BOSSE v. STATE

LUMPKIN, V.P.J.,

Concurring in ,_ Part/Dissenting in Part.

T1 I concur in affirming Appellant's convictions and sentences, however, I cannot acquiesce in the analysis of Proposition Two. As a State court of last resort, we must independently construe Federal Constitutional issues based on existing precedent from the United States Supreme Court and not speculate on what that Court may do or not do in the future.

{2 Appellant neither invoked his Fifth Amendment right to silence nor fully invoked his Fourth Amendment right to refuse consent to search in the present case. Instead, he voluntarily spoke with the officers, indicated that he would fully cooperate with the investigation, refused to permit the officers to conduct a full search of his truck but did agree to a limited search as well as the photographing of the contents of the vehicle. The investigators photographed several items which were marked with Katrina Griffin's initials: When the officers searched Appellant's truck pursuant to a search warrant *1237 a few hours later, most of the items were gone. At trial, the State introduced Appellant's voluntary statement indicating that he would cooperate with the investigators, the photographs of the truck's contents, his refusal to consent to a full search of the truck, and the results of the later search,. In closing argument, the prosecutor argued that Appellant's refusal to consent to the search pointed to his guilt.

T3 Appellant, now, challenges both the State's admission of the evidence concerning his refusal to consent to a full search of his vehicle and the prosecutor's comments concerning that evidence in closing argument. Because Appellant failed to timely challenge the prosecutor's comments at trial, this Court reviews his claim for plain error under the test set forth in Simpson v. State, 1994 OK CR 40 , 876 P.2d 690 . Malone v. State, 2013 OK CR 1, ¶ 40 , 293 P.3d 198, 211 ; Hogan v. State, 2006 OK CR 19, ¶ 38 , 139 P.3d 907, 923 . 1

T4 Neither the United States Supreme Court nor this Court has previously determined whether evidence of a criminal defendant's refusal to consent to a search is constitutionally prohibited. Strict application of Fifth Amendment precedent results in the conclusion that the evidence was admissible.

1 5 The United States Supreme Court distinguishes silence which occurs following the receipt of warnings pursuant to Miranda v. Arizona, 884 U.S. 436 , 86 S.Ct. 1602 , 16 LEd.2d 694 (1966), from silence prior to receipt of such warnings. In Doyle v. Ohio, 426 U.S. 610 , 96 S.Ct. 2240 , 49 LEd.2d 91 (1976), the Supreme Court determined that due process prohibited prosecutors from using a criminal suspect's silence, at the time of | arrest and after receiving his Mirando warn- - ings, for impeachment purposes at trial. Id., 426 U.S. at 619 , 96 S.Ct. at 2245 . This result was compelled by the Miranda decision. Id., 426 U.S. at 617 , 96 S.Ct. at 2244 . In Jenkins v. Anderson, 447 U.S. 231 , 100 S.Ct. 2124 , 65 L.Ed.2d 86 (1980), the Supreme Court determined that this rule did not apply to a suspect's pre-arrest silence prior to receipt of Miranda warning's implicit promise that any silence will not be used against him. Id., 447 U.S. at 240 , 100 S.Ct. at 2180 .

6 The prosecution may use evidence of a suspect's statement to the police as well as pre-arrest silence. Hogan v. State, 1994 OK CR 41, ¶ 20 , 877 P.2d 1157, 1161 . "Volunteered statements of any kind are not barred by the Fifth Amendment." Miranda, 384 U.S. at 478 , 86 S.Ct. at 1630 . In Salinas v. Texas, - U.S. -, 133 S.Ct 2174 , 186 L.Ed.2d 876 (20183), the Supreme Court determined that the prosecution's use of a erim-inal suspect's noncustodial silence did not violate the Fifth Amendment because the suspect had not expressly invoked the privilege against self-incrimination. Id., 188 S.Ct. at 2178-79 (plurality opinion). In Salinas, the suspect had voluntarily gone to the police station and answered the police officer's questions but balked and fell silent when the officer asked whether his shotgun would match the shells recovered at the murder scene. Id., 183 S.Ct. at 2177-78. The Supreme Court determined that the suspect's silence did not constitute the invocation of the Fifth Amendment privilege. Id., 183 S.Ct. at 2178-79.

T7 In the present case, Appellant was not in custody but voluntarily traveled to the Sheriff's office and answered the investigator's questions. He did not receive a Miranda warning and never expressly invoked his privilege against self-inerimination. Therefore, the prosecution's use of Appellant's statements to the investigators did not violate the Fifth Amendment.

