information, saying "she's at the bottom of the
stairs" and warning that the weapon "was still there in the house, in the basement."
Atondo did not press Palmer for more details about the weapon or his wife's death.

In terms of the timeline, Atondo testified that Palmer said he killed his wife and
confirmed his wife's name and their address before asking for a lawyer and his Miranda
warnings. See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694
(1966). He clarified that he only asked about weapons in the home out of a concern for
officer safety, not to elicit details about Debra's death. Atondo acknowledged that he
asked Palmer fairly broad questions about Debra but clarified that he asked the questions
"to figure out if [Palmer] was telling . . . the truth," not to uncover details about the crime.

Wilson-Diehl testified about her interaction with Palmer while she collected
evidence from him. Wilson-Diehl explained that the officers had instructed her not to ask
Palmer anything about the crime. The only question she asked was about back pain, and
only after he complained of "a lot of pain in the middle of his back." That said, Palmer
volunteered some information while Wilson-Diehl examined what appeared to be bug
bites and scratches on his leg. According to Wilson-Diehl, "He told me that he had said
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something to her many times that there is [sic] bugs in that basement. He told me that
that's where he resides and he said that it's embarrassing. And she would say, go
downstairs, Guy, nobody wants you here, Guy." Later, when she observed some swelling
on his hands, he said that "it is from gripping the steering wheel so long. I did a dumb
fuck thing today. If she hadn't taken those guns out of the house you can bet I wouldn't be
here, but she did." The whole interaction lasted about 40 minutes.

At the close of testimony, the State essentially argued that Palmer was not in
custody for most of his conversations, was never actually interrogated, and in fact
volunteered almost all of the information at issue. The State acknowledged that Palmer
was in custody during his second interaction with Torres and while speaking to Wilson-
Diehl but emphasized that those statements arose out of small talk, not interrogation. In
sum, the State asked the district court that

"either you find that at the time the defendant made the statement he wasn't in custody,
therefore, Miranda wasn't required and it wasn't an interrogation or like with . . . Wilson-
Diehl that he was in custody, but that she didn't ask him questions, so his statements were
completely voluntary because there was no interrogation being posed at the time."

Palmer, on the other hand, insisted that the questions the various officers asked
him constituted the functional equivalent of custodial interrogation. In support of this
position, he pointed to the location of the questioning, the breadth of some of the
questions, the length of the interactions, his lack of freedom to leave, and the fact that
Torres continued to talk to Palmer even after he brought up his wife.

When ruling, the district court divided out the different statements into five
separate categories, ruling on each separately:

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 Palmer's initial statements to Torres and Woodson in the unsecured area of
the jail: admissible because Palmer was not in custody. Additionally, the
initial statements to Woodson did not constitute express questioning
because Woodson simply wanted to understand Palmer's needs.
 Palmer's statements to Woodson in the secured area of the jail: admissible
under the public safety exception. Although Palmer "or someone in his
position might feel they are not free to leave" in that situation, the district
court reasoned "it would be reasonable under the circumstances to follow
up further to determine whether anyone's life was in danger."
 Palmer's statements to Atondo: admissible under the public safety
exception because of the "potential danger to Ms. Palmer or others within
the totality of the circumstances" and the need "to determine if Ms. Palmer
or someone else was in need of immediate assistance."
 Palmer's second set of statements to Torres: admissible as they were not
the result of questioning or its functional equivalent. Instead, the district
court determined that Torres was trying to keep Palmer calm, not to elicit
incriminating responses.
 Palmer's statements to Wilson-Diehl: admissible because they were not the
result of express questioning or its functional equivalent.

The district court memorialized these findings in a journal entry with a written
summary of its reasoning and supporting caselaw.

Analysis

When reviewing a district court's decision on a motion to suppress, this court
applies a bifurcated standard of review. This court reviews any factual findings to
determine whether they are supported by substantial competent evidence. The ultimate
legal conclusion, however, is subject to unlimited review. Importantly, this court cannot
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reweigh the evidence or assess the credibility of witnesses when reviewing factual
findings. State v. Reiss, 299 Kan. 291, 296, 326 P.3d 367 (2014).

On appeal, Palmer objects not to the district court's factual findings but rather the
application of caselaw, claiming that the district court misapplied the public safety
exception and that all of the questioning rose to the level of custodial interrogation.
Additionally, Palmer does not challenge his initial statements to Torres or Woodson, but
rather all the statements after Woodson moved him to the more secured portion of the
jail.

