the prosecutor properly argued to the jury that the appellant's alibi was unsupported by the evidence and no burden shifting occurred
How later courts described this case
- the prosecutor properly argued to the jury that the appellant's alibi was unsupported by the evidence and no burden shifting occurred
Written by the judges who cited it.
The opinion
HUDSON, Judge,
Concur in Part/Dissent in Part.
T1 I coneur in affirming Bosse's convictions. and sentences. However, I write to express my concerns with the majority's approach to Bosse's second proposition. The majority opinion provides an in-depth analysis of whether a defendant's Fourth Amendment right to refuse consent. to search is admissible and therefore may be used as substantive evidence of guilt,. The majority's extended discussion of this issue suggests that it may not. Yet, the majority ultimately does not resolve this issue, 1 instead assuming arguendo error but finding its admission harmless. Herein lies my concern. While I find the admission of Bosse's limited consent to search was not error under the cireum-stances presented here, of greater concern is my fear that the majority's decision will be *1242 'misconstrued as creating a definitive bright-line rule precluding the admission of such evidence regardless of the cireumstances.
T2 Bosse voluntarily spoke to the police. During this pre-custody interaction, the investigators asked Bosse if they could search his car. The majority characterizes Bosse's response to this request as a flat refusal. In actuality, while Bosse initially refused the investigator's request, Bosse voluntarily revisited his decision. and consented, limiting or restricting the scope of his consent to photographing the contents of his truck. Bosse's subsequent consent is analogous to the situation in which an accused invokes his right to counsel yet later reinitiates further communication with the police. See. Pickens v. State, 1993 OK CR 15, ¶ 12 , 850 P.2d 328, 333 ("An accused who has been advised of his Miranda rights and invokes his right to have counsel present during custodial interrogation is not subject to further interrogation by the authorities until counsel has been made available to the accused, unless the accused himself initiates further communication, exchange or conversations with the police."). Moreover, the investigators respected the constraints Bosse placed on his consent and did not exceed the reasonable seope of that consent. See Randolph v. State, 2010 OK CR 2, ¶ 19 , 231 P.3d 672, 679 ("[when the police are relying upon consent as the basis for their warrantless search, they have no more authority than they have apparently been given by the consent.") (citing W. La-Fave, 3 Search and Seizure: A Treatise on the Fourth Amendment, § 8.1(c), 610 (8d ed., West 1996)) (quoting Florida v. Jimeno, 500 U.S. 248 , 111 S.Ct. 1801 , 114 LEd.2d 297 (1991)).
18 The challenged ev1dence, both 'Bosse's "initial refusal and subsequent consent, were relevant and pivotal pieces of the puzzle, which the jury needed to fully understand the sequence of events surrounding law efi-forcement's investigation of the murders. The reality is we live in a world in which the public hyper-serutinizes the actions of law enforcement. Had the trial court precluded this evidence, the jury likely would have questioned why law enforcement merely took pictures of the contents of Bosse's truck instead of actually seizing the evidence. Hence, when viewed in the appropriate light, admission of the evidence relating to the cireumstances of Bosse's voluntary consent, albeit restricted, was appropriate under the cireumstances of this case, and the District Court did not abuse its discretion by admitting such evidence. See Neloms v. State, 2012 OK CR 7, ¶ 35 , 274 P.3d 161, 170 (an abuse of discretion is "a clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented" (quoting Stouffer v. State, 2006 OK CR 46, ¶ 60 , 147 P.3d 245, 263 )).
T4 Where error likely occurred though is in the State's use of this evidence as substantive evidence of Bosse's guilt. As to the resolution of this specific issue, I concur with the majority's finding that any such error was harmless. However, I note again my concern with the lengthy and ultimately unnecessary analysis the majority utilized to reach this determination. Although the issue presented here is one of first impression, the majority does not decide the issue and the majority's extended discussion amounts, to dicta. 2 It is important to remain cognizant that this Court is not bound by dicta. See Kerry v. Din, - U.S. -, 135 S.Ct. 2128, 2134 , 192 L.Ed.2d 183 (2015) (Court is not bound by dicta); see also Yost v. Stout, 607 F.3d 1239 , 1244 n. 6 (10th. Cir.2010). In light of the limited number of cases this Court publishes each year, I am fearful this case will be 1ncorrect1y touted as cr eatmg a definitive "hard-and-fast" rule precluding in all cases the admission of evidence concerning a defendant's refusal to search.
. "For purposes of this case, we assume without deciding that a defendant's exercise of his Fourth Amendment right to refuse consent to search may not be used as substantive evidence of guilt." (emphasis added).
. "A holding consists of those propositions along the chosen decisional path or paths of reasoning that (1) are actually decided, (2) are based upon the facts of the case, and (3) lead to the judgment. If not a holding, a proposition stated in a case counts as dicta." Yost v. Stout, 607 F.3d 1239 , 1244 n. 6 (10th Cir.2010) (quoting Michael Abra-mowicz & Maxwell Stearns, Defining Dicta, 57 Stan. L.Rev. 953, 1065 (2005)) (emphasis added by court).