Underwood v. State

Proposition find in We VII that the accumulation of error require does not Proposition

reversal. We found in IV that the trial instructing jurors court erred in flight. Proposition We found in V that im

proper prosecutorial remarks did not affect

the verdict require and do not relief. We

found no other error. Where a trial has conducted, fairly

been cumulative errors do require relief. Brumfield ¶10, 37, OK CR 155P.3d

DECISION Judgment and Sentence of the District Court Hughes County AF- FIRMED. 8.15, Pursuant to Rule Rules of the Oklahoma Court Appeals, Criminal 22, Ch.18, (2011), Title App. the MANDATE

is ORDERED upon issued delivery filing of this decision. JOHNSON, P.J., JOHNSON,

C. A. V.P.J., LEWIS, JJ., LUMPKIN and concur. 2011 OK CR 12 Ray UNDERWOOD, Kevin Appellant, Oklahoma, Appellee. STATE No. D-2008-319. Court of Appeals Criminal of Oklahoma.

March

225 Wayne

L. Woodyard, Haire, Matthew D. Lynn Burch, G. Norman, OK, attorneys for defendant at trial. Mashburn,

Greg District Attorney, Susan Caswell, Assistant District Attorney, Nor- man, OK, attorneys for the State at trial. Luker, William H. Lee Ann Peters, Jones Norman, OK, attorneys appellant on ap- peal. Edmondson,

W.A. Drew Attorney General Oklahoma, Dickson, Jennifer J. Assistant General, Attorney OK, City, Oklahoma attor- neys for the State appeal.

OPINION JOHNSON,

C. Judge. { 1 Appellant, Ray Underwood, Kevin charged in County McClain District Court (Case CF2006-102) No. Degree First (21 701.7(A)). Murder 0.8.8upp.2004, § alleged State three aggravating circum in support stances of the death penalty. The district court granted Appellant's request for change venue, and the case was trans ferred from County McClain to Cleveland (Case CF-2007-518). County No. Jury trial was February 7, held through March 2008 before the Blalock, Honorable Candace L. Judge. District jury The Appellant found guilty charged. Before capital the sen tencing phase of the trial began, the State dismissed one of the three aggravating cir cumstances it alleged. had jury rejected The a circumstance, second aggravating but did car to patrol the come heinous, would Appellant if especially was murder the that find agreed, moment, Appellant and a talk for a sen cruel, recommended atrocious, or and the truck. In in the father waited his while held sentencing was Formal of death.1 tence that car, made statements Appellant patrol the timely appealed Appellant 3, 2008. April Overby asked Overby's interest3 piqued to this Court.2 verdict police come if he would Appellant Again, questioning. additional for station FACTS Ap Overby assured and agreed, Appellant murdering with charged was Appellant € 2 give (Overby) would he that father pellant's in April on Bolin ten-year-old Jamie a ride home. Appellant in alone lived Appellant Purcell, Oklahoma. station, was Appellant police T4 At the Jamie complex where apartment the same Agent Overby and by Agent interviewed toDue father, Bolin. Curtis her with lived see them about told Maag. Appellant Martin typi- schedule, was Jamie work her father's his discussed April and on ing Jamie after time of period a alone cally home At matters. day and other that activities on played question, Jamie day theOn school. interview, lasted which of the conclusion for a short a friend library with in the school Appel hour, asked agents the than an less never seen was home. She going time before Ap apartment. his search if could lant again. alive Ap accompanied agents The agreed. pellant of citizen p.m. a host Police, firefighters, and 5:00 around apartment 1 3 to his pellant Overby for Jamie. apartment, a search began the looking around volunteers While Federal Appellant's the disappearance, storage tub day large plastic after Jamie's a saw doz tape. two over duct Investigation closet; added lid was sealed Bureau of its tub, and April looking at the Overby On the effort. people Appellant saw en it; seen, set police kept last comic books was that he days after Jamie two volunteered keep apartment lid to taped around had that he roadblocks he said up several from look lived, seeking if he could Overby leads asked out. she moisture complex where day, tub, agreed. When Appellant p.m. 3:45 Around inside local motorists. a Overby tape encountered Craig of Agent portion a Overby pulled FBI back lid, girl's a saw he father at one lifted a corner by Appellant's driven truck Appel matched it passenger roadblocks; realized Appellant was shirt-and Bolin Jamie of the shirt description lant's Overby told father truck. in the day disappeared.4 she wearing on the disappearance, was about they had heard no that he saw Overby commented girl's fact, was the When interjected, tub, Appellant neigh comic books with other speaking From neighbor. Overby immedi arrest me." Overby knew "Go ahead complex, apartment at the bors is she?" responded, "Where ately may have been living there young man that a her and I hit in there. replied, "She's Overby asked to see Jamie. person the last he told me that "He initially alleged the murder testified: At 3. had Overby 1. The State suspect considered he was prosecu- afraid that arrest or was avoid lawful was committed 0.$.2001, 701.12(5)); outside his hanging murder around (21 § that the he'd been because tion (21 atrocious, heinous, couple or cruel during last especially apartment a lot 701.12(4)); 0©.$.2001, existed a there § and that person to see last was the He said he weeks.... other commit would probability that the me- disappeared, and that she Jamie before was a he such that of violence acts criminal wearing clothing that she reports dia (21 O0.$.2001, continuing threat society missing incorrect." were she became when ultimately 701.12(7)). dismissed The State § allegation, arrest" to avoid "murder "[Dluring inter- the earlier Overby testified: 4. allegation. "continuing rejected threat" media view, me told Mr. Underwood wearing was last seen Jamie briefin-chief, reports about what appli- and an filed actually wear- seen her wrong, that he had hearing evidentiary on his ineffective- were cation for shirt the blue then I saw And ing a blue shirt. filed State 2009. The on June claims, counsel Appel- October the tub." response the box or brief inside its 19, 2009. reply on November brief lant filed 12, 2010. October argument was held Oral chopped up." Appellant her then interview, became T7 In the Appellant describes visibly upset, began hyperventilating, and ex how he recently had developed a desire to claimed, "I'm going person, to burn in abduct a sexually them, Hell." He molest eat flesh, placed dispose their and was under arrest and out escorted to their remains. He explains in agents' Agent considerable Overby vehicle detail how sum he at- tempted carry to plan out moned local authorities to on secure the scene. Jamie Bolin, whom he had decided was a convenient station, police T5 Back at Appellant victim. Appellant stated that he invited Ja- right silent, was advised his to remain and mie into apartment his play pet with his right his to the assistance of during counsel rat. inside, Once Jamie was Appellant hit any questioning, consistent with Miranda v. her on the back of the head several times Arizona, 384 U.S. 86 S.Ct. board; with a cutting wooden she screamed (1966). L.Ed.2d 694 Because he asked for a pain begged and him to stop. Appellant lawyer, the interview was concluded. About proceeded to suffocate girl by sitting fifteen minutes later (approximately 5:45 placing her and his hand across her face. p.m.), police approached Appellant and asked Appellant agents told the that this was not reaffirm, if he would in writing, original his task, easy an and that fifteen twenty min- verbal consent to a search apartment. of his passed utes before she Appel- succumbed. Appellant agreed, spent and the next few lant claimed he then attempted to have sexu- sitting police hours in a leutenant's office. al girl's relations with body, but was He conversed with various officers who were perform. unable to He then body moved her him, guard sent to and made some incrimina to the attempted bathtub and decapitate it ting during statements that time. knife, with a but was unsuccessful at that Frustrated, task as well. Appellant wrapped p.m. T6 Around 9:30 evening, Appel- body plastic Jamie's sheeting placed it lant speak asked to agents the two FBI large in a plastic container which he hid in initially he had (Overby talked to Maag). his Appellant closet. also dismantled Jamie's Because previously had asked for bicycle and it hid inside apartment, counsel, Agent Lydia OSBI Williams visited make it look as if she apartment had left the with him to Agent determine his intentions. complex. Williams reminded that he had T8 Jamie Bolin's remains were taken to questioned, earlier declined to be and ex- the Medical Examiner's officefor an autopsy. plained decision, that because of that police The Medical Examiner noted bruises to the question could not him any Appel- further. head, back girl's of the Appel- consistent with emphatically lant replied that he wanted to lant's claim that he hit forcefully her with a talk agents. to the p.m., Around 10:15 cutting board. The pe- examiner also noted Agents Overby Maag Appel- interviewed girl's techia in eyes, and curved marks on police lant at the station. questioning Before face, her consistent with descrip- began, Overby reminded of his tion of how he had suffocated her. The most rights, Miranda Appellant signed a writ- pronounced wound on body very was a ten form acknowledgingthat he understood deep neck, incision to Jamie's which was also them and waived them. any- When asked if injuries consistent with the Appellant admit- anything one had offered him exchange ted inflicting. The Medical Examiner also talk, agreeing to Appellant replied that one noted trauma girl's genital area, to the in- of the predicted officers had things go would cluding tearing hymen. However, of the better for him if cooperated. he Besides Medical say Examiner could not that Jamie acknowledging his waiver of rights, Miranda alive, was conscious, or even when her neck signed also another written con- was cut or when she sexually assaulted. sent to a apartment. search of his A video The official cause of death was declared to be recording transcript of the interview that asphyxiation. followed, hour, which lasted about an presented at trial and is included punishment T9 stage of the appeal. the record on State viectim-impact brief testi- health, as an prospects and mental ground, It incor- parents. Bolin's Jamie

mony from of his facility the rest of a secure inmate guilt stage to testimony from porated that rejected the claim jury State's heinous, life. The especially murder was that the show to soci continuing threat posed a presented atrocious, defense or eruel. murder of however, that sentence, it found ety; mitigation of evidence extensive heinous, atro friends, especially Bolin was family, Jamie testimony of including the cruel, single aspect of Appel- cious, that evaluated and that who had experts three and mitigating evidence outweighed the rebuttal, the crime the State In mental health. lant's of death. With a sentence and warranted expert, who mental-health its own presented mind, turn to the defense we findings of these facts reviewed had claims of error. disagree expert did not The State's experts. con- diagnoses, and experts'

with the defense APPELLANTS OF I. ADMISSIBILITY findings, disa- many of their with curred why, in explained CONFESSION and points greed on some a continu- Appellant constituted opinion, his {12 1, Appellant ad Proposition In end, jury society. In ing threat incriminating why reasons vances several allegation, "continuing threat" rejected the physi police, he made statements nature of the heinous that but found to, led statements those cal evidence the death sentence. killing warranted at his trial. admitted not have been should his initial encoun Essentially, he claims that facts will be T10 Additional roadblock, his state police at the below. ter with to the discussion when relevant interviews, in his subsequent during ments during the search of criminating statements DISCUSSION later confession his recorded apartment, his propositions thirteen Appellant raises eventual physical evidence evening, and however, them, turning to Before of error. all ob apartment, were ly seized from important observations. a few we make federal the state and in violation of tained formally con First, did not while from unreasonable protections constitutional Bolin, murder of Jamie guilt in the cede his seizures, and the constitutional searches present its required State but instead Appel against self-inerimination. privilege issue, did he seri neither on that evidence suppress motion to an extensive lant filed against guilt-stage evidence ously contest the trial, claims made raising each of the before jury in fact, told the counsel him. defense hearing held a over trial court here. The it would opening statements guilt-stage January then issued days in several that there Appellant guilty, but find probably order, chronology setting forth written Appel spare his life5 be reasons would events, findings of detailing its relevant not, challenge the suffi appeal, on lant does evidence of law what fact and conclusions his convic support ciency of the evidence upcoming trial." at the admissible would be a few raise Appellant does tion. While sup his motion to timely renewed the entire fairness of go claims pre have been trial.6 These issues press at generally it is remaining claims review appellate review. We for full served only alleged affected error conceded findings for clear factual district court's Second, far as stage. punishment error; applicable law is re analysis of its present goes, the stage punishment Pope, novo. State viewed de cireumstances aggravating two ed with ¶ rejected and it penalty, support of the death concluded, in presented sub court The defense 113 The district of them. one (1) Ap- substance, where the roadblock back regarding Appellant's stantial evidence the manner district court for Ap We commend the strategy was undertaken defense 5. This consent, understanding as recorded for the pellant's hearing conducted, in which hearing findings See Jack parte thoroughness with the court. and conclusions. an ex of its ¶¶10-16, P.3d OK CR son 395, 398-99.