The Fifth Amendment to the United States Constitution guarantees suspects in
criminal investigations the right against self-incrimination, which includes both the right
to an attorney during custodial interrogation and the right to remain silent. State v. Cosby,
285 Kan. 230, 241, 169 P.3d 1128 (2007). To safeguard against abuse of these rights, the
United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, held that law
enforcement officers must inform a suspect about such rights before any statements
arising out of custodial interrogation can be admitted in a criminal case against that
suspect. Cosby, 285 Kan. at 241.

As this court explained a few years ago, "[t]here are two prerequisites to the
applicability of Miranda: custody and interrogation." State v. Johnson, 46 Kan. App. 2d
387, 393, 264 P.3d 1018 (2011), rev. denied 293 Kan. 1111 (2012). When considering
whether custodial interrogation occurred, a court must analyze the circumstances
surrounding the questioning and determine "whether the totality of those circumstances
would have led a reasonable person to believe he or she was not at liberty to terminate the
interrogation." State v. Schultz, 289 Kan. 334, Syl. ¶ 3, 212 P.3d 150 (2009).

However, not all questioning constitutes an interrogation. In fact, an officer is not
required to read an individual his or her Miranda warnings during general investigatory
17

questioning. State v. Roadenbaugh, 234 Kan. 474, 476, 673 P.2d 1166 (1983). Instead,
the suspect must be "subjected to either express questioning or its functional equivalent."
State v. Hebert, 277 Kan. 61, 68, 82 P.3d 470 (2004). This functional equivalent refers to
"'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.' [Citation omitted.]" 277 Kan. at 69. Whether
words or actions are likely to elicit an incriminating response "'focuses primarily upon the
perceptions of the suspect, rather than the intent of the police.' [Citation omitted.]" 277
Kan. at 69.

Because the district court provided different rationales for the statements to
Woodson and Atondo in the more secure lobby area and the statements to Torres and
Wilson-Diehl after Palmer was undisputedly in custody, we will address each in turn.

Statements in the secure lobby area

In its ruling, the district court determined that once Woodson brought Palmer into
the more secure area, Palmer likely felt unable to leave. However, the district court also
determined that any of Woodson and Atondo's questions were justified under the public
safety exception to Miranda.

The public safety exception arises in cases where "the need to ascertain the
location of a potential danger to the public outweigh[s] the need for the 'prophylactic rule'
of Miranda." Cosby, 285 Kan. at 241. As such, officers may directly question a suspect
prior to reading any Miranda warnings in "situations where there is an immediate need
for an officer to protect himself or herself or the public." Cosby, 285 Kan. at 241.
However, it must be "objectively reasonable for the officer to believe the questioning is
necessary to protect . . . the public from immediate danger." Johnson, 46 Kan. App. 2d at
394. Additionally, "the availability of [the] exception does not depend on the motivation
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of the individual officers involved" provided that the questions are "reasonably prompted
by a concern for the public safety, including the safety of a possible victim." State v.
Drennan, 278 Kan. 704, Syl. ¶ 12, 101 P.3d 1218 (2004), overruled on other grounds by
State v. Neighbors, 299 Kan. 234, 328 P.3d 1081 (2014).

Drennan is helpful in considering whether the public safety exception applies in
this case. There, Shelbree Wilson's neighbor heard the defendant, Wilson's boyfriend,
banging around outside during the wee hours of the morning. When the neighbor
confronted him, the men engaged in a verbal altercation. Wilson then demanded that the
defendant enter the house, prompting the defendant to "grab[] [Wilson] by the shoulder
and neck and push[] her back into the house." The neighbor heard a "'ruckus'" and a
scream from Wilson; when silence replaced the noise, he called 911. 278 Kan. at 708.

After the officers dispatched to the scene spoke to the neighbor, they knocked on
Wilson's door. The defendant eventually exited the house into the garage, but he initially
ignored the officers' request to step out and speak to them. When he finally approached
the officers, he appeared glazed-over and agitated. After he also ignored their initial
questions about Wilson and resisted a pat-down, officers placed him in handcuffs. They
asked about Wilson again, and this time, the defendant responded cryptically, saying, "'I
was going to give you some information, but now you'll just have to wait and see.'" 278
Kan. at 708-09. On a check of the home, officers discovered Wilson unconscious with a
cord wrapped around her neck. Wilson later died.

