BOSSE v. STATE

Davis, Supplement for society. the Record Remand continuing threat See Evidentiary hearing on Amendment 122-23. Sixth grounds to Rule DENIED.6 Pursuant are mitigation offered 209 Evidence 3:15, Court Crimi- Rules the Oklahoma strict, in a’ Appellant raised was showed 22, Ch.18, (2017), App. Appeals, Title nal grew family. However, going as he church upon is ORDERED issued MANDATE older, gone family from the his father was delivery filing of this decision. ex- long Appellant was periods of time negative from posed to certain influences protected. Evi- previously been

which he had LEWIS, V.P.J.: Concur easily led Appellant dence showed JOHNSON, J.: Recuse others, many ways by and slow immature years things. he 14 old to understand When SMITH, J.: Result Concur home. against his father and left he rebelled equipped to take care He found he was HUDSON, J.: Concur home, fa- and returned however himself not take ther an interest thereafter years old, was 14 or 15 he was

him. When he car wreck and hit head

involved thought he His father windshield. thought the same after that. His father

never juve-

Appellant would have benefltted programs robbery after his nile rehabilitation 2017 OK CR 10 given oppor- conviction but he was never BOSSE, Appellant, Michael Shaun being tunity. Evidence showed institu- suspicious of oth- Appellant tionalized made overly aggressive, never that he has ers and Oklahoma, Appellee. is to live as a free man and unable

learned STATE society. cope strain of with stress and the No. D-2012-1128 present- This evidence was summarized along jury in Instruction No. 15 ed Appeals of Criminal of Oklahoma. Court any mitigating jury other the- might find existed. FILED MAY 2017 Upon record and our review the Rehearing July Granted weighing aggravating circum- careful evidence, mitigating we find stances and the factually

the sentence of substan- death appropriate. Under the record

tiated Court, say jury this

before we cannot passion, prejudice, or other

influenced O.S.2011,

arbitrary contrary factor to 21' 701.13(C), aggravating

§ in finding that the mitigating outweighed evi-

circumstances finding Accordingly, no error warrant-

dence. modification, appeal

ing reversal

denied. DECISION

' ¶ and SEN- 211 The JUDGMENTS are AFFIRMED. The motions

TENCES Appeals, Title 6. The of this Court directed to return the Court Criminal Clerk Oklahoma (2017) keep copy App. to defense counsel and motion Ch. 1.13(K), keeping purposes. Rules record Rule

837 TRIAL, HEN- ATTORNEYS AT GARY RY, COUNSEL, MARY CHIEF CAPITAL LEWIS, BRUEHL, CAPITAL BOBBY COUNSEL, DE- OKLA. INDIGENT SYSTEM, P.O. BOX NOR- FENSE MAN, FOR DEPEN- OK COUNSEL DANT certiorari, MASHBURN, judgment, AT- and re DISTRICT vacated GREG CASWELL,

TORNEY, LORI consideration manded case SUSAN further PUCKETT, light imposed AT- on DISTRICT strictures ASSISTANT admission TORNEYS, impact Payne AT- OF of victim OFFICE DISTRICT Ten JONES, nessee, TORNEY, S.Ct. STE. U.S. SOUTH (1991). NORMAN, This Court ordered the FOR L.Ed.2d 720 OK COUNSEL parties to. on that This submit briefs issue. STATE ' Opinion those reflects consideration of our APPEAL, ON MICHAEL ATTORNEYS briefs, appellate as well as the other briefs MOREHEAD, APPELLATE DEFENSE D. case, replaces original our filed and- PYBAS, COUNSEL, D. JAMIE DIVISION Opinion. CHIEF, DIRECT HOMICIDE APPEALS DIV., ¶3 2010,'Katrina Griffin, OKLA. DEFENSE SYS- July INDIGENT On her TEM, 926, NORMAN, six-year P.O. BOX eight-year-old her son Christian and daughter Chasity FOR APPELLANT found in a COUNSEL old dead Dibble, near mobile home where lived PRUITT, E. GEN- SCOTT ATTORNEY property her on the same rural father and OKLAHOMA, L. OF ERAL THOMAS Katrina, single stepmother, Ginger. moth- TUCKER, GEN- ASSISTANT ATTORNEY er, and received Social had seizure disorder ERAL, STREET, OKLA- 21ST NE Security disability payments. At the time of CITY, OK HOMA COUNSEL.FOR death, her she and she drive did not APPELLEE death, job. A months before her few receiving payments, after SSD Katrina OPINION furniture, bought laptop televisions and a SMITH, JUDGE: trailer, spent computer for a lot of She laptop, time and she and the by jury online on her 1 Shaun Michael Bosse was tried III, watched movies television and I, children II First convicted .Counts games put played her video at home. Degree O.S.Supp. of 21 Katrina Murder violation KRG, initials,. many possessions, her 701.7(A); IV, 2009, § De- Count First including games Katrina O.S.2001, and movies. gree video Arson in violation early met 1401(A), July § and Bosse online in the District Court of McClain Katrina at the trailer several visited County, CR-2010-213. For each of Case No. overnight before her III, stayed times death and jury Counts found that I— once, stepmoth- least met Katrina’s great knowingly risk of created death er, Ginger, One weekend the children more one each when person, than murder was father, stayed them heinous, cruel; overnight visited Bosse or each atrocious and that cousin, Molloy, met Heather for and Katrina’s purpose murder committed the was boyfriend, Henry Price. Katri- avoiding preventing and Heather’s a arrest or lawful - - Molloy relationship na told that her prosecution. juryls the with In accordance best been in. Greg was she’d Honorable Bosse the the recommendation Dixon sentenced to three Bosse sentences death evening July the On while (Counts III), (35) thirty-five years im- and I— visiting, Bosse Katrina some realized (Count $25,000.00 prisonment a and fine games missing. Christian’s video were Katri- IV), consecutively. appealed run Ginger na whether Christian had left asked from these convictions and sentences and there, any games Ginger he’d taken said and. propositions support fifteen error in raises mother, to her them home. Katrina talked appeal. of his Allen, night, Rebecca several times that be- ¶ 2 ginning p.m. This Court Bosse’s 10:00 affirmed at about Katrina said convictions sentences, and OR Bosse and the was with her children. -Katrina 14, 360 (2015). P.3d 1203 Bosse v. In Allen she Price taken thought Okla told had homa, -, games. U.S. 137 S.Ct. Katiina tried several times call the without-success, (2016), Supreme L.Ed.2d 1 the United States text Katrina Molloy told and granted petition driving Malloy’s for her to Court Bosse’s writ of Allen house, message Molloy began one text of the trailer. Soon and said flames to roll out banged By time, on front they had come over and the door. Katrina were aware Eventually the door. Katrina the might called Katrina the and children be in- County McClain Sheriffs Office. About 11:50 side. Dibble volunteer Bill firemen Scott and p.m., Deputy Cunningham arrived, fought arrived take a Mark way Palmore and their Katrina, missing property through report. heavy smoke, the chil- the front they door. In dren, and Bosse were there. Katrina told cleared the two bedrooms and bathroom on Cunningham games end, that about fifteen video the trailer’s north before on running low thought missing, they oxygen. Washington were and she had been volunteer firemen Derek gone Molloy previ- Bolster, turn, since Price Gary and visited the Cheek and entered the Saturday. began ous Sometime between 12:30 a.m. trailer and the south search side a,m., Allen, phoned saying through 1:00 They Katrina thick black smoke. extin- deputy going guished room, the had left and she was bed. the small flames living utility kitchen The master room. bed- ¶ Ginger July Griffin left work room door was shut warm touch. 23rd at a.m. She around looked at Katri- 7:00 it, The door appeared had hole in a which trailer, na’s but nor saw neither smoke fire been there before the started. neighbor, Daryl Bosse’s At 8:55. truck. a.m. it, opened they Cheek When saw bodies Dobbs, coming drove and saw smoke of Katrina the floor. Christian on Heat trailer, top of Katrina’s back near the building up, had and the two to retreat door, fire, reported Dobbs called finishing Chasity. before their search trailer, to the horn. drove and honked his He left, they While there no flames as were door, open tried to the storm it was but appeared. within fifteen It minutes flames jammed, so he walked around the trailer firefighters took con- an hour and half to hitting windows, the walls and re- without They on suppressing tain the fire. focused sponse. windows, Dobbs into looked victims, preserve flames nearest anything; pitch could see it was black. what could of the crime scene. The back door was Dobbs locked. used garden spray firefighters trailer, hose to water on the trailer When reentered Later, roof significant parts above the back Dobbs door. the fire had burned opened banged bedroom, including the front screen door and on master the wall to the hole, front the closed part door. There was small closet. The walls south ball, golf burned, about size trailer window to the trailer was filled debris, the left of the decking front door. the front floor Neither with charred and the damaged, nor back doors were there was was saturated with water. The bodies Ka- windows, no smoke from the doors other trina and Christian and cov- were charred than a began trickle from the hole in the front small debris. The fire seat ered love living window. Dobbs disconnected the trailer’s on the room’s west wall. State’s propane tank experts turned off the it electricity. testified could have burned for at least four hours before Dobbs saw smoke at chief, police Thomp- The Dibble Walt a,m., smoldering 8:55 until front door son, responded shortly call after opened reignite the flames. coming 9:00 a.m. from He saw smoke ¶ line, body, charred, roof Chasity’s west severely near middle trailer. was unbroken, bedroom, The windows were but he could in the closet of the master under- pile not see inside was A put because the trailer filled neath chair debris. had been Thompson door, with black smoke. broke a window under the outside knob of the closet corner, at the preventing being opened trailer’s far southeast from it from leaned inside, shouted, nobody responded. Chasity and but from was burned inside. waist touched, The front opened legs door when it was down—her were charred to the muscle porch and the men on the exposed. forced back bone was She had a laceration were by heavy right heat and smoke. Both to her cheek blunt on men force trauma black right noticed the smoke was heavier and her autopsy darker side of skull. The rising lungs. than each one from seen the back showed soot in her stomach and had p.m. an on At 4:00 Bosse met for about Significant spatter was about blood Tompkins, body. His was Huff and David head hour with near Christian’s walls Agent un- wrapped in a blanket. He wore Bob Horn. Officers saw Bosse partially OSBI unbuttoned, jean unzipped on his had red abrasions knuckles. There was derwear long times shorts. He had been stabbed five on his tennis shoes and a scratch blood chest; was a defensive stab neck and there on his arm. Bosse admitted he was at Katri- forearm, blunt right previous evening. on his and he had He talked wound na’s house right eyebrow. trauma over his missing games, force he about the and said went Money’s Katrina and children with T-shirt, in a 10 Katrina clothed was p.m. about 10:00 Bosse said he was house underwear; pulled her shirt shorts and Deputy Cunningham took there when Katri- if up her torso and her hands crossed over report. him na’s He said Katrina wanted dragged. found after the she had been When stay, July he left about 12:30 a.m. on but Christian’s, fire, legs laying her were over 23rd, reaching apartment at 1:30 or 2:00 body in debris. Her and her was covered a.m., by in bed 3:00 a.m. and was burned, body partially and there had been might it have been was some indication investigators told that he and eight with a sheet. had stab covered She dating a Katrina had been few weeks and abdomen, to her neck and and blunt wounds spent He admitted he were serious. right of her head. force trauma side night chil- with her a week earlier when the glasses her were Her face was charred and gone. spent some were He said he’d dren hair. to her burned She had defen- attached every been in room of the time there and had right palm. Al- on her sive incised wounds said him that trailer. Bosse Katrina texted left-handed, right though her Katrina was morning, but he it from his could retrieve pointing a knife with the blade hand held Lyman phone. Justine dated Bosse from ear- backwards, facing body. Blood on this her ly July changed until Bosse his Face- A consistent blood. knife was with Katrina’s relationship” to “in book status with Katri- was found pocketknife with broken blade midnight July Lyman At on na. sent body. pocketknife underneath Katrina’s message complaining Bosse a Faeebook Christian, kept belonged it in and Katrina a.m., responded about Katrina. Bosse at 7:44 her bedroom. bitch, saying crazy nothing Katrina awas ¶ 11 for both Katrina The cause death on, going dropping Katrina and was multiple stab Christian was wounds. Nei- Lyman He friends list. told she mouths, soot in ther victim had their noses or check with Katrina to confirm this. could suggesting they were before the fire. dead Lyman Bosse communicated with and a Chasity smoke cause death throughout named Sarah text woman injury. inhalation and thermal day. investigators put out As the fire and Investigators asked to search Bosse’s began working on the at the crime scene refused, photo- truck. He but let them take morning July family Katrina’s mem- cables, laptop A graphs of its contents. police told that she and Bosse were bers lighter Bic case “KRG” and DVD marked looking dating, began authorities PlayStation in the front A floorboards. apartment him. south shared Bosse. console, games, and marked video DVD cases mother, City with his Oklahoma Verna. in the front and back seat areas. “KRG” were apartment July 22 at Bosse left the on about friend, laptop belonged to a Bosse said July 23, p.m. At 8:00 about 6:00 a.m. give left the a name. Bosse would getting ready saw Bosse to leave. He Verna day, p.m. 6:00 office after Later Sheriffs a.m., went left between 6:16 and 6:30 laptop, Ginger and other identified items OCCC, logged computer in to a at about Agent Ak- photos, in the as Katrina’s. OSBI a.m. 7:30 night apartment to Bosse’s on the ers went again County July and to search p.m., 13 At about 2:30 McClain asked truck, agreed. Huff this time Akers also Sheriffs Detective Dan called and and Bosse knuckles, scratch and office. noticed Bosse’s red the asked Bosse come the Sheriffs admitted, on his Bosse told should not and the blood shoes. Akers he’d have been places day, including to several that been that of this admission evidence violated Walmart, say a but did not he OCCC and right process. constitutional to due The State anywhere north of 1-240 in Oklahoma went alleged that Bosse set the trailer on fire after any pawnshops. City, or mention Bosse’s he killed Katrina and Christian and barricad- Matthew, brother, apartment. also at was the Chasity ed in closet. at the Bosse was home 2 or Matthew was 6 foot 3 inches and about City, away in Oklahoma an hour from the pounds, while Bosse was about foot 8 trailer, Ginger at 6 a.m. Griffin did not notice pounds, and and the about two a.m., any smoke at 7:00 but Dobbs saw clothing. could not have shared Akers When smoke at 8:65 a.m. For to have set the truck, property searched Bosse’s most fire, approximately it had to for four smolder gone, though photographed earlier was Billy hours before Dobbs saw the smoke. in In- movies were found Bosse’s bedroom. Magalassi, investigator an arson with the apartment vestigators Bosse’s searched and Alcohol, Tulsa office the Federal Bureau from found items Katrina’s trailer. Stains Tobacco, (BATF), and Firearms determined might have been on which blood were towels began on a that the fire love seat next basket, laundry only one and the towel Magalassi wall of west the trailer. concluded blood, presumptively tested for was and slow-burning. the fire was He deter- pair bloody jeans not confirmed. A was minutes, mined it for a few flamed then in was the back Bosse’s closet. found DNA oxygen smoldered in the limited in trail- jeans genetic profiles tests on the showed Magalassi thought er. the fire could have Chasity Bosse. DNA tests of and blood hours, minimum of two as smoldered and on Bosse’s shoes were consistent with Chasi- hours, as six or seven before Dobbs and long shoe) (left shoe). ty (right Katrina Thompson, in, breaking oxy- introduced more rip 16 Bosse’s billfold was his truck. A gen up. on and flames flared Based his inves- pocket, in the back created a hidden which tigation, he the fire concluded that was incen- pawn held tickets. Akers asked Bosse When diary, meaning intentionally it was set. tickets, forgot pawn if mention white, turned and Akers him. arrested ¶ Magalassi opinion, wanted second pawned more than Bosse had one hundred Lord, and called in Jamie fire research possessions at Katrina’s seven different Okla- engineer for BATF Fire Research Labo- City pawnshops morning July homa Ammendale, ratory Maryland. Lord con- burning. when the trailer was still investigators BATF sults with nationwide. televisions, pawned game items included (1) Lord was asked to whether the determine player, console VCR or DVD as well origin against of the fire on a love seat games. several dozen movies and video Most living room west consistent with the wall was games and DVDs were marked with home, damage to the it mobile and whether “KRG”, receipts initials and sales con- possible long was that the fire burned equipment electronic firmed it; neighbor as foui’ hours before a saw fingerprints and Katrina’s Katrina’s. Bosse’s (2) time, fire, likely such a what was pawned were found on some of items. A young before a child located the master TV remote Bosse’s truck matched one incapacitated become bedroom closet would pawned. Katrina’s TVs Officers products of the from the smoke and toxic were able connect the items Katrina August scene on fire. Lord visited crime numbers, initials, serial Katrina’s identi- at his 3. He later conducted several tests through fication witnesses. laboratory, as an testified Ammendale Maga- expert agreed the State. Lord Pretrial Issues in the love seat lassi the fire started Admission of scientific evidence incendiary in nature. I Bosse claims pretrial produced hearing Dmbert The trial court held experiments sufficiently hearing reliable or relevant and Dmbert Lord’s 844 prong, v. 931. Under Daubert’s second found admissible.1 Daubert Merrell P.3d them relevant, Pharmaceuticals, Inc., testimony trier 509 U.S. must assist the