233 pellant police first encountered an sufficiently was not roadblock is tailored to that end. seizure, reasonably as it Michigan unreasonable Dept. Sitz, State Police v. 496 of (2) 452-58, 2481,2486-87, objective; U.S. Ap- 110S.Ct. tailored to its stated that 110 pellant's initial police (1990). statements to at the hand, L.Ed.2d 412 On the other po roadblock, station, police and later at the may lice "gener establish roadblocks including his verbal consent to a search of his control, i.e., al" interest in crime stopping apartment, voluntarily were all made in a just motorists illegal to see what activity (8) setting; non-custodial that might be Indianapolis revealed. v. Ed Agent initial Overby confession to at the mond, 82, 44, 447,455, 581 U.S. 121S.Ct. 148 admissible, apartment was in even the ab- (2000). L.Ed.2d police 833 But may, consis warnings, sence of Miranda under the "res- Amendment, tent with the Fourth briefly (4) doctrine"; cue that Appellant's subse- detain motorists to seek and in disseminate arrest, quent followed his invocation of his formation about a recent affecting crime the counsel, right required suppression the of Lidster, area. Illinois v. 540 U.S. incriminating certain statements he made to (2004). S.Ct. 157 L.Ed.2d 848 hours, various officers over the next few and While such "information-seeking" detentions also invalidated his written consent to a do not involve suspicion individualized of apartment during search of his made that activity, criminal designed are to be time, but had no validity effect on the of duration; brief in they tend to involve few previous search; his verbal consent to such general questions motorist, per and (5) warrant, by po- the search obtained haps delivery flyer of a with additional infor evening, lice later that predicated was not on mation about being investigated. the crime (6) information; misleading false or and Id. at 124 S.Ct. at 889. If such road Appellant voluntarily reinitiated contact with reasonably blocks are objec tailored those police, asking particular officers, to talk with tives, they are not unreasonable seizures. subsequent and his interview with 427-28, Id. at 124S.Ct. at 891. Agents Overby Maag night on the Lidster, police up highway set April voluntary 2006 was and admissible to, roadblock find or witnesses other infor- Appellant challenges at trial. all of these about, mation a hit-and-run accident that had conclusions, and we review each claim in bicyclist killed a about a week earlier on the turn. same road. The defendant in Lidster was arrested at suspicion roadblock on police a. The roadblock. - driving alcohol, under the influence of Appellant complains %T14 that the was later appeal convicted of that crime. On roadblock, police which led to his initial con court, successfully state he challenged police, versation with amounted to an unrea conviction on theory that the roadblock sonable seizure under the Fourth Amend However, was an unreasonable seizure. In determining ment. the reasonableness of United Supreme States disagreed. Court seizures that are less intrusive than a tradi Considering the factors enunciated Brown arrest, tional we must balance several com Texas, above, noting enumerated (1) peting gravity factors: public of the "vital public role" that plays police (2) seizure, concerns served the de investigative work, the Court concluded that gree to which the seizure advances public delay motorists, the brief purpose for the (8) interest, severity of the interfer collecting disseminating information liberty. ence with individual Brown v. Tex about a recent vicinity, serious crime in the as, 47, 50-51, 2687,2640, 448 U.S. 99 S.Ct. was not an unreasonable seizure under the (1979); Lookingbill L.Ed.2d 357 422-28, Fourth Amendment. Id. 124 S.Ct 7, $15, at 888-891. may generally Police establish a roadblock without suspicion individualized of crimi 16 The situation here is similar to the activity purpose nal if the is related to motor one in Lidster-the obvious being difference safety-such as brief checks for driver's li person challenging the roadblock sobriety-provided censes driver that the actually here was implicated in the crime entirely purpose-check an different up for in the first the roadblock prompted Lookingbill licenses.8 we held ing driver's however, difference, of no That place.7 (1) should be roadblocks legality public-safety since significance, constitutional (2) purpose, to their stated rationally related on the dependent is not or seizure of a search according guidelines out carried should be sup At the produces. it evidence kind of mo and treat all discretion that limit officer Mabry sponsored Agent hearing, pression (8) mini to equally, and should strive torists case, known as the in this used guidelines the Looking- privacy. motorist mize invasion of Plan." Ma- Response Abduction FBI's "Child €27, bill, at 186. 157 P.3d CR he had procedures the bry testified about in this the officers that Appellant concedes deploying road to use when trained been but com following guidelines, FBI case were generate for witnesses to canvass blocks not restric guidelines were that those plains court found The district cases. leads such point any enough. Yet he does tive roadblock about the unreasonable nothing agents' encoun during the particular action analysis from Brown and, factor applying the motorist, (or any for other him ter with Lidster, conclusion. reach the same we unfair, matter) be considered that could that justifying the road First, public concerns ob unnecessary to the stated harassing, or more so than grave-considerably were block jective. that a little knew was police All in Lidster. {18 acknowledges that the days then missing Appellant two reported girl had been pur- essence; a girl's case had different roadblock of the Time was before. Second, Lookingbill. Neverthe- than the one pose the roadblock at stake. might life be the criteria less, roadblock fails in claims the interest of he public clearly advanced ar- Lidster. He in Brown and girl's considered in the area about forming people up road- to set that it was unreasonable any gues about asking them disappearance, area Jamie lived around the where blocks The they may have seen. thing suspicious seen, had no idea police because and was last surrounding the up four roadblocks police set argument This still there. if she was where vicinity apartment of the immediate about information no other frivolous. With They deployed around lived. were Jamie whereabouts, entirely it rea- was girl's disap had day that Jamie time of same of those who police inquire sonable many local motor the belief that peared, on area where leaving her might have seen around the same routes tend to travel ists last seen. she was day. Finally, the inter each the same time liberty occasioned with individual ference roadblock arguing that the 119 After plan con minimal. the roadblocks was in the was, an unreasonable "shot logistically, searches, ree- and the templated no vehicle opposite: dark," claims the Appellant then any motorist was no evidence that ord offers designed to really subterfuge a it was that seriously inconvenienced. suggests He trap particular. him in {17 him of involvement already suspected inconsistent police makes several they disappearance, but Jamie's the one On arguments about roadblock. him. Police cause to arrest hand, procedures probable used lacked he claims day or sufficiently attempted question limit officer had implement it did not before, reported neighbors had because so analysis in our He relies on discretion. person the last to have been that he claimed set Lookingbill, involved roadblock which Lookingbill, 2007 OK the driver's-license check. Va. Commonwealth, Burns v. Cf. (2001) Although (implementation P.3d at 133. 7, 117-12, S$.E.2d 883-84 detail," stopping "'traffic-canvassing propriety motorists in challenged of the road- defendant asking any vicinity if block, of a recent murder deployed testimony it was indicated seen, activity suspicious and which had been promulgated the Oklahoma pursuant to rules apprehension fortuitously of the resulted Department Highway of Public and the Patrol Amend- the Fourth murderer, did not violate Safety, was no evidence ment). we affirmed the dis- record, On contrary. - was the roadblock conclusion that trict court's arrested after Lookingbill, the defendant - at 135-36. 21-24, at T1 Id. permissible. during plain view was observed in contraband alive. Yet there is no indication to see Jamie cluded that the roadblock itself did not create illegal that, an seizure. To determine whether imple at the time the roadblock was mented, Appellant anything was considered was "under arrest" at time potential witness to a crime. There is afterward, we consider "how a reasonable at also no indication suspect's position man in the would have area, police tempting to flee the understood situation." - Berkemer thought fundamentally, Ap much.9 More McCarty, 468 U.S. 104 S.Ct. authority pellant cites no for his insinuation (1984). 3151,82 L.Ed.2d 317 police deploy that it is "unreasonable" for {21 suppression At the hearing, Agent information-gathering an if roadblock Overby testified that Appellant volunteered happen yet to have some leads that have not questions roadblock, to answer at the volun very purpose been exhausted.10 The of a go station, teered police to to the and once Lidster-style generate roadblock is to useful there, agreed Overby to let search his If, investigation. in a criminal leads in the apartment. Overby testified that on the process, police encounter citizens (which way police station just was a with, already speak wanted to so much the away), few blocks Appellant he told he was may police better. Lidster instructs that arrest, not under but was considered an im briefly quest detain motorists their for portant witness to crimes, disappearance. Jamie's potential witnesses to provid serious Appellant presented no employed ed the means evidence to are reasonable under the con trary. The district court circumstances. The district court was did not err in con concluding police cluding Appellant's correct that that road po encounter with lice, block in this case was reasonable under the from the time he met them at Lidster, Fourth Amendment. 540 U.S. at roadblock until placed he was under arrest 426-27, Brown, 890-891; 124 S.Ct. at apartment, at his was consensual. . Andrew at U.S. 99 S.Ct. 2640 23, 172, 164 P.3d 194-95. Appellant's b. initial and statements con- apartment. to search sent Appellant's c. initial confession and the Next, Appellant that all claims "rescue doctrine." flowing consequence

evidence as a direct the roadblock T22 Appellant alternatively sup encounter should be argues that if even he was not under arrest when he pressed poisonous as the fruit of the tree. accompanied police apart on a search effectively He that he of his claims was "under ment, time, Agent he was not free to leave onee arrest" the entire because he was not leave, Overby truly therefore, opened girls' and free to tub saw cloth should ing Appellant inside. right have been advised of his to remain focuses on the brief any questions period Overby's discovery silent before of time between were asked Miranda, 444-45, Appellant's him. Overby See U.S. at formal arrest. When saw clothing, Appellant suddenly 1612; ex S.Ct. at Lewis v. 24, 137, claimed, 1171. We have con Overby "Go ahead and arrest me." Appellant Appellant's argument claims the were goes roadblocks called off roadblock. But be - shortly agreed accompany police this, after he yond implying police that wanted to arrest questioning, the station for further probable but concedes him but lacked cause to do so. Be that the record is devoid of evidence on this police cause the used reasonable methods to course, point. Appellant Of was arrested for the investigative objective, Appel further a sound ninety murder of Jamie Bolin within about min- suggestion might already lant's that he have been began, utes after the roadblocks and it would considered, someone, suspect to be a in Bo- pointless seem to have continued them that after true, disappearance, simply lin's if even is irrele time. States, vant. See Beckwith v. United 425 U.S. 341, 347, 96 S.Ct. 48 L.Ed.2d 1 arguing police 10. To the extent is that (1976) (a suspect custody purposes not in is hoped person to catch the who abducted Jamie simply of Miranda because he is the "focus" of roadblock, Bolin use of the could much investigation). an be Indeed, denied. it seems obvious hardly police hoped to find Jamie alive via use of the Appellant re- must have known top, he

asked, girl's is she?" shirt "Where chopped body I hit her and We in there. was beneath. lifeless plied, "She's Jamie's disappeared Overby had disagree. Bolin that once Jamie claims up." Appellant her - tub, trace; any hint of her had he no one without incriminating evidence saw Suddenly, Agent surely longer no free or condition. whereabouts (Appellant) effectively under arrest. with evidence Overby was confronted leave, thus was involved her might have been is Therefore, Overby's question, "Where interrogation to custodial amounted discus During an earlier she?" disappearance. warnings, sion, Overby what Jamie had told without Miranda sup- disappeared, have been incriminating day answer should she wearing on the say media pressed. so far as and went wearing were what she was reports about court concluded district 123 The container, Overby opened wrong. When doctrine," Overby's under the "rescue description matching the clothing he saw in tantamount custodial question was not dire; urgency was given. had The recog is a The rescue doctrine terrogation. days. missing for two young girl had been of some situa exigencies nition that seconds. exchange lasted but a few The to save the imminent need tions-such ("Where Overby used very words delay, forgive, or at least life-should human there?") than, say, in "Is she she?" rather It is a nat Miranda. compliance with strict circumstances, telling. Under the are also "public the safe logical extension of ural and general query Overby's spontaneous rule, recog to the Miranda ty exception" entirely rea whereabouts was about Jamie's in Supreme Court nized the United States sonable, saving girl's was aimed at 649, Quarles, 104 S.Ct. 467 U.S. New York v. against a case to build life-not calculated (1984). recently 2626, L.Ed.2d 550 We Jackson, 45, ¶ 22, Appellant. discussed, the rescue adopted, applied trial court did not at 1159.11 The 146 P.3d 45, State, 2006 OK CR in Jackson v. doctrine initial con concluding Appellant's that err in 1149, ¶¶ 19-22, In decid 1157-59. 146 P.3d was admissible.12 fession to murder exchange police and an between ing whether doctrine, gener courts falls under this citizen in- Appellant's search after consent d. urgency of the apparent ally consider voking right to counsel. situation, saving person potential for of the officers danger, and the motivations challenges the Appellant next ¶ 21, 146 P.3d at 1158- id. at involved. See searching his authority to continue officers' appears It from after his arrest. apartment $24 argues that the res that, was from the time the record (around case, p.m.) until a search 5:80 arrested apply cue doctrine should (around p.m.), 10:30 obtained warrant was Overby's possible motivation and focuses on Appellant's limited their search supposes police question. Appellant asking briefly confirming his claim- apartment that, Overby the tub and saw opened when brief, assuming Overby's question was not 12. Even permitted uncounseled Quarles 11. While general doctrine, it was under the rescue questions to detainees in the interests permissible highly preceded by sus- his lawful observation safety, the one public the threat cases such as unsolicited, evidence, and by Appellant's compelling. picious arguably "If on more at is even bar worthy incriminating was exclamation that he Quarles court could con- it, before the facts that, even before the We are convinced arrest. protect answers to that the need for clude asked, Overby probable question cause had outweighed safety the need for Miranda public apartment for additional to search us, surely, it is warnings, the facts before then on disappearance; and the evidence about Jamie's that the need for answers to conclude reasonable her, along had murdered fact that outweighs person protect one life of physical offered at would evidence all of Kunkel, 137 Wis.2d need." State v. same inevitably. Nix v. See have been discovered Williams, (1987) questions (permitting 404 N.W.2d 431, 444, 104 S.Ct. 467 U.S. child) missing (emphasis add- suspect about a (1984); Pennington v. LEd.2d 377 ed). arrest, body plastic was inside the tub. until po Jamie's several hours after his onee police attempted Appel- to interview When lice had obtained a search Appel warrant. custody, lant after he was taken into he complains lant seeking that the officers right Questioning invoked his to counsel. warrant did not inform magistrate later, ceased, police but a short time asked questioned he had declined to be after his reaffirm, writing, him to his consent to the arrest, and that his written consent to search search,. did, apartment appears He and it apartment was executed after he invoked re-entry the officers' brief into the rights. Appellant his Miranda claims these apartment place did not take until after that disregard omissions evince a reckless for the relayed written consent was to them. The truth, and should invalidate the warrant it district court found the written consent to be Delaware, self. See Franks v. 438 U.S. invalid, given Appellant's invocation of his (1978) (evi 98 S.Ct. 57 L.Ed.2d 667 Nevertheless, rights. Miranda the court suppressed dence should pur be if obtained legal found no or factual reason to conclude Appellant's prior, verbal consent to the suant to a predicated search warrant apartment of his ever search revoked. false, materially statements that were ¶26 which knowledge were made with of their Appellant posits that suspect onee a least, custody-or falsity, taken disregard has been into or in reckless for their rights truth). the time he invokes his to silence and counsel-any premises consent to search ¶28 police When seek the issuance of a may previously given he have is "exhausted." warrant, magistrate's search task is to authority posit cites no for this determine, argument presented, ion.13 We believe this confuses from the information