Before trial and later on appeal, the defendant argued that he was in custody at the
time the officers asked him about Wilson, which transformed their questioning into an
interrogation and required they read his Miranda rights. Our Kansas Supreme Court
determined that the district court correctly applied the public safety exception when
ruling the statements admissible. The court noted that "the officers' concern in this case
was not for the general public's safety" but determined that because "the officers had a
19

reasonable belief that [Wilson] might be in danger and in need of their assistance," the
exception applied. 278 Kan. at 723-24. The court also pointed to cases from other
jurisdictions that had held similarly. 278 Kan. 723.

At the time Woodson brought Palmer into the more secure lobby area, Palmer had
already said that he had killed his wife. Uncertain as to the truth of this statement,
Woodson asked Palmer a few more questions, such as her location and how to enter his
home. Woodson focused his questions only on Debra's welfare because he wanted to "go
do a welfare check on her." When Atondo arrived, he also asked questions about Palmer's
wife in an attempt to evaluate the credibility of Palmer's claims. Once Atondo gathered
enough information to believe that something actually happened to Debra, Atondo
limited his questions to any potential safety hazards at the home.

Based on the circumstances, it appears objectively reasonable that both Woodson
and Atondo believed the questioning necessary to protect a potential victim—namely,
Debra—from immediate danger. For Woodson, Palmer's statement about killing Debra
prompted him to elicit just enough information to secure a welfare check. Woodson never
pressed Palmer for any details about the potential crime or his motivations. Although
Atondo questioned Palmer from a slightly different angle, he was also reasonably
prompted by a concern for Debra's safety, one that began by confirming that Debra
existed and could be found at Palmer's address. Like Woodson, Atondo limited his
questions to general information about Debra and the location of Palmer's home. As soon
as Atondo had enough information to suspect "that something may have occurred [at the
house] with his wife," he stopped asking Palmer any questions about Debra. Based on the
circumstances presented and the scope of the officers' questions, the district court did not
err in applying the public safety exception.

As an aside, Palmer implies in his brief that the public safety exception should not
apply because he requested a lawyer several times throughout his time at the jail.
20

However, Palmer focused only on the lack of Miranda warnings below and not on his
requests for an attorney. Because he never raised the issue of the officers failing to honor
his request for a lawyer before the district court, Palmer cannot now rely on that
argument on appeal. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014).

Statements after Palmer was definitely in custody

The last category of statements concern Palmer's interactions with Torres and
Wilson-Diehl. As Atondo testified that Palmer was not free to leave after being placed in
handcuffs, there is no reasonable dispute that Palmer was not in custody at the time he
spoke to Torres and Wilson-Diehl. Instead, the question is whether these interactions
constituted either direct questioning or its functional equivalent.

Torres sat with Palmer after Woodson and Atondo finished talking to him.
According to Torres, she asked him innocuous questions to keep him calm. Torres
testified that she limited her questions to Palmer's job, pets, and other small talk topics.
With each question, Palmer steered the conversation back to Debra.

Although Torres asked Palmer questions, it is clear that they did not constitute
direct questioning as they concerned topics far outside the issue of Debra's death.
Moreover, the record demonstrates that Torres' behavior also never rose to the functional
equivalent of questioning. Even in a situation such as this one, it is difficult to believe
that a suspect would perceive an innocuous, small talk question about his job as one
formulated to elicit an incriminating response. In fact, Torres' testimony demonstrated
that she worked hard to keep the topic away from Debra and that Palmer actually
volunteered comments about Debra. Torres' interaction with Palmer did not run afoul of
Miranda.

21

As for Wilson-Diehl, she testified that she only asked Palmer one question during
their entire interaction, which concerned his back pain. Wilson-Diehl specifically recalled
that the officers instructed her not to ask questions. Obviously, Wilson-Diehl never
directly questioned Palmer. Moreover, there is absolutely no reason to believe that the
one question at issue constituted the functional equivalent of interrogation. The question
arose out of a complaint from Palmer, and nothing in it was likely to elicit an
incriminating response. And Wilson-Diehl's examination also did not rise to the
functional equivalent of interrogation. Instead, Wilson-Diehl testified that Palmer
spontaneously volunteered most of the information as she examined certain areas of his
body. It cannot be reasonably said that a suspect would understand Wilson-Diehl's silence
during an examination as requiring any response, let alone an incriminating one.

