Petition for Writ of Certiorari — Shaun Michael Bosse, Petitioner v. Oklahoma

No. _ _ __

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 2017

SHAUN MICHAEL BOSSE

Petitioner,

v.

THE STATE OF OKLAHOMA

Respondent.

APPENDIX

MICHAEL D. MOREHEAD

Oklahoma Bar No. 18114

Oklahoma Indigent Defense System

P.O. Box 926

Norman, Oklahoma 73070

Telephone (405) 801-2666

Telefacsimile (405) 801-2690

ATTORNEY FOR PETITIONER

December 20, 201 7

EXHIBIT

Caution

As of: December 20, 2017 3:09 PM Z

I Ir

Bosse v. State

Court of Criminal Appeals of Oklahoma

May 25, 2017, Decided

Case Number: D-2012-1128

Reporter

2017 OK CR 10 •; 400 P .3d 834 ••; 2017 Okla. Crim. App . LEXIS 11 •••; 2017 WL 2376976

SHAUN MICHAEL BOSSE, Appellant, v. THE STATE

OF OKLAHOMA, Appellee.

Subsequent History: Rehearing granted by Bosse v.

State. 2017 OK CR 19. 2017 Okla. Crim. App. LEXIS 17

(Okla. Crim. App.. Julv 24. 2017)

Prior History: {***1] AN APPEAL FROM THE

DISTRICT COURT OF MCCLAIN COUNTY THE

HONORABLE GREG DIXON, DISTRICT JUDGE.

FOR APPELLEE: E. SCOTT PRUITT, ATTORNEY

GENERAL OF OKLAHOMA, THOMAS L. TUCKER.

ASSISTANT ATTORNEY GENERAL, OKLAHOMA

CITY, OK.

Judges: OPINION BY: SMITH, J. LUMPKIN, P.J.:

CONCUR IN PART/DISSENT IN PART. LEWIS, V.P.J. :

CONCUR. JOHNSON, J.: SPECIALLY CONCUR.

HUDSON, J: CONCUR.

Opinion by: SMITH

Bosse v. Oklahoma, 137 S. Ct. 1, 196 L. Ed. 2d 1, 2016

U.S. LEXIS 6030 (U.S., Oct. 11, 2016)

Bosse v. State, 2015 OK CR 14. 360 P.3d 1203, 2015

Okla. Crim. App. LEXIS 14 (Okla. Crim. App .. Oct. 16,

2015)

Core Terms

trailer, jurors, photographs, trial court, argues,

aggravating circumstances, sentence, Examiner's,

accreditation, refuse to consent, recommendation, tests,

admissible, admitting, murders, windows, guilt,

investigators, witnesses, truck, burned, experiment,

laboratory, cases, conditions, forensic, smoke, victim

impact evidence, silence, door

Counsel: FOR DEFENDANT: GARY HENRY, CHIEF

CAPITAL COUNSEL, MARY BRUEHL, BOBBY LEWIS,

CAPITAL COUNSEL, OKLA. INDIGENT DEFENSE

SYSTEM, NORMAN, OK.

FOR APPELLANT: MICHAEL D. MOREHEAD,

APPELLATE DEFENSE COUNSEL, JAMIE D. PYBAS,

DIVISION CHIEF, HOMICIDE DIRECT APPEALS DIV.

OKLA. INDIGENT DEFENSE SYSTEM, NORMAN, OK.

FOR STATE: GREG MASHBURN, DISTRICT

ATTORNEY, SUSAN CASWELL, LORI PUCKETT,

ASSISTANT DISTRICT ATTORNEYS OFFICE OF

DISTRICT ATTORNEY, NORMAN, OK.

Opinion

[**840) SMITH, JUDGE:

[*P1] Shaun Michael Bosse was tried by jury and

convicted of Counts I, II and Ill, First Degree Murder in

violation of 21 O.S.Supp.2009. § 701.l(A); and Count

IV, First Degree Arson in violation of 21 O.S.2001. §

1401(AJ, in the District Court of McClain County, Case

No. CR-2010-213. For each of Counts 1-111, the jury

found that Bosse knowingly created a great risk of death

to more than one person, that each murder was

heinous, atrocious [***2] or cruel: and that each murder

was committed for the purpose of avoiding or preventing

a lawful arrest or prosecution. In accordance with the

jury's recommendation the Honorable Greg Dixon

sentenced Bosse to three sentences of death (Counts 1111), and thirty-five (35) years imprisonment and a fine of

$25,000.00 (Count IV), to run consecutively. Bosse

appealed from these convictions and sentences and

raises fifteen propositions of error in support of his

appeal.

rP2] This Court affirmed Bosse's convictions and

sentences. Bosse v. State, 2015 OK CR 14. 360 P.3d

1203(2016). In Bosse v. Oklahoma. 580 U.S.

, 137

S.Ct. 1, 196 L.Ed.2d 1 (2016) , the United States

Supreme Court granted Bosse's petition for writ of

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certiorari, vacated the judgment, and remanded this

case for further consideration in light of the strictures

imposed on admission of victim impact evidence in

Pavne v. Tennessee. 501 U.S. 808. 111 S.Ct. 2597. 115

L.Ed. 2d 720 (1991 J. This Court ordered the parties to

submit briefs on that issue. This Opinion reflects our

consideration of those briefs, as well as the other

appellate briefs filed in the case, and replaces our

original Opinion.

[*P3l On July 23, 2010, Katrina Griffin, her eight-yearold son Christian and her six-year old daughter Chasity

were found dead in a mobile home near Dibble, where

they lived on the same rural property as her father and

stepmother, Ginger. [***3) Katrina, a single mother, had

a seizure disorder and received Social Security disability

payments. At the time of her death, she did not drive

and she did not have a job. A few months before her

death, after receiving SSD payments, Katrina bought

furniture, televisions and a laptop computer for the

trailer. She spent a lot of time online on her laptop, and

she and the children watched movies and television and

played video games at home. Katrina put her initials,

KRG, on many of her possessions, including video

games and movies. Katrina and Bosse met onllne in

early July 2010. Bosse visited Katrina at the trailer

several times before her death and stayed overnight at

least once. Bosse met Katrina's stepmother, Ginger.

One weekend when the children visited their father,

Bosse stayed overnight and met Katrina's cousin,

Heather Molloy, and Heather's boyfriend, Henry Price.

Katrina told Molloy that her relationship with Bosse was

the best she'd been in.

[*P4] On the evening of July 22, 2010, while Bosse

was visiting, Katrina realized some of Christian's video

games were missing. Katrina asked Ginger whether

Christian had left any games there, and Ginger said he'd

taken them home. Katrina talked [***4] to her mother,

Rebecca Allen, several times that night, beginning at

about 10:00 p.m. Katrina said Bosse was with her and

the children. Katrina told Allen that she thought Price

had taken the games. Katrina tried several times to call

and text Molloy without success. Katrina told Allen that

Bosse was driving her to Molloy's [**841] house, and

one text message to Molloy said that Katrina had come

over and banged on the door. Eventually Katrina called

the McClain County Sheriffs Office. About 11 :50 p.m.,

Deputy Cunningham arrived to take a missing property

report. Katrina, the children, and Bosse were there.

Katrina told Cunningham that about fifteen video games

were missing, and she thought they had been gone

since Molloy and Price visited the previous Saturday.

Sometime between 12:30 a.m. and 1:00 a.m., Katrina

phoned Allen, saying the deputy had left and she was

going to bed.

[*PS] Ginger Griffin left for work on July 23rd at around

7:00 a.m. She looked at Katrina's trailer, but saw neither

smoke nor Bosse's truck. At 8:55 a.m. a neighbor, Daryl

Dobbs, drove by and saw smoke coming from the top of

Katrina's trailer, near the back door. Dobbs called 911

and reported the fire, drove to the trailer, [***5] and

honked his horn. He tried to open the storm door, but it

was jammed, so he walked around the trailer hitting the

walls and windows, without response. Dobbs looked into

the windows, but could not see anything; it was pitch

black. The back door was locked. Dobbs used a garden

hose to spray water on the trailer roof above the back

door. Later, Dobbs opened the front screen door and

banged on the closed front door. There was a small

hole, about the size of a golf ball, in the window to the

left of the front door. Neither the front nor back doors

were damaged, and there was no smoke from the doors

or windows, other than a trickle from the small hole in

the front window. Dobbs disconnected the trailer's

propane tank and turned off the electricity.

[*P6] The Dibble police chief, Walt Thompson,

responded to the 911 call shortly after 9:00 a.m. He saw

smoke coming from the west roof line, near the middle

of the trailer. The windows were unbroken, but he could

not see inside because the trailer was filled with black

smoke. Thompson broke a window at the trailer's far

southeast corner, leaned inside, and shouted, but

nobody responded. The front door opened when it was

touched, and the men on the [***61 porch were forced

back by heat and heavy black smoke. Both men noticed

the smoke was heavier and darker than each one had

seen rising from the back of the trailer. Soon flames

began to roll out the front door. By this time, they were

aware that Katrina and the children might be inside.

Dibble volunteer firemen Bill Scott and Mark Palmore

arrived, and fought their way through the front door. In

heavy smoke, they cleared the two bedrooms and

bathroom on the trailer's north end, before running low

on oxygen. Washington volunteer firemen Derek Cheek

and Gary Bolster, in turn, entered the trailer and began

to search the south side through thick black smoke.

They extinguished small flames in the living room,

kitchen and utility room. The master bedroom door was

shut and warm to the touch. The door had a hole in it,

which appeared to have been there before the fire

started. When Cheek opened it, they saw the bodies of

Katrina and Christian on the floor. Heat was building up,

and the two had to retreat before finishing their search

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for Chasity. While there were no flames as they left,

within fifteen minutes flames appeared. It took

firefighters an hour and a half to contain the fire.

They (***7] focused on suppressing the flames nearest

the victims, to preserve what they could of the crime

scene.

[*P7] When firefighters reentered the trailer, the fire

had burned significant parts of the master bedroom,

including the wall to the closet. The walls in the south

part of the trailer were burned, the trailer was filled with

charred debris, and the floor decking was saturated with

water. The bodies of Katrina and Christian were charred

and covered in debris. The fire began in the love seat on

the living room's west wall. The State's experts testified

it could have burned for at least four hours before

Dobbs saw smoke at 8:55 a.m., smoldering until the

front door opened to reignite the flames.

[*PS] Chasity's body, severely charred, was in the

closet of the master bedroom, underneath a pile of

debris. A chair had been put under the outside knob of

the closet door, preventing it from being opened from

the inside. Chasity was burned from the waist down her legs were charred to the muscle and bone was

exposed. She had a laceration to her right cheek and

blunt force trauma on the right side of her skull. The

autopsy showed soot in her stomach and lungs.

[*P9] [**842) Significant blood spatter was on the

walls [***8] near Christian's body. His head was

partially wrapped in a blanket. He wore underwear and

unbuttoned, unzipped jean shorts. He had been stabbed

five times in the neck and chest; there was a defensive

stab wound on his right forearm, and he had blunt force

trauma over his right eyebrow.

[*P10] Katrina was clothed in a T-shirt, shorts and

underwear; her shirt was pulled up over her torso and

her hands crossed as if she had been dragged. When

found after the fire, her legs were laying over Christian's,

and her body was covered in debris. Her body had been

partially burned, and there was some indication that it

might have been covered with a sheet. She had eight

stab wounds to her neck and abdomen, and blunt force

trauma to the right side of her head . Her face was

charred and her glasses were attached to her burned

hair. She had defensive incised wounds on her right

palm. Although Katrina was left-handed, her right hand

held a knife with the blade pointing backwards, facing

her body. Blood on this knife was consistent with

Katrina's blood. A pocketknife with a broken blade was

found underneath Katrina's body. The pocketknife

belonged to Christian, and Katrina kept it in her

bedroom.

[*P11] The cause c-"9] of death for both Katrina and

Christian was multiple stab wounds. Neither victim had

soot in their noses or mouths, suggesting they were

dead before the fire. The cause of death for Chasity was

smoke inhalation and thermal injury.

[*P12) As investigators put out the fire and began

working at the crime scene on the morning of July 23,

Katrina's family members told police that she and Bosse

were dating, and authorities began looking for him.

Bosse shared an apartment in south Oklahoma City with

his mother, Verna. Bosse left the apartment on July 22

at about 8:00 p.m. At about 6:00 a.m. on July 23, Verna

saw Bosse getting ready to leave. He left between 6:15

and 6:30 a.m., went to OCCC, and logged in to a

computer at about 7:30 a.m.

[*P13] At about 2:30 p.m., McClain County Sheriffs

Detective Dan Huff called and asked Bosse to come to

the Sheriffs office. At about 4:00 p.m. Bosse met for

about an hour with Huff and David Tompkins, and OSBI

Agent Bob Horn. Officers saw Bosse had red abrasions

on his knuckles. There was blood on his tennis shoes

and a long scratch on his arm. Bosse admitted he was

at Katrina's house the previous evening. He talked

about the missing games. and said he went with

Katrina [***1 O] and the children to Molloy's house about

10:00 p.m. Bosse said he was there when Deputy

Cunningham took Katrina's report. He said Katrina

wanted him to stay, but he left about 12:30 a.m. on July

23rd, reaching his apartment at 1:30 or 2:00 a.m .• and

was in bed by 3:00 a.m.

[*P14] Bosse told investigators that he and Katrina had

been dating a few weeks and were not serious. He

admitted he spent the night with her a week earlier

when the children were gone. He said he'd spent some

time there and had been in every room of the trailer.

Bosse said Katrina texted him that morning, but he

could not retrieve it from his phone. Justine Lyman

dated Bosse from early July 2010, until Bosse changed

his Facebook status to "in a relationship" with Katrina.

At midnight on July 23, Lyman sent Bosse a Facebook

message complaining about Katrina. Bosse responded

at 7:44 a.m., saying Katrina was a crazy bitch, nothing

was going on, and he was dropping Katrina from his

friends list. He told Lyman she could check with Katrina

to confirm this. Bosse communicated with Lyman and a

woman named Sarah by text throughout that day.

[*P15] Investigators asked to search Bosse's truck. He

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refused, but let them take photographs of r-111 its

contents. A laptop with cables, a Bic lighter and DVD

case marked "KRG" were in the front floorboards. A

PlayStation console, video games, and DVD cases

marked "KRG" were in the front and back seat areas.

Bosse said the laptop belonged to a friend, but would

not give a name. Bosse left the Sheriffs office after 5:00

p.m. Later that day, Ginger identified the laptop, and

other items in the photos, as Katrina's. OSBI Agent

Akers went to Bosse's apartment on the night of July 23

and asked again to search his truck, and this time

Bosse agreed. Akers also noticed Bosse's red knuckles,

the scratch and [**843) the blood on his shoes. Bosse

told Akers he'd been to several places that day,

including OCCC and a Walmart, but did not say he went

anywhere north of 1-240 in Oklahoma City, or mention

any pawnshops. Bosse's brother. Matthew, was also at

the apartment. Matthew was 6 foot 2 or 3 inches and

about 300 pounds, while Bosse was about 5 foot 8 or 9,

and about 210 pounds, and the two could not have

shared clothing. When Akers searched Bosse's truck,

most of the property photographed earlier was gone,

though the movies were found in Bosse's bedroom.

Investigators searched Bosse's apartment and [***12)

found items from Katrina's trailer. Stains which might

have been blood were on towels and the laundry

basket, but only one towel was presumptively tested for

blood, and that was not confirmed. A pair of bloody

jeans was found in the back of Bosse's closet. DNA

tests on the jeans showed genetic profiles from Chasity

and Bosse. DNA tests of blood on Bosse's shoes were

consistent with Chasity (right shoe) and Katrina (left

shoe).