rights guaranteed by the Fourth probable Amendment whether there is cause to believe guaranteed by with those the Fifth Amend activity evidence of criminal present ment and the Miranda rule. See United place 0.8.2001, at the to be searched. 22 (5th Mendez, 420, States v. 431 F.3d 427 §§ Appellant 1221-28. explain does not how Cir.2005) (homeowner's consent to a search questions, his refusal to answer or whether automatically of his house was not 'with prior he had reaffirmed his consent to police drawn' when him arrested and read search, any bearing probable- had on the rights); him his Miranda United States v. cause determination. See Jones v. Mitchell, (7th Cir.1996) 146, 82 F.3d 150-51 ¶¶5, 26-27, 521, 128 P.3d 536- ("[The fact that Mr. placed Mitchell was (validity 37 of warrant to search home of under arrest sometime after the first consent parents, defendant's for evidence defendant does not work as an automatic withdrawal of there, thought was to have hidden was not previously given"); the consent see also Seigure information, by presented affected not LaFave, Wayne R. 4 Search and 8.1(c) (dth ed.) ("[A] magistrate, suggesting § at the defendant 681 consent to merely home). is by search not terminated a presently worsen was simple not at Two ing consenting party's position"). of the We facts-Agent Overby's Appel observation in agree ruling with the trial Appel court's closet, lant's Appellant's simultaneous original, lant never withdrew his verbal con murder-clearly confession to supported the apartment. sent to a search of his issuance of the search warrant. Alleged e. ¶29 faults the search warrant fact, apartment the search of the affidavit. justified independently through Appel which, noted, explained lant's verbal consent

T27 As search of full-scale Appellant's apartment above, was not undertaken was never withdrawn.14 The fact only Carey inapposite The case refers us to is United find to the issues 1268, (10th here. Carey, v. 172 States F.3d 1274 Cir. 1999). Carey deals with the reasonable limits person's premis- inherent in consent to search observes, arrest, shortly 14. As after his es. The court held that the apartment briefly defendant's consent officers did re-enter the to con- automatically to explained search his home did not author- firm that Bolin was deceased. As above, through computer. re-entry may Ap- ize a search files on his We have occurred after judicial approv incriminating ultimately sought and made office police lisutenant's commendable, points out that is continuing the search them. He also to al for statements cir unnecessary lawyer, under these ultimately request for a none initial despite his during Ap- him that time. provided to Ball v. See cumstances. ("We 81, Overby ¶¶ 46-48, Agent asked

42, pellant will notes that when hypothetical anything in ex- to a been offered upon amounts him if he had pass what un com- change cooperation, that was challenge a search warrant for his to him it would did not err officer had told necessary"). The trial court mented that one Appellant's cooperate. him The identi- the search to concluding that be "better" determined; none was never ty of this officer was lawful. apartment at many officers who testified of the Appellant's confession. recorded f. making hearing admitted to suppression statement, knowing The trial $80 who did. his in contends that totality of concluded that under court Overby Agents criminating statements cireamstances, to talk to Appellant's decision must night April Maag on the voluntary. Maag was Overby and they were involun suppressed, because be interview, Appellant de tarily In the made. conclusions are %38 The trial court's why murdered Jamie Bo- how and he tailed record. Whether a sus supported interview, and recording A of the lin. video voluntary in police are pect's statements convenience, were transcription for printed depends on an evaluation of legal sense guilt phase presented to the cireumstances, including surrounding all the trial. accused and the characteristics of the custody suspect 1381 Once a interrogation. Schneckloth details of the only through right speak has asserted Bustamonte, 412 U.S. 93 S.Ct. counsel, attempts interrogation at must all (1978). ultimate L.Ed.2d 854 Miranda, 473-74, 86 at cease. 384 U.S. is "the inquiry whether the confession however, can, suspect A S.Ct. 1627-28. essentially free and uncon product of an mind, speak change his and decide maker." choice its Culombe strained suspect If a is inter police counsel. without Connecticut, 367 U.S. S.Ct. having Miranda rogated after invoked his (1961). suppres At the 6 L.Ed.2d 1037 rests on the State to dem rights, the burden Lydia hearing, Agent Williams sion OSBI change mind suspect's of onstrate preparing that while officers were testified Id. at voluntary intelligent a and choice. was warrant, was for search word an affidavit 475, suspect's custodial 86 S.Ct. at 1628. A Appellant wanted to talk. received that voluntary they if not are statements are Appellant where went to the room Williams coercion, product including promises of of clarify and asked him to his being held 476, at leniency or other Id. 86 S.Ct. benefit. desires, previ he had explaining that because 1, 1629; Malloy Hogan, 84 at v. 378 U.S. lawyer, were not ously asked for 1489, (1964); Myers v. S.Ct. 12 L.Ed.2d 653 anymore. According him allowed to talk to 84, 133 312, State, 12, 2006 OK CR P.3d ¶ Williams, replied emphatically, Appellant to 333. talk," pref indicated his "But I want to and Overby Maag, Agents and orig- speak to to Appellant " 32 concedes that after his erence accompanied apartment him to his who had rights, inal invocation Miranda he reiniti- of day. unrefuted evidence ac- This police, but claims this earlier ated contact with voluntarily Appellant reinitiated points tion must be viewed in context. He shows subject of his police on the invoking in his contact out that the hours between Ed mind, murder of Jamie Bolin. he detention-the right changing and his silence Arizona, 477, 484-85, 101 police v. 451 U.S. in a wards conversed with several officers magistrate of the was aware pellant sent to search. was asked to reaffirm his consent (and writing change re-entry, not after he had invoked but it does search officers' silence), equally justified right but it was result here. Appellant's previous con- and unrevoked verbal

2839 (1981); L.Ed.2d 68 878 Ul S.Ct. talking. of the After about an hour of de ¶¶ 16-21, State, 36, 988 lery 1999 OK CR tails, suddenly becomes too nau 332, P.2d 343-44.15 agents seated to continue. The seek medi him, cal attention for and the interview is recording of the en 134 The video testimony concluded. Given the unrefuted great in deter suing interview is of benefit suppression hearing, particu at the and the Appellant's of de mining the voluntariness itself, lar circumstances of the interview It, too, the trial court's supports cision. concluding trial court did not err during requested reminding before her that she had an police began once the to lead him over the same attorney asking changed and if she had her mind. added)). ground again" (emphasis sequence The had, When the defendant said she the interview quite Appellant of is events different here. agreed We with the resumed. district court's "pre-interviewed" claims he was without findings totality of circumastances-the warnings, benefit of Miranda when various offi- badgering continued of the defendant after her they guard cers chatted with him as stood over counsel, request for the isolation of defen- him in the hours between his arrest and his dant, character, her and mental and the physical request speak Agents Overby Maag. to and State's failure to remind her of her Miranda however, Appellant acknowledge, What fails to is (written rights receiving before her confessions rights verbal), that he was advised of his Miranda on the involuntary and rendered the statements arrest, very attempt first interview after his and legal case, sense. In this there is no warning enough that he understood the well badgering; Appellant to evidence of was not held (indeed, questioning refuse further at that time. guarding Seibert incommunicado one of the of- him, supplant jurisprudence did to Appellant's parents Ap- not seek of ficers called for at Arizona, clearly pellant's request); Appellant sought Miranda and which Edwards and when an contemplate suspect custody, having Agents Overby Maag, that a audience with he was explicitly previous reminded of his invocation of right silence, invoked to thereafter may change his mind. rights rights, Miranda and he reviewed those State, 15, ¶3, 207 P.3d ISSUES jem v. II. SELECTION JURY 385,388. [ Appellant claims Proposition In36 panelist Appellant first refusing 138 The excuse erred in to trial court cause, jurors for and that S. prospective complains three about is Panelist challenges peremptory fairly any forced to use could not consider

he was claims that S. by disagree. to be used at (provided penalty state law other than death. We discretion) juror question permitted to cure these mistakes. trial court party's The trial; ability possessed of im timely challenged prior naires to counsel impartial, prospective each panelists portant to be information about the three each of began. juror proceedings voir dire challenges at the conclusion before renewed his permitted importantly, Even more the court using peremptory chal voir dire. After of dire, "death-qualification" voir individual panelists, he identi lenges to remove these give panelists could fair explained why determine which panelists, three other fied punishment options. to all him, consideration unacceptable to and asked too were During process, panelist each was able peremptory challenges to re for additional speak The trial court denied to the court and counsel with as move them as well. possible.17 much candor as complaint has thus request. Appellant's this appellate for review.16 preserved been that Panelist €39 contends S. 11, ¶18, Grant sit, unqualified "pre because she had P.3d 11. being ap conceived notions about death punishment an intentional propriate 187 A defendant is entitled to be colloguy murder." with Panelist S. jurors approach of who can the facts tried twenty transeript. comprises pages about impartially, who can decide the the case from the Appellant cites isolated answers them based on the evidence issues before exchange pre tend to show initial which S.'s Dowd, presented to them in court. Irvin v. penalty in dilection for the death cases 717, 721-23, 1639,1642-43, 81 S.Ct. 366 U.S. However, Appellant homicide. intentional (1961). Additionally, a defen 6 L.Ed.2d 751 concedes that when S. was reminded charged capital dant with a crime is entitled any punishment guided decision on would be give jurors who can fair consideration to instructions, legal she was the court's punishments. Wainwright v. all available rules, confident that she could follow those Witt, 412,424, 844,852,83 469 U.S. 105 S.Ct. if it in a other than even resulted sentence (1985); L.Ed.2d 841 Eizember v. death.18 29, ¶ 42, 208, 222. The OK CR jurors many qualified a involves subtle ob 140 To be to sit on selection servations, unequivocal capital jury, panelist trial broad a must be courts have dis request willingness fairly pun all considering when a to excuse in her consider cretion Witt, options, requires. as the law But juror for cause. 469 U.S. at ishment claims, jurors reviewing just not entitled to at 853. When such defendant S.Ct. completely ignorant of the cireum- panel we consider the entire record of the who are crime, dire, just surrounding the see Plants v. ist's voir isolated answers. Ro stances options, fully fairly punishment the three consider all does not claim jurors "unacceptable" cause. replied: were removable for she at In fact defense counsel conceded trial why saying that. I'm I understand That's they were not. point, why that's I asked is there set- things re-argued not into law and all of the We also note when counsel because I am that challenges, day jury by-that's my job. on the fifth of for-cause of law. But I am scientist know, A And so I understand the rules. You selection, neither counsel nor court had concerning rely memory pa- on alone what the to C. And if I have a set of leads to B leads so Transcriptions previous voir dire nelists said. rules, play If I am told I can within the rules. already prepared. been sessions had happen happen, for this to this must this must this, happen problem for then I don't have a S. 18. For when defense counsel asked example, staying my boundary, if that's what.... inside required the law her to if she understood 83, 118, 876 P.2d cireumstances, ate under certain but in an too, require jurors hypothetical, in swer to defense counsel's law does not she so necessarily only did not believe it was process to the with capital case to come appropriate sentence for the intentional mur penal indifference about the death complete young girl. der of a Panelist B. assured that citizens called for ty. It is inconceivable defense counsel she could consider all duty come to court without some could punishment options, agreed mitigat capital punishment. general opinions about ing evidence could make a difference her panelists unfair to fault such And it is The trial decision. court did not abuse its provide when asked to giving honest answers refusing discretion in to remove Panelist B. might penalty.19 warrant factors Harris, for cause.20 follow Panelist S. maintained she could - P.3d at 742. punishment, on in a case involv the law even young girl. ing the intentional murder of Finally, Appellant claims Panelist T. weigh stated that she would a defen She should have been removed for cause for actu- conduct, history, past and other fac dant's dire, During al bias. individual voir T. ad- deciding appropriate tors in sentence. mitted that when he first heard about the The trial court did not abuse its discretion Bolin, gut murder of Jamie his reaction was refusing to remove Panelist S. for cause. get that he would "like to his hands on" the 1, 18,1 Harris v. 2004OK CR 84 P.3d person who committed it. Panelist T. had 731,742. two age children about the same as the vie- tim, protec- and he said that he became more {41 Appellant next claims that Pa hearing tive of them after about this crime. nelist B. should have been removed for cause, feelings about because her Appellant's complaint T48 centers penalty, death and because B.'s own mother feelings penalty not on T.'s about the death had been the victim of an intentional homi general, alleged against but on T.'s "bias" forty years cide over earlier. When asked crime, perpetrator particularly of this on punishment.21 the issue of do not her mother's death would affect her as a We read how succinetly juror in this murder B. re initial T.'s reaction to news about the murder really any "I sponded: don't think one has having anything as to do death times, thing to do with the other." Several penalty. proclaim He did not that whoever pressed any predispositions when about she automatically committed the erime should be have, Rather, might qualified put B. her answers with to death. T.'s admission-that like, yet." gut "get statements "I don't the facts know his reaction was a desire to penalty appropri perpetrator-seems She believed the death was hands on" the aus fact, very feelings 19. Panelist S. was frank about her defense counsel's concerns about Pa- answers, appear spite punishment. being nelist B. to be in She also frank about her only specific objec- because of them. Counsel's way questions confused in which were her, tion to B. at the time of voir dire involved the depending party posed to on which questions ("Why mother, murder of her and whether she was posing it does sound differ- being assuring parties "realistic' that that me, me?"). you you ent when ask and then ask bearing ability event had no on her to follow the S., At one defense counsel asked "When it point, law in this case. now observes that B. thought, thoughts particularly comes to of an surrounding did not relate details her moth- intentionally a adult male who has killed 10- counsel, er's death. Defense who was aware of child, death, year-old your thoughts are am I questionnaire, perfect the event from B.'s had a S. correct?" answered: opportunity explore subject during indi- Yes, are, my thoughts necessarily my but not dire, vidual voir but chose not to. conviction. Does that make sense? ... And I why you know I different when ask don't feel (defining § 0.9$.2001, 21. See 22 "actual you me that and when ask me that. I can't bias," juror disqualification, with reference part I have a of a state of on the that, because don't "the existence mind explain problem considering equally fairly. case, all three juror, or to either in reference court, party, which satisfies the in the exercise of Then, at defense counsel's and over the request discretion, objection, specific try State's S. listed several factors a sound that he cannot the issue impose impartially, prejudice that could her not to the death to the substantial convince without rights penalty. party challenging"). of the 242 unnatural) (and carefully court considered response to basis alone. The first

