STATE OF KANSAS v. LUIS ANTONIO AGUIRRE

Topeka, KS - Criminal defense attorney represented Luis Antonio Aguirre with a voluntary

manslaughter and a first-degree premeditated murder charge

In September 2007, T.M. and her one-year-old son, J.M., left a homeless shelter in

Chicago. A month later, their bodies were discovered in a shallow grave near Ogden,

Kansas. Following several leads, law enforcement eventually brought Aguirre in for 5

questioning. After additional investigation, the State of Kansas charged Aguirre with one

count of capital murder for the two deaths. (A more detailed recitation of the facts was

presented in Aguirre I.) We will discuss additional evidence presented at the second trial

where pertinent to the issues.

The jury ultimately convicted Aguirre of voluntary manslaughter in the death of

T.M. and of premeditated first-degree murder in the death of J.M. Aguirre appealed.

ANALYSIS

Aguirre raises eight issues for our consideration.

Voluntariness of Aguirre's statements to law enforcement

Aguirre first claims that his statements made to law enforcement after invoking his

Miranda rights were involuntary. He asserts the district court erred in ruling that these

statements were voluntary and could be used for impeachment purposes—though they

were not, ultimately, presented to the jury.

Standard of Review

"An appellate court employs the same standard of review for determining the

voluntariness of the waiver of Miranda rights as it does for assessing the voluntariness of

a defendant's statement. The inquiry requires an examination of the totality of the

circumstances, and an appellate court reviews the factual underpinnings of the trial

court's decision by a substantial competent evidence standard and the ultimate legal

conclusion by a de novo standard." State v. Mattox, 280 Kan. 473, Syl. ¶ 3, 124 P.3d 6

(2005).6

The State bears the burden to establish voluntariness by a preponderance of the

evidence. State v. Guein, 309 Kan. 1245, 1259-60, 444 P.3d 340 (2019).

"The essential inquiry is whether the statement was the product of an accused's free and

independent will. The court looks at the totality of the circumstances surrounding the

statement and determines its voluntariness by considering the following nonexclusive list

of factors: '(1) the accused's mental condition; (2) the manner and duration of the

interrogation; (3) the ability of the accused to communicate on request with the outside

world; (4) the accused's age, intellect, and background; (5) the fairness of the officers in

conducting the interrogation; and (6) the accused's fluency with the English language.'"

State v. Stone, 291 Kan. 13, 21, 237 P.3d 1229 (2010).

However, these factors are not merely to be tallied up against one another, and any

one factor may be sufficient to find that a confession was involuntary. Guein, 309 Kan. at

1260 (quoting State v. Sharp, 289 Kan. 72, 81, 210 P.3d 590 [2009]). In evaluating

voluntariness, "'an appellate court does not reweigh evidence, pass on the credibility of

witnesses, or resolve conflicts in the evidence.'" State v. Bridges, 297 Kan. 989, 1004,

306 P.3d 244 (2013) (quoting State v. Swanigan, 279 Kan. 18, 23, 106 P.3d 39 [2005]).

Additional Facts

During his first interview, Aguirre mentioned his need to return a child in his care

to the child's family after the detectives revealed that T.M. was dead. The Aguirre I court

set forth the relevant portion of the interview at length. See 301 Kan. at 955-56, 959-61.

Aguirre said that once the child was with his family, "I will be here as long as you want

me to afterwards." The detectives immediately assured Aguirre that the child would be

taken care of and continued asking questions. Aguirre then stated: "This is—I guess 7

where I, I'm going to take my rights and I want to turn in [the child] to his family and I'll

be back here. I mean, I would like to keep helping you guys I just want to—."

At this point in the interview, the Aguirre I court held Aguirre had invoked his

rights, therefore further interrogation violated Miranda. Before the second trial, both

parties filed motions seeking a ruling on the voluntariness of statements Aguirre made to

law enforcement after this point in the interview. The State sought to use these statements

if Aguirre were to "take the stand and testify inconsistent with what he told the police in

his un-Mirandized portion." After a hearing, the district court found these statements to

be voluntary and admissible for impeachment purposes.

Discussion

The State first argues that Aguirre failed to preserve this issue by failing to make a

proffer of the evidence that he would have presented if the district court had ruled that his

statements were involuntary. K.S.A. 60-405 states:

"A verdict or finding shall not be set aside, nor shall the judgment or decision

based thereon be reversed, by reason of the erroneous exclusion of evidence unless it

appears of record that the proponent of the evidence either made known the substance of

the evidence in a form and by a method approved by the judge, or indicated the substance

of the expected evidence by questions indicating the desired answers."

Aguirre correctly counters that K.S.A. 60-405 applies to scenarios involving the

exclusion of evidence, not a ruling that evidence may be admissible for impeachment. For

preservation purposes, this is important. "Failure to make a proffer of excluded evidence

precludes appellate review because there is no basis to consider whether the trial court

abused its discretion." State v. Evans, 275 Kan. 95, 100, 62 P.3d 220 (2003). Here, 8

however, the record provides ample grounds to determine whether Aguirre's statement

was voluntary.

Turning to the merits, Aguirre claims that his post-invocation statements during

the first interview were involuntary because officers continued to question him after he

invoked his Miranda rights, analogizing his case to the "bait and switch" tactics in State

v. Swindler, 296 Kan. 670, 681, 294 P.3d 308 (2013), which lends credence to his

argument because of the "added pressure" of the child in his care, whose "cries could be

heard inside the interrogation room." Aguirre also references the Aguirre I majority's

comment that this "was a case where the interrogators simply refused to scrupulously

honor the suspect's right to cut-off questioning but instead coerced the suspect to continue

the interrogation until they had the confession they sought." 301 Kan. at 960.

The State correctly counters that Aguirre I is not dispositive of this issue. The

Aguirre I majority's decision not to analyze the voluntariness of Aguirre's post-invocation

statements consigns any reference to "coercion" in that opinion to the realm of dicta, at

best. See 301 Kan. at 963.

We are also unpersuaded by Aguirre's analogy to Swindler, which we find to be

distinguishable. In Swindler, the court found a defendant's confessions involuntary based

solely on "the unfairness of the officers in conducting the interrogation—specifically,

their assurances that he was free to terminate the interrogation and leave at any time

contrasted with their refusal to honor those assurances." 296 Kan. at 680. The court found

it was "obvious that Swindler wanted to terminate the interview and leave the KBI office"

"[f]rom the time that he said 'I'm done. I want to go home. I'm done.'" 296 Kan. at 681.

The court also noted the presence of Swindler's girlfriend and two young children, and

Swindler's desire to go to work to earn money for them, but the court's overall focus lay 9

on the detectives' conduct: "The message of these investigators was unmistakable: If

Swindler wanted to stop talking and leave, he needed to confess." 296 Kan. at 681.

In contrast, Aguirre never asked the detectives to stop the interrogation altogether.

At most, he asked for a temporary cessation, after which he would "be here as long as

you want me to afterwards," "be back here," and that he "would like to keep helping you

guys." Thus, Aguirre was not placed in the position of being forced to confess so he

could be returned to the child who had been in his care.

On balance, we do not find the detectives' actions during their first interview with

Aguirre to be unfairly coercive in light of the totality of the circumstances. Aguirre

voluntarily went to the police station without any threats by law enforcement. When the

at-issue exchange arose, the detectives admittedly proceeded on with questioning, rather

than inquire as to whether Aguirre was actually invoking his rights, but they responded

directly to Aguirre's expressed concerns by assuring him the child would be returned to

his family safely. And because Aguirre's claim that his statements during his second

interview were involuntary is based solely on the assumption that his post-invocation

statements at the first interview were involuntary, we likewise find that Aguirre's

statements at the second interview were made voluntarily.

The district court's admission of Dr. Tomb's "open grave" expert testimony

Aguirre next argues that the district court erred in allowing Dr. Andrew Tomb to

give an opinion on the length of time during which the grave of T.M. and J.M. was open,

claiming Dr. Tomb's testimony consisted of "junk-science," and that the district court

failed its gatekeeping function under K.S.A. 2020 Supp. 60-456(b).10

Standard of Review

The admission of expert testimony "is generally reviewed for an abuse of

discretion," although, "[t]o the extent interpretation of statutes is concerned, review is de

novo." State v. Lyman, 311 Kan. 1, 21, 455 P.3d 393 (2020), cert. denied 141 S. Ct. 174

(2020).