Dow 2786, 2796, 125 692-93, fact to or L.Ed.2d 469 of understand the evidence deter- 113 S.Ct. Carmichael, issue, (1993); Co.,. by bearing a mine fact valid Kumho Tire Ltd. 1167, 1174, 137, 147-49, pertinent inquiry. connection to the scientific 526 U.S. S.Ct. (1999). Daubert, 591-92, claims U.S. at at S.Ct. L.Ed.2d reliability not attack the a trial court’s 2795-96. Bosse does was error. decision We review requirement, re- and the record shows deny or de to admit novel scientific evidence quirement 10, 23, was met. Bosse claims that Taylor 1995 OK CR novo. prong met because second Lord’s 332. P.2d not relevant. opinion expert may testify expert An to an (1) facts or is on sufficient which based ¶20 scene, taking Lord viewed (2) data; product principles of reliable measurements, photographs and and re methods; (3) ap and and the witness has reports and viewed Medical Examiner’s principles reliably plied those methods and photographs. bought mo crime He' scene O.S.2011, of the case. facts year bile home of the and same.make together, § v. Mer 2702. Taken Daubert Katrina’s, it, shipped it to disassembled Pharmaceuticals, Inc., 509 rell Dow U.S. used materials from the Ammendale. Lord 113 act 125 L.Ed.2d 469 experimental replications trailer make five Co., (1993), Kumho Tire Ltd. v. Car parts of the and outside of the relevant inside michael, 137, 119 526 U.S. trailer, using S.Ct. of the Griffin measurements (1999), govern L.Ed.2d 238 parts admissibili He crime scene. used the metal ty studs, spe technical or siding, paneling, scientific and other interior insula wood insulation, adopted trim, ceiling cialized evidence. We Daubert tion and and heat and Taylor system bought air Lord with ductwoi’k. five judges holding primary param “trial contin like Katrina’s. The must love seats tests, ensuring gatekeepers, ue to act as of the based on conditions at the that all eters scene, closed, were that the novel scientific evidence is both reliable crime doors (though and the were intact there windows relevant.” OK CR added). front (emphasis small hole in the near the In window at 329 determin door). tempera ing Instruments measured whether novel scientific evidence ture, oxygen levels, (a) carbon monoxide admissible, trial court should consider parts energy amount of felt different or whether the scientific method has been during experimental each fire. tested; (b) structure theory can be whether Based on the results the meas recorded peer technique subjected has re been uring Chasity equipment, Lord estimated (c) publication; technique’s view and incapacitated in likely have six (d) error; would been potential known rate fifty began. teen to minutes after the fire gained general whether the has ac theory ceptance in the relevant scientific commu ¶ 21 burns. The first Lord conducted five addition, nity; must have representative three.tests were valid, perti connection scientific test, glass For actual trailer fire. the first it inquiry nent the trier of such assists quickly installed. One broke windows were ¶¶ Taylor, fact. 1996 OK grew quickly fire and let air. The and was Dcmbert, Citing we to, 330. noted burning eight minutes, ten within flexible, designed analysis the Daubert no there was time carbon monoxide build- many set factors without accommodate up in the closet area. Lord removed the ting forth a checklist or test. definitive windows, replacing dry- them with caulked ¶10, 21, Taylor, 1995 889 P.2d at OK CR how much air wall. issue was was avail- 330. fire, continuing able to the than so rather tests, subsequent Day replace Lord OK CR windows sealed-window, 291, r’hng replicated the conditions denied objection. subsequently admitted dence at trial over Bosse’s The trial court the evi- the, fire, test, During testimony the actual second the was roof, up through plywood let fire burned the not relevant tests because did simulate air, in break earlier flames to out allowed the actual fire and no conditions the had original in fire. The than did the trailer scientific valid connection the issue at trial. original in roof the trailer was noncombusti- contrary, On the we find the test, through. not burn After ble and did that genuine relevant because there was a issue of Lord installed noncombustible cement regarding fact whether Bosse have set could During test, roof. the fire board the third the This experi fire. Court has held that through developed the un- burned floor prove specific opera ments to acts or original the The derneath trailer. trailer had present alleged tions in the case led an tight skirting trailer which air flow limited result should be made under similar condi trailer, consequently underneath the fire circumstances, tions and and their admission in had taken' hold under the trailer the is within trial Irby court’s discretion. v. original in experimental fire. The trailers the State, 18 Okla.Crim. 197 P. skirting. first three tests trailer After had no (1920); Terr., see also Gibbons Okla. tight test the third Lord installed a trailer (1911). Crim. P. 137-38 An skirting. abuse of is discretion unreasonable closely 22 The fourth and tests more fifth arbitrary proper action without consid made replicated the conditions the actual fire. facts, eration of law, the relevant also experimental The for the test trailer fourth clearly described as a erroneous conclusion drywall, a had windows sealed with noncom- judgment, against clearly the logic and roof, tight skirting. bustible and a trailer effect of the facts. Neloms slowly During the fourth test the fire burned ¶7, 36, question The is hours, opened, for four until the ah’ door experiment sufficiently whether the similar entered, grew quickly. During and flames jurors issue, to help understand test, glass fifth were reinstalled. windows whether the so circumstances are different broke, but the front No windows window that the the jury. evidénce will confuse An developed ob- a small hole similar drews v. original fire served trailer fire. The suggests 1083-84. Bosse apparently oxygen ran out of or fuel and by case should controlled result went out after about two hours. Andrews, where excluded the de the Court experiments some 23 The had differences expert testimony fense because ballistics original from fire.2 Lord all add experiments gun used a a different bar trailer, including only the furniture length gun than rel in the crime. .used thought in- he would been which However, analysis for the factual each case is early stages fire volved fire. Lord used real, necessarily question different. drywall caulk to seal the in the windows. whether, under of this circumstances. roof noncombustible installed the third case, its the trial court abused discretion experiment fiberglass-reinforced cement admitting the Id. Bosse -also evidence. relies board, not the roof of the rolled metal like nonbinding involving on several civil cases trailer, original probably more reflected Navajo Freight automobiles: Lines Ma heat. Lord the fire’s determined (10th 1949) haffy, Cir. 309-10 F.2d strength by oxy- the level was influenced (no refusing abuse discretion to admit trailer; gen during growth in the the initial experiment replicate which both failed phase, oxygen the fire consumed most of the existing accident, conditions and was by more the fire until revived died down issue); Fletcher, irrelevant Jackson oxygen. Lord concluded the burn ex- fourth (10th 1981) periment Cir. actual fire 647 F.2d 1026-27 was most"similar (abuse experiment to admit re- conditions. discretion Magalassi original in the also testi- 2. Bosse the test because lation trailer. claims was dissimilar backing paper bacldng paper was. removed the insula- no fied that saw the remain- tion. Lord because the ing testified this occurred insulation at Katrina’s trailer. backing paper been the insu- had removed from Irby, expert. disputed the defense conditions differed experiment suits where 531; Rankin, conditions); at 499. Stemco 197 P. at 327 S.W.3d Jones v. from accident ¶¶ Co., 14-15, 624 P.2d Mfg. supports 1981 OK trial court’s conclu- The record (abuse to ex of discretion admit that the was reliable and rele- sion evidence significantly periment conducted on different vant, in and the trial court did err admit- ; conditions) in Guild vehicle dissimilar ting Taylor, it. Corp, F.Supp.2d Motors General proposition at 332. This denied. 1999). York, (W.D. cases The State cites New holding no jurisdictions there is right from other Amendment Exercise of the Fourth admitting experiments in of discretion abuse to to refuse consent search substantially so similar conditions are where II, argues 26 In that though comparison, a fair provide as to his prosecution’s use of exer- substantive repro original precisely are not conditions right to of his Fourth Amendment refuse cise Norris, F.3d United States v. duced. to a warrantless search of consent (5th 2000); Rankin Common 270-71 Cir. impermissible raised an inference vehicle 2010). wealth, (Ky. 498-99 327 S.W.3d guilt, process depriving to his him due important throughout only thread these sentencing law and a fair trial reliable and irrelevant cases is that the deter otherwise hearing Fourth and under the Fourteenth experiment is suf mination whether to the United Constitu- Amendments States conditions, original ficiently to the similar II, §§ 20 and 30 of tion and Article admission, is the trial its within court’s and voluntarily Constitution. Bosse Oklahoma discretion. police July 23. talked on the afternoon .to argues experiment that con- 25 Bosse Investigators to search Bosse’s truck. asked too to be relevant. He ditions were dissimilar refused, photographs of let them take He dry- points specifically to the substitution cables, Bie laptop A with its contents. in several the tests. Lord wall windows lighter case marked “KRG” were DVD and hearing the Dauberi' that at testified there Playstation in A con- the front floorboards. many unpredictable were variables involved sole, games, cases marked video and DVD fire, during in fail whether windows will in the front and back seats. “KRG” were installation, framing including and friend, belonged laptop to a Bosse said the glass. properties of that Lord testified Ginger give Griffin but would a name. drywall and the closed had simi- windows laptop, items identified the and other properties,' similar ef- lar ventilation with a Agent photos, as Akers went Katrina’s. OSBI oxygen on the the house. Bosse fect level apartment night July on the Bosse’s issue, asking tries reframe whether truck, again this to search asked for four fire could burn the trailer hours trial, At Bosse’s con- time Bosse consented. windows, breaking any com- without admitted, police along versation experiments plains that did not an- Lord’s photographs of the truck’s contents with the question. that Lord swer search. and the results of the later consent merely prove theory. tried the State’s On complain about admission does jurors contrary, heard evidence any of this evidence. experiments, using several both tried Lord vigorous Over and continued that, Bosse’s drywall. The shows windows and record objection, court allowed two wit- the trial tests, of several- Lord suffi- over the course initially testify nesses to that Bosse refused origi- ciently replicated the conditions search his truck. Prosecutors to let officers nal fire to simulate the actual conditions. The consent, right to refuse experiment Bosse had condi- admitted differences between argued comment original go weight of but could tions fire eridence, hiding he was evidence.3 admissibility, not its thor- refusal because closing cross-examination, argued in oughly vigorously Prosecutors discussed jurors object opening prosecutor did not this statement. In statement tile told 3. consent to truck. Bosse Bosse refused search Ms Municipal substantive evidence search. Camara Court refusal was Francisco, City County of this guilt. Bosse’s Bosse claims admission San 387 U.S. (1967). purpose, for this and its use 87 S.Ct. In L.Ed.2d argument, did not closing finding error. Bosse safety that administrative health and argument, waiving object warrant, inspections require the remarks the Court not plain all but error for those claims. refusing entry ed authorities for in spections penalties. often earned criminal guaran 28 The Fourth Amendment Camara, 387 U.S. at 87 S.Ct. light tees to be free from unreasonable 1732-33. The Court concluded that Camara Const., search and seizure. U.S. Amend. constitutionally prosecuted could not be Any right citizen has the to refuse consent exercising right his Fourth Amendment gov property, require to search inspection to to an refuse consent without a get conducting ernment to warrant a before 540, Camara, at warrant. 387 U.S. 87 at S.Ct. Bustamonte, 412 a search. Schneckloth v. Discussing 1736-37. when an encounter with 219, 2041, 2043-44, 218, 36 U.S. 98 S.Ct. police constitutes a seizure the Fourth under (1973). binding L.Ed.2d is no law 854 There Amendment, person the Court noted that a prosecutor a a defen on whether violates requests an officer’s refuse without fear using right by constitutional a defen dant’s Bostick, prosecution. Florida v. 501 U.S. to a dant’s refusal to warrantless consent 111 115 S.Ct. L.Ed.2d guilt. as This search substantive evidence (1991). 389 not previously Court has this issue. decided However, prosecutors we have found analogy ¶ 30 Bosse draws an to Fifth arguing as erred substantive evidence prose It Amendment claims. is settled that guilt of constitution the defendant’s exercise cutors cannot comment a defendant’s ex rights, including refusing give al to a written privilege ercise of the Fifth Amendment police consulting attorneys statement self-incrimination, against using it as sub a when one is under for crime. investigation guilt. stantive evidence v. Griffin Califor ¶¶ 16, 10-11, v. Brewer 1229, nia, 609, 614, 85 380 U.S. S.Ct. 892, 894-95. (1965).However, 106 L.Ed.2d 14 making a Fifth Amendment claim here. ¶29 Admission of is within evidence Rather, suggests principle Neloms, 2012 OK the trial court’s discretion. equally apply in the Fourth should Griffin 274 P.3d at 167. Bosse Every jurisdiction context. Amendment the trial court abused its discretion published a on this issue has which has ease admitting subsequent evidence and implied either concluded Griffin argument argues that a concerning it. Bosse so The State fails be extended. should person penalty should not suffer exercis binding provide any persuasive or case law ing privilege. a relies on constitutional He opposite con a reached an which court has Sindermami, Perry v. which the United clusion. Supreme a non-ten States Court held that professor circuit courts have ured could not be denied re-em 31 Several federal right that ex- ployment on his of his this issue and concluded based considered exercise right Fourth Amendment speech First and Fourteenth ercise of the free under the Sindermann, is not Perry consent to search admissible Amendments. 408 refuse v. guilt. The Sixth Cir- U.S. L.Ed.2d 570 substantive evidence S.Ct. (1972). stated, “The exercise of a constitu- Perry, In concluded that cuit has the Court to a right, tional to refuse to consent Sindermann’s lack of a contract tenure did whether claims, search, rights or to waive Miranda not defeat his constitutional because refuse trial, deny person testify at is not evidence government may not a a to decline Clariot, guilt.” States F.3d consequence as a United benefit of exercise (6th 2011). explic- Perry, Circuit constitutionally protected right. Cir. The Third itly reasoning of In at at 2698. another extended U.S. S.Ct. Griffin “little, context, finding if context, Supreme the Fourth Amendment Court discussed privilege any, between the right consent valid distinction Fourth Amendment to refuse consent, privilege grant against have that refusal self-incrimination against seizures implication. Admitting unreasonable searches and incriminate him propriety which is relevant person punish such a statement would prosecutor’s argument.” United States asserting right. constitutional (3rd Thame, Cir.), cert. F.2d Guess, F.Supp.2d United States denied, 488 U.S. 109 S.Ct. (U.S.D.C. 2010). E.D.Va. 747-48 (1988). The L.Ed.2d 333 Third Circuit went on to un note that to find otherwise would ¶ Other circuits have discussed 33. federal prohibiting use dermine the law defen Tenth the issue. The Circuit has held that suppression hearing at a dant’s refused evidence defendant .consent trial, against finding “protec that the him at of domin search admissible illusory” if largely tion .the would be defen that, control, if ion and but noted the evi Amendment, on the reliance Fourth dant’s response were not dence admitted in proved by testimony» than other purpose, or for proper defense claim another Thame, against him at trial. used eould its be error. United States admission would Circuit cited with F.2d Third (10th Dozal, 1999). 173 F.3d Cir. case, Prescott, approval a Circuit Ninth that, Tenth has also when Circuit stated Circuit which the Ninth extended reason determining suspicion for reasonable an in and, ing of to Fourth Amendment the Griffin detention, go vestigative “it- irithout should' relying Camara, supra, on asserted that the saying” of that consideratión a defendant’s right at be Fourth Amendment issue eould to to" refusal consent a search violates of nor a neither a crime itself evidence crime. Wood, United States v. Prescott, Fourth Amendment. 1343, v. 581 United States F.2d (10th 1978). 1997). (9th 942, F.3d 946 hot 106 Cir. 1360-51 Cir. The Ninth Circuit While addressing directly, that a can refuse consent to issue held defendant Fifth search, concealing purpose of Circuits on from other relied cases Seventh wrongdoing, this (discussed refusal cannot be infra), assuming jurisdictions against prosecution. him in a used criminal deciding that such be without evidence would Prescott, 581 Prescott F.2d at 1361-52. noted error, finding before the error constitutional innocent the guilty that both the have beyond case in each was harmless reason a , search, just right to consent to refuse as Runyan able v. doubt. United States silent, prose to that the do remain but 223, (5th 2002); Cir. F.3d 249-50 United objective introducing a cutor’s defendant’s (7th Moreno, v. 940-41 States F.3d guilt; refusal of is to infer the Court consent 2000). Runyan particularly Cir. noted that just impermissible using found this as as a addressing directly circuit-courts is Prescott, guilt. defendant’s silence to infer unanimously had held a re sue defendant’s 681 F.2d at 1352. to -may fusal consent a search to warrantless The for United States District Court guilt. Runyan, not be used of as evidence Virginia explained of the Eastern District at 249. F.3d reasoning prohibition against use behind the ,¶34 Several state courts held that of a to consent to a defendant’s refusal refusal of to consent search Fourth under guilt: of as search substantive evidence ps.ed Amendment -cannot as substantive be If a the Government was allowed admit guilt of evidence or to consciousness of show suspect’s of consent order to refusal guilt. Appeals Court of recent Colorado The guilt, of a show consciousness defendant’s engaged thorough ly in a discussion of truly voluntary. In consent could never be issue, summarizing jurisdictions’ the various instance, an such be defendant would approaches .That court not described herein. faced with “Hobson’s He could a choice.” might, ed that to search refusal consent a either search his vehicle .consent Dozal, supra, prop be some getting and relieve the from a admissible Government warrant, purpose, er safeguard but- al key procedural determined it searches, ways against improper or such unreasonable could admit right by refusing guilt guilt; constitutional infer assert his consciousness show Pollard, People v. Christiansen, P.3d 1130-31 State 144 Idaho (Colo. 2013). (2007). App. Ct. P.3d See also State v. 1182-83 Wright, Idaho ¶35 Early discussions this issue are (Idaho 2012) App. (“[Eliciting testimony Ct. Alaska, California, found in cases from regarding a witness defendant’s refus State, Padgett Mexico. New In the Alaska al to search, consent to a when used for the stated, Supreme “Padgett right Court had a purpose inferring guilt, prosecutorial under the Fourth Amendment to the Federal error.”) misconduct fundamental Constitution, I, and article section 14 of the Maryland Appeals Court found that constitution, to state refuse to consent right exercise the constitutional refuse part of all or right search of his car. That consent to a may search of car not be used effectively if, destroyed would be when exer guilt, imply place would “unfair cised, guilt. it could be used as It impermissible on burden” the assertion error to admit defendant’s right. Longshore State, 399 Md. refusal, during and error to comment on it (2007). case, 924 A.2d 1158-59 In that Padgett summation.” the trial court had sustained defendant’s 1979). (Alaska Supreme Court of objection .to evidence that he had refused Mexico, noting New a defendant “has car, consent search his and admonished right to refuse to consent to a warrantless jury disregard evidence, re being without search such refusal later used request his for a fused mistrial. The Court implicate guilt”, found that the defen held that denying the trial court erred testify, dant did refusal to con request mistrial, and the curative instruc sent not be mentioned he testi “could unless protect tion right to a defendant’s contrary fied direct examination.” Kentucky fair trial. Id. 1159.The Supreme Garcia v. 103 N.M. 712 P.2d Court concluded defendant’s refusal to (1986). See also Gomez v. consent to fingerprint sampling properly 1990) 952, (Fla.Dist.Ct.App. 953 572 So.2d impeach admitted to his claim rebut of (“A right who has a defendant constitutional self-defense, noted, “Generally, but such as in to to to a refuse consent search ... should be Deno, exercising privilege one’s to of be free right impunity. free to that exercise No probative warrantless not searches simply permitted comment on its be exercise should value) (or probative has to a low determina guilt, to raise inference of if Fourth thus, guilt, right tion of the defendant’s right against Amendment unreasonable penalized exercising to not be such a given is to and seizure be its full search privilege paramount.” v. Coulthard Com meaning.”); Keener, People v. 148 Cal. monwealth, 2007). 672, (Ky. 584 S.W.3d 73, (Cal. App.3d 78-79, 195 Cal.Rptr. 733, 736 Commonwealth, Deno See also v. 177 S.W.3d 1983) (defendant App. refused to to consent defendant, 2005) 753, (A (Ky. 761-62 has into, entry apartment; asser warrantless right Fourth to to Amendment refuse submit light tion of this is neither itself a nor crime biological specimens; refusal to to consent crime). of a evidence is, privileged search conduct and be cannot guilt). as of considered evidence ¶36 Other states have reached the same Georgia The of Appeals conclusion. Court a defendant refused consent 37 Where a that refusal to held defendant’s consent to sample, a warrantless DNA Wisconsin may against not be search used him evi weight Supreme of state Court noted State, guilty knowledge. Mackey of dence authority using prohibited the exer federal 554, 482, Ga.App. S.E.2d 483-84 right of the to con cise Amendment Fourth Court, (1998). Supreme applied The Idaho guilt, holding to search as evidence of sent reasoning to a right defendant’s exercise of comment on that that the exercise Griffin’s of right the Fourth Banks, Amendment process. refuse due WI violates State search, ¶¶ finding prosecutor 21-25, consent a App that 328 Wis.2d right use the of Supreme cannot exercise that to show The Nevada N.W.2d 533-34. guilt; case, of Court, that error noting many already consciousness that had courts beyond a guilt reasonable from, harmless held the State not infer a doubt. claim Fifth Amendment —al of Fourth no under the exercise Amend defendant’s search, though not Fifth Amend right to refuse consent Bosse does raise a ment rule; emphasized that court adopted that turns Finally, claim. ment State punished for as not a should be reasoning defendant Bosse’s claim that the Griffin right, found erro serting constitutional but applied to the Amendment should be Fourth harmless neous admission right to to search. The State refuse consent Sampson v. beyond a reasonable doubt. appears to does discuss what 1260-61 121 Nev. twenty-one separate law from state settled (2005). Appeals of fol Texas The Court jurisdictions, applying the and federal Griffin reasoning in Pres Circuit’s lowed the Ninth Instead, reasoning precise way. in this writ cott, prosecutor could and concluded exist, ing the State none those cases if right to guilt from exercise infer Supreme United States recent search, the error was consent to refuse Fifth Court limits Amend case Griffin magnitude; the error ad of constitutional Texas, a ment context. In Salinas v. divided beyond a mitting harmless the evidence was plurality opinion held Supreme Court Reeves v. reasonable doubt. S.W.2d that, during police questioning noncustodial 1998). (Tex. The App. 495-96 Ct. Michi warnings given, a no are where Miranda gan Appeals Court determined asser expressly his Fifth defendant must invoke right consent to search tion of to refuse against privilege self-incrimina Amendment a crime or of a car cannot be 178, 133 Texas, tion. 570 U.S. S.Ct. Salinas crime, meaningless finding, “It make would (2013). L.Ed.2d protection against unrea the constitutional plurality found interview Salmas’ if and seizures the exercise sonable searches voluntary, his statements noncustodial badge right to become a of that was allowed Miranda, scope were outside Mich.App. guilt.” People Stephens, coerced, voluntarily free to (2010) (quoting 163-64 349 N.W.2d state that he explicitly refused answer (Alaska Bargas v. grounds, Fifth but questions on Amendment 1971)). Appeals Arizona Court of found Salinas, failed to do so. 2180-81. S.Ct. úsing a defendant’s consent refusal ¶39 guilt very evidence of little relevance search as substantive would Salinas has appreciably impair Court, the Fourth Amendment’s the issue before this rele- what searches, by pe prohibition appears support unreasonable it Bosse’s has vance exercising right; when, nalizing exclusively defendants for focuses claim. Salinas not erroneous of the evidence was whether, admission must claim his how defendant Stevens, in 228 prejudicial that case. State right during Fifth Amendment to silence (Ariz. 411, 1203, 1208-09 Ct. 267 As, Ariz. P.3d questioning. during the noncustodial Wilson, 2012); 185 App. see also State interview, of a Bosse did course noncustodial (Ariz. 254, 1346, Ct. 914 P.2d 1350-51 Ariz. right, Fifth this his Amendment exercise 1995) (trial admitting in App. court erred simply is irrelevant. Salinas discussion refusal of consent to show defen defendant’s However, did, writing, explicitly uncooperative; generally cannot dant right Fourth re- exercise his Amendment guilt through show exercise the Fourth thing precise fuse consent search —the consent, right to and the Amendment refuse plurality required of the Salinas would have right, exercise of a constitutional stand valid preserve in that case order defendant alone, uncoop ing does show defendant right Fifth Amendment under Griffin erative.) Nothing opin- plurality in either the Gamer. suggest majority ¶38 ion-or the dissent that a Although many of Bosse cites any way issue the Court considered above, wholly fails cases discussed State Justices, concurring this Court. Two argues before address them. The first State clearly they judgment, state that dis- supports the record here neither search agree prose- and would allow although nor a does not claim Griffin seizure — guilt to infer from a defendant’s failure any improper or sei cutor that there was search testify, during ques- from his argues silence zure. then Bosse has State