frank not hearings, in ir camera and photographs de repeatedly himself defense counsel what to the relevance or questioned the State as crime. in voir dire as a "horrific" scribed necessity many The with of of them. State Indeed, any person imagine it is difficult facts ex literally "indifferent" to the basic photographs, drew some and the court being photographs were aside, cluded others. Certain Initial reactions T. as of this case. only, aid the admitted as court exhibits that he could sured the court and counsel testimony, in her but were Medical Examiner in fairly punishments all consider available displayed jury. Due to the not to be criminal trial. The trial the context of the photographs, of gruesome nature refusing its discretion court did not abuse be court determined that those which would Browning T. for cause. to excuse Panelist displayed published to the would not be State, 8, 12,1 134P.8d 829- 2006OK CR had on the video monitor which been used other exhibits. {44 summary, Appellant identified panelists three that he believed were remov- end, T47 In the the court admitted feelings on their about able for cause based photographs fewer than a half-dozen of Ja penalty. have examined the the death We body, depicting mie's the condition which three, on all and conclude that record discovered, wound, initially it was the neck trial court did not abuse its discretion face, fingernail and the marks on her which any fact refusing to remove of them. The Appellant's claim as to how he corroborated per- chose to some of his use girl. obligated The State was not killed challenges emptory to remove these three downplay shocking of the nature any panelists did not violate constitutional or crime. Warner v. Harris, 1, 118, statutory right 144 not P.3d 887. Evidence is 2 Proposition 84 P.3d at 742. is denied. objectionable simply it prejudicial, because only substantially unfairly if it is and so. but III. ADMISSIBILITY OF - CERTAIN § 0.8.8upp.2008, photographs 12 2408. The PHYSICAL EVIDENCE gruesome, they accurately were indeed but injuries depicted admitted Proposition 145 In (@Gramt, inflicting victim. a fair trial on his claims he was denied 49-50, They 11 205 P.3d at 21. were highly irrelevant and inflam CR introduction of (1) another, evidence, needlessly cumulative to one matory specifically, an excessive postmortem photographs the trial court did not abuse its discretion number of of the (2) victim; admitting them. single premortem photograph (8) victim; physical various items of photograph b. Premortem of the victim. Appellant's apartment. seized from evidence evidence, Appellant objected to all of this objection, Over timely filing general motion in limine and single portrait trial court admitted a school objections making when the evidence was during guilt phase of Jamie Bolin of the actually offered. We review a trial court's claims, trial. as he did at decision to admit or exclude evidence for an photograph that this was not relevant abuse of discretion. Pavaitt v. issue, guilt- all material because OK CR P.3d stage incorporated into the sen evidence injected preju tencing stage, passion it photographs the vic- a. Postmortem jury's punishment. dice into the verdict on tim. rejected past. similar claims in the We have testimony permits 146 Prior to the of the Code the introduction Evidence Examiner, "appropriate" photograph evi an of a homicide Medical the State offered into victim, general appearance photographs several of Jamie Bolin's "to show the dence body. keenly of the victim while alive." The trial court aware condition 0.S9$.S8upp.2008,§ we have re shocking photographs, nature of the 2408. As held, peatedly provision requires required it was not to exclude them on because (sexually-explicit 144 P.3d at 868 video and "appropriate" to its photograph to be properly were admitted to lubricants show consider the trial court must still purpose, watching defendant and think what the was un any proffered photograph is so whether ing prior rape and of about murder excluded. that it should be fairly prejudicial ¶ State, 11, girl); Slaughter infant also Grant, 52, 205 P.3d at see 2009 OK CR See 78, ¶¶22-27, P.2d OK CR 849-850 State, 22; 2007 OK CR Marquez-Burrola v. (various pieces tending of evidence to show 759-761; ¶¶28-33, Cod 157 P.3d occult, ¶¶ 53-58, interest in the and unex defendant's dington v. 2006 OK CR killing and mutila pected comments about did 452-58. The trial court 142 P.3d tion, admitted, properly they were as tended admitting single in this abuse its discretion to show the defendant's state of mind and trial; stage and photograph guilt in the might capable how he have been of murder totality offered at considering the of evidence mutilating ing an infant and her mother's say its admission de sentencing, we cannot Many body). specifically of these items were sentencing proceeding. nied fair by Appellant spoke mentioned when he ¶¶ 57-58, 142 Coddington, 2006 OK CR police, and because corroborated his P.3d at 453. intentions, they bore on expressed the veraci ty photo of the confession. As with the Appellant's apart- seized from c. Items body, the trial graphs of the victim's court ment. carefully considered each article offered into complains that Appellant also evidence, some, placed excluded restric from items of evidence seized his various display others. tions on The trial issues in were irrelevant to the apartment court did not abuse its discretion in admit admitted. and should not have been the case Jackson, ting any of these items. tools, weapons, of these items were Most ¶45, 56, 146P.3d at 1156. other items of a sexual pornography, {51 Furthermore, Ap we fail to see how Conceding nature. that a violent and/or pellant harmed the admission of was throat, Appel to cut knife was used Jamie's offering evidence. He claims these sharp of other lant claims that admission overkill, items into evidence was because it apartment in was unnee- weapons found his "obvious," from confession and was his essary. He claims the did not need to testimony experts, of his that he is a own day clothing girl that the wore on the see the "sexually mentally disturbed individual." her, plastic or the sheet and he murdered indeed, bizarre, many Appellant's And vio body wrapped towel that he her blood-soaked lent, gruesome sexual obsessions were complains in. also materials detail, discussed both in his statements to of a or violent nature found his sexual (presented stage), police guilt handcuffs, apartment (eg. toys, porno sex testimony mitigation of his own the extensive videos, graphic perverse images and various experts (presented punishment stage). Internet) only printed from the served to Yet, these same facts convinee us that jury. Appellant humiliate him in front of the corroborating physical introduction of evi items, objected many but not to of these unfairly dence did not contribute either them. He much of this evidence all of claims finding guilt or the assessment (such tenderizer) jar as a of meat was inad punishment in this case. The evidence of only things missible because it illustrated he Appellant's guilt overwhelming and es of, "may thought never did." have uncontested; sentially and while his sexual disagree. " 50 These items were rele We arguably he was a con obsessions showed They vant to motive and intent. society, jury rejected tinuing threat corroborated his detailed confession about aggravating impos cireumstance before victim, sexually plan his violate ing to subdue Mitchell v. the death sentence. See 14, ¶55, her, gruesome upon perform other acts (admission body, plan prior had her and about how this 654-55 of defendant's testi harmless, preceding mony jury rejected the evolved in his mind over ¶ Warner, aggravating cireumstance statements months. See 244 State, 287, 16, 299; error Primeaux v. 2004 OK CR prove). to There is no