"A court abuses its discretion when its action is (1) arbitrary, fanciful, or unreasonable,

i.e., if no reasonable person would have taken the view adopted by the court; (2) based on

an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3)

based on an error of fact, i.e., if substantial competent evidence does not support a factual

finding on which a prerequisite conclusion of law or the exercise of discretion is

based. The party arguing an abuse of discretion bears the burden of establishing that

abuse. Corbin I, 305 Kan. at 622." State v. Corbin, 311 Kan. 385, 390, 461 P.3d 38

(2020).

Prior to its amendment in 2014, K.S.A. 60-456 required courts to assess the

admissibility of expert testimony under the standard articulated in Frye v. United States,

293 F. 1013 (D.C. Cir. 1923), i.e., "that, to be admissible, expert opinion testimony had to

be generally accepted as reliable within the expert's particular field." In re Care &

Treatment of Cone, 309 Kan. 321, 326, 435 P.3d 45 (2019). But in 2014, the Kansas

Legislature amended K.S.A. 60-456(b), embracing the analytical framework set forth in

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L.

Ed. 2d 469 (1993). In so doing, the statute now states as follows:

"(b) If scientific, technical or other specialized knowledge will help the trier of

fact to understand the evidence or to determine a fact in issue, a witness who is qualified

as an expert by knowledge, skill, experience, training or education may testify thereto in

the form of an opinion or otherwise if: (1) The testimony is based on sufficient facts or 11

data; (2) the testimony is the product of reliable principles and methods; and (3) the

witness has reliably applied the principles and methods to the facts of the case." K.S.A.

2020 Supp. 60-456(b).

Under this framework, a district court is required to act as an evidentiary

gatekeeper by assessing the reliability and relevancy of expert testimony in a particular

case under a number of nonexclusive factors, including:

"(1) [W]hether the theory or technique can be (and has been) tested; (2) whether it has

been subject to peer review and publication; (3) whether, in respect to a particular

technique, there is a high known or potential rate of error and whether there are standards

controlling the technique's operation; and (4) whether the theory or technique has general

acceptance within a relevant scientific community." Lyman, 311 Kan. at 22.

We have not yet articulated the standard of review by which an appellate court

assesses a district court's performance of its gatekeeping function. In Smart v. BNSF

Railway Co., 52 Kan. App. 2d 486, 493, 369 P.3d 966 (2016), a panel of the Kansas

Court of Appeals formulated the relevant inquiry this way:

"We review de novo whether the district court actually performed its gatekeeper

role in the first instance and whether it applied the proper standard in admitting expert

testimony. Here, the district court performed its gatekeeper role by reading the briefs on

the motion to strike, conducting a hearing, and ruling on the reliability of the challenged

testimony. The parties do not allege the district court applied an improper standard in

excluding expert testimony. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S. Ct.

1167, 143 L. Ed. 2d 238 (1999), teaches that Daubert is not talismanic; it simply means

that prior to admitting expert testimony, the court must insure the testimony 'is not only

relevant, but reliable.' . . .12

"Where, as here, the district court performed its gatekeeper role and applied the

proper legal standard, we review for abuse of discretion the district court's decision to

admit or exclude the testimony. [Citations omitted.]"

In analyzing whether discretion was abused, the Smart panel instructed that a

district court is required first to assess "whether the expert is qualified 'by knowledge,

skill, experience, training or education' to render an opinion." 52 Kan. App. 2d at 494.

Second, a district court must evaluate whether the proposed expert testimony is relevant

and reliable by determining "whether the testimony 'is based on sufficient facts or data,'

and is 'the product of reliable principles and methods,' and whether 'the witness has

reliably applied the principles and methods to the facts of the case'" as required by K.S.A.

2020 Supp. 60-456(b). 52 Kan. App. 2d at 494-95.

Both Smart and federal caselaw have also recognized that "reliability concerns

may focus upon personal knowledge or experience instead of the Daubert factors and

scientific foundation." Smart, 52 Kan. App. 2d at 495; see also F & H Coatings, LLC v.

Acosta, 900 F.3d 1214, 1222 (10th Cir. 2018) ("Where an expert testifies based on

experience, the tribunal reviews the reliability of the testimony with reference to 'the

nature of the issue, the expert's particular expertise, and the subject of [the] testimony.'")

(quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 148-50, 119 S. Ct. 1167, 143 L.

Ed. 2d 238 [1999]). As the Smart panel noted, "'To the extent a witness is relying

primarily on experience, he or she "must explain how that experience leads to the

conclusion reached, why that experience is a sufficient basis for the opinion, and how that

experience is reliably applied to the facts."'" 52 Kan. App. 2d at 495 (quoting Seifert v.

Unified Gov't of Wyandotte County, No. 11-2327-JTM, 2016 WL 107932, at *1-2 [D.

Kan. 2016]).13

We have cited Smart with approval previously when faced with a district court's

decision to admit or exclude expert testimony under the post-2014 version of K.S.A. 60-

456(b), and again do so here. See, e.g., Lyman, 311 Kan. at 23. However, we think that

both components of the analysis articulated by the Smart panel—(1) whether the district

court actually performed its gatekeeping role using the proper standard, and (2) how it

applied the standard—fall under separate aspects of our abuse of discretion analysis: the

former raising the question of whether the district court committed an error of law, and

the latter raising a question of whether the district court committed an error of fact or

acted arbitrarily or unreasonably. Thus, when faced with a challenge to a district court's

decision to admit or exclude expert testimony under K.S.A. 2020 Supp. 60-456(b), an

appellate court must evaluate for abuse of discretion whether the district court properly

performed its gatekeeper role:

• First, by use of the correct legal standard governing the admissibility of

expert testimony; and

• Second, by application of that legal standard in evaluating whether (a) an

expert is qualified to render an opinion and (b) the opinion is sufficiently

relevant and reliable.

Having thus clarified our analytical framework, we must first discuss the specifics

of Dr. Tomb's testimony at both trials and the district court's decision to admit it at the

second trial.

Additional Facts

At trial, the State presented expert testimony from Kansas State botanist Dr.

Tomb. Dr. Tomb testified about the condition of the vegetation upon which the bodies 14

were placed and also described in great detail the contents of some "plugs" of biological

material he obtained from beneath where the bodies were discovered. The material

consisted essentially of box elder leaves, neatly stacked one on top of the other, forming

three to seven layers of leaves. The plugs also included mold and bacteria that were

consuming or otherwise breaking down the materials. Dr. Tomb gave his opinion on how

long the bodies had been in the grave and also the length of time that must have elapsed

between the time the grave was dug and the time the bodies were deposited on top of the

leaves, being a minimum of some hours.

It is the opinion specifically related to that time lapse—called the "open grave"

opinion—to which Aguirre objects. Aguirre attacked Dr. Tomb's qualifications as an

expert under K.S.A. 2020 Supp. 60-456(b), citing the 2014 legislative change to the

statute.

Before trial, the district court held what it characterized as "the Daubert hearing."

At this hearing, Aguirre called Dr. Christopher Palenik as his sole witness. Dr. Palenik

disagreed with Dr. Tomb's assessment that there was "an obvious layer of leaves" present

in the gravesite, questioning the sample Dr. Tomb selected for his analysis. Dr. Palenik

criticized Dr. Tomb's methodology and the thoroughness of his documentation in

obtaining samples of leaves from the grave, ultimately opining that Dr. Tomb did not

acquire a sufficient sample and did not establish a "control sample" of how many leaves

would be "actually present at that level in the earth" as a baseline. Dr. Palenik further

noted that the presence of additional plant material beyond the leaves suggested "another

mechanism for how leaves are ending up in the grave besides just fall [sic] from the

canopy." 15

Dr. Palenik was aware of no studies on the rate of leaf fall in box elder trees. He

further noted a number of additional uncertainties with Dr. Tomb's analysis, including

uncertainty as to the size of the open area of the grave, the number of leaves on the trees

at the time, the maturity of those leaves, the wind speed, the number of leaves already on

the ground, and the possibility of various "mechanisms" for the distribution of the leaves

already on the ground. Dr. Palenik thus believed an "incredibly complex model" would

be needed to extrapolate the amount of time the grave sat open based on the presence of

any number of leaves. Accordingly, Dr. Palenik opined that Dr. Tomb's opinion was

unsupported "by science."

Dr. Tomb also testified. He noted that the grave lay beneath the canopies of two

box elder trees. He visited the grave "shortly after" the bodies had been removed.

Focusing on the portion of the grave that had been "under the adult female, essentially in

the midline, from the head to the pelvis," which "had been protected by the body from the

animal digging," Dr. Tomb pulled four "plugs" of material—roughly 2.5 to 3 inches—for

analysis. He observed the samples both with a microscope and by "digging them out" and

looking at them with the naked eye.

