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Date: 04-23-2021

Case Style:


Case Number: 119,529

Judge: Evelyn Z. Wilson


Plaintiff's Attorney: David Lowden, deputy county attorney, argued the cause, and Barry K. Disney, senior deputy county attorney, Barry R. Wilkerson, county attorney, and Derek Schmidt, attorney general,

Defendant's Attorney:

Criminal Defense Lawyer Directory


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.
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
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.
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
"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
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
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
"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
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
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.
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.
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
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).
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
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
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): 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.
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
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
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
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
"[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
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
"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
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
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).
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
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

Outcome: Aguirre's convictions for premeditated first-degree murder and voluntary
manslaughter are affirmed.

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