were offered ¶¶ 909-910; 90-96, 893, Proposition Fitzgerald is denied. P.3d v. here. 3 88 ¶ State, 17, 901, 906; 61 P.3d 2002 OK CR INSTRUC- IV. PUNISHMENT-STAGE State, 9, ¶ 109, 22 v. 2001 OK CR Williams TIONS However, Appellant 727-28. as P.3d out, in points several months before his Proposition In 152 State, 164 P.3d punishment- Harris complains that the trial court's jury changes in the word we recommended stage instructions did not allow Nevertheless, fully present ing he instruction. in consider all of the evidence of this instruction, mitigation Appellant ob ed in of sentence. reiterated that the as Harris we jected proposed to these instructions and one many years, "legal it had existed for own, broaden inaccurate, of his which he believed would ly inadequate, or unconstitution mitigating cireumstances to the definition al," in which the current and that "cases clearly of evidence he more include the kinds (2nd) OUJI-CR No. 4-78 has been used and punishment stage. in presented had subject applied are not to reversal on this rejected proffered trial court the instruction ¶26, basis." Id. at 164P.3d at 1114.22 defense, by for re preserving this issue in Appellant, 4 55 Like the defendant Har view. complained prosecutors that the had ex ris Jury gave trial court 53 The the Uniform perceived in the instruc acerbated faults (2nd) Instruction, 4-78, No. which OUJI-CR tion, by arguing that the defendant's second- mitigating as defined cireumstances those stage completely evidence should be disre which, fairness, sympathy, merey, "in garded it did not meet as definition may degree of extenuate or reduce the moral "mitigating given by the court. evidence" argues culpability or blame." that whole, Considering arguments as we mitigation his evidencewas intended show Similarly, no we find no cause found error. deserving of a less than he was sentence During for relief here. the State's first clos death, despite culpability his "moral or ing argument punishment in stage, blame" for the murder of Jamie Bolin. He jurors prosecutor they told the that were to definition, that under the court's his claims evidence, qualified mitigating decide what as mitigation strategy essentially worthless and that could consider factors besides presented because none of the evidence he those advanced the defense.23 Similar did, fact, culpability reduce his moral or comments were made in the final State's blame, prosecutors' and he claims State, closing. As we wrote Grant v. arguments closing invited the to reach ¶11, 48, at 21: OK CR 205 P.3d the same conclusion. prosecutor rejected claims the misstated similar attacks on We have (2nd) by telling jurors the law that the evi- many No. 4-78 times in the OUJI-CR "mitigating" as eg. Glossip v. dence he had did past. See ¶¶ 119-120, 143, 161-62; Rojem nothing justify than sentence less 57-58, 130 P.3d OK ¶¶ death. confuses what kind of Harris, collectively against imposing to decide Before revision recommended in penalty. death The determination of what cir- read, the instruction in relevant as part, follows: which, Mitigating circumstances are those mitigating cumstances are is for to resolve you fairness, may sympathy, mercy, extenuate under the facts and circumstances of this case. degree culpability or reduce the of moral or promulgated by The revised instruction was not blame. The determination of what circum- the OUJI Commission until a few weeks after mitigating you stances are resolve Appellant's trial. under the facts and circumstances of this case. reads, part, The revised instruction in relevant as mitigators, de- "[LJook all those and you follows: you cide what means.... I submit (1) Mitigating are circum- circumstances aggravators alleged we our have in this case may de- siances that extenuate or reduce the absolutely, absolutely outweigh any miti- blame, (2) gree culpability of moral or or cir- gators. you mitigators And can think of other if fairness, sympathy cumstances which in or you the list." want besides what's on individually mercy may you jurors lead clear, mitigating Meloy early Dr. made it may be offered as record. information examination, evidence, information with whether direct he was not hired successfully purpose. personally Appellant, its intended serves the State to evaluate whatsoever on only there is no restriction to review the While evaluations of the might miti- fact, information be considered experts. agreed what he defense juror accept bound to it as gating, much, most, no is experts' if not of the defense such, try per- the State is free to to and findings. He stated that he had no reason to jury prosecu- that end. The suade the disagree diagnoses Appel- their about arguments did not misstate the law tor's examination, lant's disorders. On re-direct point. on this prosecutor Meloy when the asked if he would have liked have visited with instructions, trial court's 156 Neither the himself, objected, believing defense counsel prosecutor's argument, implied that nor the prosecutor was headed toward an ignore any should the evidence improper comment. The trial court sus- by Appellant mitigation of sen- offered objection, tained the prosecutor and the merely argued prosecutors tence. The (while intentions) denying any improper not warrant a sentence less this evidence did clearly by ruling, rephras- abided the court's than death. The trial court did not err ing question thus: instruction offered rejecting the alternative by Proposition 4 Appellant. is denied. you actually So would have liked to have people reported-not talked to those who EXPERT TESTIMONY V. STATE talking defendant, about the but those oth- Proposition T57 In people reportings er who made these of his sentencing pro denied a fair claims he was history, you'd actually life like to talk to ceeding by comments of the certain State's yourself, you them if going were to make punishment expert. mental health diagnosis? stage, presented ex the defense extensive added.) (Emphasis 'Meloy's reply Dr. is the testimony Appellant's mental pert about Appellant's complaint: crux of health, significant degree on in- based to Well, yes, my role was in the if different person psychological evaluations. In re evaluator, I'd case. been asked to be an If sponse, testimony the State I would have wanted to interview Mr. Un- Meloy, personally Dr. Reid who never inter derwood, him, to test to review evi- Appellant, only retained viewed but who was dence in the case- critique the methods used and conclusions by experts. Appellant drawn the defense added.) (Emphasis When defense counsel Meloy that Dr. insinuated he had been claims it, objected again, the court sustained interviewing Appellant person from blocked again prosecutor kept focus off of ally, improper likens this to an Appellant: right comment on a defendant's to remain sorry. talking I'm We're not about Ohio, eg. Doyle v. 426 silent. See U.S. talking defendant. We're about 618-19, 49 L.Ed.2d 91 S.Ct. family friends and that he was around (1976). analogy simply does not fit here. The growing up. (58 Interestingly, does not Meloy replied, my To which "If that was role deliberately prosecutor sought claim that the case, yes.2 Meloy that Dr. was not allowed insinuate him, rather, Meloy's on Dr. to interview that the witness 59 The limitations role jury. They improperly implication made the on his own. the case were made clear theories, however, by again were made clear in cross-examination Both are belied experts personally many interviewed of their 24. The defense had based their testimo- had sources, noting Appel- that while some of about on anecdotal information ny, part, Ap- childhood, pun- pellant's family family attributed to lant's friends and had testified in the they family stage, picture painted On ishment had friends and members. cross-examina- tion, attorneys credibility grim prom- prosecutors not as as the defense had had attacked the experts by pointing of the defense out that ised. by Meloy predicate did not inter- crime-must be established by counsel. Dr. defense he was never asked Appellant because view proof beyond doubt. reasonable Appellant was not to do so the State. acknowledges ' that we have A¶ppellant testimony. Prop- unfairly prejudiced many considered this issue times consis osition 5 is denied. it, tently rejected Ring. before and after See ¶¶ 6-7, e.g. Torres v. OF CAPI- VI. CONSTITUTIONALITY 216; Romano v. 58 P.3d TAL SENTENCING PROCEDURE ¶¶ 111-12, 368, 392. Proposition Appellant complains 1 60 In jury's aggravators versus consideration capital-sentencing scheme is Oklahoma's mitigators balancing process which is not juries to in how it instructs unconstitutional "beyond amenable to the a reasonable doubt" mitigating aggravating and cireum- consider ¶ 112, proof. Id. at 847 P.2d at standard of stances, and in the fact that it does not noted, 392. As the Tenth Cireuit has it is a jury presumption the on a that a life instruct "highly subjective" "largely judg moral" punishment. Ap- appropriate is the sentence punishment particular a ment about the pellant prior raised these issues Barrett, person v. deserves.25 United States punishment renewed his concerns (10th Cir.2007) 1079, (rejecting 1107 496 F.3d stage, preserving thus them for review. Wil- claim) (citing Mississippi, similar Caldwellv. State, 27, T5, 1999 OK CR 985 P.2d kins 320, 2633, 7, 472 U.S. 340 n. 105 S.Ct. 86 184,185. (1985)); L.Ed.2d 281 see also Matthews v. (10th Workman, 1175, 161 concedes that before 577 F.3d Cir. 2009) claim). (rejecting similar We are not jury could the death sen his even consider persuaded to revisit this issue. tence, unanimously it had to find the exis alleged aggravating at tence of least one jury 163 As for his claim that by proof beyond cireumstance a reasonable "presump should have been instructed on a jury doubt. He admits that before his could sentence, Appellant tion" of a life concedes sentence, it consider a death also had to find consistently rejected that we have this notion cireumstance(s) aggravating unani Warner, 40, e.g. as well. See 2006 OK CR mously outweighed any found miti to exist cases). ¶ 142, (citing 144 P.3d at 882 gating deny cireumstances. And he does not given by appropri instructions the trial court that, jury properly despite his instructed ately explained prerequisites finding analysis, required such an it was never Appellant eligible Prop for a death sentence. Rather, impose Appel a death sentence. osition 6 is denied. jury complaint lant's is that his was not that, weighing aggravating instructed when VII. SUFFICIENCY OF EVIDENCE TO cireumstances, mitigating it could not SUPPORT DEATH SENTENCE aggra consider a death sentence unless the $64 7, vating outweighed any Proposition In circumstances miti gating "beyond cireumstances a claims the evidence trial reasonable claim, insufficient, law, support support doubt." As for this as a matter of Supreme single aggravating by relies on the United States Court's cireumstance found Arizona, 584, Ring jury: decision the murder of U.S. Jamie Bolin was (2002), S.Ct. 153L.Ed.2d 556 which heinous, atrocious, especially cruel. or To any cireumstance, rendering prove aggravating held that fact a defendant this eligible any penalty-much for the death like State must show that the victim's death was necessary support fact preceded physical a conviction for the torture or serious to, subjective unique, particu- any mitigating juror, 25. The nature of this factors. individu- Each aspect capital sentencing lar is evidenced ally privately, weighs unanimously- agreed-upon aggravators against jurors whatever cir- that, the fact while must unanimously agree any aggravating circumstances that might cumstances believe warrant sen- (again, penalty possible by proof make death (2nd) tence less than death. See No. 4- OUJI-CR doubt), beyond a reasonable there need be no of, unanimity weight assigned on the existence fact, Appellant 166 In deny abuse. DeRosa v. OK CR does not physical experienced "Serious physical Jamie conscious Rather, suffering before her death. requires the victim ex he ar abuse" evidence physical suffering prior perienced conscious gues length that the of time it took to kill her Warner, to death. cireumstance," anwas "unintended as he had (Znd) 880; 4-78. 144 P.3d at OUJI-CR No. planned quickly to end her life and quietly, aspect aggravator The crucial is just things did way. not work out that Physical victim's awareness. acts done to Actually, Appellant's original plan (according victim, vile, no matter how will not estab police) to what he told tape was to his vie- "heinous, atrocious, aggra- lish the or cruel" scream, tim's mouth so she could not make find, juror beyond vator if no rational could pornographic movies, her, her watch rape doubt, reasonable the victim was con torture her in despicable ways, various Nevertheless, long scious of them. so as the then, while she was "still gagged" alive and finding supports evidence that death was (and conscious), presumably decapitate her. preceded by physical torture or serious plan scarcely This can be called merciful. abuse, permitted to consider all event, any a defendant will not be heard to case, including of the circumstances "the physical exeuse "serious abuse" on his pitiless attitude of the killer and the nature poor planning; own a murder is not mitigat of the crime." Lott v. by ed put up the fact that the victim fight 172, 318, 1 P.3d 98 358. State, to save her own life. See Le v. 1997 consciously 1 65 The fact that Bolin Jamie ¶55, 36, OK CR 947P.2d 550.26 Jamie's appreciable length suffered for an of time might resistance surprise have come as a firmly by her death before was established Appellant, sadly, it did not him dissuade confession, Appellant's which was in turn cor- from his goal, murderous no matter how by Appel- roborated the medical evidence. pleaded much the child struggled. and police lant told that he hit Jamie on back Appellant 167 jury's also claims that cutting of her head several times with a finding aggravating on this cireumstance was board, and that he hit her so hard that he improperly influenced evidence of the surprised the board did not break. De- gruesome things didn't, planned he to do but spite pleas, Appellant proceeded Jamie's things body he did to Jamie's after her Appellant suffocate her with his bare hands. Yet, mentioned, Appellant death. as con once, reported body that more than Jamie's that cedes the evidence establishes conscious limp, went but then she would come around physical suffering long before death. So struggle and resume Appellant for life. supports finding, jury's the evidence that police it twenty told took some fifteen to consideration of all the cireumstances of the finally minutes before Jamie succumbed. Lott, grounds case is not for relief. See 2004 The Medical Examiner observed trauma to 27, ¶ 172, OK CR the back of 98 P.3d at 358. The evi Jamie's head consistent with Scratches, Appellant complains dence unfairly of as statements. consis- dis - was, fact, tracting properly fingernails being pressed tent with admitted. into the skin, jury's were on her evidence was sufficient support observed face. The Medi- cal Examiner concluded that verdict espe the cause of Jamie Bolin's murder was heinous, atrocious, cially or eruel.27 Proposi asphyxiation. Jamie's death was Appellant did not contest this conclusionat trial. tion 7 is denied. certainly "Le also required every claims this circumstance should not evidence is not case." Le, 55, 136, apply Ngu- because he did intend 1997 OK CR to torture 947 P.2d at 550. yen gratuitous pain. argues or inflict He that he merely Nguyen intended to knock out and rob Lott, 27, 1173, 27. See 2004 OK CR 98 P.3d at things got him and out hand.... Le mistakes ("heinous, atrocious, aggravator 358 cruel" finding this Court's of sufficient evidence in indi- supported by evidence that the victim was suffo- requirements proof. cated, vidual cases for Evidence put up capitulating); resistance before State, 30, 129, pitiless of a killer's intent to inflict torture or Marshall v. 1998 OK CR ("heinous, atrocious, may support jury's aggravator attitude in some cases 10 or cruel" circumstance, finding aggravating supported by struggled of this but that evidence that victim

248 2595, 2606, 399, 417, 106 91 477 S.Ct. "HELI U.S. OF VIIL CONSTITUTIONALITY ATROCIOUS, NOUS, (1986), OR CRUEL" there is no evidence L.Ed.2d 335 CIRCUMSTANCE category. Despite AGGRAVATING into that Appellant falls from some suffers evidence 8, Appellant Proposition In illness, accept jury's we of mental sort atrocious, "heinous, that Oklahoma's claims morally culpable conclusion that he uncon is aggravating cireumstance or cruel" deserving penal of the death his actions stitutionally vague and overbroad. ¶¶ Grant, 59-61, 205 ty. 2009 OK CR See general review preserved this issue for 28-24; 2002 OK CR Lockett P.3d by submitting his objection before Proposition 9 is P.3d instruction, denied. which was proposed own denied. occasions, rejected we have On numerous current formulation attacks on the similar X. TESTIMONY VICTIM-IMPACT Jury In the Uniform aggravator, eg. explain it. See Wood structions Proposition In €70 17, ¶20, 158 P.3d victim-impact evi improper complains that 8, ¶52, 475; Browning, sentencing proceed him a fair dence denied decline to revisit P.3d at 848-44. We only complaint on this sub ing. Appellant's Proposition 8 is denied. here.28 issue vietim-impact ject two witnesses- al mother and father-were Jamie Bolin's EXE- OF IX. CONSTITUTIONALITY recommend, amplification, without lowed THE MENTALLY ILL CUTING murdering put to death for be Proposition Appellant con daughter. Appellant preserved this is their should be va that his death sentence tends motion; he through pretrial sue for review mentally the execution of the cated because 0.8.2001, trial court to declare asked the cruel and unusual ill violates the ban on permits § insofar as it 984.1 unconstitutional Eighth Amend punishments, found by victims' fami sentence recommendations He Constitution. ment to United States Appellant ac The trial court refused. lies. mentally ill at the time that he was contends rejected this same knowledges that we have Bolin, points out that he murdered Jamie State, many v. claim times before. Jones agreed experts examined him all of the who ("This ¶1, 84, 201 P.3d 890 2009 OK CR from one or more mental that he suffers previously upheld admission of the Court has However, Appellant at trial did problems. opinion impact a victim witness as to defense, insanity an or otherwise not raise long appropriateness penalty of the death as capacity argue a diminished that he suffered simple of the as it is limited to the statement nature of his conduct at to understand the amplifica without recommended sentence Rather, Appellant the time of the crime. (citations omitted). tion") argu presented of mental illness as evidence issue. persuade ments do not us to revisit the Ap mitigation of sentence. cireumstance Proposition 10 is denied. jury parently, concluded whatever have, Appellant might mental illness XI. PROSECUTOR MISCONDUCT appropriate penalty was still the most death 11, Appellant Proposition T71 In Eighth sanction for his conduct. While unfairly influ jury's claims the sentence was prohibits execution of a defen Amendment by prosecutor mis "prevents him enced several instances dant mental illness whose timely objected to Defense counsel comprehending pen the reasons for the conduct. from comments; the others we re- alty Wainwright, some of these implications," or its Ford v. assailants, struggled with was beaten under water until she tim as defendant held her instrument, State, strangled). Harjo with blunt then asphyxiated); v. ¶59, (aggravator 1078 estab 882 P.2d strangulation lished evidence that victim's concedes that his received by struggle); preceded suffocation was "heinous, atrocious, most recent definition Woodruff 7, ¶105, cruel," DeRosa, OK CR 846 P.2d as formulated in 1993 (aggravator supported evidence that vic- 1147 89 at 1156. 19, ¶96, P.3d Pavatt, jury. (Glasgow only plain for error. 2007 OK view ~ (1949). 279, 289, Okl.Cr. T at 291. 159P.3d CR