[*P16) Bosse's billfold was in his truck. A rip in the

back created a hidden pocket, which held pawn tickets.

When Akers asked Bosse if he forgot to mention the

pawn tickets, Bosse turned white, and Akers arrested

him. Bosse had pawned more than one hundred of

Katrina's possessions at seven different Oklahoma City

pawnshops the morning of July 23, when the trailer was

still burning . The pawned items included televisions, a

game console and VCR or DVD player, as well as

several dozen movies and video games. Most of the

games and DVDs were marked with the initials "KRG",

and sales receipts confirmed that the electronic

equipment was Katrina's. Bosse's and Katrina's

fingerprints were found on some of the pawned items. A

TV remote in Bosse's truck matched one of

Katrina's C-*13) TVs that Bosse pawned. Officers were

able to connect the items to Katrina by serial numbers,

Katrina's initials, and identification through witnesses.

Pretrial Issues

Admission of scientific evidence

[*P17] Bosse claims in Proposition l that the evidence

produced at the Daubert hearing was not sufficiently

reliable or relevant and should not have been admitted,

and argues that admission of this evidence violated his

constitutional right to due process. The State alleged

that Bosse set the trailer on fire after he killed Katrina

and Christian and barricaded Chasity in the closet.

Bosse was at home in Oklahoma City, an hour away

from the trailer, at 6 a.m. Ginger Griffin did not notice

any smoke at 7:00 a.m.. but Dobbs saw smoke at 8:55

a.m. For Bosse to have set the fire, it had to smolder for

approximately four hours before Dobbs saw the smoke.

Billy Magaiassi, an arson investigator with the Tulsa

office of the Federal Bureau of Alcohol, Tobacco, and

Firearms (BATF), determined that the fire began on a

love seat next to the west wall of the trailer. Magalassi

concluded that the fire was slow-burning. He determined

it flamed for a few minutes, then smoldered in the

limited oxygen in the trailer. [***14] Magalassi thought

the fire could have smoldered a minimum of two hours,

and as long as six or seven hours, before Dobbs and

Thompson, breaking in, introduced more oxygen and

flames flared up. Based on his investigation, he

concluded that the fire was incendiary, meaning it was

intentionally set.

{"P18) Magalassi wanted a second opinion, and called

in Jamie Lord, a fire research engineer for the BATF

Fire Research Laboratory in Ammendale, Maryland.

Lord consults with BATF investigators nationwide. Lord

was asked to determine (1) whether the origin of the fire

on a love seat against the living room west wall was

consistent with the damage to the mobile home, and

whether it was possible that the fire burned for as long

as four hours before a neighbor saw it; and (2) what was

the likely time, in such a fire, before a young child

located in the master bedroom closet would become

incapacitated from the smoke and toxic products of the

fire. Lord visited the crime scene on August 3. He later

conducted several tests at his Ammendale laboratory,

and testified as an expert for the State. Lord agreed with

Magalassi that the fire started in the love seat and was

incendiary in nature.

[*P19) The trial court held [*..15) a pretrial Daubert

hearing on Lord's experiments and [**844) found them

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admissible. 1 Daubert v. Merrell Dow Pharmaceuticals.

Inc.. 509 U.S. 579. 592-93, 113 $.Ct. 2786. 2796. 125

L.Ed.2d 469 (19931 ; Kumho Tire Co.. Ltd. v.

Carmichael. 526 U.S. 137. 147-49. 119 S.Ct. 1167.

1174. 143 L.Ed.2d 238 (1999). Bosse claims this was

error. We review a trial court's decision to admit or deny

novel scientific evidence de novo. Tavlor v. State, 1995

OK CR 10. 1I 23. 889 P.2d 319. 332.

An expert may testify to an expert opinion which is (1)

based on sufficient facts or data; (2) the product of

reliable principles and methods; and (3) the witness has

applied those principles and methods reliably to the

facts of the case. 12 O.S.2011. § 2702. Taken together,

Daubert v. Merrell Dow Pharmaceuticals. Inc .. 509 U.S.

579, 113 S.Ct. 2786. 125 L.Ed.2d 469 (19931, and

Kumho Tire Co .. Ltd. v. Carmichael. 526 U.S. 137. 119

S.Ct. 1167. 1174. 143 L Ed.2d 238 (1999) , govern

admissibility of scientific and other technical or

specialized evidence. We adopted Daubert in Tavlor v.

State. 1995 OK CR 10. 889 P.2d 319, holding that "trial

judges must continue to act as gatekeepers, ensuring

that all novel scientific evidence is both reliable and

relevant." 1995 OK CR 10, 1J 17. 889 P.2d at 329

(emphasis added). In determining whether novel

scientific evidence is admissible, a trial court should

consider (a) whether the scientific method has been or

can be tested; (b) whether the theory or technique has

been subjected to peer review and publication; (c) the

technique's known or potential rate of error; and (d)

whether the theory has gained general acceptance in

the relevant scientific community; in addition, the

testimony must have a valid scientific connection to the

pertinent inquiry such [***16] that it assists the trier of

fact. Tavlor. 1995 OK CR 10. 1111 18-20. 889 P. 2d at 330.

Citing Daubert, we noted that the Daubert analysis is

flexible, designed to accommodate many factors without

setting forth a definitive checklist or test. Tavlor, 1995

OK CR 10, 1121, 889 P.2d at 330.

Day v. State. 2013 OK CR 8, IJ(4, 303 P.3d 291. 294 ,

r'hng denied 2013 OK CR 15. 316 P.3d 931 . Under

Daubert's second prong, the testimony must be

relevant, assist the trier of fact to understand the

evidence or determine a fact in issue, by bearing a valid

scientific connection to the pertinent inquiry. Daubert.

509 U.S. at 591-92. 113 S.Ct. at 2795-96. Bosse does

not attack the reliability requirement, and the record

shows that requirement was met. Bosse claims that the

1

The trial court subsequently admitted the evidence at trial

over Bosse's objection.

second prong was not met because Lord's evidence

was not relevant.

rP20] Lord viewed the scene, taking photographs and

measurements, and reviewed the Medical Examiner's

reports and crime scene photographs. He bought a

mobile home of the same make and year as Katrina's,

disassembled it, and shipped it to Ammendale. Lord

used materials from the trailer to make five experimental

replications of the relevant inside and outside parts of

the Griffin trailer, using his measurements of the crime

scene. He used parts of the metal siding, studs, interior

wood paneling, insulation and trim, ceiling insulation,

and heat and air system with ductwork. Lord bought

five r**17] love seats like Katrina's. The primary

parameters of the tests, based on conditions at the

crime scene, were that the doors were closed, and the

windows were intact (though there was a small hole in

the front wlndow near the door). Instruments measured

the temperature, oxygen and carbon monoxide levels,

and amount of energy felt in different parts of the

structure during each experimental fire. Based on the

results recorded by the measuring equipment, Lord

estimated Chasity would likely have been incapacitated

in sixteen to fifty minutes after the fire began.

rP21] Lord conducted five burns. The first three tests

were not representative of the actual trailer fire. For the

first test, glass windows were installed. One quickly

broke and let in air. The fire grew quickly and was

burning within eight to ten minutes, and there was no

time for carbon monoxide buildup in the closet area.

Lord removed the windows, replacing them with caulked

drywall. The issue was how much air was available to

the fire, so rather than continuing to replace windows in

subsequent tests, Lord replicated the sealed-window

conditions of r*845] the actual fire. During the second

test, the fire burned up through the plywood

roof, (......18] let in air, and allowed flames to break out

earlier than they did in the original trailer fire. The roof in

the original trailer was noncombustible and did not burn

through. After that test, Lord installed a noncombustible

cement board roof. During the third test, the fire burned

through the floor and developed underneath the trailer.

The original trailer had a tight trailer skirting which

limited air flow underneath the trailer, and consequently

fire had not taken hold under the trailer in the original

fire. The experimental trailers in the first three tests had

no trailer skirting. After the third test Lord installed a

tight trailer skirting.

[*P22] The fourth and fifth tests more closely replicated

the conditions of the actual fire. The experimental trailer

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for the fourth test had windows sealed with drywall, a

noncombustible roof, and a tight trailer skirting. During

the fourth test the fire burned slowly for four hours, until

the door was opened, air entered , and flames grew

quickly. During the fifth test, the glass windows were

reinstalled. No windows broke, but the front window

developed a small hole similar to that observed in the

original trailer fire. The fire apparently ran out r**19] of

oxygen or fuel and went out after about two hours.

[*P23] The experiments had some differences from the

original fire.2 Lord did not add all the furniture in the

trailer, including only that which he thought would have

been involved in early stages of fire. Lord used fire caulk

to seal the drywall in the windows. The noncombustible

roof installed for the third experiment was fiberglassreinforced cement board, not rolled metal like the roof of

the original trailer, and probably reflected more heat.

Lord determined that the fire's strength was influenced

by the level of oxygen in the trailer; during the initial

growth phase, the fire consumed most of the oxygen

and the fire died down until revived by more oxygen.

Lord concluded the fourth burn experiment was most

similar to the actual fire conditions.

[*P24] Bosse argues this testimony was not relevant

because tests did not simulate the actual conditions of

the fire and had no valid scientific connection to the

issue at trial. On the contrary, we find the testimony was

relevant because there was a genuine issue of fact

regarding whether Bosse could have set the fire. This

Court has held that experiments to prove that specific

acts or operations (***20) present in the case led to an

alleged result should be made under similar conditions

and circumstances, and their admission is within the trial

court's discretion. Irby v. State. 1920 OK CR 176. 18

Okla. Crim. 671. 197 P. 526, 530 (Oki.Cr. 1920); see

also Gibbons v. Te"· · 1911 OK CR 66, 5 Oki.Cr. 212,

115 P. 129, 137-38 (1911). An abuse of discretion is

any unreasonable or arbitrary action made without

proper consideration of the relevant facts and law, also

described as a clearly erroneous conclusion and

judgment, clearly against the logic and effect of the

facts. Neloms v. State. 2012 OK CR 7, 1135. 274 P.3d

161. 170. The question is whether the experiment is

sufficiently similar to help jurors understand the issue, or

2 Bosse

claims the test was dissimilar because the paper

backing was removed from the insulation. Lord testified that

this occurred because the paper backing had been removed

from the insulation in the original trailer. Magalassi also

testified that he saw no paper backing on the remaining

insulation at Katrina's trailer.

whether the circumstances are so different that the

evidence will confuse the jury. Andrews v. State. 1976

OK CR 258. 11 14. 555 P.2d 1079, 1083-84. Bosse

suggests that his case should be controlled by the result

in Andrews. where the Court excluded the defense

expert testimony because his ballistics experiments

used a gun with a different barrel length than the gun

used in the crime. However, the factual analysis for

each case is necessarily different. The real question is

whether, under the circumstances of this case, the trial

court abused its discretion in admitting the evidence. Id.

Bosse also relies on several nonbinding civil cases

involving automobiles: Navajo Freight Lines v. Mahaffy,

174 F.2d 305. 309-10 (10th Cir. 1949) (no abuse of

discretion in refusing to admit an experiment which

both [***21J failed to replicate existing conditions of the

accident, and was irrelevant to the issue); Jackson v.

Fletcher. 647 F.2d 1020. 1026-27 (10th Cir.

19811

(abuse of discretion to admit experiment results [**846]

where experiment conditions differed from accident

conditions); Jones v. Stemco Mfg. Co.. 1981 OK 10. ~1J

14-15, 624 P.2d 1044. 1047 (abuse of discretion to

admit experiment conducted on significantly different

vehicle in dissimilar conditions); Guild v. GMC. 53 F.

Supp. 2d 363. 366 (W.0. New York. 1999). The State

cites cases from other jurisdictions holding there is no

abuse of discretion in admitting experiments where

conditions are so substantially similar as to provide a

fair comparison, though the original conditions are not

precisely reproduced. United States v. Norris, 217 F.3d

262. 270-71 (5th Cir. 2000) ; Rankin v. Commonwealth.

327 S.W.3d 492. 498-99 (Ky. 2010). The only important

thread throughout these otherwise irrelevant cases is

that the determination whether experiment evidence is

sufficiently similar to the original conditions, and its

admission, is within the trial court's discretion.

rP25] Bosse argues that the experiment conditions

were too dissimilar to be relevant. He points specifically

to the substitution of drywall for windows in several of

the tests. Lord testified at the Daubert hearing that there

were many unpredictable variables involved in whether

windows will fail during a fire, including the framing and

installation, and properties of the glass. Lord

testified r"*22] that the drywall and the closed windows

had similar ventilation properties, with a similar effect on

the oxygen level in the house. Bosse tries to reframe the

issue, asking whether a fire could bum in the trailer for

four hours without breaking any windows, and

complains that Lord's experiments did not answer that

question. Bosse argues that Lord merely tried to prove

the State's theory. On the contrary, jurors heard

evidence that Lord tried several experiments, using both

Page 7 of 28

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windows and drywall. The record shows that, over the

course of several tests, Lord sufficiently replicated the

conditions of the original fire to simulate the actual

conditions. The differences between the experiment

conditions and the original fire go to the weight of the

evidence, not its admissibility, were thoroughly

discussed in cross-examination, and were disputed by

the defense expert. Irby. 197 P. at 531 ; Rankin. 327

S. W.3d at 499. The record supports the trial court's

conclusion that the evidence was reliable and relevant,

and the trial court did not err in admitting it. Tavlor. 1995

OK CR 10. 'll 23. 889 P.2d at 332. This proposition is

denied.

Exercise of the Fourth Amendment right to refuse

consent to search

[*P26) In Proposition II, Bosse argues that the

prosecution's substantive use of his exercise of his

Fourth Amendment right [***23) to refuse to consent to

a warrantless search of his vehicle raised an

impermissible inference as to his guilt, depriving him of

due process of law and a fair trial and reliable

sentencing hearing under the Fourth and Fourteenth

Amendments to the United States Constitution and

Article II, §§ 7, 2. 20 and 30 of the Oklahoma

Constitution. Bosse voluntarily talked to police on the

afternoon of July 23. Investigators asked to search

Bosse's truck. He refused, but let them take

photographs of its contents. A laptop with cables, a Bic

lighter and DVD case marked "KRG" were in the front

floorboards. A Playstation console, video games, and

DVD cases marked "KRG" were in the front and back

seats. Bosse said the laptop belonged to a friend, but

would not give a name. Ginger Griffin identified the

laptop, and other items in the photos, as Katrina's. OSBI

Agent Akers went to Bosse's apartment on the night of

July 23 and asked again to search his truck, and this

time Bosse consented. At trial, Bosse's conversation

with police was admitted, along with the photographs of

the truck's contents and the results of the later consent

search. Bosse does not complain about admission of

any of this evidence.

[*P27) Over Bosse's vigorous and continued objection,

the trial court allowed two witnesses to testify that Bosse

initially [**'"24) refused to let officers search his truck.

Prosecutors admitted Bosse had a right to refuse

consent, but argued that they could comment on that

refusal because he was hiding evidence.3 Prosecutors

vigorously argued in closing that [..847) this refusal

was substantive evidence of Bosse's guilt. Bosse claims

admission of this evidence for this purpose, and its use

in closing argument, was error. Bosse did not object to

the remarks in argument, waiving all but plain error for

those claims.

[*P28) The Fourth Amendment guarantees the right to

be free from unreasonable search and seizure. U.S.