851 Salinas, (Thomas, tioning. Stage 133 S.Ct. at 2184 Guilt Claims J., concurring judgment)(joined by in the Testimony Admission Aids to Visual Scalia). Logically extended to the Justice ¶ argues TV issue, suggest Fourth Amendment this would hearsay that the erroneous admission evi two Justices would also these overturn the deprived dence him of a fair trial and reliable weight of law discussed above in the Fourth sentencing. Antje Stambaugh, an OSBI DNA However, context. is no Amendment there analyst, regarding analysis her testified remaining indication that the Justices would samples DNA from' all Bosse and three vic agree. Essentially, the State asks this Court Stambaugh prepared tims. two tables illus speculate, opinion plurality based on a trating genetic profiles from the four interpreting Fifth rely- Amendment and subjects the items evidence she tested. ing primarily writing joined by on a separate were, admitted, objection These over Bosse’s Justices, only Supreme two Court cumulative, as State’s Exhib would Fourth overturn settled Amend- its 304 and 305. Bosse this- decision and, relying on ment law discussed above— was error because the exhibits were inadmis speculation, reject Bosse’s claim. hearsay. sible Admission of evidence is within Neloms, trial court’s discretion. 2012 OK ¶ weight 40 This Court finds 7, ¶ 25, CR P.3d at 167. Because Bosse persuasive, of the law discussed above but we object to these exhibits on these subject note that issue harmless trial, grounds at plain he has all but waived analysis. oc error Most constitutional errors State, error. Brown v. 2008 OK CR subject curring during trial are to harmless P.3d 580. .any Bosse fails to show assessed, analysis, they may error be error, plain obvious, actual that is and that along presented, with the evidence rights, defendant’s af affected substantial prejudice fecting Robinson v. defendant. the outcome of the trial. Barnard v. State, 428; State, 15, 13, 15, 3, 2012 OK CR P.3d California, 18, 24, Chapman v. 386 U.S. (1967). 824, 828, 17 For S.Ct. L.Ed.2d ¶ 42 Bosse characterizes exhibits as these ease, of this