Dr. Tomb characterized his work as "descriptive science," as opposed to

"experimental science." He claimed that the condition of the leaves present in the samples

was inconsistent with the leaves appearing in the grave by some mechanism other than

falling into the open grave. Dr. Tomb described his observational techniques as being

"more like a paleobotanist" based on his need "to dig down through and expose plant

material." Dr. Tomb disputed the notion that there could be a "control" for "a natural

history fact," as he wasn't performing an experiment. 16

Dr. Tomb had never before given an opinion on the length of time in which a

grave was open. Although he had "done a lot of digging to try to find out about how fast

box elder loses its leaves," he never located a study on the subject. Nevertheless, Dr.

Tomb "found out more about how long [box elder trees] in general, lost their leaves,"

noting that "it wasn't precipitous." Dr. Tomb noted that the two box elder trees above the

grave appeared to have lost their leaves at different rates, with one tree having almost no

leaves by the time he observed it.

Dr. Tomb recognized that a number of factors could affect the rate at which box

elder trees shed leaves, opining that it would be impossible to determine the precise time

interval over which the trees in question lost their leaves in September or October of

2009. Dr. Tomb did review the weather information, but he did not analyze it "very

deeply"; though he noted "that there were winds," the absence of a frost appeared more

significant to him than wind speed. Dr. Tomb further recognized that wind speed could

affect leaf fall, but he "didn't know which day to check" for wind speeds.

The district court ultimately found that Dr. Tomb was "qualified" in his field. The

district court went on to contrast the "experimental" science described by Dr. Palenik

with the "historical" science on which Dr. Tomb relied, noting that, with Dr. Tomb's

process, "You're simply making observations of historical data based upon the science of

botany, his expertise field." The district court further found that Dr. Palenik's various

criticisms—which the court referred to as "side issues"—went to the weight, not the

admissibility, of Dr. Tomb's opinion.

Aguirre's counsel then filed a motion asking the court for more specific findings of

fact and conclusions of law. The district court took up Aguirre's motion prior to the

parties' opening statements. As a prelude, the district court maintained that it believed it 17

"had previously made sufficient findings," but went on to clarify that both Dr. Tomb and

Dr. Palenik were "extremely qualified in their fields." Further:

"That Dr. Tomb is an expert in the—with specialized knowledge in the scientific field of

botany, and that as a result of that he has specialized knowledge about the field of botany,

and particularly box elder leaves and box elder trees. That his testimony would assist a

jury.

"The, I guess criticism from the motion and everything perhaps goes to the

weight and credibility, but as Dr. Tomb testified to, the science that he was referring to

was one that cannot be duplicated in a laboratory, and many scientific tests can be, as I

think his indicated it wasn't a scientific test but it was—or scientific facts but it was a

scientific observation of findings based upon his training and experience.

"For those reasons I believe—well, those reasons I am allowing him to testify as

to his specialized knowledge of the—in the field of botany as it specifically relates to the

trees and shrubs that were in the area of where the bodies of [T.M.] and [J.M.] were

found."

When Aguirre's counsel clarified that the objection lay in Dr. Tomb's testimony as

to the length of time in which the grave sat open, the court responded:

"I understand that, and I will allow him to testify based upon his observations and

his—he took the leaves back to the lab, as I recall, examined them under a microscope. I

will allow him to express an opinion as to how long it potentially could have been open. I

think there was a window, and obviously there were many variables that could affect all

of that, and I think he acknowledged that."

At trial, Dr. Tomb opined that the grave was four to six weeks old as of the date it

was discovered. He again described the two box elder trees whose limbs stretched above 18

the grave. He told the jury that "[t]he literature on box elder [trees] is that leaf abscission

occurs from the fall through into the winter." He clarified that, although "[t]he literature

is sparse," "there's no mention of it being like ginkgo, or like—even like hackberries or

elms like where there is a noticeable cascade of leaves coming off those trees." Dr. Tomb

also described his process in sampling the leaves that had been beneath the bodies in the

grave, in processing the samples, and in identifying the contents.

Based on his observations of the samples, Dr. Tomb opined that "there wasn't

anything in the grave other than box elder leaves" and that there were "at least eight or

nine leaflets that would be in different layers and attached within the specimen." He

further opined that, "[W]hen you find this many leaves, it's indicative of a time interval,"

later clarifying that he believed the grave must have been open "a day as a minimum, and

several days is even more likely [before the bodies were interred] based on how many

leaves there are and the way the box elder loses its leaves." Dr. Tomb discounted the idea

that strong winds could have contributed significantly to the amount of leaves in the

grave, noting that he didn't believe "that these leaves came from anyplace other than the

trees above . . . the grave."

Aguirre's counsel cross-examined Dr. Tomb at length about the possible holes in

his analysis and method. Aguirre's attorney further highlighted Dr. Tomb's inexperience

with forensic science and with leaf fall studies. Dr. Palenik also identified a number of

problems with Dr. Tomb's analysis and opinion, from Dr. Tomb's method of collecting

samples to the uncertainties surrounding his ultimate conclusion. Ultimately, Dr. Palenik

testified that an opinion could not be formed as to the amount of time the grave was open

from the information available to Dr. Tomb. 19

In closing arguments, the prosecutor offered the following commentary on Dr.

Tomb's testimony:

"Dr. Tomb gives his opinion that the grave was open for at least twelve hours. That's in

his opinion, the grave was open for at least twelve hours, and the defense has spent a lot

of time challenging this opinion. And they have called Dr. Palenik, which they certainly

have the right to do, in to say that Dr. Tomb's opinion wasn't scientific enough. But this is

where you can use your common knowledge and experience, your common sense, and

evaluate the evidence.

"The defendant isn't gonna dig a grave in the middle of the day, and it isn't smart

to dig a grave while you have the bodies right there. Doesn't it make sense that the

defendant dug the grave on the night of the 21st, and then waited til the next night on the

23rd, and then on midnight 22nd, 23rd, to put the bodies in the grave?

"Remember, the State only has to show to you that the defendant killed [T.M.]

and [J.M.] on or around November—or September 21st. We're not required to prove the

exact time, and that's why we are allowed to put in language on or about. Maybe the

murders happened on the afternoon of the 21st, maybe it was the night of the 21st, or

maybe they happened on the 22nd. That is still on or around.

"And quite frankly, the defense is chasing a red herring when they are looking at

how long the grave was open. It doesn't matter how long the grave was open. What

matters is who put the bodies in the grave.

"Could Dr. Tomb have done a better job documenting what he did? Sure. I will

give the defense that. But remember, this is a local professor, he's at home, he gets a call.

Can you assist the police? Sure. He could have said no, but he goes out there to do what I

would consider to be a good thing. He's not a professional forensic scientist. His dad

didn't run a laboratory. That's all true.20

"And Dr. Palenik testified that he thought that time was a critical factor. That the

time that the grave had been open was a critical factor. And maybe the defense can

explain to you why the time the grave was open is a critical factor. I don't see how that is

the case. And I would submit to you that the length of time the grave was open, if it was

dug on the 21st and the bodies put in there on the 23rd, or if it was the—if he dug the

grave and immediately put the bodies in there, I just don't see how that makes a

difference."

The prosecutor did not explicitly reference Dr. Tomb's testimony in discussing

premeditation. Aguirre's counsel did, however:

"The reason Dr. Tomb was important is Dr. Tomb got this investigation started

on a path, and the reason Dr. Tomb is important is because he's talking about this grave

being open for twelve hours before the bodies were put in it. And what's important is it

went from twelve hours to later in the investigation when the defendant's been arrested

for capital murder, and then it goes to what? Then it goes to 24 hours. And then after that

when he did his presentation for you it said several days.

"So what's the implication? Somebody dug this grave, it was open for several

days before somebody put the bodies in it? Why are they presenting that evidence?

Because it implies to you that somebody dug the grave before the act occurred, because

he didn't get back on—til the 21st, based on their evidence, and then supposedly he was

over at Miss Brown's house on the 2nd, and I guess their theory is they were being

buried, so if it was open for several days, well, then he must have planned all of this.

What's that suggest to you? Are they saying that the grave was dug before he drove up to

Chicago, he was just gonna leave an open grave in a field right next to his house and

drive all of the way to Chicago and back, leave it open four or five days? That doesn't

make any sense, but the reason it's important is because we have to respond to it." 21

Aguirre's counsel further proceeded to lambaste Dr. Tomb's "sloppy" logic, lack of

qualifications, imprecise methodology, lack of accounting for alternative explanations,

and inconsistent conclusions.