Const., Amend. 14. Any citizen has the right to refuse

consent to search his property, and to require the

government to get a warrant before conducting a

search. Schneckloth v. Bustamonte. 412 U.S. 218. 219.

93 S.Ct. 2041, 2043-44. 36 L.Ed.2d 854 (1973) . There

is no binding law on whether a prosecutor violates a

defendant's constitutional right by using a defendant's

refusal to consent to a warrantless search as

substantive evidence of guilt. This Court has not

previously decided this issue. However, we have found

that prosecutors erred in arguing as substantive

evidence of guilt the defendant's exercise of

constitutional rights, including refusing to give a written

statement to police and consulting attorneys when one

is under investigation [***25) for a crime. Brewer v.

State, 2006 OK CR 16. 111110-11. 133 P.3d 892. 894-95.

rP29) Admission of evidence is within the trial court's

discretion. Neloms. 2012 OK CR 7. 11 25. 274 P.3d at

167. Bosse argues that the trial court abused its

discretion in admitting this evidence and the subsequent

argument concerning it. Bosse argues that a person

should not suffer penalty for exercising a constitutional

privilege. He relies on Perry v. Sindermann, in which the

United States Supreme Court held that a non-tenured

professor could not be denied re-employment based on

his exercise of his right to free speech under the First

and Fourteenth Amendments. Perry v. Sindermann. 408

U.S. 593. 92 $.Ct. 2694. 33 L.Ed.2d 570 (1972). In

Perry, the Court concluded that Sindermann's lack of a

contract or tenure did not defeat his constitutional

claims, because the government may not deny a person

a benefit as a consequence of exercise of a

constitutionally protected right. Perrv. 408 U.S. at 598.

92 S.Ct. at 2698. In another context, the Supreme Court

discussed the Fourth Amendment right to refuse

consent to search. Camara v. Municipal Court of Citv

and Countv of San Francisco. 387 U.S. 523. 87 S.Ct.

3 In

opening statement the prosecutor told jurors Bosse

refused consent to search his truck. Bosse did not object to

this statement.

Page 8 of 28

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0

847; 2017 Okla. Crim. App. LEXIS 11, """25

1727. 18 L.Ed.2d 930 (1967). In finding that

administrative health and safety inspections require a

warrant, the Court noted that refusing entry to

authorities for inspections often carried criminal

penalties. Camara, 387 U.S. at 532-33. 87 s.cr. at

1732-33. The Court concluded that Camara could not

be constitutionally prosecuted for exercising his Fourth

Amendment right to refuse to consent to an inspection

without a warrant. Camara, 387 U.S. at 540. 87 S.Ct. at

1736-37. Discussing when [***26] an encounter with

police constitutes a seizure under the Fourth

Amendment, the Court noted that a person may refuse

an officer's requests without fear of prosecution. Florida

v. Bostick. 501 U.S. 429. 437. 111 S.Cr. 2382. 2387,

115 L.Ed.2d 389 (1991) .

[*P30] Bosse draws an analogy to Fifth Amendment

claims. It is settled that prosecutors cannot comment on

a defendant's exercise of the Fifth Amendment privilege

against self-incrimination, using it as substantive

evidence of guilt. Griffin v. California, 380 U.S. 609. 614.

85 S.Ct. 1229. 1232-33. 14 L.Ed.2d 106 (1965).

However, Bosse is not making a Fifth Amendment claim

here. Rather, he suggests that the principle in Griffin

should apply equally in the Fourth Amendment context.

Every jurisdiction which has published a case on this

issue has either concluded or implied that Griffin should

be so extended. The State fails to provide any

persuasive or binding case law in which a court has

reached an opposite conclusion.

[*P31] Several federal circuit courts have considered

this issue and concluded that exercise of the Fourth

Amendment right to refuse consent to search is not

admissible as substantive evidence of guilt. The Sixth

Circuit has stated, "The exercise of a constitutional right,

whether to refuse to consent to a search, to refuse to

waive Miranda rights or to decline to testify at trial, is not

evidence of guilt." United States v. Clariot. 655 F.3d

550. 555 (6th Cir. 2011). The Third Circuit explicitly

extended the reasoning of Griffin to the Fourth

Amendment context, finding [***27] "little, if any, valid

distinction between the privilege [**848] against selfincrimination and the privilege against unreasonable

searches and seizures which is relevant to the propriety

of the prosecutor's argument." United States v. Thame.

846 F.2d 200, 206 (3rd Cir.), cert. denied, 488 U.S. 928,

109 S. Ct. 314, 102 L. Ed. 2d 333 (1988) . The Third

Circuit went on to note that to find otherwise would

undermine the law prohibiting use of a defendant's

testimony at a suppression hearing against him at trial,

finding that the "protection would be largely illusory" if

the defendant's reliance on the Fourth Amendment,

proved by evidence other than his testimony, could be

used against him at trial. Thame. 846 F.2d at 207. The

Third Circuit cited with approval a Ninth Circuit case,

Prescott, in which the Ninth Circuit extended the

reasoning of Griffin to the Fourth Amendment and,

relying on Camara. supra, asserted that the Fourth

Amendment right at issue could be neither a crime itself

nor evidence of a crime. Umted States v. Prescott. 581

F.2d 1343. 1350-51 (9th Cir. 1978). The Ninth Circuit

held that a defendant can refuse consent to search, with

the purpose of concealing wrongdoing, and that this

refusal cannot be used against him in a criminal

prosecution. Prescott. 581 F.2d at 1351-52. Prescott

noted that both the innocent and the guilty have the right

to refuse consent to search, just as they do to remain

silent, but that the prosecutor's objective in introducing

a [***28] defendant's refusal of consent is to infer guilt;

the Court found this just as impermissible as using a

defendant's silence to infer guilt. Prescott. 581 F. 2d at

1352.

[*P32] The United States District Court for the Eastern

District of Virginia explained the reasoning behind the

prohibition against use of a defendant's refusal to

consent to a search as substantive evidence of guilt:

If the Government was allowed to admit a suspect's

refusal of consent in order to show consciousness of

guilt, a defendant's consent could never be truly

voluntary. In such an instance, the defendant would be

faced with a "Hobson's choice." He could either consent

to a search of his vehicle and relieve the Government

from getting a warrant, a key procedural safeguard

against unreasonable searches, or he could assert his

constitutional right by refusing to grant consent, and

have that refusal incriminate him by implication.

Admitting such a statement would punish a person for

asserting a constitutional right.

United States v. Guess. 756 F.Supp.2d 730. 747-48

(U.S.O.C. E.D. Va. 2010).

[*P33] Other federal circuits have discussed the issue.

The Tenth Circuit has held that evidence the defendant

refused consent to search was admissible as evidence

of dominion and control, but noted that, if the evidence

were not admitted [***29] in response to a defense

claim or for another proper purpose, its admission would

be error. United States v. Dozal. 173 F.3d 787. 794

(10th Cir. 1999). The Tenth Circuit has also stated that,

when determining reasonable suspicion for an

investigative detention, "it should go without saying" that

consideration of a defendant's refusal to consent to a

Page 9 of 28

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search violates the Fourth Amendment. United States v.

Wood. 106 F.3d 942. 946 (10th Cir. 1997). While not

addressing the issue directly, the Fifth and Seventh

Circuits relied on cases from other jurisdictions

(discussed infra), assuming without deciding that such

evidence would be constitutional error, before finding

the error in each case was harmless beyond a

reasonable doubt. United States v. Runvan. 290 F.3d

223. 249-50 (5th Cir. 2002); United States v. Moreno,

233 F.3d 937. 940-41 (7th Cir. 2000) . Runyan

particularly noted that the circuit courts directly

addressing the issue had unanimously held a

defendant's refusal to consent to a warrantless search

may not be used as evidence of guilt. Runyan, 290 F. 3d

at 249.

[*P34] Several state courts have held that refusal of

consent to search under the Fourth Amendment cannot

be used as substantive evidence of guilt or to show

consciousness of guilt. The Colorado Court of Appeals

recently engaged in a thorough discussion of this issue,

summarizing the various jurisdictions' approaches

described herein. That court noted that refusal of

consent to search might, as in Dozal. supra , be

admissible [***30) for some proper purpose, but

determined that it was always improper to admit such

evidence to infer or show guilt or consciousness of guilt.

[**849) People v. Pollard. 307 P.3d 1124. 1130-31.

2013 GOA 31 (Colo. Ct. App. 2013).

[*P35) Early discussions of this issue are found in

cases from Alaska, California, and New Mexico. In

Padgett v. State, the Alaska Supreme Court stated,

"Padgett had a right under the Fourth Amendment to the

Federal Constitution, and article I. section 14 of the

state constitution, to refuse to consent to a search of all

or part of his car. That right would be effectively

destroyed if, when exercised, it could be used as

evidence of guilt. It was error to admit testimony of

defendant's refusal, and error to comment on it during

summation." Padgett v. State. 590 P.2d 432. 434

(Alaska 1979). The Supreme Court of New Mexico,

noting that a defendant "has a right to refuse to consent

to a warrantless search without such refusal later being

used to implicate his guilt", found that the defendant did

not testify, and his refusal to consent "could not be

mentioned unless he testified to the contrary on direct

examination." Garcia v. State. 1986- NMSC 007, 103

N.M. 713. 714. 712 P.2d 1375. 1376 (1986). See also

Gomez v. State, 572 So. 2d 952. 953 (Fla.Dist.Ct.App

1990) ("A defendant who has a constitutional right to

refuse to consent to a search . . . should be free to

exercise that right with impunity. No comment on its

exercise should be permitted to raise an inference of

guilt, if the Fourth Amendment right against [*-31)

unreasonable search and seizure is to be given its full

meaning."); People v. Keener. 148 Cal.App.3d 73. 7879. 195 Cal.Rptr. 733, 736 (Cal.App. 1983) (defendant

refused to consent to warrantless entry into his

apartment; assertion of this right is neither itself a crime

nor evidence of a crime).

[*P36) Other states have reached the same

conclusion. The Georgia Court of Appeals held that a

defendant's refusal to consent to search may not be

used against him as evidence of guilty knowledge.

Mackey v. State, 234 Ga. App. 554, 507 S.E.2d 482,

483-84 (Ga. Ct. App. 1998). The Idaho Supreme Court

applied Griffin's reasoning to a defendant's exercise of

the Fourth Amendment right to refuse consent to

search, finding that a prosecutor cannot use the

exercise of that right to show consciousness of guilt; in

that case, the error was harmless beyond a reasonable

doubt. State v. Christiansen, 144 Idaho 463, 163 P.3d

1175. 1182-83 (Idaho 2007). See also State v. Wright,

153 Idaho 478, 283 P.3d 795, 806 (Idaho Ct. App. 2012)

("[E]liciting testimony from a witness regarding a

defendant's refusal to consent to a search , when used

for the purpose of inferring guilt, is prosecutorial

misconduct and may be fundamental error.") The

Maryland Court of Appeals found that exercise of the

constitutional right to refuse consent to search of a car

may not be used to imply guilt, as that would place an

"unfair and impermissible burden" on the assertion of

the right. Longshore v. State. 399 Md. 486. 924 A.2d

1129, 1158-59 (Md. 2007). In that case, the trial court

had sustained the defendant's objection to [***32)

evidence that he had refused consent to search his car,

and admonished the jury to disregard that evidence, but

refused his request for a mistrial. The Court held that

the trial court erred in denying the request for mistrial,

and the curative instruction did not protect the

defendant's right to a fair trial. Id at 1159. The Kentucky

Supreme Court concluded that a defendant's refusal to

consent to fingerprint sampling was properly admitted to

rebut and impeach his claim of self-defense, but noted,

"Generally, such as in Deno, exercising one's privilege

to be free of warrantless searches is simply not

probative (or has low probative value) to a determination

of guilt, and thus, the defendant's right to not be

penalized for exercising such a privilege is paramount."

Coulthard v. Commonwealth., 230 S. W.3d 572. 584 (Kv.

2007). See also Deno v. Commonwealth" 177 S W.3d

753, 761-62 (Ky. 2005) (A defendant has the Fourth

Amendment right to refuse to submit biological

specimens; refusal to consent to search is privileged

Page 10 of 28

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conduct and cannot be considered as evidence of guilt).

[*P37] Where a defendant refused to consent to a

warrantless ONA sample, the Wisconsin Supreme Court

noted the weight of state and federal authority prohibited

using the exercise of the Fourth Amendment right to

consent to search as evidence of guilt, holding that

comment on the [***33] exercise of that right violates

due process. State v. Banks. 2010 WI App 107. 1"1 2125. 328 Wis. 2d 766. 790 N. W.2d 526. 533-34. The

Nevada Supreme Court, noting that many courts had

already held the State may not infer guilt from a [**850)

defendant's exercise of his Fourth Amendment right to

refuse consent to search, adopted that rule; the court

emphasized that a defendant should not be punished for

asserting a constitutional right, but found erroneous

admission of the evidence harmless beyond a

reasonable doubt. Sampson v. State. 121 Nev. 820. 122

P.3d 1255. 1260-61 (2005). The Court of Appeals of

Texas followed the Ninth Circuit's reasoning in Prescott,

and concluded that the prosecutor could not infer guilt

from exercise of the right to refuse consent to search,

and the error was of constitutional magnitude; the error

in admitting the evidence was harmless beyond a

reasonable doubt. Reeves v. State. 969 S.W.2d 471,

495-96. (Tex. Ct. App. 1998). The Michigan Court of

Appeals determined that assertion of the right to refuse

consent to search of a car cannot be a crime or

evidence of a crime, finding, "It would make

meaningless the constitutional protection against

unreasonable searches and seizures if the exercise of

that right was allowed to become a badge of guilt.•

People v. Stephens. 133 Mich. App. 294. 349 N. W. 2d

162. 163-64 (Ct. App.Mich. 2010) (quoting Bargas v.

State, 489 P. 2d 130. 132 (Alaska 1971 !). The Arizona

Court of Appeals found that using a defendant's refusal

of consent to search as substantive evidence of guilt

would [***34]

appreciably

impair

the

Fourth

Amendment's prohibition of unreasonable searches, by

penalizing defendants for exercising that right;

erroneous admission of the evidence was not prejudicial

in that case. State v. Stevens, 228 Ariz. 411. 267 P.3d

1203. 1208-09 (Ariz. Ct. App. 2012! ; see also State v.

Wilson, 185 Ariz. 254. 914 P.2d 1346. 1350-51 (Ariz. Ct

App. 19951 (trial court erred in admitting defendant's

refusal of consent to show defendant was

uncooperative; generally cannot show guilt through

exercise of the Fourth Amendment right to refuse

consent, and the valid exercise of a constitutional right,

standing alone, does not show defendant is

uncooperative.)

[*P38]

Although Bosse cites many of the cases

discussed above, the State wholly fails to address them.

The State first argues that the record here supports

neither a search nor a seizure - although Bosse does

not claim that there was any improper search or seizure.

The State then argues that Bosse has no claim under

the Fifth Amendment - although Bosse does not raise a

Fifth Amendment claim. Finally, the State turns to

Bosse's claim that the reasoning of Griffin should be

applied to the Fourth Amendment right to refuse

consent to a search. The State does not discuss what

appears to be the settled law from twenty-one separate

state and federal jurisdictions, applying the Griffin

reasoning in this precise way. Instead, writing as if none

of those cases exist. the (***35] State argues that a

recent United States Supreme Court case limits Griffin

in the Fifth Amendment context. In Salinas v. Texas, a

divided Supreme Court in a plurality opinion held that,

during noncustodial police questioning where no

Miranda warnings are given, a defendant must

expressly invoke his Fifth Amendment privilege against

self-incrimination. Salinas v. Texas.