purposes we assume without “investigative reports by police other law deciding defendant’s exercise personnel,” which are enforcement inadmissi right Amendment to refuse consent Fourth 2803(8)(a); § O.S.2011, see, e.g., ble under may not to search used substantive State, ¶ 22, Salazar 1998 OK CR guilt. (motor the error is Because report); P.2d vehicle theft dimensions, 59, ¶ 25, Humphreys constitutional review both we ad 1997 OK CR (DOC investigative closing 574-75 re mission the evidence and its use in ports); Frazier v. 1994 OK CR argument to determine whether the error (prison pen pack); beyond was harmless a reasonable doubt. but see Charm v. Robinson, (routine 754, 924 P.2d 764 DOC records were ¶ 430; State, 59, 10, Bartell v. 1994 CROK investigative reports). not The does record 881 95. Bosse not P.2d does contest ad support of not this these characterization statements, any of his or of mission own the of num documents. The tables consisted incriminating evidence obtained either with tests, Stambaugh’s bers—information—from warrant; addition, his in consent any without results conclusions. Without presented the State forensic and meaningless. They testimony, they her are testimony supporting the verdict. Under the investigative reports. simply are not any of circumstances this cáse we error find guilt in use of this evidence to infer ¶43 suggest Bosse also seems beyond harmless a reasonable doubt. Miller that Exhibits 304 and 305 were sum State’s ¶ State, testimony, Stambaugh’s of maries and 971-72; Robinson, 15, ¶ 3, put it improper OK CR because their admission was testimony. proposition emphasis P.3d at 428. This is too Bosse denied. much on her rule, State, sequestration in of is trial on Moore v. which we held the within the relies 2615; give jurors O.S.2011, § that it was not error sum- Ed court’s discretion. expert’s findings, noting of mary the wards v. CR OK not admitted into evidence. summaries were The rule is 1051-52. intended CR guard against possibility Moore OK 788 P.2d the that a witness’s mistakenly suggests that 398. He testimony might manipulated admis- be tainted or admission, sion of these- exhibits like the McKay is by hearing City other witnesses. of deliberations, videotaped ¶¶ in of testi- and use Tulsa, mony transcript of a exhibit. and recorded 704; 251, ¶ 4, OK CR Weeks It is not. Allen completely 1195. exempted sequestration, from rule of the argues Bosse admission these ex- Ginger exempted after her testi Griffin was placed emphasis hibits on undue Stam- mony stage Ginger in first was concluded. However, baugh’s testimony. he not does was the first witness. State’s prejudiced claim he admission they might these exhibits. He neither trial, jurors 46 Later in the viewed jury, points or misled the nor have confused autopsy photographs the on Both monitors. they might prejudice other Ginger Allen Rebecca Griffin were seat Stambaugh figures him. the caused used pictures monitors on ed the which behind explain the charts as visual aid her jurors, directly were shown to the in some testimony. Bosse does show how jurors’ sight they photo line as viewed the presentation of the numbers overem- visual objected, graphs. arguing the Stambaugh's testimony. trial phasized The showing emotion they women were them in court its discretion admit- did not abuse pictures, jurors selves viewed the could error, no ting this there is evidence. Because this, family see that the mere fact that plain proposition no This there is error. is jurors members were visible viewed denied. jurors to form photographs allowing an emo family unduly tional with the bond Exceptions Sequestration —was Rule prejudicial. trial court Bosse’s denied ¶ 45 claims in VI mistrial, request day, for a the next but made the trial court abused its in discretion family move ordered that members should allowing the family victims’ to re members sight jury’s jurors line out when objection, main the courtroom over his monitors. Bosse raises this watched violating rights process and a fair due support of his claim that the never witnesses impartial trial the Fourteenth under courtroom, he should have been Amendment to the United States Constitu not claim that trial court erred does II, tion and Article Sections refusing grant request mistrial.4 mother, Oklahoma Constitution. Katrina’s. Allen, trial, stepmother, Ginger argues, Rebecca and her as he Griffin, might prejudiced jurors sympa- if felt in both testified for State first stage. objection, thy family second who Over Bosse’s' members sat throughout both women were to remain courtroom the trial. He allowed does courtroom throughout claim that her trial. Bosse had either witness altered testimo- sequestration, ny the rule of on the that she heard invoked which al based This, course, party lows a from order wit other witnesses. exclusion courtroom, , sequestration designed nesses evil rule of so cannot allegations remedy, hear other of preju- 12 O.S. other witnesses. Bosse’s 2011, § persons speculative supported by the dice State ask that are crime, are its who of or their trial court did not repre victims The record. abuse sentatives, parents Ginger relatives, exempted excepting or Allen in and discretion 2615(5). O.S.2011, sequestration. § from the rule of This exclusion. 12 A Griffin from proposition or exempt decision include denied. witnesses 4. Thus we do address this issue. State’s assertion Bosse waived Photographs tographs of photographs Admission Gruesome trial. The at were jurors shown on monitors in the courtroom ¶ in 48 Bosse claims during of State witnesses. that the trial court its VII abused discretion admitting inflammatory- in gruesome and ¶50 photographs of Katrina’s photographs Eighth in of and violation and Christian’s at bodies the scene are ex United Fourteenth Amendments tremely disturbing. Both of 'these victims II, 7, §§ States Constitution and Article 9 were began. Any dead the Are before effects of and 20 the Oklahoma Constitution. Admis the fire had on their were not bodies relevant photographs of sion is within the court’s trial injuries, to their fatal but those effects do State, 14, discretion. Mitchell v. 2010 OK CR consequences reflect the of decision Bosse’s ¶ 67, 640, Photographs of 236 P.3d 666. to leave the bodies and set trailer fire. crime, may depict victim of the the scene of pictures While several the bodies nature, show the extent location of rubble, are covered charred material and. wounds, or corroborate the medical of photographs none examin show .the marked testimony. Photographs er’s Id. should not be photographs extensive effects of the fire. if their is such the dan admitted effect are relevant the scene corrobo show ger prejudice substantially of unfair out rate the testimony. They medical examiner’s weighs so Livingston jurors their value. are not or repulsive hideous probative ¶ State, 68, 1088, 20, impartially. 1996 OK CR could 907 P.2d view them Anderson ¶ grue This Court has often 1094. said gruesome photo complains morgue pictures 421. also some crimes make for Bosse ¶ victims, of both graphs. taken the bodies Cole OK CR these after cleaned, autopsies were and before the This not make were 1096. alone will performed. Long cotton-tipped probes inadmissible, are long they them as are not so wounds, inserted into the victims’ stab show unnecessarily repulsive ju hideous or ing location, direction trajectory rors cannot impartially. view them Hain v. Again, photographs wounds. these are 1996 OK CR However, disturbing. jurors 1143; show Livingston, 1996 OK CR handiwork and the medi corroborate Bosse’s P.2d at testimony. cal The trial examiner’s court photo- 49 The court admitted nine trial admitting not abuse its discretion these graphs of Katrina taken at the scene and two Cole, exhibits. photo- morgue; of her taken at the three . at 1096 graphs Christian at the scene taken morgue; him pictures Chasity, by one of taken two The two contrast, photographs Chasity are, photo taken at the scene.5 as we said similar trial, objected graphs disturbing Before Exhib- in Livingston, State’s “profoundly it 95 but not to both particularly perturbing.” Living State’s .... [and] Exhibit ston, pictures Chasity, arguing Ex- that State’s P.2d at 1094. Chasity’s hibit 95 body badly was cumulative. The court de- trial Parts burned. objection required nied the State to her fire limbs were charred to the bone and choose between Exhibits 65 and 66. recog State’s debris onto had her face. We melted objected photo- photographs admission of both nize that relevant. moved, graphs at trial. Living Bosse also trial That inquiry. before does end our As began, ston, in- photographs, pictures exclude several these horrible of this six-year- cluding proposi- some of those “provoke raised in this old child an immediate re visceral erroneously admitted, tion as say jurors as cumulative action.” Id. cannot were able We overly prejudicial. That motion was pictures sus- to view these two impartially, part part, substantially tained and denied probative find their value vigorously objected pho- outweighed preju- admission of unfair danger object photographs 5. Bosse did not further raise at trial two error on admission those barely portions exhibits which Chasity's body visible appeal. included rubble, and does not covered 854 ¶¶ 19, 62-64, Hogan, 2006 CR evidence. OK trial court its discretion abused

dice. State, 930-31; Coddington However, v. 139 P.3d at admitting exhibits. this error these ¶¶ 53-57, 142 437, 34, 452- Considering 2006 OK CR P.3d require relief. the en- does not photograph the record, prejudi- Bosse also claims that tire we conclude 53. these in the had no to issue second photographs the relevance cial contribute stage rejected this claim as guilt of of trial. have of or determination We jury’s verdict ¶¶ 34, ¶ State, CR 85- Cole, Malone v. 2007 OK OK CR 164 well. sentence. 7, 185, 1097; State, 86, to re OK CR 218-19. decline P.3d Wes P.3d at Mann proposition is 1151, This 13, proposition This is consider these decisions. 1156. 749 P.2d denied. denied. Photographs Degree Murder of Pre-Mortem Instruction on First

Admission V, Proposition ar 54 In 52 In VIII Bosse deprived of a fair trial when pre-mortem pho claims he was gues of admission the that malice injected passion, jurors were not afore tographs of the victims instructed arbitrary thought presumed cannot from the prejudice, and and irrelevant be mere other Fifth, Eighth killing, act of in violation into his trial. He claims that factors § to the United 2403 of the Oklahoma Evidence and Fourteenth Amendments amended II, §§ as and Article is unconstitutional on its face and States Constitution Code Ginger applied of the Oklahoma Constitution. to his trial. Griffin was gave jury in objection, jurors trial the uniform first Over court witness. Bosse’s State’s introduced, through testimony, her struction on malice murder: “The external the State suiTounding commission of of all taken while circumstances photographs three victims finding act alive. Bosse claims a homicidal considered each was admission or not intent error. allows whether deliberate existed this evidence was Oklahoma law a human type to show the mind of the defendant take admission this words, appearance include general condition life. External circumstances conduct, demeanor, motive, State, all cir 2010 OK other alive. while Goode victim act,” 682; O.S.2011, a homicidal cumstances connected with CR objected, requires § 2403. § 4-63. Bosse found the OUJI-CR 2d We have sentence, photo pre-mortem asked the trial court add trial court balance “However, presume or against prejudicial you may not infer the graph’s probative its value intent, State, requisite i.e. ‘malice Glossip v. existence effect. ¶¶ 143, 156-57; slaying Hogan aforethought’ the fact of the ¶ 64, The trial court Bosse claims 139 P.3d alone.” refused. this The trial court must instruct trial court’s decision was error. review a 931. We jurors accurately applicable Sori admit this for abuse discretion. law. ¶9, 36, ¶ 57, Goode, ano v. CR P.3d at OK CR trial court’s decisions We 682-83. review grant deny for abuse of instructions ¶ 53 acknowledges ar the law Cipriano 2001 OK discretion. § is on its gues that unconstitutional 873-74. argues that applied to him. He face and jury argues that uniform pre-mortem vio 55 Bosse photographs admission proof balancing instruction process, test shifted burden and that the lates due that, jurors plain § 2403. him. once decided he contrary language He victim, “might” him to want killed a presumption Bosse does overcome killing mal- disprove Glos that the was done legislative acts are constitutional. ¶12, 78, 167 aforethought. 156-57. ice Bosse claims instruction sip, OK CR P.3d at claims, implicitly prove did not required him previously rejected these We heart, aforethought. At finding balancing act with specifically test malice of “mal- complaining Oklahoma’s use applies to after about remains and this clause “premeditat- aforethought” type of ice permit opposed statute amended