Analysis

Gatekeeper role; legal standard

We begin by assessing whether the district court performed its gatekeeper role and

used the correct legal standard for considering Dr. Tomb's expert testimony. While the

district court's decision contained no reference to K.S.A. 60-456(b) or Daubert, the

district court did refer to the pretrial hearing on Aguirre's motion—which, itself,

explicitly referenced Daubert and K.S.A. 60-456(b)—as "the Daubert hearing." The

district court also referred to Aguirre's motion as "the Daubert motion" shortly before

making its ruling. Moreover, while the district court did not explicitly reference the

requirements of K.S.A. 60-456(b) or Daubert in ruling on Aguirre's motion, the court did

broadly speak to Dr. Tomb's qualifications and the reliability of Dr. Tomb's testimony,

which the district court found to be based in observation, rather than experiment.

Additionally, the district court's ruling on Aguirre's Motion for More Specific

Findings—which again cited K.S.A. 60-456(b) and complained that the district court "did

not address the specific findings under the statute"—reiterated the court's view that Dr.

Tomb was qualified and that his "specialized knowledge" and method of examining the

samples taken from the grave were sufficient to "allow him to express an opinion as to

how long [the grave] potentially could have been open." And the district court further

noted that, with respect to the amount of time the grave could have been open, "[T]here 22

was a window, and obviously there were many variables that could affect all that, and I

think he acknowledged that."

The Tenth Circuit has recognized "that the district court need not 'recite the

Daubert standard as though it were some magical incantation,' . . . or apply all of the

reliability factors suggested in Daubert and Kumho." Goebel v. Denver and Rio Grande

Western R.R. Co., 215 F.3d 1083, 1088 (10th Cir. 2000) (quoting Ancho v. Pentek Corp.,

157 F.3d 512, 518 [7th Cir. 1998]). But the Tenth Circuit has also held "that a district

court, when faced with a party's objection, must adequately demonstrate by specific

findings on the record that it has performed its duty as gatekeeper." Goebel, 215 F.3d at

1088 (reversing district court's ruling when "[t]here is not a single explicit statement on

the record to indicate that the district court ever conducted any form of Daubert analysis

whatsoever"). Moreover, while a Daubert hearing is "[t]he most common method for

fulfilling" a district court's gatekeeping function, it "is not specifically mandated." 215

F.3d at 1087.

Here, the district court held what it considered to be a Daubert hearing and

ultimately issued a ruling that both addressed Dr. Tomb's qualifications and broadly

opined on the reliability of his opinion and methodology. Thus, we find that the district

court performed its gatekeeper function here. Cf. United States v. Avitia-Guillen, 680

F.3d 1253, 1260 (10th Cir. 2012) (findings as to expert qualifications, though brief,

"adequately demonstrate" district court performed gatekeeping duty).

The question of whether the district court used the correct legal standard gives us

more pause. On balance, the district court's statements suggest that it at least attempted to

apply the "Daubert" standard, and, given the federal courts' practice of requiring neither a

talismanic recitation of the Daubert factors nor the elements of Federal Rule of Evidence23

702, which essentially mirrors K.S.A. 2020 Supp. 60-456(b), we find that the district

court did not abuse its discretion by using an incorrect legal standard.

Whether the district court correctly applied that standard, however, is another

question entirely.

Application

Having established that Dr. Tomb qualified as an expert using the correct

gatekeeper role and legal standard, the next question that must be answered is whether his

expert opinions were sufficiently relevant and reliable when applied to the facts of this

case. The parties agree that Dr. Tomb expressed two overarching and relevant opinions:

(1) the age of the grave; and (2) the amount of time that lapsed between the time the

grave was dug and the time the grave was filled. The first opinion is not at issue.

The second opinion has been dubbed the "open grave" opinion. Aguirre argues

that, despite Dr. Tomb's botanical experience, he had no experience on which to base a

reliable opinion about the length of time during which the grave was open to the sky. The

State counters by arguing that Dr. Tomb is well qualified in the field of botany, which

was the core scientific theory at the heart of his opinion.

While we note that Dr. Tomb had never rendered an "open grave" opinion before,

we believe Aguirre's argument cuts the matter too finely. While Dr. Tomb did not have

any experience evaluating graves, he was qualified to identify many aspects of that grave.

Aguirre cannot overcome these qualifications by characterizing Dr. Tomb's opinion as

solely one of "open grave" analysis, since Dr. Tomb's opinions were based on (1) how

many leaves he observed in samples taken from beneath one of the bodies in the grave, 24

(2) his ability to identify box elder leaves and other plant matter, (3) his knowledge of

how molds and bacteria break down plant matter, and (4) his knowledge of how box elder

trees lose their leaves.

But the district court's assessment of the reliability of Dr. Tomb's critical opinion

about the lapse of time during which the grave lay open to the sky is another matter. At

its core, Dr. Tomb's opinion was: The presence and quantity of box elder leaves found

beneath the bodies—leaves which must, by inference, have accumulated only naturally

while the grave lay open—suggests that the grave lay open for a defined minimum period

of time before the bodies were placed in the grave. In other words, Dr. Tomb's

conclusions suggest a plausible—but by no means definitive—explanation for the

presence of foreign material (box elder leaves) in an unexpected place (under bodies in a

hole in the ground) based on inferences derived from his vague familiarity with imprecise

natural "facts" (how quickly box elder trees lose their leaves in the absence of any

unforeseen variables).

As applied to the requirements of K.S.A. 2020 Supp. 60-456(b) based on

experiential, rather than experimental, reliability, reasonable minds could differ as to

whether Dr. Tomb's selection and quantity of samples of leaf-bearing grave soil and his

basic familiarity with the abscission patterns of box elder trees constituted sufficient facts

or data on which to establish an opinion; the same is true of Dr. Tomb's limited review of

the weather information, based on his conclusion that there had been no frost yet.

Likewise, we believe that reasonable minds could disagree as to whether Dr. Tomb's

analysis of those samples—which showed a cumulus of three to seven layers of box elder

leaves—constituted a reliable application of botanical principles and methodology. On

these points, the district court did not abuse its discretion.25

But plausible is not the same as reliable. The problems in this case lie in the

unreliable way Dr. Tomb applied his botanical knowledge to the facts at issue presented

here. First, Dr. Tomb's opinion assumes no other viable mechanism for the deposit of box

elder leaves beneath the bodies beyond simply falling there from the overhead trees

during the time in which the grave lay open. He discounted the possibility that already

fallen leaves could have infiltrated the grave during that time by other means—careless

digging, perhaps, or simply the blowing wind. Second, Dr. Tomb's knowledge of the

default rate of box elder tree abscission was incredibly imprecise; he could say nothing

more definitive than that such leaf fall did not take place all at once. Third, Dr. Tomb

could not account for all the variables that might have affected the default rate of box

elder leaf fall—whatever it may be—and his focus on the absence of frost, as the sole

determinative weather factor, is overly myopic.

In short, Dr. Tomb took his broad familiarity with plant life and attempted to apply

it to a specific subject about which he knew admittedly little, while failing to take into

account any variables that might have altered his ultimate conclusion. The resulting

opinion cloaked what was essentially a broad inference about the natural world in the

veneer of scientific respectability. Consequently, while we believe the district court was

correct in permitting Dr. Tomb to testify about the state and amount of the grass and

leaves present in the grave, and would have even been correct in permitting Dr. Tomb to

testify that box elder trees do not lose their leaves overnight, the district court

nevertheless abused its discretion in permitting Dr. Tomb to conclude that, therefore, the

graves must have been open for any particular length of time before the internment of the

bodies. The district court failed in applying its gatekeeping role to the facts of this case

by permitting such testimony, which was not the product of reliable principles and

methods reliably applied to the facts of the case.26

Harmlessness

We must next determine whether the district court's error was harmless. The State

bears the burden of establishing that there was no reasonable probability that the district

court's erroneous admission of expert testimony affected the trial, in light of the entire

record. State v. Gaona, 293 Kan. 930, 940, 270 P.3d 1165 (2012).

Here, the most obvious indication that the district court's error was harmless lies in

the verdict ultimately reached by the jury. Critically, Dr. Tomb's opinion, if believed,

would have required Aguirre to dig the grave a minimum of 12 hours—and perhaps up to

a few days—before the bodies of T.M. and J.M. were interred within it, which would

only be consistent with a theory of premeditated murder. Yet the jury convicted Aguirre

of voluntary manslaughter in the killing of T.M., indicating that it gave more credence to

the thorough refutation of Dr. Tomb's opinion on cross-examination and by Dr. Palenik

than to Dr. Tomb's opinion. And while the jury did convict Aguirre of the premeditated

murder of J.M., we find that Dr. Tomb's "open grave" opinion added essentially nothing

to the circumstantial evidence necessary to support such a finding, as we will discuss

more in-depth in addressing Aguirre's fourth issue, which we consider out of order below.