U.S. . 133 S.Ct.

2174. 2179-80, 186 L.Ed.2d 376 (2013!. The plurality

found that Salinas' interview was noncustodial and

voluntary, his statements were outside the scope of

Miranda, not coerced, and he was free to voluntarily and

explicitly state that he refused to answer questions on

Fifth Amendment grounds, but failed to do so. Salinas.

133 S.Ct. at 2180-81.

[*P39) Salinas has very little relevance to the issue

before this Court, but what relevance it has appears to

support Bosse's claim. Salinas focuses exclusively on

when, whether, and how a defendant must claim his

Fifth Amendment right to silence during noncustodial

questioning. As, during the course of a noncustodial

interview, Bosse did not exercise his Fifth Amendment

right, this discussion in Salinas is simply irrelevant.

However, Bosse did, explicitly and in writing, exercise

his Fourth Amendment right to refuse consent to search

- the precise thing the Salinas plurality would have

required of the defendant in that case in order to

preserve his Fifth Amendment right [***36] under Griffin

and Gamer. Nothing in either the plurality opinion or the

dissent suggest that a majority of the Court considered

in any way the issue before this Court. Two Justices,

concurring in the judgment. clearly state that they

disagree with Griffin and would allow a prosecutor to

infer guilt from a defendant's failure to testify, or from his

silence during questioning. [**851) Salinas. 133 S.Ct.

at 2184 (Thomas, J.• concurring in the judgment)Ooined

by Justice Scalia). Logically extended to the Fourth

Amendment issue, this would suggest these two

Justices would also overturn the weight of law

Page 11of28

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discussed above in the Fourth Amendment context.

However, there is no indication that the remaining

Justices would agree. Essentially, the State asks this

Court to speculate, based on a plurality opinion

interpreting the Fifth Amendment and relying primarily

on a separate writing joined by only two Justices, that

the Supreme Court would overturn the settled Fourth

Amendment law discussed above - and, relying on that

speculation, to reject Bosse's claim.

[*P40] This Court finds the weight of the law discussed

above persuasive, but we note that this issue is subject

to harmless error analysis. Most constitutional errors

occurring during trial are subject to harmless error

analysis, as they [***37) may be assessed, along with

the evidence presented, for any prejudice to the

defendant. Robinson v. State. 2011 OK CR 15. ii 3. 255

P. 3d 425, 428; Chapman v. California. 386 U.S. 18, 24.

87 S.Ct. 824, 828. 17 L.Ed.2d 705 (19671. 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. Because the error is of

constitutional dimensions, we review both admission of

the evidence and its use in closing argument to

determine whether the error was harmless beyond a

reasonable doubt. Robinson. 2011 OK CR 15, 1J 12. 255

P.3d at 430; Bartell v. State. 1994 OK CR 59, ii 10, 881

P.2d 92. 95. Bosse does not contest admission of his

own statements, or any of the incriminating evidence

obtained either with his consent or with a warrant; in

addition, the State presented forensic evidence and

testimony

supporting

the verdict.

Under the

circumstances of this case we find any error in use of

this evidence to infer guilt was harmless beyond a

reasonable doubt. Miller v. State. 2013 OK CR 11. 11

106. 313 P.3d 934. 971-72; Robinson. 2011 OK CR 15.

1J 3, 255 P.3d at 428. This proposition is denied.

Guilt Stage Claims

Bosse's objection that they were cumulative, as State's

Exhibits 304 and 305. Bosse argues this decision was

error because the exhibits were inadmissible hearsay.

Admission of evidence is within the trial court's

discretion. Neloms. 2012 OK CR 7, 11 25. 274 P.3d at

167. Because Bosse did not object to these exhibits on

these grounds at trial, he has waived all but plain error.

Brown v. State. 2008 OK CR 3. 1!J 11. 177 P.3d 577.

580. Bosse fails to show any actual error, that is plain or

obvious, and that affected a defendant's substantial

rights, affecting the outcome of the trial. Barnard v.

State. 2012 OK CR 15. 1113. 290 P.3d 759. 764 .

[*P42]

Bosse characterizes these exhibits as

"investigative reports by police and other law

enforcement personnel," which are inadmissible under

12 O.S.2011 . § 2803(8)(aJ ; see, e.g., Salazar v. State.

1998 OK CR 70. 1f 22. 973 P.2d 315. 324 (motor vehicle

theft report); Humphreys v. State. 1997 OK CR 59. 1I 25.

947 P.2d 565. 574-75 (DOC investigative reports);

Frazier v. State. 1994 OK CR 31 . '112. 874 P. 2d 1289.

1292 (prison pen pack); but see Charm v. State. 1996

OK CR 40. ii 28, 924 P.2d 754. 764 (routine DOC

records were not investigative reports). The record does

not support this characterization of these documents.

The tables consisted of numbers - information - from

Stambaugh's tests, without any results or conclusions.

Without her testimony, they are meaningless. They are

simply not investigative reports.

[*P43] Bosse also seems to suggest [**'*'39] that

State's Exhibits 304 and 305 were summaries of

Stambaugh's testimony, and that their admission was

improper because it put too much emphasis on her

testimony. Bosse C-852] relies on Moore v. State, in

which we held that it was not error to give jurors a

summary of an expert's findings, noting that the

summaries were not admitted into evidence. Moore v.

State. 1990 OK CR 5. '1 44, 788 P. 2d 387. 398. He

mistakenly suggests that admission of these exhibits is

like the admission, and use in deliberations, of

videotaped testimony and a transcript of a recorded

exhibit. It is not.

Admission of Vlsual Aids to Testimony

[*P41] Bosse argues in Proposition IV that the

erroneous admission of hearsay evidence deprived him

of a fair trial and reliable sentencing. Antje Stambaugh,

an OSBI DNA analyst, testified regarding her analysis of

DNA samples from Bosse and all three victims.

Stambaugh prepared two tables c-*38] illustrating the

genetic profiles from the four subjects and the items of

evidence she tested. These were admitted, over

[*P44] Bosse argues admission of these exhibits

placed undue emphasis on Stambaugh's testimony.

However, he does not claim he was prejudiced by

admission of these exhibits. He neither argues they

might have confused or misled the jury, nor points to

any other prejudice they might have caused him.

Stambaugh used the figures on the charts as a visual

aid to explain her testimony. Bosse does not show how

this visual presentation of the numbers overemphasized

Page 12 of 28

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Stambaugh's testimony. The trial court did not abuse its

discretion in admitting this evidence. Because there is

no error, there is no plain error. This proposition is

denied.

Exceptions to Rule of Sequestration

[*P45) Bosse claims [*-40) in Proposition VI that the

trial court abused its discretion in allowing the victims'

family members to remain in the courtroom over his

objection, violating his rights to due process and a fair

and impartial trial under the Fourteenth Amendment to

the United States Constitution and Article II. Sections 7

and 20 of the Oklahoma Constiwtion. Katrina's mother,

Rebecca Allen, and her stepmother, Ginger Griffin,

testified for the State in both first and second stage.

Over Bosse's objection, both women were allowed to

remain in the courtroom throughout the trial. Bosse had

invoked the rule of sequestration, which allows a party

to order the exclusion of witnesses from the courtroom,

so they cannot hear testimony of other witnesses. 12

O.S.2011. § 2615. The State may ask that persons who

are the victims of crime, or their representatives, parents

or relatives, be exempted from this exclusion. 12

O.S.2011. § 2615(5). A decision to include or exempt

witnesses from the rule of sequestration is within the

trial court's discretion. 12 O.S.2011, § 2615; Edwards v.

State. 1982 OK CR 204. iJ 12. 655 P.2d 1048. 1051-52.

The rule is intended to guard against the possibility that

a witness's testimony might be tainted or manipulated

by hearing other witnesses. McKav v. City of Tulsa.

1988 OK CR 238, iJ1I 5-6. 763 P.2d 703. 704; Weeks v.

State. 1987 OK CR 251. 1I 4, 745 P.2d 1194. 1195.

Allen was completely exempted from the rule of

sequestration, and Ginger Griffin was exempted after

her testimony in first stage was concluded. Ginger was

the State's r-41) first witness.

[*P46] Later in the trial, jurors viewed the autopsy

photographs on monitors. Both Rebecca Allen and

Ginger Griffin were seated behind the monitors on which

pictures were shown to the jurors, directly in some

jurors' line of sight as they viewed the photographs.

Bosse objected, arguing that the women were showing

emotion as they themselves viewed the pictures, that

jurors could see this, and that the mere fact that family

members were visible as jurors viewed the photographs

allowing jurors to form an emotional bond with the family

- was unduly prejudicial. The trial court denied Bosse's

request for a mistrial, made the next day, but ordered

that family members should move out of the jury's line of

sight when jurors watched the monitors. Bosse raises

this in support of his claim that the witnesses never

should have been in the courtroom, but he does not

claim that the trial court erred in refusing to grant his

request for a mistrial.4

[*P47] Bosse argues, as he did at trial, that he might

be prejudiced if jurors felt sympathy for the family

members who sat in the courtroom throughout the trial.

He does not claim that either witness altered her

testimony based on the evidence that she [*-42) heard

from other witnesses. This, of course, is the evil the rule

of sequestration is designed to remedy. Bosse's other

allegations of prejudice are speculative and not

supported by the record. The trial court did not abuse its

discretion in excepting Allen and Ginger Griffin from the

rule of sequestration . This proposition is denied.

[**853) Admission of Gruesome Photographs

[*P48] Bosse claims in Proposition VII that the trial

court abused its discretion in admitting gruesome and

inflammatory photographs in violation of the Eighth and

Fourteenth Amendments to the United States

Constitution and Article II. §§ 7, 2 and 20 of the

Oklahoma Constitution. Admission of photographs is

within the trial court's discretion. Mitchell v. State. 2010

OK CR 14. 1I 57. 235 P.3d 640. 655. Photographs of a

victim may depict the scene of the crime, show the

nature, extent and location of wounds, or corroborate

the medical examiner's testimony. Id. Photographs

should not be admitted if their effect is such that the

danger of unfair prejudice substantially outweighs their

probative value. Livingston v. State. 1995 OK CR 68. 'U

20. 907 P.2d 1088. 1094. This Court has often said that

gruesome crimes make for gruesome photographs.

Cote v. State. 2007 OK CR 27. 1I 29. 164 P.3d 1089.

1096. This alone will not make them inadmissible, as

long as they are not so unnecessarily hideous or

repulsive that jurors cannot view them impartially. Hain

v. State. 1996 OK CR 26. 'll 45, 919 P.2d 1130. 1143;

Livingston. 1995 OK CR 68. 1I 20. 907 P.2d at 1094.

[*P49] The trial court admitted nine photographs of

Katrina taken at [***43) the scene and two of her taken

at the morgue; three photographs of Christian taken at

the scene and one of him taken at the morgue; and two

photographs of Chasity taken at the scene.5 Before trial,

4 Thus

we do not address the State's assertion that Bosse

waived this issue.

5 Bosse

did not object at trial to two further exhibits which

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Bosse objected to State's Exhibit 95 but not to State's

Exhibit 65, both pictures of Chasity, arguing that State's

Exhibit 95 was cumulative. The trial court denied that

objection but required the State to choose between

State's Exhibits 65 and 66. Bosse objected to admission

of both photographs at trial. Bosse also moved, before

trial began, to exclude several photographs, including

some of those raised in this proposition as erroneously

admitted, as cumulative and overly prejudicial. That

motion was sustained in part and denied in part, and

Bosse vigorously objected to admission of the

photographs at trial. The photographs were shown to

jurors on monitors in the courtroom during the testimony

of State witnesses.

immediate visceral reaction." Id. We cannot say jurors

were able to view these two pictures impartially, and find

their probative value was substantially outweighed by

the danger of unfair prejudice. [**854) The trial court

abused its discretion in admitting these exhibits.

However, this error does not require relief. Considering

the entire record, we conclude that these prejudicial

photographs did not contribute to the jury's verdict of

guilt or determination of sentence. Cole. 2007 OK CR

27, 1I 32. 164 P.3d at 1097; Mann v. State. 1988 OK CR

7. 1I 13. 749 P.2d 1151. 1156. This proposition is

denied.

Admission of Pre-Mortem Photographs

[*P50] The photographs of Katrina's and Christian's

bodies at the scene are extremely disturbing. Both of

these victims were dead before the fire began. Any

effects the fire had on their bodies were not relevant to

their fatal injuries, but those effects do reflect the

consequences of [***44] Bosse's decision to leave the

bodies and set the trailer on fire. While in several of the

pictures the bodies are covered in charred material or

rubble, none of the photographs show marked or

extensive effects of the fire. The photographs are

relevant to show the scene and corroborate the medical

examiner's testimony. They are not so hideous or

repulsive that jurors could not view them impartially.

Anderson v. State. 1999 OK CR 44, 1138-39. 992 P.2d

409. 421 . Bosse also complains of morgue pictures of

both these victims, taken after the bodies were cleaned,

and before the autopsies were performed. Long cottontipped probes are inserted into the victims' stab wounds,

showing the location, direction and trajectory of the

wounds. Again, these photographs are disturbing.

However, they show jurors Bosse's handiwork and

corroborate the medical examiner's testimony. The trial

court did not abuse its discretion in admitting these

exhibits. Cole, 2007 OK CR 27, 1128. 164 P.3d at 1096.

[*P51] The two pictures of Chasity, by contrast, are, as

we said of similar photographs in Livingston, "profoundly

disturbing .... (and] particularly perturbing." Livingston,

1995 OK CR 68. 1I 18, 907 P.2d at 1094. Chasity's body

was badly burned. Parts of her limbs were charred to

the bone and fire debris had melted onto her face. We

recognize that the photographs r··451 were relevant.

That does not end our inquiry. As in Livingston, these

horrible pictures of this six-year-old child "provoke an

included barely visible portions or Chasity's body covered with

rubble, and does not raise admission of those photographs as

error on appeal.

[*P52] In Proposition VIII Bosse argues that the

admission of pre-mortem photographs of the victims

injected passion, prejudice, and other arbitrary and

irrelevant factors into his trial. He claims that the

amended § 2403 of the Oklahoma Evidence Code is

unconstitutional on its face and as applied to his trial.

Ginger Griffin was the State's first witness. Over Bosse's

objection, the State introduced, through her testimony,

photographs of all three victims taken while each was

alive. Bosse claims admission of this evidence was

error. Oklahoma [***46] law allows admission of this

type of evidence to show the general appearance and

condition of the victim while alive. Goode v. State. 2010

OK CR 10. 1I 56. 236 P.3d 671. 682; 12 0 S.2011, §

2403. We have found § 2403 requires the trial court to

balance a pre-mortem photograph's probative value

against its prejudicial effect. Glossip v. State. 2007 OK

CR 12. 1111 77-78, 157 P.3d 143. 156-57; Hogan v. State.

2006 OK CR 19. 1I 64. 139 P.3d 907. 931. We review a

trial court's decision to admit this evidence for abuse of

discretion. Goode, 2010 OK CR 10, 11 57. 236 P.3d at

682-83.