855 that, objected design”. suggests trial, malice Bosse to this pre ed He because evidence ill-will, may serving it requires no because be formed the issue for this review. While Court act, claim, instantly previously rejected of has holding before commission this may proved by circum- that this Payne it be external evidence is admissible because under stances, Tennessee, 808, v. 111 longer no has the burden 501 U.S. State S.Ct. (1991), prove of 115 holdings the essential L.Ed.2d 720 those elements crime. are possibility hereby Oklahoma, He of confusion was overruled. Bosse v. 580 U.S. -, (2016). prosecutor argued to exacerbated when the 137 S.Ct. 196 L.Ed.2d 1 jurors that intent could formed an We find the witnesses should not be have instant; although suggests prose- jury been allowed to recommend Bosse, really jurors presume in- cutor could sentence death. 137 S.Ct. at 2. meant crime, tent the fact of the ¶ However, finding this not con 58 does prosecutor previously what the have said. We analysis. reject clude our We Bosse’s claim rejected Marquez-Burrola this claim. v. requires that this error reversal and resen- ¶14, State, 157 P.3d tencing. Bosse’s reliance Brown Sand 759. Bosse offers no new reason to reconsid- misplaced; jurors ers is may while consider proposition our er decision. This denied. determining appropriate sentence, init an impact victim evidence is not a Sanders “sen Sentencing Stage Claims tencing comparable ag factor” Oklahoma’s Impact Evidence Admission Victim gravating capital eligibility circumstances State, requirements. ¶ Malone v. subpropo- 56 claims in three 198, 221-22; 1, ¶ 87, 293 Brown P.3d sitions in IX his death sen Sanders, 212, 220, 126 U.S. S.Ct. must be the admission tence vacated because (2006). 892, 163 L.Ed.2d We have re improper opinion testimony during peatedly impact held that victim evidence presentation impact violat victim evidence aggravating extra cir does not constitute an Sixth, rights Eighth, ed under the cumstance, provided by additional those Fourteenth Amendments to the United State, Legislature. 2016 OK Martinez II, 7, 9, §§ Constitution States and Article ¶ 1116; 3, 66, Cargle v. CR and 19 the Oklahoma Constitution. We a trial victim review court’s decision allow (evidence aggravating circumstances must impact evidence for discretion. abuse impact victim evidence be admitted before Malone, OK CR 168 P.3d at Supreme given). As the Court’s re impact 211. Bosse first claims that victim clear, in Bosse this error is sub mand made aggrava generally “super” acts as Bosse, ject analysis. to harmless error ting present circumstance that will be 2-3. review the trial court’s S.Ct. at We case, narrowing every thus defeats the whether this constitu decision to determine required capital function cases. We beyond a reason tional error was harmless See, repeatedly rejected argument. e.g., this See, e.g., Robinson v. able doubt. Bush OK CR ¶15, 12, 425, 430; Chap OK CR 337, 349-50; Malone, OK CR California, man v. 386 U.S. 87 S.Ct. 46, 168 P.3d at 204. (1967). 824, 828, 17 L.Ed.2d 705 subproposition, In his second conducting analy- impact guidance in claims that the three victim 59 For Circuit, sis, Tenth the federal witnesses should not we turn have been allowed cap- opinions asking sen reviews appellate offer their for a death court which Oklahoma challenged appropri has not ital The Tenth Circuit has reviewed tence. Bosse cases. capital appealed in several cases ateness admission the contents this issue one, themselves, impact In all but the court three statements from this Court. victim In recent than the the error harmless.6 deci- other sentence recommendation. found case, gener- discussing specifically sentence recom- In an without additional Tenth Circuit evidence, mendation, ally "improper” improper impact referred victim and found once, sion, Dis- word when asked whether District Court the Western “death” forth comprehensively set for sentence as trict Oklahoma recommendation had in deter- used the Circuit that factors Tenth three do doubt this all victims. We. mining family’s word, times, sentence single repeated a victim’s an whether had ef- five However, harmless. Underwood recommendation was on jury. the the witnesses fect (W.D.Ok., Duckworth, 2016 WL explained pleaded request, nor neither their sentence, 2016) pending). July (appeal These factors jurors note for a death We (1) quantity nature of the are the and recom- that, the twenty-three of who testi- witnesses (2) mendations, limiting presence of instruc- mitigation Bosse, of for sixteen fied (3) impact testimony, regarding tions victim family his life had value friends and said (4) overwhelming the surety guilt, of and the jurors them, specifically and asked fourteen aggravating of support circum- evidence let Bosse live. weighing stances whether sentence whén given 61 Jurors the were Okla was Id. at 18. recommendation harmless. Jury regarding homa Uniform Instruction together, these factors offer a rea- Taken This instruction impact victim evidence. determining for an soned whether framework jurors’ specified of that consideration victim impact recom- improper victim statement impact evidence must limited a moral mending contributed the death sentence inquiry culpability, into Bosse’s not an sentencing adopt jury’s these verdict. We response. emotional were told victim Jurors the error in factors as we consider whether impact ag neither evidence itself was harmless, for consideration this case was and circumstance, gravating proof any of nor in future cases. circumstance, aggravating and did not af impact testi- Three victim witnesses . prove fect at least the State’s burden father, mother, fied the Katrina’s State. beyond aggravating one circumstance stepmother im- about the and each testified They they reasonable doubt. were told Katrina, pact on them of the of Chris- deaths impact could not the evi victim consider tian, above, Bosse Chasity. and As we noted (a) they proof dence found .until had of. of contest admission the content does aggravating beyond least one circumstance any of of other testimony, this substance doubt, by indepen a reasonable evidence the than sentence recommendation. death (b) evidence, impact and victim dent was, testimony that the record shows aggravation further found evidence affecting, be, emotionally it intended was outweighed finding one or more their jurors that each left some and statement mitigating 9- OUJI-CR 2d circumstances. spectators in tears. Bosse ju correctly This instruction informed 46. testimony emotional the effect exacerbated rors of the limitations on their consider However, the recommendations death. testimony. impact ation victim re We the emotional effect record shows quire jury trial the uniform courts use jurors de- the the result witnesses’ applicable instructions if state the law. scriptions impact crimes and Mitchell v. there would have occurred whether been Further- had sentence. recommended ¶ 62 Turning to the and fourth fac- third more, each was limited to one-word witness .a tors, the circumstantial prosecutor sentence recommendation. case\against strong.. not claim He Ginger sepa- very does asked about victim Griffin each supported insufficient his convic- rately, three evidence replied and she thus “death” tions. is- Our discussion of "substantive prosecutor times. The trial court warned stage against limiting regarding first questioning, sues raises that form single quantity testimony to Re- trial describes recommendation. breadth Furthermore, against Johnny Allen stated Bosse. we becca Griffin each evidence matic”, Mullin, Willingham Cir, ruling and found no error in this Court's harmless. F.3d (10th case, Mullin, 2002). In another court it that was admissible. Turrentine Cir., (10th 2004). recom- there no noted that sentence actual F.3d mendation, referring "enig- preserved Propositions XI XII that trial has suffi- issue for find review. findings supported jury’s cient The trial did not court its discretion abuse heinous, atrocious or permitting Ginger’s were testimony. the .murders As Katrina’s cruel, committed to avoid arrest. and were stepparent, Ginger permitted was a “victim” clearly that’Bosse had 142A-1(1). § The evidence showed testify victim, under As a she Katrina, stealing from committed been properly testified about the emotional and consequences murders these avoid her, psychological effects the murders had on XI, crime. As we discuss including victims, information about cir overwhelming supports the conclu- surrounding crimes, cumstances the man heinous, all three murders sion that committed, ner in which crimes were or atrocious cruel. her recommendations on each sentences O.S.2011, 142A-1(8). § count. 21 ¶ reli simple Bosse’s gave 63 Three a one- witnesses ance on misplaced. Goode State is In receive recommendation Bosse word Goode, person properly testify on was allowed to as a instructed death. Jurors family representative appropriately the the admitted victim who not fit the use into 142A-1(1) § guilt, categories “victim” impact and the evidence. case or the prove aggravating family to the circum categories “immediate member” very 142A-K4). Goode, ¶¶ by jury, strong. 10, § the 2010 stances found was OK CR single provides that, a stark to the This contrast 236 P.3d at 683-84. We held under circumstances, ease the Circuit Oklahoma Tenth family representa those where There, error was not found this harmless. not tive should have testified about the effect improper sentence recommendations were daughter. on her and her deaths own laden, proof emotionally Goode, ¶ 64, numerous 10, OK 2010 OR 236 at P.3d weak, and the aggravating Here, by contrast, circumstances was Ginger 683-84.8 Griffin guilt not defendant’s was clear-cut. Dodd 142A-1(1). § was herself a victim under (10th Trammell, 971, Cir. 758 F.3d 997-99 trial court did abuse its discretion 2013). Considering factors, all we find Malone, admitting this evidence. improperly rec that the admitted 34, sentence 62, 168 CR P.3d at 211. ommendations did contribute argues Bosse the combined effect death, jury’s recommended sentences of improperly impact testi- victim admitted beyond a doubt. were harmless reasonable mony a fair sentenc- denied him and reliable ¶11, Miller, OK CR at impact ing victim hearing. We found that Robinson, 994; “Super” aggravating chv testimony is not a 430; Chapman, 386 at P.3d at U.S. cumstance, Ginger testimo- Griffin’s S.Ct. at 828. that, ny properly We found was admitted. Finally, argues that Gin impact should not although witnesses victim step- ger testimony regarding her Griffin’s sentence recommend a been allowed Chasity, grandchildren, Christian and was jurors, beyond error was harmless impact improper. Victim statements proposition This is denied. reasonable doubt. surviving family given homicide cases including or parent by birth members Regarding Aggravating Circum- Claims grandparent, stepchild, adoption, or child stances stepbrother, stepsister, stepparent, or 21 O.S. XI Bosse (4).7 66 In 1(1), argues § 142A— insufficient stepgrandparents, claims that the evidence this list does not include heinous, ag or cruel support Ginger’s not have been atrocious should victim, objected each grounds gravating admitted. Bosse on these circumstance Lott, § persons 27, CR 142A-1. 2004 OK 142A-1 included in 7. Section modified in n.15, portions does are not affected. relevant 98 R.3d 347 n.15. Lott statute here, among Ginger Griffin is apply relies on 8. Bosse also 2004 OK Lott v. give im- persons specifically victim authorized case, In that the Court pact under the statute. among granddaughter noted that was not stomach, body Ya- Dr. violating Eighth and and her was charred. rights .Ms under the Chasity’s the Umted testified that the soot stom- Fourteenth amendments coub II, §§ cough Constitution and Article out the States ach she tried indicated it, “[T]he Constitution. Chasity 20 of the Oklahoma and swallow and that could smoke extremely wicked term means ‘heinous’ this if unconscious. not have she were done evil; shockingly ‘atrocious’ means term Chasity died smoke inhalation thermal vile; outrageously and the term wicked and is, rnjury she burned death. —that inflict a pitiless, designed to ‘cruel’ means no evidence that there was conclusive Mgh degree pain, or utter mdifference consciously Chasity after she suffered sus- suffering of others.” enjoyment of the put wound tained head and was 30, ¶ 79, Postelle eontmue to decline hold closet. We omitted). (quotation The State suffering proof required for seri- of conscious beyond a reasonable to show had burden physical must ous abuse be conclusive torture, in- that Bosse inflicted either doubt ¶8, 50, Browning, 2006 OK CR definitive. angrnsh great physical or extreme cludmg on 134 P.3d at 842-43. Bosse relies cases cruelty, physical abuse mental or serious the vic- where medical examiner testified victim; great an- physical cases each seconds, or tim died witMn victim abuse, the victim gMsh physical or serious unconscious, blind, possibly deaf at physical experienced conscious must have Simpson the scene. Coddington, 2011 OK suffering death. before 903; Turrentine v. 230 P.3d ¶ 59, The victim’s CR 254 P.3d at 708-09. ¶¶ CR 1998 OK actions is cru of the defendant’s awareness case, cases, present In both these unlike the circumstance. aggravating cial to tMs Under the victim no aware- showed had ¶ 64, wood, 247- OK CR at consciously to ness and was able suffer light in the most 48. We review evidence any appreciable length Here, by of time. State, considering whether favorable contrast, jurors reasonably infer that could aggra any rational of fact could find the trier Chasity alive and conscious as she was was beyond vating circumstance a reasonable head, closet, hit in the locked ¶17, 62, Coddington, 2011 OK CR doubt. Taking on trailer was set fire. the evidence alleged that each at 710. The State P.3d State, any light most favorable to the experienced physical victim conscious beyond rational trier of a fact could find suffering, likelihood mental and that the Chasity’s reasonable doubt murder was subjected saw the other victims attacked heinous, atrocious or cruel. cruelty anguish. them to extreme mental aggra pretrial motion to strike tMs Bosse’s ¶ Bosse also claims was vating to each was circumstance as victim that Katrina insufficient show and Chris trial, hearing. a denied after At Bosse de hemous, tian’s were atrocious or cruel. deaths aggravating murred to the of tMs eight separate Katrina had stab wounds. She circumstance as to each victim. The demur airway lungs. into bled her Death would rer was overruled. hours, anywhere taken from minutes to have during body time her wMch diverted blood ¶ Chasity had blunt force trauma organs. vital Katrina also had incised her head, may not may to her wMch to her hand consistent with defensive wounds her blood rendered unconscious. Her was by grabbing holding a inflicted wounds right put on found Bosse’s shoe. was She The stab wounds on her arms knife blade. closet, the master bedroom and the doorknob wounds, consistent with were also defensive was from the a chair. blocked outside with try Katrina inflicted while was conscious and was in was She the closet when the trailer ing protect like herself. Katrina was most depletion set on fire. Evidence showed ly Katri conscious when these were inflicted. oxygen Chasity incapacitated would have blunt Chasity’s na had also suffered force trauma fifty sixteen to bram minutes. swollen, right of her head. Katrina’s was her tissues had been side When showed she monoxide, found, exposed Mgh body legs laying across of carbon her were levels legs. airways, soot and Christian’s Christian had five stab esophagus she had in her intent, injuries neck, proved to his and The defendant’s Two which wounds. evidence, chest, damaged major proof circumstantial is crucial to veins wound bleeding. significant aggravating Codding Like Katri- of this circumstance. and caused ton, 706; na, body Christian’s diverted blood vital Lott, 27, 116, organs, which would have taken some time. OK CR 98 P.3d at 348. arm con- The stab wound Christian’s alleged pred 71 The State that the sistent with a defensive wound received when icate crime was Bosse’s theft of the Griffins’ consciously trying to he was defend himself. personal property. July On Katrina force trauma to He also had blunt the head. games discovered that fifteen video supported Other evidence inference missing Katrina.suspected from the trailer. struggle. aof Bosse was interviewed When friend, Price, Henry that a stolen the had; injuries, including July on he had several sheriff, games. calling Before Katrina right long knuckles abrasions persuaded take her to her friend scratch on his arm. There was a hole Malloy’s Heather house search of Price to the master bedroom consistent door Malloy, that night. When she could not find punch. fist Evidence Christian was showed report Katrina called the sheriffs office Katrina; pocketknife protective Chris present the theft. Bosse was at Katrina’s dresser, tian’s, kept in Katrina’s which Cunningham Deputy trailer when took Katri body. Katrina’s Evi was found underneath Price, report. na’s contacted after the mur that a was conscious and aware dence victim ders, stealing games. the video denied supports finding of an of torture and attack crime, day PlayStation after the had abuse, physical presence serious as does the console, Wii, game televisions, laptop com Black v. of defensive wounds. OK puter, games and video from Katrina’s DVDs 1074; Alverson v. trailer. At the time of his arrest the ¶ State, 21, 61, 498, 1999 OK 983 P.2d CR 23, evening July pawned Bosse had some light Taking in the most 615. the evidence items; of these others were his truck or State, any to rational favorable the trier apartment. attempted to Bosse conceal beyond fact could find a reasonable doubt possession disposal of and all these items that the deaths of Katrina and Christian addition, mitigating from law In enforcement. heinous, were atrocious or cruel. Easlick v. family evidence from Bosse’s included testi ¶ State, 21, 16, 556, 90 2004 OK CR P.3d 659. mony years that for Bosse had stolen several proposition This is denied. money property from close friends and family Taking members. the evidence the ¶ Proposition 70 Bosse claims XII State, light the rational most favorable to prove that the evidence was insufficient to beyond of fact could find trier reasonable aggravating the “murder to avoid arrest” that committed all three mur doubt beyond a circumstance reasonable doubt prosecution. Easlick, to ders avoid arrest rights Eighth violation of his under the ¶ 15, 21, 2004 90 P.3d at 559. This OK CR Amendments Fourteenth United proposition is denied. II, 7, §§ States Constitution and Article 9 ¶ and, XIII, claims Proposition In that 20 of the Oklahoma Constitution. 72 Bosse’s by aggravating to this circumstances found the demurrer evidence was overruled at the narrowing function jury perform to com to the trial. The State had show that Bosse failed crime, separate required Eighth and Fourteenth predicate the mitted the murders, killings United Constitu three and that were Amendments States II, 7, §§ 20 of the prosecution arrest or for that tion done avoid and-Article argues none predicate Coddington, He crime. 2011 OK CR Oklahoma Constitution. ¶ circumstances, 17, present aggravating at 705. must of the P.3d The defendant instructions, intend, through predicate jury ade just not to commit the ed to the crime, narrowing function neces quately to that but eliminate witness serve State, by killing sary application ciime the victim. Smith v. for constitutional ¶ 576; rejected 14, 59, penalty. repeatedly 2013 OK-CR 306 P.3d death We Lott, arguments. Specifically, we have found 98 P.3d at 348. these Stages Claims Common to of Trial aggravating circumstance Both great defendant created a risk death Testimony Medical Examiner’s person is more than one constitutional. Wood ¶17, 26, State, OK CR 168 P.3d III, argues In aggravating circum have found 477. We entirety of the medical examiner’s testi to. stance that the murder was committed inadmissible, mony the medical because prosecution sufficiently is avoid arrest office is accredited examiner’s to be Hanson v. narrow as constitutional. provide testimony pursu therefore unable CR OK P.3d that, ant to law. He state claims without aggravating circum found We have testimony, in medical examiner’s there heinous, atro stance that murder was establish a.cause of sufficient enough to consti cious or is narrow cruel . addition, death In examiner’s medical ¶ 61, Smith, OK CR tutional. testimony aggrava used establish the 677; Postelle, CR circumstance that the murders hei ting notes, Bosse at 144. As the State nous, or cruel. atrocious narrowing admits this limitations for each circumstance are insuffi Yacoub, Dr. Inas board-certi because, alleges, they cient have been pathologist fied forensic with the Medical rejected inconsistently applied. We have office, performed autopsies Examiner’s argument, stating, aggravating “an circum on all victims for the three and testified State stance does become based ‘overbroad’ Dr, at trial. Yacoub described detail upon applied particular it is the manner victims, physical of all three condition stated 2006 OK cases.” Mitchell death, their causes concluded (quoting DeRosa v. each a homicide. Dr. death was Yacoub testi 19, ¶ 91, that, building equipment fied due defi 1165). loads, high case the Medical ciencies ¶73 proposition In this com- Bosse also has been Examiner’s office accredited plains about two instructions. He notes that that, since 2009. Bosse claims because the jury is no there uniform instruction for the Examiner’s office Medical lacks accredita : aggravating circumstance that the defendant tion, Dr. Yacoub’s was inadmissi great risk of to more than created death ble. Admission evidence within the trial person. objected one Bosse neither discretion, Neloms, 7, court’s 2012 OK CR instruction, requested of an absence such nor An of P.3d at 167. abuse discretion instruction, an such all but and has waived arbitrary any is or action unreasonable made Postelle, plain error. 2011 OK CR proper without consideration of the relevant P.3d at 144-46. no We have held that law, as clearly facts also described and separate defining ag- uniform instruction this judgment, clearly and erroneous conclusion gravating finding necessary, is circumstance against logic and effect of the facts. statutory language explaining that use of the ¶7, Neloms, 274 P.3d at 170. aggravating this sufficiently in- circumstance trial, Bosse not raise this claim at or jurors forms necessary support what is a object testimony on Dr. Yacoub’s these finding it present. is Eizember grounds plain has all and waived error. ¶¶ error, Plain error is an actual that is or plain complains 241. Bosse also in- uniform obvious, that affects a sub and defendant’s aggravating struction on the circumstance rights, affecting the stantial outcome heinous, that or murders were atrocious 2012 OK trial. Barnard v. CR cruel fails narrow the sentencer’s discre- objected instruction, tion. Bosse and this ¶76 Laboratory The Forensic request Accredita for a different on this instruction (Act) passed tion Act in 2002. by 74 O.S. circumstance the trial denied court. 150.36, 150.37. that, admits, provides §§ It rejected As of this this Court has Postelle, July claim. 2011 OK all forensic laboratories defined already operating by proposition P.3d at 144. This the Act is denied. and that date maintenance, formally recognized by analysis testing shall be and of foren- accredited — or, accrediting body meeting exceeding evidence, testing an sic and lab- and calibration applicable O.S.2011,, quality O.S.2011, standards. oratories. 150.37(A)(2), (B). §§ § pro 150.37(A)(2),(3),(4),(6),(8). The Act further The em- State results, “testimony, reports, phasizes vides that or the Act’s references ISO/IEC analysis produced of forensics on 17025 evidence These standards. are' as the defined prosecution Organization of in a behalf criminal trial International of Standards/In- by shall be done forensic labo ternational accredited Electrotechnical Commission 150.37(C). O.S.2011, § ratory.” An published by Organiza- standard accred by laboratory “operated is one tion for ited forensic Standardization and Interna- municipal, county, or of tional Commission, specific state unit Electrotechnical city government testing or other local examines maintenance of forensic and (4). physical O.S.2011, 150.37(A)(3), § evidence. criminal matters 74' provides opinion testimony certainly in court These of law.” references that the indicate §, 150.37(A)(5). O.S.2011, Act is specifi apply Act intended to all laboratories cally excepts types, testimony, several re which maintain toxi- equipment conduct (a) sults, reports, testing cological, types forensic evidence: breath similar anal- (b) alcohol; testing, ysis commonly crime laboratory setting, scene “field done collection, processing, using .crime scene evidence 'which be reviewed ISO/IEC searches, question examinations 17025 standards. The is enhancements whether this, evidence, digital language and crime scene reconstruc is Dr. exclusive. Yacoub testi- (c) tion”; print performed latent examination fied that the Medical Examiner’s office ac- examiner; by print crediting body an IAI certified latent is the National Association (d) marijuana parties identification Medical Examiners. ask using generally accepted Court to type physi- methods decide whether which approved by properly bodies, cal analysis per- been accredited fo examination and O.S.2011, laboratory. by office, rensic formed Examiner’s Medical § 150.37(C)(3),(4),(5),(6). argues by which could be accredited a nation- ally recognized accrediting entity, Medical Examiner’s office conducts ex also equivalent analysis, scope forensic within the aminations the Act.9 The State ar- results, produces that, prepares reports pro gues object on because Bosse failed testimony prosecution grounds trial, behalf these is not a vides there suffi- argues criminal that Medical concerning trials. He cient application record any excep office is not within Examiner’s to forensic 17025 standards ISO/IEC tions to rule. Because the pathologists. necessary accreditation Such record accredited, Medical is- not Examiner’s office of this claim. this Court’s resolution claims, Dr. Yacoub’s pathologists Forensic with the Medi- inadmissible. investigate cal Examiner’s office deaths ¶77 bodies, physically examining performing The State the Medical au- subject topsies, reports Examiner’s office is not to the issuing ac- and written with requirement opinion creditation of the Act. The of the cause and manner death. specific Cuesta-Rodriguez State notes that definitions other ¶ accrediting included the bod- refer The Examin- Act P.3d 228. Medical laboratories, laboratory reasonably autopsy ies concerned with er expect reports should operations, testing biological samples, of to be in a Dr. prosecution. used criminal Id. repeatedly sepa- 9. The terri- State veers into irrelevant that the Medical Examiner’s office uses a tory. length rate, First the State recites at Yacoub’s laboratory perform toxicology Dr. accredited qualifications, which and are were not contested may probative tests be the claim that the qualifications not at issue. Her can have no effect subject Medical Examiner’s office is itself on whether the Examiner’s office is sub- Medical However, regarding specific the Act. ject spends great §to 150.37. The State also Curtis, case, Dr. the tests and results this and discussing qualifications, deal of the conclu- time practices, toxicology laboratory the internal of the sions, surrounding testimony and discussion before Court. are not relevant to the issue this Curtis, toxicologist. of Dr. State's fact ¶8, 13, try to reconcile at 268. We examined the Yacoub testified she bod- ies, samples general language sent blood the victims statutes with more and toxicology laboratory analysis, be- provisions, give to the specific statutory effect ¶ laboratory constituted an ad- cause the tests Leftwich, each. con- tool she could use reach her ditional Specific statutory language controls at 155. duties clusions. The that these State Crowley, general language. over State “laboratory con- not constitute work” as ¶ do 22, 4, 99, 100. As the OK CR State templated the Act. notes, recently Legislature sev amended concerning the Medi eral sections of Title 63 the Medical find that whether We Laws cal Examiner’s Okla. Sess. office. subject office is to the accredita- Examiner’s 293. The does indicate record before us provisions of the Act not determine tion does aware, time, Legislature at testimony Dr. is whether such as Yacoub’s has unac the Medical Examiner’s office been responsibilities of and admissible. duties However, office, of its since 2009. it has been Examiner’s credited Medical actually pathologists, separately Legislature are forth that the forensic set established fact,10 yet in Title 63. The Medical is re- aware amended the Examiner investigate quired relating the cause and manner of that statutes to the duties office O.S.2011, §§ any deaths. 63 941. violent that lack of without reference to effect duties; physical This includes a examination may From have on its accreditation deceased, body physical this, Legislature collection that the intend we conclude body, specimens from the review medical office to function ed the Medical Examiner’s evidence, records, photographs of the scene required by provi as is set forth in and death, objects'or writings near the 63, independently ac sions Title O.S.2011, §§ every For body. that, long creditation issues. conclude We investigators investigation, Medical requirements met in as the of Title 63 are prepare reports, in- Examiner must written case, Ex each of the Medical accreditation autopsy report, cluding an must which be weight of goes aminer’s to the office investigating agencies. 63 O.S. furnished If, evidence, admissibility. here, not its §§ 945. The Medical Examiner jurors presented are evidence that the keep specifically required to a full record of Medical Examiner’s office was unaccredited investigation, including any autopsy re- jurors may give autopsies, time of port, appropri- to submit records weight they information feel whatever attorney, required ate district appropriate. testify regarding report. the records or properly 81 Dr. Yacoub’s O.S.2011, § 949. no Title 63 contains While Furthermore, although this is not admitted. requirement of- that the Medical Examiner’s required admissibility, jurors were made accredited, fice itself must be each individual aware, through testimony, of the accredits appointed by medical examiner the Medical issues, tion consider them could to-practice must be Examiner board certified weighing The trial Dr. Yacoub’s evidence. O.S.2011, pathology in forensic Oklahoma. 63 court abuse its discretion admit- did not § 937. ting this Because there was no evidence. statutory interpreting 80 When error, plain proposi- no This there was error. paramount give provisions, our concern is to tion denied. Legislature’s effect intention. Leftwich 2016 OK OR Prosecutorial Misconduct 155; Iven, State OK CR ¶ X, In plain P.3d 268. We consider prosecution engaged in language statute, of claims that delib ordinary statutes other trial, during stages of subjects, erate both involving the misconduct same similar depriving rights any him of his to a fair trial and consequences “the natural absurd Iven, hearing interpretation.” sentencing in violation of the particular CR reliable 5, 4,¶ Leftwich, OK CR 152. 10. 350 P.3d at ¶