Aguirre also contends that the defense was forced to spend time, resources, and

energy rebutting Dr. Tomb's "open grave" opinion. While we acknowledge this hardship,

we find it to be too speculative to constitute a reasonable probability that, but for the

district court's error, the result would have been different. Indeed, Dr. Tomb's testimony

essentially gave Aguirre's counsel ample fodder to highlight what it characterized as the

nonsensical nature of the State's theory that Aguirre dug the grave in a field close to his

residence, drove to Chicago, drove back to Ogden, killed T.M. and J.M., and then

interred the bodies. Consequently, we find the district court's error to be harmless.27

Sufficiency of the evidence to support a finding that J.M. was killed with premeditation

Aguirre also challenges the sufficiency of the evidence supporting his conviction

for the premeditated murder of J.M., claiming such a conviction was only possible

through impermissible inference stacking. In evaluating the sufficiency of the evidence,

we must again assess the impact of the district court's erroneous admission of Dr. Tomb's

"open grave" testimony on the jury's ultimate verdict.

Standard of Review

"When the sufficiency of the evidence is challenged in a criminal case, we review

the evidence in a light most favorable to the State to determine whether a rational

factfinder could have found the defendant guilty beyond a reasonable doubt. An appellate

court does not reweigh evidence, resolve conflicts in the evidence, or pass on the

credibility of witnesses. This court has also recognized that there is no distinction

between direct and circumstantial evidence in terms of probative value. 'A conviction of

even the gravest offense can be based entirely on circumstantial evidence and the

inferences fairly deducible therefrom. If an inference is a reasonable one, the jury has the

right to make the inference.' [Citations omitted.]" State v. Potts, 304 Kan. 687, 694, 374

P.3d 639 (2016).

Discussion

By its very nature, premeditation "is most often proved by circumstantial

evidence." State v. Banks, 306 Kan. 854, 859, 397 P.3d 1195 (2017). We have previously

recognized several factors that, if present, could support an inference of premeditation,

including: "(1) the nature of the weapon used; (2) the lack of provocation; (3) the

defendant's conduct before and after the killing; (4) any threats or declarations of the 28

defendant before or during the occurrence; and (5) the dealing of lethal blows after the

deceased was felled and rendered helpless." State v. Lloyd, 299 Kan. 620, 633, 325 P.3d

1122 (2014). But a conviction cannot be sustained by "a presumption based upon other

presumptions," i.e., by inference stacking. Banks, 306 Kan. at 859. On the other hand, "it

is permissible for the State to rely on multiple circumstances to support an inference of

premeditation, so long as each circumstance has been proved, rather than presumed from

another circumstance." 306 Kan. at 860-61.

Aguirre highlights the testimony of his fiancée at the time of the investigation,

Dulce Mendez, as the only evidence directly speaking to the death of J.M.: "[Aguirre]

said that he—he had put the little boy [J.M.] to sleep and he had maybe wrapped him too

tightly, and he had a pacifier in his mouth and perhaps he stopped breathing." Aguirre

also attempts to undermine the limited forensic evidence—specifically, the evidence of

internal bruising which may or may not have been related to J.M.'s death—as insufficient

to support an inference of intentional conduct.

Aguirre's assessment that there was no "evidence that J.M. was even killed"

appears to differ from Dr. Erik Mitchell's testimony, however. While Dr. Mitchell could

not determine from his autopsy a specific mechanism of death for J.M.—despite his

observation of an "indication of some application of force to the chest"—Dr. Mitchell

opined that the manner of death was homicide. Between this and the evidence of "some

pressure artifact or traumatic artifact" on J.M.'s chest, we believe there was ample

evidence to support a finding that J.M. was killed in a homicide.

Separately, Mendez' testimony supports an inference that Aguirre was involved in

J.M.'s killing, despite his claim that it was an accident. Also, from J.M.'s young age—

which almost inevitably implies both that J.M. was helpless and that he did not provoke 29

such a killing—and the apparently close-in-time killing of his mother, a jury could also

fairly infer that the killing was premeditated. Thus, we believe that, when viewed in a

light most favorable to the State, separate evidentiary components support the findings

that: (1) J.M. was killed (Dr. Mitchell's forensic testimony), (2) that Aguirre killed him

(Mendez' testimony), (3) the inference that the act of killing J.M. was not only nonaccidental, but premeditated (J.M.'s young age and inability to provoke a killing, a

secretive and remote burial, along with the apparently close-in-time killing of T.M.).

Additionally, email evidence—discussed more thoroughly below—and evidence

from the shelter where T.M. and J.M. were staying immediately prior to their deaths

implicates Aguirre in their deaths by providing additional clues as to identity and,

potentially, a motive. The State also highlights the post-killing emails sent by Aguirre to

T.M.'s account on September 26 and October 10 and T.M.'s representation to her case

worker "that she was moving to Texas with [J.M.'s] father"—despite Aguirre's residence

in Kansas—as additional evidence in support of Aguirre's involvement and in support of

the premeditated nature of his conduct.

Aguirre attempts to distinguish the killing of J.M. from the situation present in

Lloyd by pointing out that, in Lloyd, a witness actually saw the defendant strangle the

child victim. But the Lloyd court noted that strangulation was independently sufficient to

establish an intentional, premeditated killing based on the "time for deliberation" needed

to complete such a killing. 299 Kan. at 634. As the Lloyd court went on to write, the

child's age (17 months) and inability to provoke the defendant both suggested

premeditated conduct, as did Lloyd's post-killing conduct. 299 Kan. at 635.

Aguirre has additionally made the compelling argument that the district court's

erroneous admission of Dr. Tomb's "open grave" testimony was not harmless because it 30

could have been used by the jury to infer premeditated conduct in the killing of J.M. But

we believe that the unique circumstances of this case militate against the finding that, but

for this error, the result would have been different. Specifically, Aguirre's theory asks the

court to assume that the jury simultaneously disbelieved Dr. Tomb's testimony with

respect to the killing of T.M. but found it credible with respect to the killing of J.M. We

can conceive of no plausible factual scenario that would be consistent with such a

premise, however. If the jury believed that Aguirre killed T.M. in an act of voluntary

manslaughter, and also killed J.M. close enough in time to T.M. to warrant burial in the

same shallow grave, it defies belief to assume that Aguirre would kill T.M., dig a hole

large enough for both T.M. and J.M., then return to kill J.M., then bury both bodies more

than 12 hours after initially digging the hole.

More fundamentally, the "open grave" testimony added nothing to the facts

beyond what was already sufficient to support an inference of premeditation with respect

to J.M.'s killing. As in Lloyd, J.M.'s young age, helplessness, and inability to provoke

violence independently support an inference of premeditation. See 299 Kan. at 635. And,

as we have noted, the fact that T.M. was killed close enough in time to J.M. so as to

warrant burial in the same grave strongly suggests that J.M. was not killed accidentally or

recklessly. And while we recognize the plausibility of an intentional-but-notpremeditated killing of an infant or toddler, we do not think that a thoroughly rebutted

"open grave" opinion could conceivably have moved the jury's deliberative needle on this

aspect one iota, under the circumstances.

Consequently, we find that sufficient evidence existed to support Aguirre's

conviction for the premeditated killing of J.M. without the need for the jury to stack

inferences.31

The parties' stipulation as to the authenticity of Aguirre's emails

Aguirre also challenges the district court's decision to find that the parties'

stipulation to the emails' authenticity at the first trial was also enforceable at the second

trial.

Standard of Review

The parties begin by disputing the applicable standard of review. Aguirre concedes

that the Court of Appeals applied an abuse of discretion standard on a similar issue in

State v. Schroeder, No. 90,828, 2004 WL 1878348, at *3 (Kan. App. 2004) (unpublished

opinion), but nevertheless argues that this issue involves interpretation of a written

document and should be reviewed de novo. The State, meanwhile, points to Wheeler v.

John Deere Co., 935 F.2d 1090, 1098 (10th Cir. 1991), which held that federal district

courts "are vested with broad discretion in determining whether to hold a party to a

stipulation or whether the interests of justice require that the stipulation be set aside."

"[W]hether the consent or admission or waiver is to be considered as made for the

purposes of that trial only, or as a general admission, is ordinarily a question of fact," but

a written instrument—such as an agreed statement of facts—"may be so obviously

intended for that trial alone that the court may properly so instruct the jury, and it may

also be so obviously intended as a general admission that the court may instruct the jury

to treat it as such." Central Branch Union Pac. R. Co. v. Shoup, 28 Kan. 394, 397 (1882).