[*P53] Bosse acknowledges the law but argues that §

2403 is unconstitutional on its face and as applied to

him. He argues that admission of pre-mortem

photographs violates due process, and that the

balancing test is contrary to the plain language of §

2403. Bosse does not overcome the presumption that

legislative acts are constitutional. Glossip. 2007 OK CR

12. 1I 78. 157 P.3d at 156-57. We have previously

rejected these claims, specifically finding that the

balancing test remains and applies to this clause after

the statute was amended to permit this type of

evidence. Hogan. 2006 OK CR 19, 111162-64. 139 P.3d

at 930-31 ; Coddington v. State. 2006 OK CR 34. 11115357. 142 P.3d 437. 452-53. Bosse also claims that the

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photograph had no relevance to any issue in the second

stage of trial. We have rejected this claim as well.

Malone v. State. 2007 OK CR 34. 1111 85·86. 168 P.3d

185. 218-19. We decline to reconsider these decisions.

This proposition is denied.

previously rejected this claim. Marquez-Burrola v. State.

2007 OK CR 14. 1127, 157 P.3d 749, 759. Bosse offers

no new reason to reconsider our decision. This

proposition is denied.

Sentencing Stage Claims

Instruction on First Degree Murder

[*P54] In Proposition V, Bosse claims he was deprived

of a fair trial when jurors were not instructed that malice

aforethought [***47] cannot be presumed from the

mere act of killing, in violation of the Fifth, Eighth and

Fourteenth Amendments to the United States

Constitution and Arlicle II. §§ 7, 2. and 20 of the

Oklahoma Constitution. The trial court gave jurors the

uniform jury instruction on malice murder: "The external

circumstances surrounding the commission of a

homicidal act may be considered in finding whether or

not deliberate intent existed in the mind of the defendant

to take a human life. External circumstances include

words, conduct, demeanor, motive, and all other

circumstances connected with a homicidal act." OUJlCR 2d 4-63. Bosse objected, and asked the trial court to

add the sentence, "However, you may not presume or

infer the existence of the requisite intent, i.e. 'malice

aforethought' from the fact of the slaying alone." The

trial court refused. Bosse claims this was error. The trial

court must instruct jurors accurately on the applicable

law. Soriano v. State. 2011 OK CR 9. 1I 36. 248 P.3d

381. 396. We review a trial court's decisions to grant or

deny instructions for abuse of discretion. Cipriano v.

State. 2001 OK CR 25. 1J 14. 32 P.3d 869. 873-74.

[*P55) Bosse argues that the uniform jury instruction

shifted the burden of proof to him. He argues that, once

jurors decided he killed a victim, they "might" want him

to disprove that the killing was done with malice

aforethought. Bosse claims the instruction implicitly

required (***48) him to prove he did not act with malice

aforethought. At heart, Bosse is complaining about

Oklahoma's use of "malice aforethought" as opposed to

"premeditated [**855] design". He suggests that,

because malice requires no ill-will, because it may be

formed instantly before commission of the act, and

because it may be proved by external circumstances,

the State no longer has the burden to prove the

essential elements of the crime. He argues the

possibility of confusion was exacerbated when the

prosecutor argued to jurors that intent could be formed

in an instant; although Bosse suggests the prosecutor

really meant jurors could presume intent from the fact of

the crime, that is not what the prosecutor said. We have

Admission of Victim Impact Evidence

[*P56] Bosse claims in three subpropositions in

Proposition IX that his death sentence must be vacated

because the admission of improper opinion testimony

during the presentation of victim impact evidence

violated his rights under the Sixth, Eighth, and

Fourteenth Amendments to the United States

Constitution and At11cle II. §§ 7, _2, and 19 of the

Okla/1oma Const1tut1on. We review a trial court's

decision to allow victim impact evidence [***49} for an

abuse of discretion. Malone. 2007 OK CR 34, 1I 62. 168

P.3d at 211 . Bosse first claims that victim impact

evidence generally acts as a "super" aggravating

circumstance that will be present in every case, and

thus defeats the narrowing function required in capital

cases. We have repeatedly rejected this argument. See,

e.g., Bush v. State. 2012 OK CR 9. 1J 62-64, 280 P.3d

337. 349-50; Malone. 2007 OK CR 34, 1146, 168 P.3d at

204.

[*P57) In his second subproposition, Bosse claims that

the three victim impact witnesses should not have been

allowed to offer their opinions asking for a death

sentence.

Bosse

has

not

challenged

the

appropriateness or admission of the contents of the

three victim impact statements themselves, other than

the sentence recommendation. Bosse objected to this

evidence at trial, preserving the issue for review. While

this Court has previously rejected this claim, holding that

this evidence is admissible under Pavne v. Tennessee.

501 U.S. 808. 111 S.Ct. 2597. 115 L.Ed.2d 720 (1991),

those holdings are hereby overruled. Bosse v.

Oklahoma. 580 U.S.

. 137 S.Ct. 1. 196 L.Ed.2d 1

(2016}. We find that the witnesses should not have been

allowed to recommend to the jury a sentence of death.

Bosse, 137 S.Ct. at 2.

[*P58) However, this finding does not conclude our

analysis. We reject Bosse's claim that this error requires

reversal and resentencing. Bosse's reliance on Brown v.

Sanders is misplaced; while jurors may consider it in

determining

an

appropriate

sentence,

victim

impact [***50) evidence is not a Sanders "sentencing

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factor" comparable to Oklahoma's aggravating

circumstances or capital eligibility requirements. Malone

v. State, 2013 OK CR 1. '1 87. 293 P.3d 198. 221-22;

Brown v. Sanders, 546 U.S. 212. 220. 126 S.Ct. 884.

892, 163 L.Ed.2d 723 (2006). We have repeatedly held

that victim impact evidence does not constitute an extra

aggravating circumstance, additional to those provided

by the Legislature. Martmez v. State, 2016 OK CR 3, 1J

66, 371 P.3d 1100. 1116; Cargle v. State. 1995 OK CR

77, 1J 76. 909 P.2d 806. 828 (evidence of aggravating

circumstances must be admitted before victim impact

evidence may be given). As the Supreme Court's

remand in Bosse made clear, this error is subject to

harmless error analysis. Bosse, 137 S.Ct. at 2-3. We

review the trial court's decision to determine whether

this constitutional error was harmless beyond a

reasonable doubt. See, e.g., Robinson v. State. 2011

OK CR 15. 1J 12. 255 P.3d 425, 430; Chapman v.

California. 386 U.S. 18, 24, 87 S.Ct. 824. 828, 17

L.Ed.2d 705 (1967).

[*P59] For guidance in conducting this analysis, we

turn to the Tenth Circuit, the federal appellate court

which reviews Oklahoma capital cases. The Tenth

Circuit has reviewed this issue in several capital cases

appealed from this Court. ln all but one, the court found

the error harmless. 6 In a recent decision, [*"856] the

District Court for the Western District of Oklahoma

comprehensively set forth factors used by the Tenth

Circuit in determining whether a victim's family's

sentence recommendation was harmless. Underwood v.

Duckworth. 2016 U.S. Dist. LEXIS 98617. 2016 WL

4059162 (W.0.0k.. Julv 28 2016) (appeal pending).

These factors are (1) the quantity and [***51] nature of

the recommendations, (2) presence of limiting

instructions regarding victim impact testimony, (3) the

surety of guilt, and (4) the overwhelming evidence in

support of aggravating circumstances when weighing

whether a sentence recommendation was harmless. Id.

at 18. Taken together, these factors offer a reasoned

framework for determining whether an improper victim

impact statement recommending a death sentence

6 In an additional case, the Tenth Circuit generally referred to

improper victim impact evidence, without specifically

discussing a sentence recommendation, and round the

"improper" evidence harmless. Willingham v. Mullin. 296 F.Jd

917. 931 (10th Cir. 2002). In another case, the court noted that

there was no actual sentence recommendation, referring to

the testimony as "enigmatic", and found no error in this Court's

ruling that it was admissible. Turrentine v. Mu/Im. 390 F.3d

1181, 1201 (10th Cir., 2004) .

contributed to the jury's sentencing verdict. We adopt

these factors as we consider whether the error in this

case was harmless, and for consideration in future

cases.

[*P60] Three victim impact witnesses testified for the

State. Katrina's mother, father, and stepmother each

testified about the impact on them of the deaths of

Katrina, Christian, and Chasity. As we noted above,

Bosse does not contest admission of the content or

substance of any of this testimony, other than the death

sentence recommendation. The record shows that the

testimony was, as it was intended to be, emotionally

affecting, and that each statement left some jurors and

spectators in tears. Bosse argues that this emotional

testimony

exacerbated

the

effect

of

the

recommendations for death. However, the record

shows [***52] that any emotional effect on jurors was

the result of the witnesses' descriptions of the impact of

the crimes and would have occurred whether or not

there had been a recommended sentence. Furthermore,

each witness was limited to a one-word sentence

recommendation. The prosecutor asked Ginger Griffin

about each victim separately, and she thus replied

"death" three times. The trial court warned the

prosecutor against that form of questioning, limiting the

testimony to a single recommendation. Rebecca Allen

and Johnny Griffin each stated the word "death" once,

when asked whether they had a recommendation for

sentence as to all three victims. We do not doubt that

this single word, repeated five times, had an effect on

the jury. However, the witnesses neither explained their

request, nor pleaded with jurors for a death sentence.

We note that, of the twenty-three witnesses who

testified in mitigation for Bosse, sixteen of his friends

and family said his life had value to them, and fourteen

specifically asked jurors to let Bosse live.

[*P61] Jurors were given the Oklahoma Uniform Jury

Instruction regarding victim impact evidence.This

instruction specified that jurors' consideration of victim

impact [***53] evidence must be limited to a moral

inquiry into Bosse's culpability, not an emotional

response. Jurors were told victim impact evidence was

neither itself an aggravating circumstance nor proof of

any aggravating circumstance, and did not affect the

State's burden to prove at least one aggravating

circumstance beyond a reasonable doubt. They were

told they could not consider the victim impact evidence

until they had (a) found proof of at least one aggravating

circumstance beyond a reasonable doubt, by evidence

independent of the victim impact evidence, and (b)

further found that evidence in aggravation outweighed

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0

their finding of one or more mitigating circumstances.

OUJl-CR 2d 9-45. This instruction correctly informed

jurors of the limitations on their consideration of victim

impact testimony. We require trial courts to use the

uniform jury instructions if they state the applicable law.

Mitchefl v. State. 2016 OK CR 21. '124. 387 P.3d 934.

943.

[*P62] Turning to the third and fourth factors, the

circumstantial case against Bosse was very strong. He

does not claim that insufficient evidence supported his

convictions. Our discussion of the substantive issues he

raises regarding the first stage of trial describes the

breadth and quantity of the evidence [*..54} against

Bosse. Furthermore, we [-857] find in Propositions XI

and XII that sufficient evidence supported the jury's

findings that the murders were heinous, atrocious or

cruel, and were committed to avoid arrest. The evidence

clearly showed that Bosse had been stealing from

Katrina, and committed these murders to avoid the

consequences of that crime. As we discuss in

Proposition XI, overwhelming evidence supports the

conclusion that an three murders were heinous,

atrocious or cruel.

[*P63] Three witnesses gave a simple one-word

recommendation that Bosse receive death. Jurors were

properly instructed on the use of the appropriately

admitted victim impact evidence. The case for guilt, and

the evidence to prove the aggravating circumstances

found by the jury, was very strong. This provides a stark

contrast to the single Oklahoma case where the Tenth

Circuit found this error was not harmless. There, the

improper sentence recommendations were numerous

and emotiona11y laden, the proof of aggravating

circumstances was weak, and the defendant's guilt was

not clear-cut. Dodd v. Trammell, 753 F.3d 971, 997-99

(10th Cir. 2013). Considering all the factors, we find that

the improperly admitted sentence recommendations did

not contribute to the jury's recommended r-ss1

sentences of death, and were harmless beyond a

reasonable doubt. Miller. 2013 OK CR 11. 51197, 313

P.3d at 994; Robinson, 2011 OK CR 15. 1112. 255 P.3d

at 430; Cllapman. 386 U.S. at 24. 87 S.Ct. at 828.

[*P64] Finally, Bosse argues that Ginger Griffin's

testimony regarding her step-grandchildren, Christian

and Chasity, was improper. Victim impact statements

may be given in homicide cases by surviving family

members including a parent by birth or adoption, a

grandparent, child or stepchild, stepbrother, stepsister

or stepparent, 21 O.S.2011. § 142A-1(1), ffi.7 Bosse

argues that this list does not include stepgrandparents,

and Ginger's testimony should not have been admitted.

Bosse objected on these grounds at trial and has

preserved the issue for review. The trial court did not

abuse its discretion in permitting Ginger's testimony. As

Katrina's stepparent, Ginger was a "victim" permitted to

testify under § 142A-1f1}. As a victim, she properly

testified about the emotional and psychological effects

the murders had on her, including information about the

victims, circumstances surrounding the crimes, the

manner in which the crimes were committed, and her

recommendations for sentences on each count. 21

O.S.2011. § 142A-1(8). Bosse's reliance on Goode v.

State is misplaced. In Goode, a person was allowed to

testify as a family representative who did not fit into the

"victim" categories [***56) of § 142A-1 (1l or the

"immediate family member'' categories of § 142A-1(4).

Goode. 2010 OK CR 10, im 62-65. 236 P.3d at 683-84.

We held that, under those circumstances, the family

representative should not have testified about the effect

of the deaths on her and her own daughter. Goode.

2010 OK CR 10. '1 64. 236 P.3d at 683-84.8 Here, by

contrast, Ginger Griffin was herself a victim under §

142A~ 1(1 J. The trial court did not abuse its discretion in

admitting this evidence. Malone. 2007 OK CR 34. '1 62.

168 P.3d at 211.

[*P65) Bosse argues that the combined effect of

improperly admitted victim impact testimony denied him

a fair and reliable sentencing hearing. We found that

victim impact testimony is not a "super" aggravating

circumstance, and that Ginger Griffin's testimony was

properly admitted. We found that, although victim impact

witnesses should not have been allowed to recommend

a sentence to jurors, that error was harmless beyond a

reasonable doubt. This proposition is denied.

Claims Regarding Aggravating Circumstances

[*P66] In Proposition XI Bosse claims that the

evidence was insufficient to support the heinous,

7 Section

142A-1 was modified in 2014, but the relevant

portions of the statute are not affected.

8 Bosse also relies on Lott v. State,

2004 OK CR 27, 98 P.3d

318. In that 2004 case, the Court noted that a granddaughter

was not among the persons tncluded in § 142A-1. Lott, 2004

OK CR 27. 11 112 n.15, 98 P.3d 318. 347 n.15. Lott does not

apply here, as Ginger Griffin is among the persons specifically

authorized to give victim impact evidence under the statute.

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atrocious or cruel aggravating circumstance as to each

victim, [**858} violating his rights under the Eighth and

Fourteenth amendments to the United States

Constitution and Article II. §§ 7, ~ and 20 of the

Oklahoma Constitution. "[T}he term 'heinous' means

extremely wicked or shockingly evil; the term 'atrocious'

means outrageously wicked and vile: and the term

'cruel' r**57] means pitiless, designed to inflict a high

degree of pain, or utter indifference to or enjoyment of

the suffering of others." Postelle v. State. 2011 OK CR

30. 11 79. 267 P.3d 114, 143 (quotation omitted). The

State had the burden to show beyond a reasonable

doubt that Bosse inflicted either torture, including great

physical anguish or extreme mental cruelty, or serious

physical abuse on each victim; in cases of great

physical anguish or serious physical abuse, the victim

must have experienced conscious physical suffering

before death. Coddington, 2011 OK CR 17, iI 59. 254

P.3d at 708-09. The victim's awareness of the

defendant's actions is crucial to this aggravating

circumstance. Underwood. 2011 OK CR 12. iJ 64. 252

P.3d at 247-48. We review the evidence in the light

most favorable to the State, considering whether any

rational trier of fact could find the aggravating

circumstance beyond a reasonable doubt. Coddington.