Eighth complains prose- Fourteenth Amendments 84 Bosse next that the II, impermissibly and Article cutor United States Constitution defined reasonable doubt by arguing it “beyond that was not 9 and 20 of the Oklahoma Consti all sections object doubt”. Bosse did not in state- parties tution. Both have wide latitude this plain ment and we review for error. There is argument argue closing the evidence and none. have held that it is not error to We use Coddington, from it. reasonable inferences discussing phrase reasonable doubt. 17, 72, 254 2011 OK CR P.3d at 712. We State, Myers v. grant argument improper not will relief P.3d 329. unless, in the context the whole viewed trial, the statements rendered the trial fun argues prose 85 Bosse that the unfair, damentally jury’s so that the verdicts proof cutor shifted the burden of CR are unreliable. Miller v. 2013 OK Discussing alibi, prose Bosse’s defense. ¶11, 116, 313 a trial P.3d We review 974. that, argued taking cutor even into account concerning argument court’s decisions of Detective Huff and Bosse’s abuse of Underwood v. discretion. 2011 mother, nothing Bosse had shown other than ¶12, 75, OK CR 250. Bosse prove his own statements whereabouts statements; objected to some we review the during the time the crime could have been plain others for error. Id. at P.3d closing, In committed. defense counsel had error, Plain error is an actual that is argued experiments that Lord’s con were obvious, plain or affects a and that defen way trived conducted such a as to fit affecting rights, the out dant’s substantial prosecutor argued timeline. The the State’s Barnard, CR come 2012 OK trial. reply defense counsel had not that shown ¶ 13, 290 P.3d at 764. agreed enforcement and law Lord ever guilt, to fit to “fix” the timeline Bosse’s but complains sepa 83 Bosse of three jurors that Bosse to infer this in wanted closing argument. stage rate errors first help order manufacture his defense. First, improperly prosecutor he objections to these comments Bosse’s for the commented his lack remorse overruled, These statements were not error. that, during crimes. Detective Huff testified not defense has Where the offered interview, unusual reaction Bosse had an issue, may argue prosecutor on an if when was sad the victims’ asked he about Myers, the evidence uncontroverted. deaths. The trial court Bosse’s ob overruled ¶12, 61, 329; P.3d at Fite v. OK CR jection topic but noted that the was dose to 58, ¶ 21, 1993 OK remorse, improper and the discussion of these comments 297. Neither shifted ques prosecutor moved on to another line proof to Bosse. Bosse claims the burden argued tioning. closing, prosecutor In commenting prosecutor erred long, calm Bosse’s initial reaction —a independently could have tested the DNA prosecutor la silence —was not normal. The objection was evidence. Bosse’s overruled. ter what asked Bosse could meant error, not This comment was State reply, his eventual “I’m more awe.” In to, may note that a defendant had access closing, prosecutor argued second test, Myers, not did evidence. there was “some emotional connec kind 12, 61, 133 prosecutor at 329. The then statement, missing tion” from this and one proof, noted the had burden State expect, if would Bosse had committed the argue argued that the defense should crime, upset” by that he be “a little bit would the chance about results when Bosse had test object to the deaths. Bosse these objec himself. Bosse’s test the evidence plain has jury comments and waived all but error tion and the was admon was sustained ished, them. These are not comments on request for a mistrial was but his Rather, prefaced Bosse’s lack of are prosecutor remorse. denied. Given by stating reasonable inferences from the evidence of the correct burden the comment proof, necessary, Bosse’s and the reaction news of the victims’ no mistrial was deaths. cured error. Johnson trial court’s action where, ¶12, 16, P.3d 1053, ty being State, not error rather are than v. CR juror’s personally, appeal to phrased 1057. . justice understanding Hogan, 2006 OK of prosecutors the 86 Bosse ¶19, 90, 139 935-36. It is not CR P.3d at arguments during improper sec four made argue justice requires imposi to error that stage dosing argument. He first claims ond penalty of the death under the tion facts prosecutor improperly that the commented request to particular of A case. Id. law a support In of courtroom demeanor. argument impose penalty, the death or an present charge con the that Bosse would a particu penalty the a proper death is that tinuing society, prosecutor threat to the ar case, lar or.that a death defendant deserves continuing one that of indicator threat gued sentence, necessarily, more, not are without remorse, a lack Bosse was noted that opinion. Pavatt. expressions personal photographs the did not flinch the when 19, ¶ 63, State, 2007 OK CR objection displayed. Bosse’s was victims jurors sustained admonished disre gard any on Bosse’s comment demeanor. prosecutors improp 88 Bosse claims that Johnson, This cured error. jurors sympathize erly encouraged ¶12, 16, 308 P.3d at 1057. The record does prosecutor the victims. The described what argument otherwise, support par not Bosse’s might thinking the been victims have jurors not that ticularly as did find feeling as crimes were committed. The the present society. continuing threat would prosecutor gesturing record shows the was