Under federal law:

"Stipulations 'cannot be disregarded or set aside at will.' Stipulations, however,

are not absolute and will be set aside to prevent manifest injustice. The district court has 32

broad discretion to determine whether a party should be held to a stipulation or whether

justice requires the stipulation be set aside. Whether a stipulation made in the first trial

should remain binding during the retrial is determined by 'the nature of the stipulation

and the circumstances underlying its formulation.' Formal stipulations made for the

purpose of relieving a party from proving facts can generally be substituted as proof of

the stipulated fact in a subsequent trial of the same action. Where, however, 'a stipulation

is limited expressly to a single trial and phrased in terms of conclusory, rather than

evidentiary, facts, district courts may on retrial free a party from the stipulation.'

[Citations omitted.]" Morrison Knudsen Corp. v. Ground Improvement Techniques, Inc.,

532 F.3d 1063, 1075 (10th Cir. 2008).

See United States v. Lentz, 419 F. Supp. 2d 843, 845 (E.D. Va. 2006).

We will, therefore, evaluate a district court's decision regarding the enforceability

of a previous trial's evidentiary stipulation at a second trial, or retrial, for abuse of

discretion. In so doing, we are mindful of the potential for a district court to commit an

error of law in the interpretation of a written document. See State v. Miles, 300 Kan.

1065, 1066, 337 P.3d 1291 (2014) (district court may abuse discretion by committing an

error of law, inter alia); State v. White, 289 Kan. 279, 286, 211 P.3d 805 (2009) (written

plea agreements reviewed de novo). Additionally, given the dearth of state law on the

matter, we find the above-noted federal guidance persuasive in analyzing this somewhat

unusual issue.

Additional Facts

Prior to the first trial, the parties filed a joint stipulation with the district court,

which provided, in part:33

"WHEREUPON the parties announce to the Court that the following stipulation

has been reached concerning certain evidentiary matters involved in the jury trial of the

above-referenced case and that, if requested by either party, this stipulation may be read,

in whole or in part, by the Court during the presentation of the State's evidence."

Under the stipulation, the parties agreed "[t]hat the emails contained on the CD

Bate Stamped #003656 are true copies of emails of the defendant Luis Aguirre under the

profile member name(s): liukang8735@yahoo.com maintained by Yahoo! Inc." The

parties further agreed

"[t]hat the State has substantially complied with the requirements of K.S.A. 60-245a and

the defendant waives any objection to the admission of the emails contained on CD Bate

Stamped #003656 based on non-compliance with K.S.A. 60-245a. The defendant does

not waive objections to the admission of the emails on other grounds."

According to the affidavit of Aguirre's first trial counsel, Jeffrey Wicks, the

potential for the death penalty "was the controlling factor in how the case was handled."

But Wicks represented that "foundation of the E-mails was not an issue we were

concerned with" and that the stipulation was made following "a request . . . by the State

that we stipulate to the foundation of the E-mails." Additionally, Wicks averred that

"counsel was not contemplating any retrial" at the time of the stipulation.

The stipulation covered roughly 150 emails that consisted of communications

between T.M. and Aguirre from January 16, 2009, to October 10, 2009. Broadly

summarized, the emails document T.M.'s attempts to see Aguirre and to obtain support

from him for J.M.; Aguirre generally responded with a variety of excuses, equivocations,

and vague expressions of hope for a relationship in the future. By August of 2009, T.M.'s

patience with Aguirre appears to have run out, culminating with a vitriolic email in which 34

T.M. wished Aguirre dead after she and J.M. were forced to sleep on a porch. In her

penultimate email of September 1, 2009, T.M. told Aguirre that, because she did not want

to stay at the shelter any longer, Aguirre should "let me know by the 20th of sept what

you want to do if nothing going to happen by then im not waiting nomore!!!" T.M. sent

Aguirre a final email on September 16, 2009, blaming Aguirre for her state of affairs and

noting that J.M. was sick once again.

Subsequently, on September 26—days after the probable date on which T.M. and

J.M. died—Aguirre wrote an email back that suggested T.M. was moving to California

and planning to give J.M. up for adoption to "your sis or cousin or who ever it was" and

asking her to reply with her "decision." Then, on October 10, Aguirre wrote:

"[S]o now you dont want to answer me????? i asked you a question [T.M.]! by the way i

wrote to julius and i will get to the bottom of things so you better start explaining and

talkin to me if we are trying to work something out. i will get answers from ur aunt."

Following Aguirre I, Aguirre filed a motion in limine with respect to the emails,

asking the district court for an order requiring the State to prove compliance with K.S.A.

60-245a before admitting "any evidence at trial obtained by business record subpoenas."

In response, the State argued that the stipulation filed June 22, 2012, remained binding.

The State also argued that it acted in reliance on the stipulation and would be

disadvantaged if it was not enforced because, according to Yahoo! legal compliance,

copies of the emails "no longer exist"; apparently, Yahoo! only maintains such records

for three years.

In response, Aguirre argued that the stipulation was focused on "'the' jury trial in

question and not 'any' jury trial." Aguirre focused on the plain language of the stipulation, 35

but argued, as a fallback, that if the phrase "the trial" was ambiguous, the language must

be construed against the State, either as the drafter of the stipulation or by virtue of the

notion that ambiguous documents are always construed against the State.

The district court rejected Aguirre's argument, as follows:

"The trial. I guess that's our argument on this motion. On its face the stipulation

does not place any limitations on the stipulation aside from the fact that it says 'the trial'.

This is the same trial. We have the same defendant, the same alleged victim, the same—

the only difference here is the State has chosen not to proceed with a request for capital

punishment. Other than that, it's the same trial. And for that reason, and the fact that I do

not believe that the stipulation places any limits on it, I don't believe that wording places

any limits on its use; and further, the State in reliance upon that, and they had—I believe

had a right to rely upon that stipulation, would be prejudiced by not being able to obtain

the necessary affidavits required on business subpoenas.

"Therefore, my finding will be that the stipulation is binding upon this retrial."

The State ultimately presented the emails at the second trial.

Discussion

Aguirre frames the matter as one of simple document interpretation under the

principles of contract construction, arguing the stipulation plainly refers only to Aguirre's

prior trial. As fallback, Aguirre claims that, to the extent the stipulation is ambiguous, it

should be construed against the State. The State, in response, cites federal and out-ofstate caselaw suggesting that any attempt to limit a stipulation to one trial only must be

expressly stated in the stipulation itself. 36

Aguirre's first argument, predicated on the stipulation's use of the definite article

"the," referencing "certain evidentiary matters involved in the jury trial," is not

persuasive. First of all, a majority of this court has found "the" to be ambiguous in the

context of a reference to "'the acts that this section prohibits.'" State v. Gensler, 308 Kan.

674, 680, 423 P.3d 488 (2018); see State v. Baker, 56 Kan. App. 2d 335, 340, 429 P.3d

240 (2018), rev. denied 308 Kan. 1596 (2018). But see Gensler, 308 Kan. at 686 (Stegall,

J., dissenting) ("I suggest that if we can discern an ambiguity in the definite article 'the,'

we can discern an ambiguity in virtually any language the Legislature may choose.").

More importantly, the stipulation did not purport to apply to "the jury trial" or "this jury

trial." Rather, it applied to "certain evidentiary matters involved in the jury trial of the

above-referenced case." (Emphasis added.) Those matters were involved in both trials.

Regardless, the phrasing in the stipulation at issue does not clearly indicate the scope of

the stipulation one way or the other: it could very well mean "this" and only "this" jury

trial, but it could also refer basically to the concept of a jury trial that involves "certain

evidentiary matters" in "the above-referenced case." Thus, the stipulation appears

ambiguous insofar as whether it applies only for the first trial or also for any trial in this

case.

Aguirre's fallback argument—that any ambiguity should be construed against the

State—is at odds with the "general rule" elsewhere:

"[W]here a stipulation is distinctly and formally made for the express purpose of

relieving the opposing party from proving some fact or facts, or where a formal

admission of facts is made by counsel and becomes a part of the record, such a stipulation

or admission, provided it is not by its terms limited to a particular occasion, or a

temporary object, can be introduced in evidence and is available as proof of the facts

admitted upon a subsequent trial of the same action, unless the court permits its

withdrawal upon proper application therefor." (Emphasis added.) 100 A.L.R. 775.37

Thus, stipulations are generally binding during subsequent trials (or retrials) unless

expressly limited by their own terms. E.g., Waldorf v. Shuta, 142 F.3d 601, 616 (3d Cir.