2011 OK CR 17. iJ 62. 254 P.3d at 710. The State

alleged that each victim experienced conscious physical

and mental suffering, and that the likelihood they saw

the other victims attacked subjected them to extreme

mental cruelty and anguish. Bosse's pretrial motion to

strike this aggravating circumstance as to each victim

was denied after a hearing. At trial, Bosse demurred to

the evidence of this aggravating circumstance as to

each victim. The demurrer was overruled.

[*P67) Chasity [***58) had blunt force trauma to her

head, which may or may not have rendered her

unconscious. Her blood was found on Bosse's right

shoe. She was put in the master bedroom closet, and

the doorknob was blocked from the outside with a chair.

She was in the closet when the trailer was set on fire.

Evidence showed that depletion of oxygen would have

incapacitated Chasity in sixteen to fifty minutes.

Chasity's brain was swollen, her tissues showed she

had been exposed to high levels of carbon monoxide,

she had soot in her airways, esophagus and stomach,

and her body was charred. Dr. Yacoub testified that the

soot in Chasity's stomach indicated she tried to cough

out the smoke and swallow it, and that Chasity could not

have done this if she were unconscious. Chasity died of

smoke inhalation and thermal injury - that is, she burned

to death. Bosse argues there was no conclusive

evidence that Chasity consciously suffered after she

sustained the head wound and was put in the closet.

We continue to decline to hold that proof of conscious

suffering required for serious physical abuse must be

conclusive and definitive. Browning, 2006 OK CR 8. 11

50. 134 P.3d at 842-43. Bosse relies on cases where

the medical examiner testified the victim died

within [***59) seconds, or the victim was unconscious,

and possibly deaf and blind, at the scene. Simpson v.

State. 2010 OK CR 6. 'U 44. 230 P.3d 888. 903;

Turrentine v. State, 1998 OK CR 33, 111175-76, 965 P.2d

955, 977. In both these cases, unlike the present case,

testimony showed the victim had no awareness and was

not able to consciously suffer for any appreciable length

of time. Here, by contrast, jurors could reasonably infer

that Chasity was alive and conscious as she was hit in

the head, locked in the closet, and the trailer was set on

fire. Taking the evidence in the light most favorable to

the State, any rational trier of fact could find beyond a

reasonable doubt that Chasity's murder was heinous,

atrocious or cruel.

[*P68) Bosse also claims evidence was insufficient to

show that Katrina and Christian's deaths were heinous,

atrocious or cruel. Katrina had eight separate stab

wounds. She bled into her airway and lungs. Death

would have taken anywhere from minutes to hours,

during which time her body diverted blood to her vital

organs. Katrina also had incised wounds to her hand

consistent with defensive wounds inflicted by grabbing

or holding a knife blade. The stab wounds on her arms

were also consistent with defensive wounds, inflicted

while Katrina was conscious and trying to protect

herself. Katrina was most [***60) likely conscious when

these were inflicted. Katrina had also suffered blunt

force trauma to the right side of her head. When

Katrina's body was found, her legs were laying across

Christian's legs. Christian had five stab [**859)

wounds. Two of the injuries to his neck, and the wound

to his chest, damaged major veins and caused

significant bleeding. Like Katrina, Christian's body

diverted blood to vital organs, which would have taken

some time. The stab wound to Christian's arm was

consistent with a defensive wound received when he

was consciously trying to defend himself. He also had

blunt force trauma to the head.

[*P69] Other evidence supported an inference of a

struggle. When Bosse was interviewed on July 23, he

had several injuries, including abrasions on his right

knuckles and a long scratch on his arm. There was a

hole in the door to the master bedroom consistent with a

fist punch. Evidence showed Christian was protective of

Katrina; a pocketknife of Christian's, which was kept in

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Katrina's dresser, was found underneath Katrina's body.

Evidence that a victim was conscious and aware of an

attack supports a finding of torture and serious physical

abuse, as does the presence of defensive

wounds. [***61] Black v. State, 2001 OK CR 5, 1179. 21

P.3d 1047, 1074; Alverson v. State. 1999 OK CR 21. 11

51. 983 P.2d 498. 515. Taking the evidence in the light

most favorable to the State, any rational trier of fact

could find beyond a reasonable doubt that the deaths of

Katrina and Christian were heinous, atrocious or cruel.

Easlick v. State. 2004 OK CR 21, 1f 15, 90 P.3d 556.

559. This proposition is denied.

[*P70] Bosse claims in Proposition XII that the

evidence was insufficient to prove the "murder to avoid

arrest" aggravating circumstance beyond a reasonable

doubt in violation of his rights under the Eighth and

Fourteenth Amendments to the United States

Constitution and Article II. §§ 7, ~ and 20 of the

Oklahoma Constitution. Bosse's demurrer to this

evidence was overruled at trial. The State had to show

that Bosse committed a predicate crime, separate from

the three murders, and that the killings were done to

avoid arrest or prosecution for that predicate crime.

Coddington. 2011 OK CR 17. 11 46, 254 P.3d at 705.

The defendant must intend, not just to commit the

predicate crime, but to eliminate a witness to that crime

by killing the victim. Smith v. State. 2013 OK CR 14. 1[

59. 306 P.3d 557. 576; Lott. 2004 OK CR 27. 1I 117. 98

P. 3d at 348. The defendant's intent, which may be

proved by circumstantial evidence, is crucial to proof of

this aggravating circumstance. Coddington. 2011 OK

CR 17. '1! 48. 254 P.3d at 706; Lott. 2004 OK CR 27. 11

116. 98 P.3d at 348.

[*P71] The State alleged that the predicate crime was

Bosse's theft of the Griffins' personal property. On July

22, 2010, Katrina discovered that fifteen video games

were missing from the trailer. Katrina suspected that a

friend, Henry Price, had stolen [***62] the games.

Before calling the sheriff, Katrina persuaded Bosse to

take her to her friend Heather Malloy's house in search

of Price that night. When she could not find Malloy,

Katrina called the sheriff's office to report the theft.

Bosse was present at Katrina's trailer when Deputy

Cunningham took Katrina's report. Price, contacted after

the murders, denied stealing the video games. The day

after the crime, Bosse had a PlayStation game console,

Wii, televisions, laptop computer, DVDs and video

games from Katrina's trailer. At the time of his arrest on

the evening of July 23, Bosse had pawned some of

these items; others were in his truck or apartment.

Bosse attempted to conceal his possession and

disposal of all these items from law enforcement. In

addition, mitigating evidence from Bosse's family

included testimony that for several years Bosse had

stolen money and property from close friends and family

members. Taking the evidence in the light most

favorable to the State, any rational trier of fact could find

beyond a reasonable doubt that Bosse committed all

three murders to avoid arrest or prosecution. Easlick,

2004 OK CR 21. 1I 15, 90 P.3d at 559. This proposition

is denied.

[*P72] In Proposition XIII, Bosse claims that the

aggravating r-63] circumstances found by the jury

failed to perform the narrowing function required by the

Eighth and Foutteenth Amendments to the United

States Constitution and Article II. §§ 7, .it and 20 of the

Oklahoma Constitution. He argues that none of the

aggravating circumstances, as presented to the jury

through instructions, adequately serve the narrowing

function necessary for constitutional application of the

death penalty. We have repeatedly rejected these

arguments. Specifically, we have found [**860] that the

aggravating circumstance that the defendant created a

great risk of death to more than one person is

constitutional. Wood v. State. 2007 OK CR 17, 1I 26. 158

P.3d 467. 477. We have found the aggravating

circumstance that the murder was committed to avoid

arrest or prosecution is sufficiently narrow as to be

constitutional. Hanson v. State. 2009 OK CR 13, 1I 48,

206 P.3d 1020. 1034. We have found the aggravating

circumstance that the murder was heinous, atrocious or

cruel is narrow enough to be constitutional. Smith, 2013

OK CR 14. 1161, 306 P.3d at 577; Postelle. 2011 OK CR

30. ll 84. 267 P.3d at 144. As the State notes, Bosse

admits this but argues that the narrowing limitations for

each circumstance are insufficient because, he alleges,

they have been inconsistently applied. We have rejected

this argument, stating, "an aggravating circumstance

does not become 'overbroad' based upon the manner it

is applied to particular cases." Mitchell v. State, 2006

OK CR 20, 1I 104. 136 P.3d 671. 711 (quoting DeRosa

v. State, 2004 OK CR 19, 1191, 89 P.3d 1124. 1155).

[*P73] In this proposition Bosse also complains about

two instructions. [***64] He notes that there is no

uniform jury instruction for the aggravating circumstance

that the defendant created a great risk of death to more

than one person. Bosse neither objected to the absence

of such an instruction, nor requested such an

instruction, and has waived all but plain error. Postelle,

2011 OK CR 30. 1I 86. 267 P.3d at 144-45. We have

held that no separate uniform instruction defining this

aggravating circumstance is necessary, finding that use

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of the statutory language explaining this aggravating

circumstance sufficiently informs jurors what is

necessary to support a finding that it is present.

error, that is plain or obvious, and that affects a

defendant's substantial rights, affecting the outcome of

the trial. Barnard v. State. 2012 OK CR 15, 11 13, 290

Eizember v. State. 2007 OK CR 29, 1111137-139, 164

P.3d 208. 241 . Bosse also complains the uniform

P.3d 759, 764.

instruction on the aggravating circumstance that the

murders were heinous, atrocious or cruel fails to narrow

the sentencer's discretion. Bosse objected to this

instruction, and his request for a different instruction on

this circumstance was denied by the trial court. As

Bosse admits, this Court has rejected this claim.

Postelle, 2011 OK CR 30. 11 84, 267 P.3d at 144. This

proposition is denied.

[*P76] The Forensic Laboratory Accreditation Act (Act)

was passed in 2002. 74 O.S.2011. §§ 150.36, 150.37. It

provides that, as of July 1, 2005, all forensic laboratories

defined in the Act and already operating by that date

["*861] shall be accredited - formally recognized by an

accrediting body as meeting or exceeding applicable

quality standards. 74 O.S.2011, §§ 150.37(A}(2J, {fil.

The Act further provides that "testimony, results, reports,

or evidence of forensics analysis produced on behalf of

the prosecution in a criminal trial shall be done by an

accredited forensic laboratory." 74 0 S.2011. §

150.37(C). An accredited forensic laboratory is one

•operated by the state or any unit of municipal, county,

city or other local government that examines physical

evidence in criminal matters and provides opinion

testimony in a court of law." 74 O.S.2011. §

150.37(A)(5). The Act specifically excepts several types

of testimony, results, reports, or evidence: (a) breath

testing for alcohol; (b) "field testing, crime c-·s11 scene

processing, crime scene evidence collection, searches,

examinations or enhancements of digital evidence, and

crime scene reconstruction"; (c) latent print examination

performed by an IAI certified latent print examiner; and

(d) evidence of marijuana identification using generally

accepted methods which have been approved by a

properly accredited forensic laboratory. 74 0. S. 2011. §

150.37(C)(3!,W .@ .{.fil. Bosse argues that the Medical

Examiner's office conducts examinations equivalent to

forensic analysis, produces results, prepares reports

and provides testimony on behalf of the prosecution in

criminal trials. He argues that the Medical Examiner's

office is not within any exceptions to the accreditation

rule. Because the Medical Examiner's office is not

accredited, Bosse claims, Dr. Yacoub's testimony was

inadmissible.

Claims Common to Both Stages of Trial

Medical Examiner's Testimony

["P74] In Proposition Ill, Bosse argues that the entirety

of the medical examiner's testimony was inadmissible,

because the medical examiner's office is not accredited

and is therefore unable [***65] to provide testimony

pursuant to state law. He claims that, without the

medical examiner's testimony, there was insufficient

evidence to establish a cause of death. In addition, the

medical examiner's testimony was used to establish the

aggravating circumstance that the murders were

heinous, atrocious or cruel.

[*P75] Dr. lnas Yacoub, a board-certified forensic

pathologist with the Medical Examiner's office,

performed the autopsies on all three victims and

testified for the State at trial. Dr. Yacoub described in

detail the physical condition of all three victims, stated

their causes of death, and concluded that each death

was a homicide. Dr. Yacoub testified that, due to

building and equipment deficiencies and high case

loads, the Medical Examiner's office has not been

accredited since 2009. Bosse claims that, because the

Medical Examiner's office lacks accreditation, Dr.

Yacoub's testimony was inadmissible. Admission of

evidence is within the trial court's discretion. Neloms.

2012 OK CR 7. 11 25, 274 P.3d at 167. An abuse of

discretion is any unreasonable or arbitrary action made

without proper consideration of the relevant facts and

law, also described as a clearly erroneous conclusion

and judgment, clearly against the logic and r**66)

effect of the facts. Neloms. 2012 OK CR 7, 1J 35. 274

P.3d at 170. Bosse did not raise this claim at trial, or

object to Dr. Yacoub's testimony on these grounds and

has waived all but plain error. Plain error is an actual

[*P77] The State argues that the Medical Examiner's

office is not subject to the accreditation requirement of

the Act. The State notes that other specific definitions

included in the Act refer to accrediting bodies concerned

with laboratories, laboratory operations, testing of

biological samples, maintenance, analysis and testing of

forensic evidence, and testing and calibration

laboratories. 74 O.S.2011. § 150.37(A)(2),Ql,W .{.fil.{.fil.

The [***68) State emphasizes the Act's references to

ISO/IEC 17025 standards. These are defined as the

International Organization of Standards/International

Electrotechnlcal Commission standard 17025, published

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by the Organization for Standardization and the

International Electrotechnical Commission, specific to

the maintenance and testing of forensic evidence. 74

O.S.2011. § 150.37(A){3), @ . These references

certainly indicate that the Act is intended to apply to all

laboratories which maintain equipment and conduct

toxicological, forensic and similar types of analysis

commonly done in a laboratory setting, and which may

be reviewed using ISO/IEC 17025 standards. The

question is whether this language is exclusive. Dr.

Yacoub testified that the Medical Examiner's office

accrediting body is the National Association of Medical

Examiners. The parties ask this Court to decide whether

the type of physical examination and analysis of bodies,

performed by the Medical Examiner's office, and which

could be accredited by a nationally recognized

accrediting entity, is also within the scope of the Act. 9

The State argues that, because Bosse failed to object

on these grounds at trial, there is not a sufficient record

concerning the application [**"'69] of the ISO/IEC 17025

standards to forensic pathologists. Such a record is not

necessary for this Court's resolution of this claim.

Forensic pathologists with the Medical

Examiner's office investigate deaths by physically

examining bodies, performing autopsies, and issuing

written reports with an opinion on the cause and manner

of death. Cuesta-Rodriquez v. State. 2010 OK CR 23. 'ff

34. 241 P.3d 214. 228. The Medical Examiner should

reasonably expect autopsy reports to be used in a

criminal prosecution. Id. Dr. [*"'862] Yacoub testified

that she examined the bodies, and sent blood samples

from the victims to the toxicology laboratory for analysis,

because the laboratory tests constituted an additional

tool she could use to reach her conclusions. The State

argues that these duties do not constitute "laboratory

work" as contemplated by the Act.