However, entirely proper it prosecu for a tor, representative, argue Arguing as State's facts not in evidence. a. - particular for a outcome based on the evi $72 complains Pavaft, dence introduced at trial. prosecutor im stages of the both P.3d 2901. We have implied partially that he had shaved properly prosecutor's reviewed the comments and find pubic victim's area with a razor. The nothing improper prosecu about them. The guilt-stage inference was based on the testi position tor advanced the State's that a death Russell, mony of Criminalist Jolene OSBI appropriate sentence was based on the evi body at the Medical who examined Jamie's testimony dence and submitted. There was Examiner's office. Russell noticed that misconduct, plain no and hence no error shaven, girl's pubic appeared partially area here. hairs on that area of her and saw loose Also, body.29 an electric razor was found presumption c. Comments on the of inno- - Appellant's apartment. The inference was cence. reasonably it improper, not because prosecutor faults the Pavatt, 2007 OK CR based on the evidence. dire, commenting, during voir on the 19, ¶ 64, 159 P.3d at 291-92. While the presumption prosecutor of innocence. The surely jury's inference had no effect on the explained presumption "pre was a guilt, prosecutor free finding of was also thing," explain cious and then went on to punishment stage to use the inference applies equal it foree when the facts perhaps Appellant was not en to show "actually show that the accused is not inno tirely forthcoming po in his interview with object cent." did not to this com - have, may lice. And while the inference ment, reading passage the entire degree, nature some underscored the vile from, Appellant quotes nothing we find im crime, unfairly it the entire did oversha proper prosecutor certainly about it.30 The things Appellant depraved dow the other argue presumption did not that the of inno freely doing. im admitted to There is no inapplicable destroyed cence was or had been prejudice proper conduct or unfair here. case; noted, in this the comment was dire, made in voir before evidence had appropriate pun- opinions b. Personal presented. prosecutor simply been ishment. explaining presumption that the was the complains way placing Appellant that at law's of the burden on the State produce ways, prose to evidence sufficient for a convie various times and various the argued only appro cutor that death was the nothing improper tion. We find or incorrect State, in this comment. Dodd v. priate punishment Appellant in this case. ¶31, 24, 1017, 100P.3d 1029. comments, object did not to these so we only plain im review them for error. It is Displays d. of emotion. proper prosecutor give personal opin for to verdict, appropriate by alluding on the During prosecutor's closing ions 175 the argument guilt stage of the de properly to information that has not been guilt-stage closing argument, prosecu- example, passage, prose- In the 30. For in the same the mistakenly tor to referred this observation as panelists' misunderstanding cutor corrects some being now, made the Medical Examiner. presumption: reality right of the "[The "expert" makes much of the fact that no deter- you'd guilty, pre- have to vote not because he's pubic mined that the victim's area had been charges. Okay? sumed innocent of the You don't shaven, though lay competent even witnesses are otherwise, you hear evidence that convinces personal to relate their own observations about you guilty have to find him not is what the law §§ 0.$.2001, 2602, 2701; such matters. 12 see says. you okay Are with that ...?" Sells, 103, 1018, Rogers v. 178 Okl. 61 P.2d 1020 (1936) ("A testify objective lay may witness to an fact; certainly right he has the to use his senses witness"). expert the same as an the United States the Sixth Amendment to claiming the objected, that counsel fense claim, conjunction In with this Constitution. of around" in front "prancing was prosecutor timely Applica an Appellant has Defense submitted "screaming" at them. jury and to Evidentiary Hearing, pursuant tion for appeared prosecutor that the counsel noted 3.11(B)B)(b), Rules the Oklahoma Rule trial court tears. The verge on the of to be O.S., 18, Appeals, Ch. Criminal Court get too not to prosecutor admonished (2011).31 a defendant on direct App. When prosecutor com jury, and the close to the challenges perform trial counsel's appeal his prosecutor's de plied. Appellant claims the ance, analysis promulgated in employ the we him, unfairly prejudicial to portment was Washington, v. 466 U.S. Strickland State, v. 2006 OK CR relies on Mitchell (1984). begin L.Ed.2d 674 We S.Ct. ¶¶ 96-101, 708-710 as authori that trial counsel ren presumption distinguish quite to be ty. find Mitchell We professional reasonable assistance. dered Mitchell, present from the case. able both deficient The defendant must establish table, point at the defense prosecutor stood (1) is, prejudice, performance defendant, angrily directly at ed objective performance trial counsel's personally. arguments to him addressed ly prevailing professional under unreasonable time, despite This conduct went on for some (2) norms, performance that counsel's Here, objections by the defense. several in the outcome of the undermines confidence however, prosecutor's argument was not State, Littlejohn trial. 2008 OK CR personally, prop but was aimed ¶ 27, 181P.3d 744-45.32 jury. erly directed to the does T claims trial counsel was de- argument of the claim that the substance (1) object failing to certain ficient prosecutor's com improper. itself was physical evidence that he now claims was may have been delivered with emo ments (2) inadmissible; failing object to certain tion, emotionally- deny no could one arguments by prosecutors that he now charged evidence had been (8) improper; failing to chal- claims were handling of trial. review the trial court's We lenge application penalty of the death discretion, matters for an abuse of see such (4) ill; mentally failing to claims rebut ¶ 85, 124, 103 Garrison by the Medical Examiner about made dis P.3d and find court's victim; sequence injuries possible cretion was not abused here. (5) mitigating failing present additional individually considered T76 Whether (6) evidence; failing sugges- to rebut cumulatively, complained the comments diagnoses certain mental-health tion deny Appellant above did not a fair trial. neuroimag- confirmed with could have been 5, ¶151, 995 Powell v. rejected ing testing, but were not. We have Proposition 11 is denied. P.2d merits, finding the first three claims on their (1) physical evidence seized from XII. OF INEFFECTIVE ASSISTANCE Appellant's apartment properly admitted COUNSEL (2) 3); prosecutors' ar- (Proposition that the 11); Proposition Appellant alleg (Proposition guments improper were not (8) may those who that the execution of of trial es that certain acts and omissions his right him to effec defense team denied the ill, in- mentally legally but who are not be counsel, sane, run guaranteed of does not afoul of Constitution tive assistance preliminary determination of Appellate has also filed a Motion to here is make the counsel Supplement Application Evidentiary for for such there is even reason to remand whether Hearing por- with materials to rebut intended testing. only require Our rules response to his ineffective- tions of the State's "strong possibility" was that trial counsel raise supplement counsel claims. The motion to burden less onerous than Strick ineffective-a herebyGRANTED. the Oklahoma Court 3.11, land's Rule Rules (2011); Ch. O.S., Criminal App. Appeals, guide, we that, 32. While Strickland is our stress 6, ¶53, 2010 OK CR Simpson juncture, attempt at this we do not to substitute a 888, 905-06. presented by one review of written materials party testing. full-blown adversarial Our task for 9). injuries; timely challenges simply the order of traumatic she Because (Proposition said she could not determine the exact se prop by trial counsel would these issues did, however, overruled, quence autopsy. from her She Appellant cannot erly have been make it clear that the food in matter from counsel's failure to any prejudice show airway 29, girl's probably was due to uncon Eizember, make them. ¶ regurgitation-not at 244. 164P.3d scious from effects of having genital one's throat cut.33 As for the Appellant's turn next to 179 We trauma, Dr. Yacoub concluded that she present trial failed to claim that his counsel "could not tell" whether it was inflicted when aspects of the Medical evidence to rebut dying immediately Jamie was "alive or or testimony. During exami Examiner's direct embolism, after she died." As for the Dr. guilt stage of nation in the say could not it Yacoub whether occurred Examiner, Yacoub, Dr. Medical testified premortem postmortem; or noted that it she examination, on her she could con based decomposition could have occurred from clusively say Bolin was whether Jamie alive conclude,however, body.34 She did her, Appellant sexually assaulted or when bone, hyoid the fracture to Jamie's attempted decapitate to her. This when he neck, postmortem injury. was a girl's testimony based on trauma to the was claims that Dr. Yacoub's area, vaginal food material found her air testimony "undoubtedly strengthened" bubbles) (air way, and embolism detected "heinous, atrocious, case on State's her brain. the blood vessels of aggravator. cruel" But if the Medical Exam police that after he suffocated Ja had told say iner could not whether Jamie was alive mie, penis than touch his he did no more inflicted, injuries when certain were she cer attempted decapitate her vagina, then her tainly suggest girl did not that the con was bathroom. The defense team had injuries scious when those were inflicted. pathologist, Dr. retained its own forensic important point-one This is an that defense Adams, autopsy findings to review the John times, jury, counsel made clear to the several However, expert was not before trial. cross-examining when Dr. Yacoub.35 The testify. Appellant now claims his called to Appellant's medical evidence corroborated trial counsel should have Dr. regarding confession Jamie's conscious and why, explain opinion, it Adams struggle being fierce while suffocated. impossible for Jamie to would have been punishment-stage closing, prosecutors ar sexually body her was have been alive when confession, gued, Appellant's consistent with inju or when she received severe assaulted physical suffering that Jamie's conscious was Application Evi- to her neck. The ries supported evidence of suffocation. While dentiary Hearing reports includes from Dr. pointed also out that the medical evi effect. Adams to this questions dence left some about the com confession, pleteness Bo- those 1 80 Dr. Yacoub concluded that Jamie fairly comments were based on the evidence. asphyxiation. Appellant lin from does died ¶ nev- Robinson v. not contest that conclusion. Dr. Yacoub P.2d 899. And as we have observed in offered detailed alternative scenarios for er person con- 33. Dr. Yacoub testified: "Well, 34. Dr. Yacoub testified: I observed air in "If airway, blood vessels of the brain. So that's fact. trying get and food was into the scious happen? potential How did this There are sce- cough person would out that food so happened That air have when the narios. could airway protected only would be the air being starting body neck was cut. The absent, If would be in the that reflex is airway. decompose, possibility. and that's another This reason, get then food can into the for whatever just postmortem change.... is a I could not tell added.) "Q. airway." (Emphasis So if I'm fol- if she was alive or dead when the air went to her likely lowing you're saying, what it is more that blood vessels in the brain." person and that food came the was unconscious up they were to-she was unable to and unable "Q. E.g., Doctor, at know, 35. You don't do you, out, airway? get be it clear her A. That would conscious, point, any, what if Jamie Bolin was do my opinion." you? being eyewitness, A. Not I do not know an when she became unconscious." stage, ishment the defense team focused on 7, Appellant Proposition our discussion of did, fact, jury showing in that was not a dispute that Jamie the not does suffering. continuing prison, if confined to physical threat experience conscious injuries girl's showing why sparing. to the worth timing of the other on his life was exact single aggrava body Although incorporated not material to the the State had the jury.36 ting cireumstance found the testimony into the guilt-stage exhibits actually calling a punishment stage, forensic Strickland, must be we Under testify in detail about the same expert to trial counsel gin presumption gruesome again-when the focus matters reasonably, give and we must due performed squarely punishment-would ar was now on strategic during made to decisions deference way in guably have distracted the Grant, 2009 OK CR the course of the trial. admit unfavorable to defense. ¶53, counsel is 205 P.3d at When beating, suffocating, molesting, ted evidence, failing present we assailed for practically decapitating Jamie Bolin. The a re whether counsel conducted consider in which he committed these acts exact order investigation the issues involved. sponsible on material, because his own admis was not investigate a A total failure to viable sion, struggled Jamie for some time before aspect thing; is one relevant of defense Furthermore, regard losing consciousness. present tactical decision not to certain evi timing, Dr. less of Adams's own forensic dence, investigation, an after reasonable firmly corroborates Dr. Yacoub's con review an When counsel has made informed other. vaginal finding trauma. This con- clusion pursue particular strategy decision to one events, tradiects version another, "virtually that choice is unchal over supports prosecutor's claim that he Strickland, 690-91, lengeable." 466 U.S. at entirely not honest in his confession.37 In Harris, 2066; S.Ct. ways, having testify might several Dr. Adams ¶ 33, 164P.3d at 1116. good. have more harm than done Hanson imagine It a sound is not difficult 18, ¶37, strategic calling Dr. Adams. reason for 1031-32. First, already defense counsel made the most $84 Appellant that Dr. point through relevant cross-examination of also claims point Dr. Yacoub: that she could not during Adams should have been called refuting Appellant's description pretrial suppression hearing to discredit evidence (see on State's reliance the "rescue doctrine" when Jamie lost consciousness. Additional 1). admittedly Proposition Agent Overby He claims rebuttal of Dr. Yacoub's incon knew, known, findings sequence about the trauma or should have that Jamie was clusive was, already (rendering arguably, a waste of time. If such dead the rescue doctrine because, inapplicable) in Dr. Adams's estima presented guilt had been rebuttal tion, "prominent decaying (where odor of flesh" testified), stage Dr. Yacoub it would bearing jury's upon opening no verdict should have been obvious have had on personal Dr. had murdered Jamie Bolin-a tub. Yet Adams had no knowl edge undisputed fact the defense had all but conceded. If it of the crime scene. The body evidence was had been punishment stage, had been testimony wrapped plastic, items of such would have shifted the focus sheets reasonably could bundle, of the defense to what be clothing lay top of this strong pun tape, considered a collateral matter. In the tub was sealed with duct that a recapping Appellant's description own After challenge "heinous, atrocious, hearted suffocation, said, prosecutor aggravator, saying "pro- of the "And cruel" its elements were is, you it what have to think horrible as that's open dispute. blematic'"' and the facts Bolin, you 10-year, when if Jamie about decide doubt, There is no Bolin, old Jamie suffered. concluded, 37. Dr. Adams "with reasonable medi- gentlemen, great ladies and that she suffered vagina was, cal the child's certainty," physical anguish cruelty." and extreme mental fact, penetrated "by object produced some which expressly While trial defense counsel did not hymen." tears in the consciously concede that Bolin suffered before death, only general he offered a and half- her closet, Appellant's permeated the tween the information friends re air freshener odor of court, impressions im and the briefly lated Overby only opened a corner experts received from the same sources. view, Dr. Adams could not In our of the tub. grew up Appellant, with Those who certainly what odor say any degree of with years, him who associated with in later Overby should have detected. those example example gave after of his somewhat short, strategie discern sound 185 In we family dysfunctional environment and his social calling team not its reasons for the defense prosecutors may dif ficulties.38 'While event, we pathologist, and forensic quibbled with have here there the testi flowing from that decision. prejudice find no mony, through argu eross-examination and strong possibility that the failure find no We ment, present single the State did not a a witness affected present Dr. Adams as anecdotes, these or to witness rebut im Appellant's trial. the outcome of peach credibility relating of those them. observed, And as we have insofar as these Next, Appellant's consider we Appellant's witnesses illustrated mental dis present suffi claim that trial counsel failed to orders, expert own mental-health State's Appellant con mitigating cient evidence. generally diagnoses concurred in the that the that his trial team conducted extensive cedes experts defense had reached after consider copious an mitigation investigation, and that ing Appel the same kind of information. history evidence about his life ecdotal attempt paint sympathetic picture lant's a friends, through family, co-work problems of his childhood and mental teachers, ers, mitigation and others. The largely successful the end. Trial counsel transeript. comprises pages some 400 case thoroughly investigated prepared a com called, including were Nineteen witnesses prehensive mitigation. case in Counsel's de experts. a few three mental-health While warden) questions, not to cision ask different or ask jailer (eg. prison and a witnesses questions way, in a different will not be specifically called to rebut the State's were Strickland, second-guessed.39 466 U.S. at large, "continuing aggravator, by threat" 2066; 690-91, 104 at S.Ct. Harris testimony about mental dis ¶28, 39, 164 P.3d 1118. lay (consisting orders of both aneedotes and evaluation)advanced the defense case expert Appellant also claims trial coun simultaneously, illustrating on several fronts sel should have rebutted the State's insinua general why Appellant's in a more fashion neuroimaging testing tion that could have spared. And the defense ex life should be diag been undertaken to confirm certain relied, degree, perts' own evaluations to some experts. In noses made the defense on anecdotal information from the same exchange, prosecutor brief asked the (and friends and associates that testified oth expert, Meloy, Dr. if State's mental-health not). who ers did testing such could have confirmed "some of Meloy complain things" experts' reports; does not so much those have, lay mitiga apparently or it could it about number selection said was not called, testimony That tion witnesses that were as about done. was the extent of re right questions. garding neuroimaging. were asked the It is not clear exact whether prosecutors mitiga ly aspects diagnoses attacked what the defense defense noted, might have been at issue. As Dr. by looking discrepancies tion case be person Appellant above-average 38. The one claims should have tified that was of intelli- not, testify, been called to but was would have gence, impaired but had disorders that his social offered information that was either cumulative to function. testimony contradictory other to it. White, proffers Randy now the affidavit of punishment-stage closing argument, de- testify. Appellant friend who was not called to jury: you've heard fense counsel told the "And many claims that of White's anecdotes "corrobo- my open- all witnesses that I mentioned in from were, fact, rate" those of witnesses who called. frankly, ing exception of two. And we appearing White describes also thought people were cumulative to what those subject slow-witted. This was much more thor- already you've heard." experts, oughly explored who tes- the defense 254 discovered, defendant, material and dispute diagnoses of the