18 Recognizing this fact, Appellant seeks to have this Court apply the reasoning from Griffin v. California, 380 U.S. 609 , 85 S.Ct. 1229 , 14 L.Ed.2d 106 (1965), to the cireum-stances of his case. He asserts that the *1238 prosecution's use of his refusal to consent to a full search of his truck was identical to the "penalty" that the Supreme Court identified in Griffin. (Brf, 24-25).

9 Appellant cites the Tenth Cireuit Court of Appeals' decision in United States v. Dozal, 173 F.3d 787 (10th Cir,1999), as persua-" sive on this point, I agree. In Dozgal, the Tenth Cireuit concluded that "asking a jury to draw adverse inferences from" the failure to consent to a search "may be impermissible if the testimony is not admitted as a fair response to a claim by the defendant or for some other proper purpose." Id., 173 F.3d at 794 (citing United States v. McNatt, 931 F.2d 251, 258 (4th Cir.1991)).

10 Dozal is consistent with the Umted States Supreme Court's interpretation as to what constitutes a penalty for the exercise of a constitutional right. -It is without question, that an individual may not be criminally prosecuted for the mere refusal to consent to a warrantless search. Florida v. Bostick, 501 U.S. 429, 437 , 111 S.Ct. 2382, 2887 , 115 L.Ed.2d 389 (1991); Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 540 , 87 S.Ct. 1727, 17836-37 , 18 L.Ed.2d 930 (1967). However, evidence of the assertion of a constitutional right does not constitute a penalty in all instances, In Griffin the United States Supreme Court recognized that the Fifth Amendment prohibits comment by the prosecution on the accused's refusal to testify or jury instructions by the court that such silence is evidence of guilt. Id., 380 U.S. at 615, 85 S.Ct. at 1238 . The Supreme Court reasoned:

For comment on the refusal to testify is a remnant of the "inquisitorial system of criminal justice' Murphy v. Waterfront Comm., 378 U.S. 52, 55 , 84 S.Ct. 1594, 1596 , 12 LEd.2d 678 [(1964)], which the Fifth Amendment outlaws. It is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly. It is said, however, that the inference of guilt for failure to testify as to facts peculiarly within the accused's knowledge is in any event natural and irresistible, and that comment on the failure does not magnify that inference into a penalty for asserting a constitutional privilege. People v. Modesto, 62 Cal.2d 436, 452-453 , 42 Cal.Rptr.417, 426-427, 398 P.2d 753, 762-763 [(1965)]. What the jury may infer, given no help from the court, is one thing. What it may infer when the court solemnizes the silence of the accused into ev1dence agamst him is quite another.

Id., 380 U.S. at 614-15, 85 S.Ct. at 1232-83 . In United States v. Robinson, 485 U.S. 25 , 108 S.Ct. 864 , 99 LEd.2d 23 (1988), the Supreme Court refused to expand Griffin to include a prosecutor's fair response to argument of the defendant, but, instead, explicitly limited Griffin to precluding prosecutorial comments which treat the defendant's silence as substantive evidence of guilt. Id., 485 U.S. at 82, 34 , 108 S.Ct. at 869-70 ("There may be some "cost" to the defendant in having remained silent in each situation...."). Therefore, prosecutorial comments concerning a criminal defendant's refusal to consent to a search which solemnize the refusal into substantive evidence of guilt are prohibited but evidence concerning the refusal itself may be permissible if the testimony is admitted as a fair response to a claim by the defendant or for some other proper purpose.

11 Applying this analysis to the present case results in the conclusion that the trial court did not abuse its discretion when it admitted the officers' testimony about Appellant's refusal to consent to a full search of his vehicle Neloms v. State, 2012 OK CR 7, ¶ 35 , 274 P.3d 161, 170 . Because Appellant's refusal to consent to a full search of his truck was central to the chain of events and helped explain the officers' subsequent actions, the challenged evidence was properly admissible. See Stouffer v. State, 2006 OK CR 46, ¶ 76 , 147 P.3d 245, 265 (finding evidence introduced to show basis for further police action admissible); Warner v. State, 2006 OK CR 40, ¶68 , 144 P.3d 838, 868 (holding evidence central to the chain of events admissible). The challenged evidence helped explain why the officers took photographs of the items but were unable to seize the initialed items from Appellant's truck. As such, the evidence as to Appellant's limited waiver was properly admissible.

*1239 12 The challenged evidence was also admissible to refute the notion that Appellant had fully cooperated with the investigators. Because Appellant's refusal to consent to a full search of his truck was inconsistent with the spirit of cooperation he attempted to portray in the interview, the District Court did not abuse its discretion in admitting the challenged evidence.