[*P78]

9 The State repeatedly veers into irrelevant ter1itory. First the

State recites at length Or. Yacoub's qualifications, which were

not contested and are not at issue. Her qualifications can have

no effect on whether the Medical Examiner's office is subject

to § 150.37. The State also spends a great deal of time

discussing the qualifications, conclusions, and discussion

surrounding the testimony of Dr. Curtis, the State's

toxicologist. The fact that the Medical Examiner's office uses a

separate, accredited laboratory to perform toxicology tests

may be probative of the claim that the Medical Examiner's

office is not itselr subject to the Act. However, specific

evidence regarding Dr. Curtis, the tests and results in this

case, and the internal practices of the toxicology laboratory

are not relevant to the issue before this Court.

[*P79] We find that whether the Medical Examiner's

office is subject to the accreditation provisions of the Act

does not determine whether testimony such as Dr.

Yacoub's is admissible. The duties and responsibilities

of the Medical Examiner's office, and of its forensic

pathologists, are set forth separately in Title 63. The

Medical Examiner is required to investigate the cause

and manner of violent deaths. 63 O.S.2011, §§ 938,

!!..41- This includes [*'*'*70] a physical examination of the

body of the deceased, collection of physical specimens

from the body, review of medical records, evidence,

photographs of the scene of death, and objects or

writings near the body. 63 O.S.2011. §§ 941 , 944. For

every investigation, investigators and the Medical

Examiner must prepare written reports, including an

autopsy report, which must be furnished to investigating

agencies. 63 O.S.2011, §§ 942, 945. The Medical

Examiner is specifically required to keep a full record of

the investigation, including any autopsy report, and to

submit records to the appropriate district attorney, and

may be required to testify regarding the records or

report. 63 O.S.2011. § 949. While Title 63 contains no

requirement that the Medical Examiner's office itself

must be accredited, each individual medical examiner

appointed by the Medical Examiner must be board

certified to practice forensic pathology in Oklahoma. 63

O.S.2011. § 937.

[*PSO] When interpreting statutory prov1s1ons, our

paramount concern is to give effect to the Legislature's

intention. Leftwich v. State, 2015 OK CR 5. iI 15, 350

P.3d 149. 155; State v. lven, 2014 OK CR 8. 1I 13. 335

P. 3d 264. 268. We consider the plain and ordinary

language of a statute, other statutes involving the same

or similar subjects, and "the natural or absurd

consequences of any particular interpretation." lven,

2014 OK CR 8. 1I 13. 335 P.3d at 268. We try to

reconcile [***71] the language of general statutes with

more specific statutory provisions, to give effect to each.

Leftwich. 2015 OK CR 5, 1I 15, 350 P.3d at 155. Specific

statutory language controls over general language.

State v. Crowley, 2009 OK CR 22. iI 4. 215 P.3d 99.

100. As the State notes, the Legislature recently

amended several sections of Title 63 concerning the

Medical Examiner's office. 2014 Okla. Sess. Laws 293.

The record before us does not indicate the Legislature

was aware, at the time, that the Medical Examiner's

office has been unaccredited since 2009. However, it

has been established that the Legislature was actually

aware of this fact, 10 and yet amended the statutes

10 Leftwich. 2015 OK CR 5. 114, 350 P 3d at 152.

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relating to the duties of that office without reference to

any effect that lack of accreditation may have on its

duties. From this, we conclude that the Legislature

intended the Medical Examiner's office to function as is

set forth in and required by the provisions of Title 63,

independently of any accreditation issues. We conclude

that, as long as the requirements of Title 63 are met in

each case, accreditation of the Medical Examiner's

office goes to the weight of the evidence, not its

admissibility. If, as here, jurors are presented with

evidence that the Medical Examiner's office was

unaccredited at the time of [***72] the autopsies, jurors

may give that information whatever weight they feel

appropriate.

[*P81] Dr. Yacoub's testimony was properly admitted.

Furthermore, although this is not required for

admissibility, jurors were made aware, through

testimony, of the accreditation issues, and could

consider them in weighing Dr. Yacoub's evidence. The

trial court did not abuse its discretion in admitting this

evidence. Because there was no error, there was no

plain error. This proposition is denied.

Prosecutorial Misconduct

[*P82] In Proposition X, Bosse claims that the

prosecution engaged in deliberate misconduct during

both stages of trial, depriving him of his rights to a fair

trial and reliable sentencing hearing in violation of the

[-863] Eighth and Fourteenth Amendments to the

United States Constitution and Article II. sections 7, 2

and 20 of the Oklahoma Constitution. Both parties have

wide latitude in closing argument to argue the evidence

and reasonable inferences from it. Coddington. 2011

OK CR 17. 1I 72. 254 P.3d at 712. We will not grant

relief for improper argument unless, viewed in the

context of the whole trial, the statements rendered the

trial fundamentally unfair, so that the jury's verdicts are

unreliable. Miller v. State. 2013 OK CR 11. iI 116. 313

P.3d 934. 974. We review a trial court's decisions

concerning argument for abuse of discretion.

improperly commented on his lack of remorse for the

crimes. Detective Huff testified that, during his interview,

Bosse had an unusual reaction when asked if he was

sad about the victims' deaths. The trial court overruled

Bosse's objection but noted that the topic was close to

an improper discussion of remorse, and the prosecutor

moved on to another line of questioning. In closing, the

prosecutor argued that Bosse's initial reaction - a long,

calm silence - was not normal. The prosecutor later

asked what Bosse could have meant by his eventual

reply, "I'm more in awe." In second closing, the

prosecutor argued that there was "some kind of

emotional connection" missing from this statement, and

one would expect, if Bosse had not committed the

crime, that he would be "a little bit upset" by the deaths.

Bosse did not object to these comments and has waived

all but plain error as to them. These are not comments

on Bosse's lack [*-74] of remorse. Rather, they are

reasonable inferences from the evidence of Bosse's

reaction to news of the victims' deaths.

[*P84] Bosse next complains that the prosecutor

impermissibly defined reasonable doubt by arguing that

it was not "beyond C!ll doubt". Bosse did not object to

this statement and we review for plain error. There is

none. We have held that it is not error to use this phrase

in discussing reasonable doubt. Mvers v. State. 2006

OK CR 12. 1f 57, 133 P.3d 312. 329.

Underwood v. State. 2011 OK CR 12. 1I 75. 252 P. 3d

221. 250. Bosse objected to some statements; we

review the others for plain error. C-*73) Id. at 1I 122,

313 P.3d at 976. Plain error is an actual error, that is

[*PBS] Bosse argues that the prosecutor shifted the

burden of proof to the defense. Discussing Bosse's alibi,

the prosecutor argued that, even taking into account the

testimony of Detective Huff and Bosse's mother, Bosse

had shown nothing other than his own statements to

prove his whereabouts during the time the crime could

have been committed. In closing, defense counsel had

argued that Lord's experiments were contrived and

conducted in such a way as to fit the State's timeline.

The prosecutor argued in reply that defense counsel

had not shown that law enforcement and Lord ever

agreed to "fix" the timeline to fit Bosse's guilt, but that

Bosse wanted jurors to infer this in order to help

manufacture his defense. Bosse's objections to these

comments were overruled. These statements [***75]

were not error. Where the defense has not offered

evidence on an issue, the prosecutor may argue that the

evidence is uncontroverted. Myers, 2006 OK CR 12, '1

plain or obvious, and that affects a defendant's

substantial rights, affecting the outcome of the trial.

61, 133 P.3d at 329; Fite v. State. 1993 OK CR 58, 1I 21,

873 P.2d 293, 297. Neither of these comments shifted

Barnard. 2012 OK CR 15. 1I 13. 290 P.3d at 764.

the burden of proof to Bosse. Bosse claims the

prosecutor erred in commenting that he could have

independently tested the DNA evidence. Bosse's

objection was overruled. This comment was not error,

[*P83] Bosse complains of three separate errors in first

stage closing argument. First, he argues the prosecutor

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0

as the State may note that a defendant had access to,

and did not test, evidence. Mvers. 2006 OK CR 12. 1J

61. 133 P.3d at 329. The prosecutor then noted the

State had the burden of proof, but argued that the

defense should not argue about test results when Bosse

had the chance to test the evidence himself. Bosse's

objection was sustained and the jury was admonished,

but his request for a mistrial was denied. Given that the

prosecutor prefaced the comment by stating the correct

burden of proof, no mistrial was necessary, and the trial

court's action cured any error. Johnson {**8641 v.

State. 2013 OK CR 12. 1116. 308 P.3d 1053. 1057.

[*P86] Bosse argues the prosecutors made four

improper arguments during second stage closing

argument. He first claims that the prosecutor improperly

commented on his courtroom demeanor. In support of

the charge that Bosse would present a continuing threat

to society, the prosecutor argued that one

indicator [***76} of continuing threat was a lack of

remorse, and noted that Bosse did not flinch when the

photographs of the victims were displayed. Bosse's

objection was sustained and jurors admonished to

disregard any comment on Bosse's demeanor. This

cured any error. Johnson, 2013 OK CR 12. 11 16, 308

P.3d at 1057. The record does not support Bosse's

argument otherwise, particularly as jurors did not find

that Bosse would present a continuing threat to society.

(*P87] Bosse next complains that the prosecutor

expressed a personal opinion regarding the appropriate

sentence. The prosecutor first argued that Bosse had

earned the death penalty. The trial court overruled

Bosse's objection, but admonished the prosecutor to

confine her argument to her recollection of the evidence.

The prosecutor rephrased her comment to say that the

evidence showed Bosse had earned the death penalty,

and discussed that evidence. While initially poorly

phrased, the record shows that this comment was not a

personal opinion. Later in closing, the State argued that

the person who could commit these crimes against,

particularly, children, deserved the ultimate punishment.

Bosse's objection to personal opinion was overruled .

The record shows this was not an expression of

personal [***77] opinion, but based on the evidence

presented. During second closing, the State argued that

the death penalty was reserved for the worst of the

worst, who was sitting in front of the jury. Bosse's

objection was overruled. The State argued Bosse

should not get the benefit of slaughtering three people

at one time. Although Bosse's objection was sustained,

the trial court refused his request to admonish the jury.

Finally, the prosecutor argued he believed death was

0

*75

the verdict best reflecting justice for Bosse's actions.

Remarks about the appropriateness of the death penalty

are not error where, rather than being phrased

personally, they appeal to juror's understanding of

justice. Hogan. 2006 OK CR 19. 1190. 139 P.3d at 93536. It is not error to argue that justice requires imposition

of the death penalty under the facts and law of a

particular case. Id. A request to impose the death

penalty, or an argument that the death penalty is proper

in a particular case, or that a defendant deserves a

death sentence, are not necessarily, without more,

expressions of personal opinion. Pavatt v. State. 2007

OK CR 19. 1163. 159 P.3d 272. 291 .

[*P88] Bosse claims that prosecutors improperly

encouraged jurors to sympathize with the victims. The

prosecutor described what the victims might have been

thinking [***78} and feeling as the crimes were

committed. The record shows the prosecutor was

gesturing and becoming emotional during the speech.

The trial court overruled Bosse's objection. During

second closing, the prosecutor described the attack in

detail, without explicitly asking jurors to imagine

themselves in that situation. The record shows that

during this argument the prosecutor lay on the floor

"hollering, gesturing wildly with his arms in a way that

mimics someone making a knife attack." Bosse's

objection was overruled . This claim actually presents

two issues - the appropriateness of the argument itself

and the prosecutor's actions in making the argument.

We have held a prosecutor may ask jurors to put

themselves in a victim's place while describing the

victim's experience, as long as the argument is based

on the evidence. Browning v. State. 2006 OK CR 8. ii

37, 134 P.3d 816, 839; Malicoat v. State, 2000 OK CR

1. 1131, 992 P.2d 383. 401 ; Hooper v. State. 1997 OK

CR 64, 111152-53, 947 P.2d 1090, 1110. The argument

here was not improper. Turning to the second issue, we

have distinguished emotional, physical argument which

is directed specifically at the defendant (and thus

improper) from theatrics which are properly directed to

the jury, and which illustrate otherwise-proper argument.

Underwood, 2011 OK CR 12, 1J 75, 252 P.3d at 250.

This is the case here. The trial court did not abuse its

discretion in overruling [**"79) Bosse's objections to this

argument. Id.

[*P89] [**865) Bosse claims the State argued that life

without parole did not amount to punishment. The

record does not support this claim. The prosecutor

urged jurors not to let Bosse manipulate them into

recommending a sentence less than death. Bosse did

not object. The argument was based on evidence that

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Bosse's family and friends said he was manipulative,

and was not error. The prosecutor argued that life

without parole amounted to "no extra consequences",

and that the way in which the victims were killed

deserved extra consequences. As we discuss above,

Bosse's objection was sustained when the prosecutor

argued that Bosse should not get the benefit of

slaughtering three people at once, but his request to

admonish the jury was overruled. Bosse did not object

when the prosecutor repeated the statement, argued

Bosse should not get the same punishment for three as

he would for one, and asked twice for extra

consequences. Bosse relies on an Illinois case in which

the prosecutor argued that, based on Illinois law, the

defendant would automatically receive life without

parole for two victims, so anything less than death

would give the defendant five free murders. 1*80] The

Illinois Supreme Court found this was inflammatory,

inaccurate as a statement of law, and not supported by

the evidence. People v. Kuntu. 196 Ill. 2d 105. 752

N.E.2d 380. 403. 256 Ill. Dec. 500 (Ill. 2001). This case

is distinguishable. Bosse's jurors were not faced with

automatic imposition of any penalty, and had taken an

oath to consider all three punishment options available

in Oklahoma. The State's argument was neither a

misstatement of law nor of the facts. The prosecutor's

request for extra consequences was based on the

evidence. The trial court did not abuse its discretion in

overruling Bosse's objections. Underwood. 2011 OK CR

12, 11 75, 252 P.3d at 250.

U.S. 86. 104, 131 S.Ct. 770. 787-88. 178 L.Ed.2d 624

(2011 ! . Trial counsel's performance is measured

by [***81] an objective standard of reasonableness

under prevailing professional norms. Coddington. 2011

OK CR 17. '178. 254 P.3d at 713-14 ; Rompilla v. Beard,

545 U.S. 374, 380. 125 S.Ct. 2456, 2462. 162 L.Ed.2d

360 (2005) . Bosse must demonstrate a reasonable

probability that, absent counsel's deficient performance,

the outcome of the trial would have been different and

the jury would have concluded the balance of

aggravating circumstances and mitigating evidence did

not support the death penalty. Coddington. 2011 OK CR

17, 1178. 254 P.3d at 713-14 ; Miller, 2013 OK CR 11. 1J

145. 313 P.3d at 982; A reasonable probability is one

sufficient to undermine confidence in the outcome.

Fisher. 2009 OK CR 12. 11 7. 206 P.3d at 609. We give

great deference to counsel's decisions, considering

them according to counsel's perspective at the time.

Rompilla, 545 U.S. at 380-81. 125 S.Ct. at 2462;

Wiggins. 539 U.S. at 523. 123 S.Ct. at 2536. We

presume counsel's conduct is professional, and his

actions may be considered the product of a reasonable

trial strategy. Coddington, 2011 OK CR 17, '1 78. 254

P.3d at 713-14. Bosse must show he was prejudiced by

counsel's acts or omissions. Williams v. Taylor, 529 U.S.

362. 394. 120 S.Ct. 1495, 1513-14. 146 L.Ed.2d 389

(2000) ; Stnckland. 466 U.S. at 693, 104 S.Ct. at 2067.

Where a defendant fails to show prejudice, we will

dispose of a claim of ineffective assistance on that

ground. Marshall. 2010 OK CR 8, iI 61, 232 P.3d at 481 .