Meloy did not diligence merely which he could not with reasonable disagreed with experts; he defense 22 have discovered before the trial." O.S8. Ap their conclusions about whether some of 952(7). 2001, § filed When such a motion is continuing a threat soc pellant constituted rejected ultimately, jury it iety.40 And during pendency appeal, of a direct Court, We find no aggravating circumstance. this not the district that shall be filed with 21(A)8), court. Rule Rules the Oklo- to this expert that rebuttal strong possibility of O0.S., Appeals, Criminal homa Court could have affected the comment isolated of (2011). 18, App. a motion Ch. Such must of the trial. outcome year of the event be filed within one {89 summary, supplementary ma- In imposition Judgment of and Sentence. presented to this court has terials ©.8.2001, § Appellant's 9583. motion was strong possibility that trial a do not show timely response on filed.41 The State filed ineffective, to the extent that ad- was counsel October 2009. fact-finding on the issue would be ditional denied, Proposition Appellant's €92 sole claim in the motion is warranted. juror evidentiary empaneled trial that one Appellant's request for an hear- for new is of counsel is also ing on his ineffective try his case withheld relevant information claims 3.11, during process. He con- denied. Rule Rules the Oklahoma selection of 0.S., Appeals, Ch. tends that Juror G. "selective" disclos- Court Criminal of (2011); Simpson ing prior legal system. his contacts with the App. T 280 P.3d 905-06. ju- Appellant compares on the G.'s answers questionnaire, responses during

ror and his XIII. CUMULATIVE ERROR dire, general public voir records show- additional, ing undisclosed contacts between 18, Appellant Proposition 190 In claims family, police of his himself or members cumulative effect of all errors identi- that the or the courts. contends that G.'s fied above denied him a fair trial. Because intentional, and omissions were such error, find we have found no we likewise no deception challengeable made him for cause. Rojem, error accumulation. Alternatively, kept he claims G.'s omissions 15, 128, proposition 207 P.3d at 396. This exercising peremptory challenges him from denied. intelligent in an manner. TRIAL MOTION FOR NEW 193 When defendant claims During pendency T91 of his newly-discovered a new evidence warrants (1) following appeal, Appellant filed a Motion for New we consider the factors: Court, alleging newly-dis could Trial whether the evidence have been discov diligence; warrants ered trial with covered evidence reversal before reasonable (2) (8) material; Appended conviction. to this motion are doe- whether the evidence is (4) cumulative; gathered in sup uments that has whether the evidence is port may of his claim. A the evidence creates a defendant file a whether reasonable that, probability motion for new trial when "new evidence is had it been introduced at Meloy redirect, 40. claims Dr. "launched fierce Meloy ical evaluation. At the end of Dr. - specific diagnoses Schizotypal attack"" questions neuroimag- on the two brief was asked about Disorder, Personality Bipolar Disorder II ing; specify particular diagnoses did what he opining neuroimaging testing was "neces- testing might light such have shed on. sary" diagnoses, to confirm these and that the experis knew defense to be the case. A for New Trial was filed on Motion support review of the record does not this char- anniversary sentencing-April date of his cross-examination, acterization. On defense - timely filed the last motion implied Meloy qualified counsel had was not day one-year period. expiration before of the See McGarrahan, findings of Dr. comment on 1.4, the Oklahoma Court Crimi- Rule Rules of one of the defense because McGarrahan experts, O.S., (2011); App. Appeals, Quick nal Ch. neuropsychologist, Meloy awas was not. Tulsa, City fact, admitted he did not have dis- "any Meloy 961, 964. agreement" neuropsycholog- with McGarrahan's

255 juror's lying though the motives for even changed the outcome. trial, have it would ¶ 50, 45, unclear). State, 867 P.2d were CR 1992OK Ellis the issue based 1289, may resolve We enjoy judges consider 195 Trial presented by materials supplementary on the deciding to excuse in whether able discretion evidentiary for an or remand parties, the Young v. juror cause. a for adjudicate the claim. necessary to if hearing 332, 62, ¶9, a trial 337. While 2.1(A)(8), Court the Oklahoma Rules Rule of discretion, prospec a may, in its excuse court O.S., App. 22 Ch. Appeals Criminal of (or intentionally omitting juror for even tive (2011). about) during voir lying certain information ($94 trial, guar a fair right dire, omis not mean that the same that does right every litigant, includes anteed automatically warrant a new trial when sions Irvin, 366 jurors. body impartial of to a a date.42 The they discovered at later are recognizes The law S.Ct. 1639. 81 U.S. body a disin guarantee is to constitutional may for jurors be excused prospective juror's a an jurors. Even when terested is actual bias. Bias implied bias or either to have in voir dire are shown been swers statutory any several for implied misleading, only a trial deliberately new is relation involving some generally grounds, required when the record casts sufficient juror and the de prospective between juror's ability impartial. to be doubt on the witness, ju or the complaining or fendant may concealing information "The motives for the case itself. prior involvement ror's a vary, only those reasons that affect may 0.8.2001, juror also be § 660. A 22 truly to affect juror's impartiality can be said which subjective reasons more excused McDonough Power fairness of a trial." i.e., bias, "the of actual under the fall label Greenwood, Equipment v. 464 U.S. part on the of mind (1984). of a state existence 663 78 L.Ed.2d 104 S.Ct. case, or juror, in reference that, rule, general a as a It is well settled court, in party, which satisfies either not be set aside for reasons verdict will discretion, that he of a sound the exercise disqualify on a be sufficient to that would impartially, without try the issue cannot which existed before challenge for cause rights of the to the substantial prejudice sworn, un- juror but which was 0.8.2001, § 659. 22 challenging...." party accused until after the ver- known to the usually in allegations of actual bias While dict, appears from the whole case unless it par prejudice against one perceived volve a injustice from accused suffered another, may juror also demonstrate ty a or in juror served the case. the fact that the ie, case," some "in bias reference 415, 430, P. 6 Okl.Cr. Stouse influencing outcome in interest personal (1911). 271,277 trial, parties, irrespective of the record, the the trial have reviewed impartial T We to an guarantee jeopardizes eg. Dyer v. Cal to his mo Appellant has attached See body of fact-finders. materials (9th Cir.1998) (juror's trial, deron, an affidavit from Juror F.3d 970 tion for new omissions, G., which the State explaining the demonstrated during voir dire false answers response.43 Appellant's to its has attached trial, a fair defendant which denied bias any in crimi- had been a defendant may during close friend juror arise voir bias 42. Evidence of case, Juror during the defendant a of a crime. in which case nal or had been victim or dire appeal the trial court should may questionnaire that he and his claim on his G. wrote sitting juror panelist, a removed burglary have excused family the victims of a had been alternate, granted a or replaced him with burglary in a trial. he had testified an and that mistrial, statutory may same be. The as the case mid-1990's, he that in the did not mention He this, situations like bias are relevant rules on by their son over an wife were sued and his showing juror allegedly bias where the evidence to the son after awarded insurance settlement has been developed a verdict until after is not affida- accident. In his injuries in an sustained rendered. vit, being a explained he didn't list G. Juror party to he was a in that case because "witness" jurors if had ever Prospective were asked being part of the case made know it: "I did not proceeding, court "appeared as a witness" is not uncom- Such confusion a witness." me member, if an immediate family they, argument primarily focuses on G.'s failure to 197 We must first consider whether in a that he was named defendant Hillis, disclose timely. information mid-1990's, and on a few civil action OK CR 867 P.2d at 1808. All of the apparently domestic incidents related there- "new" information pub submits is to. claims the nature of these record, lic explainwhy and he does not it was trying omissions shows that G. was to cast presented not collected and until now. We acceptable light himself in a more concludethat this material not does meet the may Appellant court. This be true. But being "newly criteria for discovered evidence." selection, deny during jury does not that G. Phillips 44 1954OK CR willingly disclosed more than one incident ¶ 24, 267 P.2d charged where he was with a crime-one place fifty years ago. which took almost In- Nevertheless, any even if of this infor- deed, Appellant having characterizes G. as new, truly mation were we would find it is "many system legal encounters with the that material, reasonably and cannot be said might appear made have him unfit to serve to have Appellant's affected the outcome of jury," freely on a concedes G. admit- trial, Ellis, many open Dyer, ted of them in court. See Appellant does not contend that ("For function, 151 F.3d at 978 voir dire to to, any Juror G. had relationship connection jurors questions truthfully. must answer with, against any or bias toward or party or Nevertheless, tolerant, jurors we must be juror's witness this case. None of the may forget long incidents buried in their minds, anything undisclosed incidents involve question misunderstand a re- or bend the embarrassment"). truth a bit to avoid motely Rather, charge similar to the herein. fact, among laypersons. during general mon Appellant copy not." submits a of an Informa- again showing charged being dire, voir when asked receiving tion that G. was about a victim with crime, a "party G. added that he had been a However, property Appellant stolen in 1979. defendant'"-he was arrested for assault with a dispute description does not G.'s of the outcome. deadly weapon years ago, almost 50 but the case Appellant All has shown is that G. was confused was later dismissed. Juror G. then recalled "one being on how far the case went before dismissed. thing you," other I need to tell which was that he burglars had once shot at some who broke into noted, Appellant's 44. As we have the heart of his home. argument is G.'s failure to disclose his involve- Juror G. omitted the fact that his ment in a civil lawsuit mid-1990's. That daughter police report against had filed a him for instantaneously fact was accessible from online incident, rage" a "road and that a few months Appellant dockets. also submits substantial ex- later, charged making harassing she was with cerpts transcripts proceedings, from of the civil (G.'s wife), phone apparently calls to her mother primary but his claim is a willful failure to dis- involving related to the civil suit G.'s son. In his close; transcripts merely are offered to show affidavit, explained G. these incidents enough that the civil suit was substantial that G. "slipped Appellant's [his] mind" at the time of simply forgotten could not have about it. The trial, just and that "[a lot of this seemed like a police balance of materials are re- family problem proportion." Ap- blown out of ports, pleadings, court and docket sheets. Juror pellant presents police report indicating also a juror questionnaire G. filled out the on the first persons allegedly that G.'s wife was one of two day selection. He cleared the initial by assaulted a Mr. Williams in 1997. The out- death-qualification hurdle of individual voir dire come of this case is not known. Juror G. failed day. began on the second General voir dire anyone to list this incident when asked if in his days presentation about five later. The of evi- family had been the victim of a crime. dence took about two weeks. Had defense coun- also notes that G. had filed several routine bur- sel information about the civil case glary reports years, over the but failed to men- trial, during general during voir dire or even affidavit, explained tion them. In his G. that he hearing trial court could have held a on the ran a business, and these were thefts boat-repair matter, and if G. had been examined and his property, police of customers' not his own. The explanations wanting, were found reports Appellant court support has submitted this ex- might have planation. replacing exercised its discretion dire, G. with an alternate. During general The fact that none of voir Juror G. disclosed happened per- charged receiving that he had been does not mean that trial counsel stolen 1970's, that, property deficiently. simply formed in the late We but said that he was observe so tell, wrongdoing: guess cleared of "And far as we I I was ar- can the information rested, they put jail. they "newly me in readily But released claims is discovered" was avail- me.... I don't know began. if that would be an arrest or able when his trial may not defense counsel While a tor's office. show omissions claims that G.'s relations, such specifically asked about ... have [such] the case "in reference bias enough questions 0.8. were close impartially." his try the issue he cannot added). response 659(2) positive a prompted have (emphasis § should (if that, information juror all the not a realization even with from concedes himself). that the defen- held prosecutor We what discovered, cannot discern he he has wanting to be a might finding have had to a new motive G. was entitled dant one, ei- cannot find least," We was, deprived in this case. of infor- juror very "at the he intelligent per- ther. use mation relevant challenges, "for we do not doubt emptory $99 juror's im Any about doubts attorney challenge so would defense in favor of the be resolved should partiality kinship to an juror with such prospective ¶12, Grant, accused. 17, at adversary." Id. employee of his assume, for the sake if we at 22. Even P.3d in grant But did not relief at 287. we P.2d were all of G.'s omissions argument, of defendant simply because Manuel might intentional, he no hint we see information, possessed it had he claimed such against or any bias toward have harbored peremp- use of timely, have altered his would were G's in this trial Nor anyone involved only after consid- granted relief tories. We. might rea that one egregious so omissions prej- was in fact ering the defendant whether in interest personal sonably detect some nondislosure, observing that by the udiced willingness to jury, and a serving on being a "approached juror's relationship not Appellant has do so.45 perjury to commit cause," "all challenge and that for basis for that G. to believe any reason juror impartiality must be regarding doubts any for bias of removable have been would Id. at in favor of the accused." resolved Hence, not shown Appellant has kind. P.2d at 237. (G.'s conducting a were material omissions ¶ 50, 52, Ellis, 1992OK fair trial. in occurred Tib A situation T101 similar P.2d at 1303. 698 P.2d 942. 1985OK CR betts There, rele juror failed to disclose several Appellant's Finally, turn to we come to mind which should have vant facts prevented G.'s omissions that Juror claim nega juror responded during dire. The voir peremp exercising his intelligently him from any if members of her tively asked when words, Appellant In other tory challenges. crime similar family the victim of a had been removable for if G. was not that even claims sodomy, kidnap rape, ones on trial: cause, to disclose he failed the information out, daughter juror's it turned ping. As have removed Appellant would such that was exposure. of an indecent had been the victim it Appellant known had peremptorily, him to mention juror in Tibbetts also failed In Manuel was seated. before sheriff, who deputy was a her son-in-law juror 1975OK CR pending with the dis that he was during voir dire job application to disclose had a failed time of trial- attorney's office at the trict secretary prosecu- to the chief married every had been arrested for ly male relative Dyer close v. Calderon is Appellant's on reliance 45. juror's As for her broth- general principle that a Id. at 980-81. violent crimes. for the sound egregious be may that bias can deception so be juror had in fact filed death, er's "accidental" markedly Dyer killer, in are the facts inferred. But had against and the killer a civil suit it de- In what distinguishable from those here. charge of man- of a reduced been convicted case," at the Ninth id. as a "rare scribed pleading guilty. at slaughter Id. after Dyer granted habeas Appeals of in Circuit Court juror's tipped about off The defense capital defendant. One to a state-court relief juror's deception own husband-who from the any flatly between juror denied contacts had Dyer, jail happened same as just to be in the herself, any close justice system and or criminal capital Dyer's rape, charges at the time during trial with When confronted relative. Circuit The Ninth Id. at 973-74. murder trial. her brother newly-discovered information juror's] "magnitude [the concluded man, juror dis- killed another had been lies, display of insouciance remarkable and her at 972- Id. as an "accident." the event missed in her abili- fatally our confidence ... undermine truth, been the juror had herself Dyer's at 984. fairly fate." Id. ty decide crimes, violent practical- victim of numerous who, fact, present in the court- taking Appellant's issue allegations factual true, during room at times the defendant's trial. we see no need for additional fact- Manuel, Citing though held that finding we even this case. Motion for new information was not such as to make the New Trial is therefore denied. cause,