113 Turning to the State's closing argument; some of the prosecutor's comments crossed the line. No error, plain or otherwise, occurred when the prosecutor merely referenced the evidence in closing argument. Williams v. State, 2008 OK CR 19 , [ 107, 188 P.3d 208, 228 (finding no error where prosecutor's comments were based upon the evidence). However, the prosecutor's comments which solemnized Appellant's refusal to consent to a full search of his truck into substantive evidence of guilt constituted error. In light of the absence of any controlling precedent on this issue, the error was not plain or obvious in the absence of an objection. Malone, 2018 OK CR 1 , ¶ 42, 293 P.3d at 212 ; Simpson, 1994 OK CR 40, ¶¶ 26 , 876 P.2d at 699 . Therefore, Appellant has not shown that he is entitled to relief.

T14 Furthermore, the prosecutor's comments were harmless beyond a reasonable doubt. Simpson, 1994 OK CR 40, ¶ 34 , 876 P.2d at 701 , citing Chapman v. California, 386 U.S. 18, 24 , 87 S.Ct, 824, 828 , 17 L.Ed.2d 705 (1967). The evidence of Appellant's guilt was strong. The numerous items belonging to Katrina Griffin which Appellant pawned coupled with the discovery of the victims' blood on his shoes and clothing overwhelmingly connected him to the murders. No relief is required as to Proposition Two.

€ 15 I further write to address the status of the law as to a victim impact witness' opinion as to the appropriate punishment in a capital sentencing proceeding. In Booth v. Maryland, 482 U.S. 496 , 107 S.Ct. 2529 , 96 LEd.2d 440 (1987), the United States Supreme Court held that the Eighth Amendment prohibited introduction of victim impact evidence in the sentencing phase of a capital case. Id., 482 U.S. at 509 , 107 S.Ct. at 2536 . The Supreme Court determined that a victim impact statement which both described the personal characteristics .of the victims and the emotional impact of the crimes on the family and set forth the family members' characterizations and opinions about the crime, the defendant, and the appropriate sentence was per se inadmissible. Id., 482 U.S. at 502-08 , 107 S.Ct. at 25838 . Two years later, in South Carolina v. Gathers, 490 U.S. 805 , 109 S.Ct. 2207 , 104 L.Ed.2d 876 (1989), the Supreme Court extended the rule announced in Booth to statements made by a prosecutor to the sentencing jury regarding the personal qualities of the victim. Gathers, 490 U.S. at 811-12 , 109 S.Ct. at 2211 ; Payne, 501 U.S..at 826, 111 S.Ct. at 2609 . However, the notion that the Eighth Amendment prohibited victim impact evidence was short lived,

§16. In Payne v. Tennessee, 501 U.S. 808 , 111 S.Ct. 2597 , 115 L.Ed.2d 720 (1991), the United States Supreme Court reconsidered its decisions in Booth and Gathers and held that "the Eighth Amendment erects no per se bar" to the "admission of victim impact evidence and prosecutorial argument on that subject." Id., 501° U.S. at 827, 111 S.Ct. at 2609. One year after Payne, the Oklahoma Legislature specifically provided for the admission of victim impact evidence in sentencing considerations. Neill v. State, 1994 OK CR 69, ¶ 50 , 896 P.2d 537, 553 , citing 22 O.S.Supp.1992, §§ 984, 984.1, and 991a(C). In Neill, this Court determined that victim impact evidence was properly admissible during the sentencing stage of trial pursuant to Payne and these statutory provisions. Id., 1994 OK CR 69 , T 50-52, 896 P.2d at 558-54 . Since Neill, we have maintained that victim impact evidence is admissible so long as it is not so unduly prejudicial that it renders the trial fundamentally unfair. Bush v. State, 2012 OK CR 9, ¶¶ 62-65 , 280 P.3d 337, 349-50 ; Goode v. State, 2010 OK CR 10, ¶ 62 , 236 P.3d 671, 683 ; Williams v. State, 2001 OK CR 9, ¶ 58 , 22 P.3d 702, 718 ; Conover v. State, 1997 OK CR 6 , ¶ 59, 933 P.2d 904 , 920.

117 However, a single footnote within Payne has caused some confusion. In footnote number 2, Chief Justice Rehnquist stated:

- Our holding today is limited to the holdings of Booth v. Maryland, 482 U.S. 496 , *1240 107 S.Ct. 2529 , 96 L.Ed.2d 440 (1987), and South Carolina v. Gathers, 490 U.S. 805 , 109 S.Ct. 2207 , 104 L.Ed.2d 876 (1989), that evidence and argument relating to the victim and the impact of the victim's death on the victim's family are inadmissible at a capital sentencing hearing. Booth also held that the admission of a victim's family members' characterizations and opinions about the erime, the defendant, and the appropriate sentence violates the Eighth Amendment. No evidence of the latter . sort was presented at the trial in this case.