[*P9D] No prosecutorial misconduct prejudiced Bosse,

and this proposition is denied.

[*P92] Bosse can show no prejudice from counsel's

omissions. We found in Proposition [*•866] II that

whether the Medical Examiner's office is accredited

goes to the weight of the testimony rather than its

admissibility. As Dr. Yacoub's testimony was admissible,

Bosse was not prejudiced from trial counsel's failure to

object to its admissibility r··s21 on grounds of lack of

accreditation. In Proposition X, we found that none of

the State's comments in closing argument, to which trial

counsel did not object, were error. Trial counsel cannot

be ineffective for failing to object to these comments. As

there is no prejudice from counsel's omissions, we will

not find counsel ineffective. This proposition is denied.

Ineffective Assistance of Counsel

[*P91] Bosse claims in Proposition XIV that trial

counsel were ineffective in violation of the Sixth

Amendment to the United States Constitution and

Article II. § 20 of the Oklahoma Constitution. Bosse

claims trial counsel was ineffective for failing to object to

Dr. Yacoub's testimony, and for failure to object to

improper comments in the State's closing argument.

Bosse must show that counsel's performance was

deficient, and that the deficient performance was

prejudicial. Miller, 2013 OK CR 11. '1145. 313 P.3d at

982; Wiggins v. Smith, 539 US 510. 521. 123 S.Ct.

2527, 2535, 156 L.Ed.2d 471 (2003!; Strickland v.

Washington. 466 U.S. 668, 687. 104 $.Ct. 2052, 2064.

80 L.Ed.2d 674 (1984) . Counsel's acts or omissions

must have been so serious that Bosse was deprived of

a fair trial with reliable results. Harrington v. Richter, 562

Accumulation of Error

[*P93}

In Proposition XV, Bosse claims the

accumulation of errors deprived him of a fair trial and

sentencing. He argues that individual trial errors, taken

together, require relief. We found only one error in the

preceding propositions. We determined in Proposition

Page 24 of 28

2017 OK CR 10, *10; 400 P.3d 834, 0 866; 2017 Okla. Crim. App. LEXIS 11, *0 82

VII that two photographs of Chasity's burned body

should not have been admitted. However, we found

admission of those photographs was harmless beyond a

reasonable doubt. Where a single error has been

addressed, there is no cumulative error. Bell v. State.

2007 OK CR 43. 1J 14. 172 P.3d 622, 627. Bosse's trial

was fairly conducted. Brumfield v. State. 2007 OK CR

10. 1J 37. 155 P.3d 826. 840. This proposition is denied.

Mandatory Sentence Review

[*P94] We must determine (a) whether Bosse's

sentences of death were imposed under the influence of

passion, prejudice or any other arbitrary factor, and (b)

whether the evidence supports the trial court's findings

of the aggravating [**'*83) circumstances. 21 O.S.2011,

§ 701.13(C}. In Propositions XI and XII we found the

evidence was sufficient to support the aggravating

circumstances that the murders were heinous, atrocious

or cruel, and that they were committed in order to avoid

arrest and prosecution for another crime. The evidence

also established that Bosse's actions created a great

risk of death to more than one person. We find the

evidence supports the trial court's findings that the

aggravating circumstances were present.

[*P95] In determining whether the sentences of death

were imposed under the influence of passion, prejudice

or any other arbitrary factor, we do not independently

reweigh the evidence supporting the aggravating

circumstances against that presented in mitigation. This

Court "does not act as an independent factfinder or

substitute our judgment for that of the trier of fact."

Malone v. State. 2013 OK CR 1, 1I 79, 293 P.3d 198.

219. Rather, we review the evidence "only to the extent

necessary to determine whether there was sufficient

evidence from which a rational sentencer could find that

the balance of aggravating and mitigating circumstances

warranted a death sentence." Malone. 2013 OK CR 1, 1J

82. 293 P.3d at 220 (quoting Fisher v. State, 1987 OK

CR 85. 1I 25, 736 P.2d 1003, 1011!.

[*P96] In mitigation, Bosse presented evidence that he

had no significant criminal history and his prior [**'*84]

crimes were non-violent; that his ability to appreciate the

criminality of his conduct was greatly impaired by drugs

and alcohol; that he used drugs since his senior year in

high

school

and

regularly used

pills and

methamphetamine; that because his father abandoned

him and did not maintain a close relationship, he was

deprived of the opportunity to have a proper male role

model; that Bosse's father neglected him and his

brother; that in childhood he suffered head injuries that

may have negatively contributed to his mental health;

that his brother bullied and teased him; that his family,

friends and cellmates described him as generous and

helpful; that he was thirty years old at the time of trial;

that he would benefit from the structure of prison life;

that family members said Bosse was helpful,

cooperative and a contribution to their lives; that his

friends and family were shocked by the crime, because

they believed it was out of character with his shy, quiet,

nonaggressive personality, and that Bosse did not lose

his temper; that he physically assisted his mother and

grandparents with chores; that he gladly helped friends

and family when requested; that his friends and family

maintained [*'**85] relationships with Bosse white he

was incarcerated; that his employers described him as a

hard worker and self-starter who [**867] got along with

co-workers; that his mother and grandmother

maintained a close relationship with him in jail through

daily telephone conversations and weekly visitation; that

he had a good relationship with his nephew, playing with

him and attending sporting events; that his father's

alternative bisexual lifestyle was detrimental to Bosse's

upbringing; that his mother struggled to provide for her

children; that his mother suffered from depression and

struggled to maintain a clean and proper home during

his childhood; and that his family and friends loved him

and wished for him to live.

[*P97] After thoroughly reviewing the entire trial

proceedings, we find the death penalty was not imposed

under the influence of passion, prejudice or any other

arbitrary factor. 21 O.S.2011, § 701.13(C) . No

improperly admitted evidence or argument affected the

jury's determination of sentence. The sentences of

death are factually substantiated and appropriate. 21

0.S.2011. § 701.13(F) .

>DECISION

[*P98] The Judgments and Sentences of the District

Court of McClain County are AFFIRMED. Pursuant to

Rule 3.15, Rules of the Oklahoma Court of Criminal

Appeals, Title 22, Ch.18, App.(2017), the MANDATE

is [***86] ORDERED issued upon the delivery and filing

of this decision.

OPINION BY: SMITH, J.

LUMPKIN, P.J.: CONCUR IN PART/DISSENT IN PART

LEWIS, V.P.J.: CONCUR

JOHNSON, J.: SPECIALLY CONCUR

Page 25 of 28

2017 OK CR 10, *10; 400 P.3d 834, **867; 2017 Okla. Crim. App. LEXIS 11, ***86

HUDSON, J: CONCUR

Concur by: JOHNSON; LUMPKIN (In Part)

Concur

JOHNSON, JUDGE, SPECIALLY CONCURRING:

[*P1] I agree with the decision to affirm this case. I

write to clarify one point regarding the introduction at

trial of evidence relating to the Medical Examiner's

office's lack of accreditation.

[*P2] The issue addressed by this Court in this case is

whether Dr. Yacoub's testimony was inadmissible

because the Medical Examiner's office is not accredited.

I agree that the admissibility of evidence such as Dr.

Yacoub's testimony is not determined by whether the

Medical Examiner's office is subject to the accreditation

provisions of The Forensic Laboratory Accreditation Act.

The Court's conclusion that "as long as the

requirements of Title 63 are met in each case,

accreditation of the Medical Examiner's office goes to

the weight of the evidence, not its admissibility" is also

correct. It is worth mentioning, however, that the

admissibility of this evidence must always be prefaced

upon a threshold finding of relevancy. This Court's ruling

does [""*87) not in any way suggest or support the

assumption that evidence regarding accreditation of the

Medical Examiner's office will always be relevant.

Dissent by: LUMPKIN (In Part)

Dissent

LUMPKIN, P.J., Concur In Part Dissent in Part:

[*P1] 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.

[*P2] 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 [***88) 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 prosecutor [*"'868} argued that

Appellant's refusal to consent to the search pointed to

his guilt.

[*P3} 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. 'II 40, 293 P.3d 198.

211 ; Hogan v. State. 2006 OK CR 19. 'II 38, 139 P.3d

907. 923. 1

[*P4} 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.

[*PS} The United States Supreme Court distinguishes

silence which occurs following the receipt of warnings

pursuant to Miranda v. Arizona. 384 U.S. 436. 86 $.Ct.

1602. 16 L.Ed.2d 694 (1966/, from silence prior to

receipt of such warnings. In Dovie v. Ohio. 426 U.S.

1 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 justTce. Id.. 1994 OK CR 40. '110,

26. 30, 876 P.2d at 694, 699, 701 ; Levering v. State, 2013 OK

CR 19. 116, 315 P.3d 392, 395; Malone v. State, 2013 OK CR

1, '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. Slate. 2006 OK

CR 19, 1!38. 139 P.3d 907, 923.

Page 26 of28

2017 OK CR 10, *10; 400 P.3d 834, 0 868; 2017 Okla. Crim. App. LEXIS 11, ***88

610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976! , the

Supreme [*'**89] 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 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

2130.

[*P6] 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, 1I 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 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 selfincrimination. 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 217778. The Supreme Court determined that the suspect's

silence did not constitute the invocation of the Fifth

Amendment privilege. [***90] Id.. 133 S.Ct. at 2178-79.

[*P7] 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-incrimination. Therefore, the

prosecution's use of Appellant's statements to the

investigators did not violate the Fifth Amendment.

[*PS] 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 of his 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).

[*P9]

Appellant cites the Tenth Circuit Court of

Appeals' decision in United States v. Dozal. C*B691

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, 931F.2d251, 258 (4th Cir. 1991)).

[*P101 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 [***911 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. 115 L.Ed.2d 389 (1991);

Camara v. Municipal Court of Citv and County of San

Francisco, 387 U.S. 523. 540, 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 615. 85

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.'

Murplw v. Waterfront Comm .. 378 U.S. 52, 55. 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 [***92) 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,

Page 27 of 28

2017 OK CR 10, *10; 400 P.3d 834, *-869; 2017 Okla. Crim. App. LEXIS 11, ***92

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.

[*P11] 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, 1135, 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. 'II 76.

147 P.3d 245. 265 (finding evidence introduced

to [***93] show basis for further police action

admissible); Warner v. State. 2006 OK CR 40. 'II 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.

[*P12] 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.

[*P13] 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. 11 107. 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 [...,.94] precedent on this

issue, the error was not plain or obvious In the absence

of an objection. Malone. 2013 OK CR 1. 1142. 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.

,m

[*P14] Furthermore, the prosecutor's comments were

harmless beyond a reasonable doubt. Simpson, 1994

OK CR 40. 11 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.

[*P151 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. Ok/alwma. 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. Marv/and.

482 U.S. 496. 107 S.Ct. 2529. 96 L.Ed.2d 440 (19871 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.

[*P16] 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. Marv/and. 482 U.S. 496. 107 $.Ct. 2529, 96

L.Ed 2d 440 (1987!. and South Caro/ma v. Gathers.

490 U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876

(1989) , that evidence and argument relating [*-95]

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 $.Ct. at 2611 n.2.

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

Page 28 of 28

2017 OK CR 10, •10; 400 P.3d 834, •*870; 2017 Okla. Crim. App. LEXIS 11 , ...95

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

[*P17) 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. (*"96] 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.

[*P18) 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)entencer, 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 [*"97] and opinions

2 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.

about the crime, the defendant, and the appropriate

sentence.

[*P19] 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.

~ nd of Docum<'lll

!f

fl Neutral

As of; December 20. 2017 3:08 PM Z

EXHIBlil'

1·

...

.~

--

I

·-·

'

Bosse v. State

Court of Criminal Appeals of Oklahoma

July 24, 2017, Decided

Case Number: D-2012-1128

Reporter

2017 OK CR 19 •; 2017 Okla. Crim. App . LEXIS 17 ••; 2017 WL 3141089

SHAUN MICHAEL BOSSE, Appellant, v. THE STATE

OF OKLAHOMA, Appellee.

Prior History: Bosse v. State. 2017 OK CR 10. 2017

Okla. Crim. App. LEXIS 11 (Okla. Crim. App.. May 25,

2017)

Core Terms

sentences, murder. cumulative error, reasonable doubt,

harmless beyond, convicted

Judges: [**1) GARY L. LUMPKIN, Presiding Judge.

DAVID B. LEWIS, Vice Presiding Judge. NOT

PARTICIPATING: ARLENE JOHNSON, Judge,

ROBERT L. HUDSON, Judge.

Opinion

ORDER WITHDRAWING MANDATE. GRANTING

PETITION FOR REHEARING AND DENYING RELIEF.

AND ISSUING MANDATE

[*P1J Shaun Michael Bosse was tried by jury and

convicted of Counts I, JI and 111, First Degree Murder in

violation of 21 O.S.Supp. 2009. § 701. 7tAI ; and Count

IV, First Degree Arson in violation of 21 O.S.2001. §

1401(AJ, in the District Court of McClain County, Case

No. CF-2010-213. For each of Counts l-111, the jury

found that Bosse knowingly created a great risk of death

to more than one person, that each murder was

heinous, atrocious or cruel, and that each murder was

committed for the purpose of avoiding or preventing a

lawful arrest or prosecution. In accordance with the

jury's recommendation the Honorable Greg Dixon

sentenced Bosse to three sentences of death (Counts 1111), and thirty-five (35) years imprisonment and a fine of

$25,000.00 (Count IV), to run consecutively. This Court

affirmed Bosse's convictions and sentences. Bosse v.

State, 2017 OK CR 10.

P.3d

.

[*P2) Bosse has now filed with this Court a Petition for

Rehearing. A Petition for Rehearing shall be filed for two

reasons only:

(1) That some question decisive of the case and

duly c-21 submitted by the attorney of record has

been overlooked by the Court, or

(2) That the decision is in conflict with an express

statute or controlling decision to which the attention

of this Court was not called either in the brief or in

oral argument.

Rule 3.14, Rules of the Oklahoma Court of Criminal

Appeals, Title 22, Ch. 18, App. (2017). Bosse correctly

notes that our resolution of Proposition XV omitted a

portion of the Court's analysis. In addressing Bosse's

claim of cumulative error, the Opinion notes the Court

had found only one error in previous propositions, and

determined that error was harmless beyond a

reasonable doubt. 2017 OK CR 10, 'ff 93. P.3d . The

Court found error in both Proposition VII and Proposition

IX, and found both errors harmless beyond a

reasonable doubt. Cumulative error does not require

relief where the errors, considered together, do not

affect the outcome of the proceedings. Paste/le v. State,

2011 OK CR 30. 1I 94, 267 P.3d 1141 146. Proposition

XV is DENIED.

[*P3} The Mandate issued on May 25, 2017 in this

case is WITHDRAWN. Bosse's Petition for Rehearing is

GRANTED. Relief is DENIED. Pursuant to Rule 3.15,

Rules of the Oklahoma Court of Criminal Appeals, Title

22, Ch.18, App. (2017). the MANDATE is ORDERED

issued upon the delivery and filing of this Order.

[*P4) IT IS SO ORDERED.

[*PS) WITNESS OUR HANDS AND THE SEAL OF

THIS COURT this 24th day of July, 2017.

Isl GARY [**3) L. LUMPKIN, Presiding Judge

Page 2 of2

2017 OK CR 19, *19; 2017 Okla. Crim. App. LEXIS 17, **3

/s/ DAVID B. LEWIS, Vice Presiding Judge

NOT PARTICIPATING

ARLENE JOHNSON, Judge

/s/ ROBERT L. HUDSON, Judge

I· ntl of l>n~umu11