juror removable for the "cumulative effect of the circumstances the case MANDATORYSENTENCE REVIEW hand"-coupled principle with the that all law, T104 Under Oklahoma juror regarding impartiality doubts must be required Court is any to review death sen resolved in favor of the accused-warranted (1) tence to determine whether the evidence 10-11, a new trial. Id. at 14% 698 P.2d at 946. supports the finding aggrava sentencer's ju 1102 New information about a (2) ting cireumstances, whether, despite background opinions only ror's or can be any cireumstances, aggravating the sentence grounds if for relief it raises a doubt about improperly of death was imposed under the juror's ability impartial.46 to be fair and passion, prejudice, influence of or other illustrate, As Manuel and may Tibbetts there arbitrary 0.8.2001, § factor. 21 701.18. be ju situations where information about a T 105 We have found no error in the evi- ror, dire, not obtained until after might voir dence, instructions, argument presented required juror have removal of the stage either of the trial. We have concluded cause, but it is impor nevertheless of such the support evidence was sufficient tance, given case, all the cireumstances of the aggravating the one cireumstance found lingering juror's doubt about the fitness jury. the There is no reason to believe that requires erring caution, on the side of jury's imposition the of the death sentence granting a new trial47 That is not the case any improper the result of factor. The observed, here. As we have Juror G.'s omis conviction and imposed sentence witness, sions had no party, relation to are therefore AFFIRMED. or issue in this specter case. The of bias in raised Manuel simply and Tibbetts is ab DECISION sent here. deny Juror G.'s did omissions Appellant any 0.8.2001, right. substantial 20 {106 Judgment and Sentence of the § 3001.1. district court is AFFIRMED. Pursuant to

4 Considering 103 3.15, the information available Rule Rules of the Oklahoma Court of us, given ability our to resolve Appeals, O.S., 18, the Criminal 22 App. Ch. definition, By peremptory challenges peremptory challenge need no appel is a denial of an objective justification for their use. 22 right See O.S. impartial jury." lant's to a fair and Perez ("A § peremptory challenge 164, ¶7, ... an Enriquez, is 1987 OK CR 740 P.2d at objection juror ato for which no reason need be Enriquez, In we did not decide Perez given, upon but which the court must excuse juror whether cause, removable for him"). Hence, objective post analysis an hoc concluded that doubts about her fitness had to be they might how differently have been used granting resolved in favor of a new trial. virtually impossible. Bass, juror during a came forward trial after realizing engaged that his sister was to one of the juror language 47. While State's witnesses. The prior might some maintained that he our cases suggest impairing impartially, could still decide the right case and the defendant's to in- telligently court refused peremptory challenges appeal, to declare a exercise mistrial. On results per we did not in a se find the trial court denial of a fair abused its discre such declarations assurances, accepting juror's tion in cannot be taken out of the but did context in which agree juror's were with the alternative made. The claim that the statement is found in Perez State, Enriquez relationship key eyewitness to a v. bore on the P.2d ability intelligently juror's per where we held defendant's belated exercise real- emptory personal challenges, expressly relying ization that she had several reasons to on "the sister, prejudiced against principles be announced in defendant's who Manuel and Tibbetts." witness, Bass, 29, ¶5, key turned out to be a alibi warranted a 733 P.2d at 1342. As Enriquez new trial. cites Bass v. Perez discussed above in text, used in analysis proposi- OK CR for the Manuel and Tibbetts considers all the relevant "[djepriving circumstances, tion that grants defense only counsel of informa- relief if a doubt intelligent tion that could lead juror's use impartiality. of a exists about the issued CR 14 ORDERED (2011), MANDATE is filing this decision. delivery and upon WEBSTER, Appellant, Roderick Earsel LEWIS, JOHNSON, P.J., V.P.J. and A. J.;

SMITH, concur. Oklahoma, Appellee. STATE LUMPKIN, in results. J. concur No. F-2009-834. LUMPKIN, IN Judge: CONCUR Appeals of Oklahoma. of Criminal Court

RESULT. April 12,2011. decision to Court's

T1 I concur in this sentence judgment and affirm sup- of death the sentence and find

case law and evidence. by the ported However, about I have concerns do re- describing appellate our syntax used opinion states Proposition view. As find- court's factual district "we review fact, when, ..." ings clear error trial court's reviews appeal, this Court of discretion. for an abuse facts ruling on the as a defined has been discretion "An abuse of judgment, conclusion clearly erroneous logic and effect clearly against the one that is Marshall presented." the facts (citing 24, 474 8, P.3d 1 232 CR Love, 960 P.2d v. State State, 369). 2006 368, v. also See Stouffer 245, (citing €60, 268 46, 147 P.3d CROK P.2d State, 1 989 1999OK v. C.L.F. OK CR 947); Slaughter v. (citing R.J.D. P.2d 848-849 (OKk1.0r.1990)) 1122, 1125 P.2d 216,225, State, 94 Okl.Cr. (quoting Stevens (1951)). the abuse While includes an evaluation discretion standard clearly erro- judge's decision is whether separate stan- neous, adopted a have not we must be error." We "clear dard labeled the fact use due to the words we careful with future words for evaluate those readers our argu- changes give rise to Slight arguments. - changed have of review standards ments that just not. I would they have in fact when ver- to be consistent urge the Court utilized explain the methods biage it uses to appeal. analyzing issues on notes conclusions. While Appellant's Agents Overby interview with the interview that someone had commented State, Maag voluntary. McHamv. cooperate, for him to might it be better 28, ¶ 31, 662, 672; 126 P.3d suggest tone of his voice does not he inter 22, ¶ 26, Wisdom v. 918 any type preted prom the comment as cooperate and P.2d ise. Mere exhortations truth, accompanied by any tell summary, T In35 the trial court conducted promise, not render a threat or do confes hearing admissibility an extensive on the involuntary. Young v. 1983 sion OK physical incriminating evidence and state- 126, ¶ 15, 591, 595; United by Appellant. ments made The trial court (10th Chalan, 812 F.2d 1307 States fact, findings properly made detailed Cir.1987); Bailey, States v. United applied applicable (D.Kan.1997). law. We find no error Through F.Supp. analysis regarding the trial court's interview, calm, appears out admissibility eager incriminating even to talk about the details of the statements agents friendly ask evidence seized from his crime. The are few questions; Appellant majority apartment. Proposition vast does the is denied. likens his situation to that in State v. again, word for word, before the interview be- - Pope, Pope, gan. 2009 OK CR 204 P.3d 1285. In suppress- we held that a trial court did not err in Appellant also likens his case to Missouri v. ing Pope a defendant's confession. The facts in Seibert, 542 U.S. 124 S.Ct. markedly Pope, are different from those here. In (2004), prac- L.Ed.2d 643 condemned which rights when the defendant invoked her Miranda "pre-interviewing" tice of detainees without first interrogated, and declined to be the detective advising rights, them of their Miranda and ex- badger why continued to her about an "innocent plaining rights only incriminating those evi- after person" lawyer. would want a When the defen- obtained, apparent hope dence had been repeatedly dant maintained that she did not want confessed, suspect, having already that the would lawyer present, to talk without a the detective likely just keep talking. be more See id. at placed her under arrest and left the room. ("Upon hearing [Mi- 124 S.Ct. hour, less than an the defendant asked someone ) warnings only randa interro- aftermath of detective, began writing to summon the out just confession, gation making a sus- after returned, When the detective he confession. pect hardly genuine right would think he had a complete let the defendant her written confession silent, persist believing to remain let alone in so

Case Details

Case Name: Underwood v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Mar 25, 2011

Citation: 252 P.3d 221

Docket Number: D-2008-319

Court Abbreviation: Okla. Crim. App.