1998); State v. Jones, 549 S.W.2d 925, 926-27 (Mo. App. 1977). See also United States

v. Burkhead, 646 F.2d 1283, 1285 (8th Cir. 1981) ("The stipulation concerning the

introduction of certain exhibits was not by its terms limited to use in the first trial and the

record indicates that the intention of the parties was to the contrary."). This rule holds

true even in the case of a written stipulation. See Wheeler, 935 F.2d at 1099 (noting the

"tactical" nature of the objection to the stipulation); cf. State v. Gordon, 219 Kan. 643,

651, 549 P.2d 886 (1976) ("By its express terms, the stipulation is a limited one."). We

find Aguirre's cited authorities to the contrary—which do not involve stipulations of

fact—to be readily distinguishable. See United States v. Lutz, 420 F.2d 414, 416 (3d Cir.

1970) (jury trial waiver in first trial held not binding on retrial after mistrial); United

States v. Mischlich, 310 F. Supp. 669, 672 (D. N.J. 1970) (following reversal on appeal,

"parties are returned to their original positions and, at the new trial, can introduce new

evidence and assert new defenses not raised at the first trial").

The phrase "involved in the jury trial of the above-referenced case" does not

expressly limit the stipulation to the first jury trial. Given the subject matter following

"the"—"jury trial of the above-referenced case"—it would appear unusual, given the

nature of the stipulation, to substitute a word like "any" in place of "the" to more clearly

expand the scope of the stipulation. The affidavit of Aguirre's trial counsel, showing that

"counsel was not contemplating any retrial" at the time of the stipulation, underscores this

latent absurdity. It seems completely logical that trial counsel would assume the trial to

be the final action in district court, short of posttrial motions and a notice of appeal.

Retrials are rare enough that trial counsel did not even consider that possibility when

agreeing to the stipulation. Additionally, given the significant harm the State would suffer

by virtue of its reliance on the stipulation and the unfortunate circumstances beyond its 38

control—i.e., Yahoo!'s email retention policy—we believe the ends of justice require that

the stipulation be binding at the second trial. Consequently, we find no abuse of

discretion in the district court's decision.

The district court's denial of Aguirre's requested jury instruction on inference stacking

Aguirre next challenges the district court's refusal to issue a requested cautionary

jury instruction against inference stacking.

Standard of Review

When presented with a claim that a district court has committed an error by

refusing to issue a jury instruction,

"(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, utilizing the test and

degree of certainty set forth in [State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011),

cert. denied 565 U.S. 1221 (2012)]." State v. Plummer, 295 Kan. 156, 163, 283 P.3d 202

(2012).

Because Aguirre's trial counsel requested an instruction prohibiting the jury from

inference stacking, the harmlessness standard set forth in Ward—rather than clear error—

applies. State v. Barber, 302 Kan. 367, 377, 353 P.3d 1108 (2015). Aguirre claims that

the requested jury instruction "went to the State's burden of proof," mandating the 39

application of the constitutional harmlessness test rather than the lower statutory

harmlessness test; the State provides no alternative. Consequently, we assume, without

deciding, that any error here is only harmless if the State "proves beyond a reasonable

doubt that the error complained of will not or did not affect the outcome of the trial in

light of the entire record, i.e., where there is no reasonable possibility that the error

contributed to the verdict." State v. Ward, 292 Kan. 541, 542, Syl. ¶ 6, 256 P.3d 801

(2011).

Discussion

As noted, Aguirre's counsel requested a jury instruction cautioning the jury against

inference stacking, which the district court denied. Specifically, the proposed instruction

read: "[Y]ou may not find an element of a crime from an inference that is based solely

upon an inference. However, you may draw reasonable inferences from facts established

in the evidence." Consequently, the matter was preserved for our review.

Aguirre drew the proposed instruction from State v. Dreiling, 274 Kan. 518, 542,

54 P.3d 475 (2002), which modified slightly the holding in State v. Gobin, 216 Kan. 278,

531 P.2d 16 (1975). In Gobin, the court ruled: "Presumptions and inferences may be

drawn only from facts established." 216 Kan. at 284. The State claims the jury could have

been misled from the proposed instruction to believe that the rule only applied to facts

necessary to establish elements of a crime rather than to all facts.

We find the State's claim that the requested instruction misstates the court's

holding in Gobin to be splitting hairs. Although Aguirre's proposed instruction only

directly proscribes the jury's finding an element via inference stacking, it cannot fairly be 40

read to somehow sanction a jury's determination of non-element facts based on inferences

derived from other inferences. Thus, the requested instruction was legally appropriate.

But we are not convinced that this instruction was factually appropriate because, at

its core, we find Aguirre's argument on this point to be entirely speculative. In any trial

involving circumstantial evidence, there will almost certainly be at least some

background risk of impermissible inference stacking by jurors, and since a jury cannot be

interrogated directly about how it reached its decisions, inference stacking could always

theoretically be implicated. As we discussed above, the jury here was not required to

stack any inferences upon other inferences in order to find that J.M.'s killing was

premeditated. Aguirre's statement to Mendez directly implicated him in the deaths of both

T.M. and J.M.; from there, separate facts support an inference of premeditation as to

J.M.'s killing. J.M.'s young age, his inability to provoke or fight back, his close-in-time

death to T.M., and his secretive and remote burial all separately suggest a premeditated

killing, regardless of the absence of a proven mechanism of his death. This conclusion is

further buttressed by the fact that the jury clearly did not believe that T.M.'s killing was

premeditated, which suggests that the jury only considered single-step inferences from

Aguirre's alleged admissions of involvement and the other facts of the case in

determining his ultimate culpability.

Consequently, because there does not actually appear to have been a real danger

that the jury stacked inferences in order to reach its conclusion, we do not believe

Aguirre's requested instruction was factually appropriate. While the factual record must

be evaluated in a light most favorable to Aguirre on this point, pure speculation cannot

backfill an evidentiary absence to render a speculative, cautionary jury instruction

factually appropriate. To conclude otherwise would essentially mandate a similar

instruction in all cases involving circumstantial evidence; this, we believe, goes too far.41

Prosecutorial error in the prosecutor's closing argument

Aguirre next argues that the prosecutor committed prosecutorial error by

misstating the requirement of jury unanimity and diluting the burden of proof.

Standard of Review

A claim of prosecutorial error generally does not require a contemporaneous

objection in order to be preserved for appellate review, "'although the presence or

absence of an objection may figure into our analysis of the alleged misconduct.'" State v.

Sean, 306 Kan. 963, 974, 399 P.3d 168 (2017) (quoting State v. King, 288 Kan. 333, 349,

204 P.3d 585 [2009]). This court reviews a claim of prosecutorial error under a two-step

analysis:

"[T]he appellate court must decide whether the prosecutorial acts complained of fall

outside the wide latitude afforded prosecutors to conduct the State's case and attempt to

obtain a conviction in a manner that does not offend the defendant's constitutional right to

a fair trial. If error is found, the appellate court must next determine whether the error

prejudiced the defendant's due process rights to a fair trial. In evaluating prejudice, we

simply adopt the traditional constitutional harmlessness inquiry demanded by Chapman.

In other words, prosecutorial error is harmless if the State can demonstrate 'beyond a

reasonable doubt that the error complained of will not or did not affect the outcome of the

trial in light of the entire record, i.e., where there is no reasonable possibility that the

error contributed to the verdict.'" State v. Sherman, 305 Kan. 88, 109, 378 P.3d 1060

(2016).

In determining whether a particular statement falls outside of the wide latitude

given to prosecutors, the court considers the context in which the statement was made, 42

rather than analyzing the statement in isolation. State v. Thomas, 307 Kan. 733, 744, 415

P.3d 430 (2018).

Additional Facts

The prosecutor began closing arguments by telling the jury:

"Shortly you're going to go back to the jury room to deliberate on a verdict. And

some of you have been on juries before; others have not. And I would anticipate that in

this case there's a certain amount of anxiety with all of you about the job that you have to

do.

"And many years ago I heard a lawyer explain that a verdict is simply the law

plus credible facts. And I like this equation because I think it helps you understand

exactly what it is that you're supposed to do, and how you go about doing it."

The prosecutor went on to detail the elements of the capital murder charge and the

lesser included offenses, noting the State's burden of proving those elements. After the

prosecutor finished discussing the jury's obligation to follow the jury instructions, he told

the jury:

"I like this equation because it tells you that not only is it the law, but it's law plus

credible facts. And the facts of this case are what was presented at trial. The testimony of

witnesses, the e-mails, the defendant's statement both to the police and to others.

"But who determines credibility? I mean, the attorneys have been running this all

week with lots of stops and starts, and the judge has been giving you law. You have only

been listening.43

"The instructions tell you it's for you to determine what is credible. That's your

job. That's why we have people from the community to come in. What facts can you give

weight and credit to, and what evidence do you hear that carries little or no weight?"