In conclusion, the district court did not err in denying Palmer's motion to suppress.
Palmer's statements to Woodson and Atondo in the secure lobby area fell under the
public safety exception. While Palmer was definitely in custody at the time he spoke to
Torres and, later, to Wilson-Diehl, his comments were spontaneous and voluntary, not a
response to the functional equivalent of interrogation. As such, the district court's
decision is affirmed.

Did the district court improperly classify one of Palmer's prior convictions as a person
felony?

Lastly, Palmer argues that State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014),
modified by Supreme Court order September 19, 2014, overruled by State v. Keel, 302
Kan. 560, Syl. ¶ 9, 357 P.3d 251 (2015), required that the district court classify one of his
prior convictions as a nonperson felony. In Murdock, our Kansas Supreme Court
reasoned that all out-of-state felony convictions that predated the enactment of the
Kansas Sentencing Guidelines Act (KSGA) needed to be scored as nonperson felonies.
299 Kan. at 319. In so ruling, the court relied heavily on State v. Williams, 291 Kan. 554,
22

244 P.3d 667 (2010), overruled by State v. Keel, 302 Kan. 560, Syl. ¶ 9, 357 P.3d 251
(2015), which discussed how to score out-of-state convictions for criminal history
purposes. In his brief, Palmer urges this court to extend this holding to pre-KSGA in-state
convictions.

But in August 2015, our Kansas Supreme Court expressly overruled both Murdock
and Williams. See Keel, 302 Kan. 560, Syl. ¶ 9. In overruling these cases, our Supreme
Court reestablished that all prior convictions, including those predating the KSGA, "must
be classified as either a person or nonperson offense by comparing the criminal statute
under which the prior offense arose to the comparable post-KSGA criminal statute . . . in
effect at the time the current crime of conviction was committed." 302 Kan. 560, Syl. ¶ 8.

Because Murdock is no longer controlling law in Kansas, Palmer's insistence that
this court should extend its holding fails. Palmer raises no other objections to his criminal
history score or the classification of his prior convictions. As such, his sentence is
affirmed.

Affirmed.
* * *
ATCHESON, J., concurring: I join with the majority in determining both that the
evidence did not require a jury instruction on voluntary manslaughter despite Defendant
Guy Palmer's request and that State v. Keel, 302 Kan. 560, Syl. ¶ 8, 357 P.3d 251 (2015),
controls the treatment of Palmer's preguidelines felony conviction in establishing his
criminal history in this case.

As to the remaining point on appeal, I see no prejudicial error in the admission of
Palmer's out-of-court statements as part of the State's case to the jury. There are three sets
of statements: (1) Those Palmer made in the unsecured part of the jail when he first
walked in; (2) those he made in the secured section of the jail both before and after he
23

was handcuffed; and (3) those he made later to Officer Fabiola Torres and still later to
Karen Wilson-Diehl, the nurse who examined him. As to the first set of statements, I
agree there was no custodial interrogation of Palmer. So those statements were
admissible at trial. Likewise, as to the third set of statements, neither Torres nor Wilson-
Diehl sought to interrogate Palmer. Based on the factual record, Palmer made those
incriminating statements spontaneously and voluntarily. They were, therefore,
admissible, as well.

I am not nearly as sure as the majority that the second set of statements should
have been admitted at trial. I think there is a fair argument that Palmer was effectively
placed in custody as soon as the officers escorted him into the secured area of the jail, and
he almost certainly was after being handcuffed. The record is clear the officers did not
inform Palmer of his rights as outlined in Miranda v. Arizona, 384 U.S. 436, 444-45, 86
S. Ct. 1602, 16 L. Ed. 2d 694 (1966). I am similarly uneasy with the idea that the
statements fell within some accepted application of the public safety doctrine.

But I need not delve deeper into those concerns and choose not to in a bow to
efficiency. Even assuming the statements should have been suppressed and their
admission at trial was, as a result, impermissible, Palmer must show material prejudice to
warrant any relief. The record demonstrates that the content of the second set of
statements simply duplicated what Palmer otherwise said both before and after. Most
tellingly, of course, Palmer admitted killing his wife shortly after he arrived at the jail,
and that confession was properly presented to the jury during the trial. So were Palmer's
repeated statements about the tumultuous nature of his marital relationship. The second
set of statements was cumulative of his other admissions. Allowing the jury to hear those
statements would have been, at most, harmless error. I, therefore, see no basis for
reversing Palmer's conviction.