Payne, 501 U.S. at 880 n. 2, 111 S.Ct. at 2611 n. 2. Based upon this language, the United States Court of Appeals for the Tenth Cireuit has taken the position that Payne did not overrule all of Booth and thus "it remains constitutionally improper for the family members of a victim to provide 'characterizations and opinions about the crime, the defendant, and the appropriate sentence' during the penalty phase of a capital case." DeRosa v. Workman, 679 F.3d 1196, 1237 (10th Cir.2012). As shown in our discussion of Proposition Two, above, we are ever respectful of the Tenth Cireuit's interpretation of constitutional issues, but have chosen not to follow the Tenth Cireuit's interpretation as to this issue. 60, -

I 18 In Ledbetter v. State, 1997 OK CR 5 , 933 P.2d 880 , this Court found that it was clear that Payne had overruled all of Booth. Id., 1997 OK CR 5, ¶ 27 , 983 P.2d at 890-91. Because the rationale supporting the ban on characterizations and opinions about the crime, the defendant, and the appropriate sentence had its roots in the overruled Eighth Amendment rationale, we determined that this portion of Booth was also overruled. Id.; Conover, 1997 OK CR 6 , ¶ 60, 933 P.2d at 920 ("Payne also implicitly overruled 'that portion of Booth regarding characterizations of the defendant and opinions of the sentence."). }

119 I further note that the footnote in Payne does not have any precedential value. On more than one occasion, the Supreme Court has rejected language from footnotes as dictum. United States v. Dizon, 509 U.S. 688, 706 , 113 S.Ct. 2849, 2861 , 125 LEd.2d 556 (1993) (recognizing footnote as "the purest dictum"); Wainwright v. Witt, 469 U.S. 412, 422 , 105 S.Ct. 844, 851 , 88 LEd.2d 841 (1985) (explaining "footnotes are in any event dicta"); McDaniel v. Sanchez, 452 U.S. 130, 141 , 101 S.Ct. 2224, 22831 , 68 LEd.2d 724 (1981) (holding footnote was not controlling as it was dictum); Henderson v. Morgan, 426 U.S. 637, 651 , 96 S.Ct. 2253, 2261 , 49 L.Ed.2d 108 (1976) ("[Nlew rules of constitutional law are not established in dicta in footnotes."). Instead, the actual holding of the opinion is the controlling language. See Kerry v. Din, - U.S, -, 135 S.Ct. 2128, 2138 , 192 L.Ed.2d 183 , (2015) (rejecting footnoted dictum in favor of the actual holding of the case). In Payne, the United States Supreme Court explicitly overruled both Booth and Gathers stating "they were wrongly decided and should be, and now are, overruled." Payne, 501 U.S. at 829 , 111 S.Ct. at 2611 . Merely stating in a footnote that Payne did not involve victim opinion as to appropriate punishment cannot revive any part of the two previous opinions that Payne unequivocally overruled as "wrongly decided." Id.

.' 20 I do not know how the United States Supreme Court could be clearer. The judges of this Court can only apply the law as it is and cannot make decisions based on speculation of what the law might be in the future.

121 This Court has long recognized that "Payne and not Booth, is the controlling case on this issue." Conover, 1997 OK CR 6 , ¶ 60, 933 P.2d at 920 . We have continued to approve of the use of characterizations and opinions about the crime, the defendant, and the appropriate sentence as evidence in capital sentencing proceedings. Bush, 2012 OK CR 9, ¶ 63 , 280 P.3d at 349 ; Jackson v. State, 2007 OK CR 24, ¶ 25 , 163 P.3d 596, 603 ; Murphy v. State, 2002 OK CR 24, 45 , 47 P.3d 876, 885 . We are waiting for the issue to be presented to the United States Supreme Court Murphy, 2002 OK CR 24, ¶ 45 , 47 P.3d at 885 . Until the United States Supreme Court issues a definitive opinion on the issue, we will continue to apply the explicit language of Payne and approve of such evidence in other capital cases. Id.

. Under the test for plain error set forth in Simpson v. State, 1994 OK CR 40 , 876 P.2d 690 , an appellant must show an actual error, that is plain or obvious, affecting his substantial rights, and which seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Id., 1994 OK CR 40, 26, 30 , 876 P.2d at 694, 699, 701 ; Levering v. State, 2013 OK CR 19, ¶6 , 315 P.3d 392, 395 ; Malone v. State, 2013 OK CR 1, ¶ 41 , 293 P.3d 198, 211-212 . "[Pllain 'error is subject to harmless error analysis." Id., 1994 OK CR 40, ¶ 20 , 876 P.2d at 698 . "