After summarizing the circumstantial evidence supporting the State's case for a

finding of premeditation, the prosecutor concluded with this:

"I'm confident the defense will argue that the State is just guessing. That we are

making one inference and jumping to conclusions. That because Dr. Mitchell can't point

to exactly how [T.M.] and [J.M.] died, and because we didn't present one person who was

an eye witness to the murder to testify to exactly what happened, that the State has failed

to meet its burden of proof. I'm confident that that argument will be made.

"But there is an old story that is used by trial attorneys about a group of blind

men who come upon an elephant, and each man touches the elephant to try to determine

what it is. One man feels the elephant's ears and says, you know, an elephant is like a

plant. It's thin and floppy. Another man feels the elephant's trunk and says no, I think an

elephant is like a snake. It's long. And another man touches the side of the elephant, it's

wide and it's tall, and he says an elephant is like a wall. And then the men walk away, and

they never put their heads together to determine what an elephant is like.

"Shortly the 12 of you are going to go back to the jury room. I ask that you put

your heads together and really examine this case. Use your common knowledge and

experiences. Take the law that Judge Wilson has given you and add to it the credible

facts. When you do that, there is only one verdict that can be reached in this case, and

that is the verdict of guilty of capital murder. It's a verdict that the evidence demands and

justice requires, and that's the verdict the State is asking that you bring back. Thank you." 44

Discussion

Aguirre first attacks the prosecutor's statement that "'a verdict is simply the law

plus credible facts.'" He alleges two sub-errors with this formulation: First, he claims that

the term "verdict"—without the qualifier "guilty"—misled the jury into believing that

"the only verdict they could return was guilty"; and, second, he claims that the focus on

"credible facts" "left out the critical connection between the facts and law, lowering the

State's burden of proof."

We find neither argument persuasive. While we agree that "[a]ny attempt to lower

the burden of proof—or even to define reasonable doubt—is misconduct," this principle

does not apply to the prosecutor's actual comments, if read fairly in the context of the

entire closing argument. State v. Holt, 300 Kan. 985, 1004, 336 P.3d 312 (2014). As to

Aguirre's first claim, the context surrounding the prosecutor's commentary makes it

abundantly clear that he was speaking about a "guilty" verdict; the prosecutor's argument

makes no sense otherwise. Had the prosecutor simply left the jury with the basic formula

complained of here without explanation, Aguirre might have a point. As it is, however, it

is difficult to surmise how any reasonable juror could have understood the prosecutor's

arguments to suggest either that the jury could not return a not guilty verdict unless it was

supported by credible facts or that they could only return a guilty verdict. Likewise,

Aguirre's second claim ignores the prosecutor's emphasis on establishing the elements of

both capital murder and the various lesser included offenses, which the prosecutor

attempted to tie into the facts.

Aguirre also challenges the prosecutor's allegory about the three blind men who

attempt to describe an elephant. As Aguirre reads the prosecutor's argument, the

prosecutor allowed the jury to ignore its obligation to reach unanimous agreement as to 45

every element of the crime beyond a reasonable doubt by implying that they could reach

a guilty verdict "if one juror believed there was only evidence of one element and a

second juror believed there was only evidence of a different element."

Again, our reading of the prosecutor's argument does not reveal error. In the

prosecutor's story, the three blind men err by never coming together and reaching a

consensus—based on the individual opinions of each blind man—about the true shape of

an elephant. It is difficult to view the prosecutor's urging of the jury to "put your heads

together and really examine this case" and to "[u]se your common knowledge and

experiences" as a suggestion that the jurors need not reach a unanimous consensus before

coming to a verdict. While the prosecutor's story may have suggested that each juror

might have had a different view of the facts—"what an elephant is like"—before

engaging in deliberations, it cannot reasonably be inferred from this story that the jury

could reach a verdict based solely on the discordant, idiosyncratic views of the jurors in

the absence of a common consensus about the shape of the elephant overall. See Zlotnick,

The Buddha's Parable and Legal Rhetoric, 58 Wash. & Lee L. Rev. 957, 958-59 (2001)

(discussing the "Westernized versions" of the elephant parable where "the blind men are

able to figure out that an elephant actually has all these qualities"; "Thus, the moral of the

modern version, whether implicit or stated outright, is obvious: 'To find out the whole

truth, [one] must put all the parts together.'"). Consequently, we find no error in the

prosecutor's closing arguments.46

The district court's jurisdiction to convict Aguirre of both voluntary manslaughter and

first-degree murder as lesser included offenses of a single count of capital murder

Aguirre next argues that the district court lacked jurisdiction to convict Aguirre of

two lesser included offenses when he was only charged with one offense—capital

murder.

Standard of Review

"The question of whether subject matter jurisdiction exists is one of law subject to

unlimited review on appeal." State v. Dunn, 304 Kan. 773, 784, 375 P.3d 332 (2016).

Discussion

Aguirre's argument invokes the plain language of K.S.A. 2020 Supp. 21-5109(b),

which provides, in relevant part, "Upon prosecution for a crime, the defendant may be

convicted of either the crime charged or a lesser included crime, but not both." (Emphasis

added.) Aguirre further bases his argument on the premise that "'if a crime is not

specifically stated in the information or is not a lesser included offense of the crime

charged, the district court lacks jurisdiction to convict a defendant of the crime,

regardless of the evidence presented.'" State v. Johnson, 283 Kan. 649, 652, 156 P.3d 596

(2007).

In criminal cases, the Kansas Constitution—not charging documents—confers

subject matter jurisdiction on a district court. Dunn, 304 Kan. at 811. Instead, "A Kansas

charging document should be regarded as sufficient now . . . when it has alleged facts that

would establish the defendant's commission of a crime recognized in Kansas." 304 Kan. 47

at 811-12. This is the case here, where Aguirre was charged with one count of capital

murder based on two killings.

Additionally, as Aguirre candidly admits, this issue was already decided in State v.

Martis, 277 Kan. 267, 276-79, 83 P.3d 1216 (2004)—although he claims Martis was

wrongly decided. Martis was charged with one count of capital murder under K.S.A. 21-

3439(a)(6), but, like Aguirre, he was convicted of two lesser included offenses. And like

Aguirre, Martis argued that under K.S.A. 2002 Supp. 21-3107(2)—which, in relevant

part, was identical to the portion of K.S.A. 2020 Supp. 21-5109(b) relied on by Aguirre—

"a defendant may only be convicted of the crime charged or one lesser degree of that

crime." 277 Kan. at 277. The court rejected this argument:

"The amended information in this case put the defendant on notice that he was alleged to

have killed two people with premeditation and the penalty could be as severe as death.

Neither K.S.A. 2002 Supp. 22-3201(e) nor K.S.A. 2002 Supp. 21-3107 limit lesser

included offenses to consisting of only one count. Under this particular subsection of the

capital-murder statute, the lesser included offenses necessarily include two or more

separate counts of first-degree murder." 277 Kan. at 279.

We think Martis was correctly decided, and we do not depart from it here.

Contrary to Aguirre's argument, we do not read the plain language of K.S.A. 2020 Supp.

21-5109(b) to otherwise suggest that "a" refers to "a [single] lesser included crime"; that

subsection plainly only prevents a defendant from being convicted of both a charged

crime and a lesser included crime and, thus, effectively being doubly penalized. See

Trotter v. State, 288 Kan. 112, 124, 200 P.3d 1236 (2009) (applying Martis to find

premeditated murder conviction multiplicitous with capital murder conviction based on

the killing of more than one individual). By forcing "a" to carry a meaning outside the

scope of the plain purpose of K.S.A. 2020 Supp. 21-5109(b), Aguirre commits "the 48

proscribed practice of isolating a statutory provision out of context." Fernandez v.

McDonald's, 296 Kan. 472, 479, 292 P.3d 311 (2013). Thus, the clear and unambiguous

language of K.S.A. 2020 Supp. 21-5109(b) does not support Aguirre's construction. We

detect no jurisdictional infirmities in Aguirre's convictions for two separate killings that

had been charged together as one count of capital murder.

Cumulative error

Finally, Aguirre raises a claim of cumulative error. However, we have only found

one error in the district court's decision to admit Dr. Tomb's "open grave" testimony. A

single error, by definition, cannot support a finding of cumulative error. State v. Frierson,

298 Kan. 1005, 1020, 319 P.3d 515 (2014). Consequently, we reject Aguirre's claim of

cumulative error.



first statement to police was involuntary

Aguirre's convictions for premeditated first-degree murder and voluntary

manslaughter are affirmed.