¶87 complains during speech. next becoming that emotional the personal prosecutor expressed opinion objection. The court overruled Bosse’s trial the During prosecutor regarding, appropriate closing, sentence. The second the the de detail, prosecutor argued explicitly first that had scribed the attack without penalty. jurors imaginé The court asking earned the death themselves in trial objection, during The record overruled Bosse’s but admonished situation. shows prosecutor argument argument prosecutor lay the confine her on the floor “hollering, prosecu gesturing wildly her with his recollection arms evidence. rephrased say way making tor her comment that mimics someone a knife s objection Bosse had earned attack.” Bosse’s wa evidence showed death overruled. actually presents penalty, This claim two issues —the and discussed .evidence. While appropriateness initially poorly phrased, argument itself the record shows personal prosecutor’s making argu not opin actions in that this comment was argued prosecutor ion. ment. have- held a ask closing, the State We Later jurors put place person in a victim’s who could commit these crimes themselves children, describing against, experience, particularly, the while the victim’s deserved long objection argument-is as the on the evi punishment. ultimate Bosse’s .to based Browning personal opinion dence. was overruled. record 839; personal expression not shows this Malicoat was ¶1, 383, 401; opinion, presented. 2000. OK on the CR based second, ¶¶ argued Hooper During closing, OK CR State argument hei’e penalty for the 947 F.2d 1110. The death was reserved worst issue, worst, sitting improper. second Turning front to.the .the who emotional, jury. distinguished physical objection was The we Bosse’s overruled. ar gument argued get specifically Bosse should bene which directed State defendant, (and slaughtering improper) fit from theatrics people three at one time. thus Although sustained, jury, objection properly Bosse’s which are directed .otherwise-proper .argument. request the trial illustrate court refused his admon which Underwood, 12, ¶ 75, jury. Finally, argued prosecutor ish the 2011 OK at 250. This the case The trial he believed death was the best re here. court verdict flecting justice overruling its Bosse’s actions. abuse discretion Remarks argument. penal to this Id. appropriateness objections about the Bosse’s death .the

865 claims, argued failing 89 Bosse claims the was State trial counsel for ineffective object to parole testimony, Dr. life Yacoub’s for without did not amount and object improper failure punishment. support comments in the The record does not closing argument. State’s prosecutor jurors; Bosse must show urged this claim. The not performance deficient, that counsel’s was manipulate into to let Bosse recom them death, that the performance prejudi deficient was mending a less than sentence Miller, ¶11, cial. 145, OK CR 2013 313 P.3d object. argument not was based on did 982; Smith, Wiggins 521, at 510, v. U.S. 639 family Bosse’s and friends said 2535, 2527, (2003); 123 S.Ct. 156 L.Ed.2d 471 manipulative, was was not error. The Washington, 668, 687, Strickland v. 466 U.S. argued prosecutor parole life without (1984). 104 S.Ct. 80 L.Ed.2d 674 consequences”, to “no amounted extra Counsel’s acts omissions must have been way which the victims were killed so deprived serious that Bosse was aof fair consequences. extra As deserved we discuss trial Harrington with reliable results. above, objection Bosse’s when was sustained Richter, 86, 104, 131 770, 562 U.S. S.Ct. 787- prosecutor argued that Bosse should 88, (2011). 178 624 L.Ed.2d Trial counsel’s get slaughtering people benefit of three performance by objective is measured an once, jury request at but his to admonish the standard prevailing under .reasonableness object was when the overruled. did professional Coddington, norms. 2011 OK CR statement, prosecutor repeated argued 17, ¶ 78, 713-14; 254 Rompilla at P.3d get punishment Bosse should not the same Beard, 125 U.S. S.Ct. one, for three as he would asked (2005). L.Ed.2d Bosse must consequences. twice extra relies on that, probability demonstrate reasonable prosecutor Illinois case which the ar performance, absent counsel’s deficient that, law, gued based on Illinois the defen outcome the trial would been differ have automatically dant would receive life without jury ent and the would concluded the victims, parole for anything two so less than aggravating balance circumstances free, give would five death defendant mitigating support evidence did not the death Supreme murders. The Illinois Court found penalty. Coddington, 2011 17, ¶ 78, OK CR inflammatory, this inaccurate as state 713-14; Miller, 254 P.3d at law, by supported ment and not the evi ¶ 145, 982; A proba at Reasonable Kuntu, People dence. 196 Ill.2d bility is 'confi one sufficient undermine (2001).This Ill.Dec. 752 N.E.2d Fisher, dence in outcome.- distinguishable. jurors is Bosse’s were case ¶12, 7, give great 206 P.3d at 609. We defer imposition faced with automatic decisions, considering ence to counsel’s them penalty, and had taken an oath consider all according perspective to counsel’s. at punishment options three available Okla Rompilla, 380-81, 125 time. 545 U.S. at S.Ct. argument homa. The neither a State’s 2462; Wiggins, at at U.S. S.Ct. misstatement of nor of the facts. The law presume at 2536. counsel’s conduct We prosecutor’s request consequences for extra professional, his actions consid on the based The trial court evidence. product ered the of a trial strate reasonable overruling not abuse its discretion in gy. Coddington, 2011 OK CR objections. Underwood, Bosse’s at must he was 713-14. Bosse show ¶12, 75, 252 at 250. prejudiced acts omissions. counsel’s ¶90 prosecutorial preju- No misconduct' Taylor, 529 U.S. Williams Bosse, diced proposition denied. (2000); 1495, 1513-14, 146 L.Ed.2d 389 S.Ct. 693, 104 Strickland, at S.Ct. U.S. Ineffective Assistance Counsel prejudice, fails to show Where defendant assis dispose of claim of ineffective we will Proposition Bosse claims Marshall, 2010 OK CR ground. tance XIV trial counsel ineffective ¶8, 61, at 481. violation of the Sixth Amendment ¶92 II, prejudice Article United States Constitution and no Bosse can show § 20 of the Oklahoma Constitution. Bosse found counsel’s omissions. We determining of- 95 In whether the II the Medical Examiner’s that whether weight imposed of goes to of the sentences death were under fice is accredited passion, prejudice any or testimony admissibility. As influence of other rather than its admissible, factor, arbitrary independently testimony we do not Dr. Yaeoub’s was aggra prejudiced reweigh supporting from trial counsel’s was not the evidence Bosse object admissibility vating against presented to failure to its circumstances that Proposi- In grounds mitigation. of of in This “does not act as an lack accreditation. Court X, of the tion found that none State’s or independent we factfinder substitute our closing argument, to trial comments in which judgment for that of the of fact.” Ma trier object, Trial not error. State, counsel did 2013 OK CR lone failing to Rather, counsel cannot be ineffective review the evidence we object As is no to these comments. there “only necessary extent determine omissions, prejudice from counsel’s we will sufficient from whether there was evidence proposition not find counsel ineffective. This a rational sentencer find which could that is denied. aggravating mitigating of cir balance and warranted a sentence.”

cumstances death ¶1, of Error Malone, Accumulation 2013 OK CR 293 P.3d at (quoting Fisher XV, In Bosse claims ¶ 25, 1003, 1011). of deprived of him a the accumulation errors sentencing. trial He that fair and mitigation, presented 96 In evi- errors, together, trial taken re individual significant that he had no dence criminal only in quire relief. found one error We prior history non-vio- and his crimes were preceding propositions. determined We lent; ability appreciate that his the crimi- photographs of Proposition VII that two greatly by nality impaired of his was conduct body not burned have should been Chasit/s alcohol; drugs drugs that he and used since However, admitted. found admission we year high regularly school his senior and beyond photographs harmless those was pills methamphetamine; and that be- used single doubt. error has reasonable Where his father him cause abandoned and did addressed, is no error. there been cumulative relationship, maintain a he was de- close Bell 2007 OK prived proper opportunity of the to have a fairly 627. Bosse’s trial was conducted. model; neglect- male role that Bosse’s father 10, 37, 165 Brumfield brother; him he ed and his that childhood proposition 840. This is denied. nega- injuries suffered that head health; tively mental that contributed his Mandatory Sentence Review him; and that his brother bullied teased (a) family, him must whether friends and described We determine cellmates thirty imposed generous helpful; un- that he sentences death were and Bosse’s trial; passion, prejudice years old at the time he would the influence that der (b) factor, life; arbitrary prison other and whether the structure that benefit findings helpful, supports family court’s said Bosse co- evidence the trial members O.S.2011, lives; operative aggravating a contribution their circumstances. and 701.13(C). Propositions family by § In XI and XII that his friends and we were shocked crime, they support believed it the evidence sufficient was out found because aggravating shy, quiet, nonaggressive circumstances mur- that the with his character heinous, cruel, personality, ders were and did not lose his atrocious temper; physically that he his moth- were committed order avoid assisted chores; grandparents he prosecution arrest for another crime. er and with gladly helped family friends re- also established when evidence that Bosse’s great quested; family actions created risk more that his friends and main- death relationships person. sup- than he was one We tained with while find incarcerated; ag- employers ports findings the trial court’s described gravating present. him hai'd who circumstances were as a worker self-starter co-workers; admissibility got along that his such as with mother Dr. Yacoub’s grandmother maintained close relation- determined ship jail through daily telephone with him whether the Medical Examiner’s office is visitation; weekly subject conversations the accreditation provisions The good relationship nephew, with his Laboratory had a Forensic Act. Accreditation playing attending sporting him long Court’s conclusion that “as as the re- events; case, that his father’s alternative bisexual quirements of Title 63 are each met lifestyle upbring- was detrimental to Bosse’s accreditation of the of- Medical Examiner’s ing; struggled provide that his mother goes evidence, weight fice children; that his her mother suffered from admissibility” its is also It is correct. worth depression struggled to maintain a clean mentioning, however, admissibility childhood; proper during home his always prefaced of this evidence must' family and him that his friends loved upon finding relevancy. threshold This for him live. wished ruling any way suggest Court’s does not or support assumption regard- that evidence ¶ thoroughly reviewing 97 After the entire ing accreditation of the Medical Examiner’s proceedings, penalty we trial find the death always office-will be relevant. imposed pas- not under the influence sion, any prejudice arbitrary other factor. 701.13(G). O.S.2011, § improperly No ad- LUMPKIN, P.J., Concur Part Dissent argument evidence or affected mitted in Part:

jury’s sentence. The sen- determination ¶ 1 I affirming Appellant’s concur in con- factually tences of death are substantiated however, sentences, victions and I cannot 701.13(F). O.S.2011, appropriate. § acquiesce analysis in the Two. resort, As a court of last must State we DECISION independently construe Federal Constitution- Judgments 98 The and Sentences of the existing precedent on al based issues County AF District Court of McClain are Supreme not the United States Court and 3.15, FIRMED. Rules Pursuant Rule speculate that Court what do not Appeals, the Oklahoma Court of Criminal in the future. do (2017), 22, Ch.18, App. Title the MANDATE ¶2 Appellant Fifth neither invoked upon delivery is ORDERED issued right fully to silence nor invoked Amendment filing of this decision. right his Fourth Amendment to refuse con- Instead, present sent search in the case. LUMPKIN, P.J.: CONCUR IN officers, voluntarily spoke he’ with the indi- IN PART PART/DISSENT cooperate fully cated that with would LEWIS, CONCUR V.P.J.: permit investigation, refused to the officers to conduct a full of his truck but did search JOHNSON, J.: SPECIALLY CONCUR n (cid:127) agree to a as as the limited search well HUDSON, CONCUR J: photographing of the vehicle. contents investigators several photographed JOHNSON, JUDGE, SPECIALLY Katrina Grif- items which were with marked CONCURRING: Ap- searched fin’s initials. the officers When agree 1 I affirm the decision to this with pellant’s pursuant truck search warrant clarify point regarding I one write ease. later, hours most of the items were a few relating at trial of the introduction trial, Appel- gone. At introduced the State to the Medical Examiner’s office’s lack indicating voluntary that he lant’s statement accreditation. cooperate investigators, allow with the would contents, to- photographs this of the truck’s The issue addressed Court to a full gether this to consent case whether Dr. Yacoub’s refusal truck, and the results because the Medical Exam- search inadmissible prose- closing argument, the agree I later search. In iner’s office is accredited. prosecution may argued Appellant’s to con- use evidence of refusal cutor suspect’s police well guilt. to his statement to the pointed sent to the search State, Hogan v. pre-arrest silence. ¶3 now, challenges both the Appellant, 1157, 1161. 877 P.2d “Volun- concerning admission State’s kind are not barred teered statements of his to consent a full search his refusal Miranda, by the Fifth Amendment.” comments con prosecutor’s vehicle and the 86 S.Ct. at 1630. In Salmas U.S. at closing argument. cerning that evidence Texas, 570 U.S. S.Ct. challenge timely Appellant failed Béeause (2013), Supreme Court de- L.Ed.2d trial, prosecutor’s comments at prosecution’s use of crim- termined plain error claim Court reviews his under suspect’s inal noncustodial silence did Simpson the test set forth in violate the Fifth Amendment because the Malone OK CR suspect expressly privi- had invoked 211; Id., lege against self-incrimination. 133 S.Ct. Hogan 19, ¶ 38, OK CR Salinas, opinion). In (plurality 2178-79 907, 923.1 gone suspect voluntarily police had police the station answered officer’s ¶4 Supreme States Neither United the questions but and fell silent when the balked previously nor has deter- Court this Court shotgun officer his would asked whether of a criminal defen- mined whether evidence at match the shells recovered the murder to a is consti- refusal to consent search dant’s Id., scene. 133 S.Ct. at The Su- 2177-78. application prohibited. of tutionally Strict preme suspect’s Court determined that the precedent the Fifth Amendment results not the of silence did constitute invocation the evidence was admissible. conclusion Id., privilege. Fifth the Amendmént 133 S.Ct. ¶ Supreme 5 Court dis The United States at 2178-79. tinguishes following occurs silence which ¶ case, present Appellant In the was not 7 Miranda v. receipt warnings pursuant of custody voluntarily to the but traveled U.S., Arizona, 436, 1602, 16 384 86 S.Ct. investiga- office and Sheriffs answered (1966), prior 694 from silence L.Ed.2d receive a Mi- questions. not tor’s He did Ohio, Doyle warnings. v. receipt of such In randa warning expressly and never invoked 610, 2240, 49 426 96 L.Ed.2d 91 U.S. S.Ct. privilege against his self-incrimination. (1976), Supreme Court determined that Therefore, prosecution’s of Appel- use prohibited from process prosecutors us due investigators lant’s statements silence, ing suspect’s a-criminal the time at the Fifth violate Amendment. receiving Miranda arrest and warn after fact, Recognizing Appellant 8 seeks this Id., ings, impeachment at purposes trial. apply reasoning this to have Court 619, at 96 2246. This 426 U.S. S.Ct. at result California, 609, v. 380 85 U.S. S.Ct. Griffin Id., compelled the Miranda decision. by (1965), 1229, 106 14 circum- L.Ed.2d 617, Jenkins 426 U.S. 96 In at S.Ct. at 2244. pros- stances ofihis case. He asserts that the Anderson, 2124, v. 231, 66 447 U.S. 100 S.Ct. ecution’s use of his refusal to consent to a full (1980), Supreme L.Ed.2d 86 'Court deter of his truck “pen- search was identical apply mined that this a sus rule did alty” Supreme Court identified pect’s pre-arrest prior to receipt silence 24-25). (Brf. Griffin. Miranda warning’s implicit promise Id., against Appellant 9 cites the silence will not Tenth Circuit Court be used him. 447 Do 240, 100 United States at v. U.S. at Appeals’ S.Ct. 2130. decision 701; 19, 694, 699, State, Levering plain 1. Under the error v. 2013 test for set forth in OKCR 395; 392, Simpson v. OK CR 876 P.3d 2013 1994 OK 315 Malone error, 1, 41, appellant This must show an actual CR 211-212. Court obvious, plain seriously affecting only plain rights, or error if the will error substantial correct fairness, fairness, public seriously integrity integrity reputation and which or affects the affects the ' public reputation judicial proceedings judicial proceedings repre or or of the otherwise miscarriage justice. Hogan miscarriage justice. represents otherwise a sents a Id., 19, 38, 26, 30, 2006 OK 876 P.2d at CR (10th zal, 1999), persua against into quite 173 F.3d 787 Cir. accused evidence him is Dozal, point. agree. I In- on this another. sive “asking jury

Tenth Circuit concluded Id., 380 U.S. at 85 S.Ct. at 1232-33. from” the failure draw adverse inferences Robinson, In United States v. 485 U.S. “may impermissible to consent to a be search (1988), S.Ct. L.Ed.2d 23 testimony if the is not as a fair admitted Supreme expand Court refused to Griffin response by to a claim the or for defendant prosecutor’s argu include fair response to proper purpose.” Id., at some other 173 F.3d defendant, but, instead, ment explicitly (citing McNatt, United States v. precluding prosecutorial limited Griffin (4th 1991)). Cir. F.2d treat comments which the defendant’s silence Id., guilt. substantive evidence 485 U.S. ¶ 10 Dozal is consistent with the United 32, 34, 108 (“There at may S.Ct. 869-70 be Supreme interpretation States Court’s as to having some “cost” to the defendant re penalty for the exercise of what constitutes ”). mained silent each situation .... There right. question, It constitutional is without fore, prosecutorial concerning comments criminally may not that an individual be criminal defendant’s to a refusal consent prosecuted for the mere to consent to refusal search which solemnize the refusal into sub Bostick, 501 search. a warrantless Florida guilt prohibited evidence of stantive are 2382, 2387, 116 U.S. S.Ct. concerning the refusal itself (1991); Municipal L.Ed.2d 389 Camara permissible if the admitted as a Francisco, City County Court San response fair to a claim defendant 1727, 1736-37, U.S. 87 S.Ct. proper purpose. for some other (1967). However, L.Ed.2d ¶ Applying analysis present right of a assertion constitutional does case in the trial results conclusion that the penalty in all In constitute instances. Grif court not abuse it recog did its discretion fin, Supreme the Court when United States Appel- admitted the officers’ about prohibits the .Fifth nized Amendment lant’s refusal to to a full of his by prosecution consent search comment the on the accused’s ¶ 35, 7, Neloms by vehicle. v. 2012 OK CR testify jury the refusal instructions 161, guilt. Appellant’s 274 P.3d 170. Because refus- court that such silence is evidence of 616, to consent to a full of his Id., al search truck was at 1233. 380 86 S.Ct. at U.S. helped central the chain of events and Supreme reasoned: .Court actions, explain subsequent the officers’ the testify For comment on the refusal to is a challenged properly admissible. evidence-was system ‘inquisitorial remnant of the ¶ 46, 76, See 2006 OK CR Stouffer justice,’ Murphy criminal v. Waterfront 245, (finding 265 intro- P.3d evidence 147 Comm., 1594, 84 378 U.S. S.Ct. police duced to show basis for further action 1596, 678, 12 the Fifth L.Ed.2d which admissible); State, 2006 OK CR Warner v. outlaws, penalty im Amendment It is a ¶40, 68, (holding 144 P.3d 868 evidence by posed exercising courts for constitu admissible). central the chain of events privilege. privi It on the cuts down tional why challenged helped explain lege by costly. making its It is assertion photographs the officers took of the items said, however, of guilt that the inference to seize items were unable initialed the peculiarly testify for.failure as to facts Appellant’s such, from truck. As the evidence -in knowledge any the is accused’s within Appellant’s properly (cid:127) was limited waiver irresistible, event and that natural and admissible. magnify comment on the failure does penalty into asserting challenged that inference 12 The was also ad- privilege. People Appellant a constitutional missible refute the notion that Modes to, Cal.Rptr. cooperated investigators. 62 fully Cal.2d had the 753, 762-763. 417, 426-427, Appellant’s What to consent to a refusal Because. infer, jury may given help no from the the full search of truck was inconsistent with court, thing! cooperation attempted one it infer spirit What when the he interview, the court the portray solemnizes silence the District Court defendant, appropriate sentence re admitting not abuse its discretion evidence, Bosse, 2. mains 137 S.Ct. at the law. challenged 16 This Court’s confusion stemmed argu Turning closing to the State’s Payne, which its treatment footnote ment; prosecutor’s comments some states: otherwise, error, plain or crossed the line. No holding today is limited to the hold- Our prosecutor merely refer when the occurred ings Maryland, of Booth v. 482 U.S. closing argument. the evidence enced (1987), 2529, 96 107 S.Ct. L.Ed.2d ¶19, 107, 188 Williams Gathers, South 490 U.S. Carolina prose (finding no error where (1989), 2207, 104 L.Ed.2d 876 S.Ct. upon the evi comments were based cutor’s relating argument that evidence dence). However, prosecutor’s comments impact victim and the the victim’s death Appellant’s refusal to con which solemnized at family the victim’s are inadmissible of his into substan sent to full search truck hearing. capital sentencing Booth also held In guilt error. tive evidence constituted family of a victim’s admission controlling light prece of the absence opinions members’ characterizations and issue, plain error on this dent defendant, crime, about the objection. of an Ma obvious the absence appropriate Eighth sentence violates 212; lone, at sort Amendment. No evidence the latter 40, ¶¶ 26, at Simpson, 1994 OK CR presented at trial in this case. Therefore, Appellant not shown that has Payne, 501 n. 111 S.Ct. 2597. U.S. to relief. entitled contrast, body opinion Payne In Furthermore, prosecutor’s com states: beyond a harmless reasonable ments were by the Booth and were decided Gathers Simpson, 1994 OK CR doubt. margins, spirited over dis- narrowest California, citing Chapman v. P.2d at underpinnings challenging sents the basic 824, 828, 17 S.Ct. L.Ed.2d 386 U.S. They ques- of those have been decisions. (1967). Appellant’s guilt The evidence of by of the Court in later tioned Members belonging strong. items The numerous decisions, appli- consistent defied Appellant pawned cou Katrina Griffin which cation courts ... Reconsider- lower discovery of victims’ blood pled with now, conclude, ing these we decisions overwhelmingly clothing on his shoes and stated, reasons heretofore him to connected the murders. No relief be, wrongly decided and should required as to Two. are, now overruled. 501 111 S.Ct. at 2610- U.S. Id. status 15 I write further to address the (citations omitted).2 11 impact the law as a victim witness’ respect, this Court seeks opinion appropriate punishment in a 17 all due as to the With apply capital sentencing proceeding. diligently In Bosse Federal Consti v. follow 1, 2, 196 Oklahoma, U.S. -, interpretations tutional rendered 580 S.Ct. (2016), Supreme Supreme Court. The footnote United States L.Ed.2d United States Payne, stating point re when it that one law Court held that this Court had erred Tennessee, valid, mains it is Payne 501 U.S. while the case which concluded (1991) overruled, confusion in found is has caused S.Ct. L.Ed.2d court, Lopez Maryland, than See Booth v. 482 U.S. more one had overruled (1987) Md.App. 153 A.3d 792-93 107 S.Ct. L.Ed.2d (2017); Gibson, entirety. Supreme Hain v. 287 F.3d The has now its Court (10th 2002); Bell, Alley prohibition 1238-39 Cir. it on made clear Booth’s (W.D. 2000). F.Supp.2d 648 n. 46 Tenn. opinions characterizations and from a vic Judges correctly crime, of this strive to family Court tim’s members about the Therefore, testimony recommending it appears sentence. from research that Booth and It addressing appears im- only prior Supreme an issue of first U.S. Court we are Gathers are the pression Payne. regarding impact precedent based on a footnote the issue victim law, it apply the can be difficult when 2017 OK CR 13 given highest is not from the clear directive PERSHALL, Petitioner, Amon Waldo court. ¶ Opposed present Payne, case Oklahoma, Respondent. STATE opportunity afforded what reconsider Number: Case PC-2016-1170 However, of Booth’s prohibition. remained Supreme the United Court did States Appeals Court of Criminal of Oklahoma. occasion to This is take the revisit the issue. Decided: 05/31/2017 particularly light disappointing of the dis- parity par- in the evidence available to the right a capital

ties. While has the defendant put from his friends and

family coupled that his life has to them value requests spare his life as

mitigation punishment, the State family

victims’ members do corre- Ohio,

sponding opportunity. Lockett v. 2954, 2964-65,

U.S. 98 S.Ct. (1978) (“[S]enteneer, in

L.Ed.2d 973 all but case, capital

the rarest kind [must]

precluded considering, mitigating as a

factor, any aspect of a defendant’s character any of

or record and the circumstances

offense that the proffers defendant as basis death.”).

for a sentence than Until less Supreme definitively

United States Court entirety, Booth in

overrules its this Court recognize Eighth

will Amendment

prohibits family admission of a mem- victim’s opinions

bers’ characterizations and about cidme, defendant, appropriate and the

sentence. case, present agree 19 In the I that the impact

admission the three victim wit-

nesses’ of a recommendations sentence light

death In constituted harmless error. trial, including

the other evidence at the nu- requesting mercy on

merous individuals be- Appellant,

half of the witnesses’ recommen- beyond

dations were harmless reasonable doubt. POST- ORDER DISMISSING APPEAL

CONVICTION LUMPKIN, Presiding Judge L. GARY 1 March this Court issued On directing Petitioner to show cause Order post-conviction appeal why above-styled to file his failure should be dismissed Appeal and the Notice of Post-Conviction adequate appeal record. resulting of an lack Petitioner, se, pro April On filed

Case Details

Case Name: BOSSE v. STATE

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: May 25, 2017

Citation: 400 P.3d 834

Docket Number: D-2012-1128

Court Abbreviation: Okla. Crim. App.