BOSSE v. STATE

LUMPKIN, P.J.,

Concur in Part Dissent in Part:

¶ 1 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 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, allow the photographs of the truck’s contents, together with his refusal to consent to a full search of the truck, and the results of the later search. In closing argument, the prose *868 cutor argued that Appellant’s refusal to consent to the search pointed to his guilt.

¶3 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. Béeause 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

¶4 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.

¶ 5 The United States Supreme Court distinguishes silence which occurs following the receipt of warnings pursuant to Miranda v. Arizona, 384 U.S., 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), from silence prior to receipt of such warnings. In Doyle v. Ohio, 426 U.S. 610 , 96 S.Ct. 2240 , 49 L.Ed.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 Miranda warnings, for impeachment purposes at trial. Id., 426 U.S. at 619 , 96 S.Ct. at 2246 . 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 , 66 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 2130 .

¶ 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 Salmas v. Texas, 570 U.S. 178 , 133 S.Ct. 2174 , 186 L.Ed.2d 376 (2013), the Supreme Court determined that the prosecution’s use of a criminal suspect’s noncustodial silence did not violate the Fifth Amendment because the suspect had not expressly invoked the privilege against self-incrimination. Id., 133 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., 133 S.Ct. at 2177-78 . The Supreme Court determined that the suspect’s silence did not constitute the invocation of the Fifth Amendmént privilege. Id., 133 S.Ct. at 2178-79 .

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

¶ 8 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 circumstances ofihis case. He asserts that the 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 Circuit Court of Appeals’ decision in United States v. Do *869 zal, 173 F.3d 787 (10th Cir. 1999), as persuasive on this point. I agree. In- Dozal, the Tenth Circuit 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 261, 268 (4th Cir. 1991)).

¶ 10 Dozal is consistent with the United 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, 2387 , 116 L.Ed.2d 389 (1991); Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 640 , 87 S.Ct. 1727, 1736-37 , 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 616, 86 S.Ct. at 1233 . 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. 62 , 56, 84 S.Ct. 1594, 1596 , 12 L.Ed.2d 678 , 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 . 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 evidence against him is quite another.

Id., 380 U.S. at 614-15, 85 S.Ct. at 1232-33 . In United States v. Robinson, 485 U.S. 25 , 108 S.Ct. 864 , 99 L.Ed.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 32, 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.

¶ 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 *870 did not abuse its discretion in admitting the challenged evidence,

¶ 13 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, 2013 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.

¶ 14 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 write further 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 Bosse v. Oklahoma, 580 U.S. -, 137 S.Ct. 1, 2 , 196 L.Ed.2d 1 (2016), the United States Supreme Court held that this Court had erred when it concluded that Payne v. Tennessee, 501 U.S. 808 , 111 S.Ct. 2597 , 115 L.Ed.2d 720 (1991) had overruled Booth v. Maryland, 482 U.S. 496 , 107 S.Ct. 2529 , 96 L.Ed.2d 440 (1987) in its entirety. The Supreme Court has now made it clear that Booth’s prohibition on characterizations and opinions from a victim’s family members about the crime, the defendant, and the appropriate sentence remains the law. Bosse, 137 S.Ct. at 2 .

¶ 16 This Court’s confusion stemmed from its treatment of footnote 2 in Payne , which states:

Our holding today is limited to the holdings of Booth v. Maryland, 482 U.S. 496 , 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 crime, 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 830 n. 2, 111 S.Ct. 2597 . In contrast, the body of the opinion in Payne states:

Booth and Gathers were decided by the narrowest of margins, over spirited dissents challenging the basic underpinnings of those decisions. They have been questioned by Members of the Court in later decisions, and have defied consistent application by the lower courts ... Reconsidering these decisions now, we conclude, for the reasons heretofore stated, that they were wrongly decided and should be, and now are, overruled.

Id. 501 U.S. 808, 828-29 , 111 S.Ct. at 2610-11 (citations omitted). 2

¶ 17 With all due respect, this Court seeks to diligently follow and apply Federal Constitutional interpretations rendered by the United States Supreme Court. The footnote in Payne , stating that one point of law remains valid, while the case in which it is found is overruled, has caused confusion in more than one court, See Lopez v. State, 231 Md.App. 457, 478 , 153 A.3d 780 , 792-93 (2017); Hain v. Gibson, 287 F.3d 1224, 1238-39 (10th Cir. 2002); Alley v. Bell, 101 F.Supp.2d 588 , 648 n. 46 (W.D. Tenn. 2000). The Judges of this Court strive to correctly *871 apply the law, but it can be difficult when clear directive is not given from the highest court.

¶ 18 Opposed to Payne , the present case afforded an opportunity to reconsider what remained of Booth’s prohibition. However, the United States Supreme Court did not take the occasion to revisit the issue. This is particularly disappointing in light of the disparity in the evidence available to the parties. While a capital defendant has the right to put on testimony from his friends and family that his life has value to them coupled with requests to spare his life as evidence in mitigation of punishment, the State and the victims’ family members do not have a corresponding opportunity. Lockett v. Ohio, 438 U.S. 586, 604 , 98 S.Ct. 2954, 2964-65 , 57 L.Ed.2d 973 (1978) (“[S]enteneer, in all but the rarest kind of capital case, [must] not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.”). Until the United States Supreme Court definitively overrules Booth in its entirety, this Court will recognize that the Eighth Amendment prohibits admission of a victim’s family members’ characterizations and opinions about the cidme, the defendant, and the appropriate sentence.

¶ 19 In the present case, I agree that the admission of the three victim impact witnesses’ recommendations of a sentence of death constituted harmless error. In light of the other evidence at trial, including the numerous individuals requesting mercy on behalf of Appellant, the witnesses’ recommendations were harmless beyond a reasonable doubt.

. 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, 1110, 26, 30 , 876 P.2d at 694, 699, 701 ; Levering v. State, 2013 OKCR 19, ¶ 6, 315 P.3d 392, 395 ; Malone v. State, 2013 OK CR 1, ¶ 41 , 293 P.3d 198, 211-212 . This Court will only correct plain error if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Hogan v. State, 2006 OK CR 19, ¶ 38 , 139 P.3d 907, 923 .

. It appears from research that Booth and Gathers are the only prior U.S. Supreme Court precedent regarding the issue of victim impact testimony recommending sentence. Therefore, it appears we are addressing an issue of first impression based on a footnote in Payne .