Petition for Writ of Certiorari — Isaiah Glenndell Tryon, Petitioner v. Oklahoma

No.

IN THE SUPREME COURT OF THE UNITED STATES

ISAIAH GLENNDELL TRYON,

Petitioner,

vs.

THE STATE OF OKLAHOMA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE OKLAHOMA COURT OF CRIMINAL APPEALS

ANDREA DIGILIO MILLER, OBA #17019

Assistant Public Defender

Oklahoma County Public Defender’s Office

611 County Office Building

320 Robert S. Kerr Avenue

Oklahoma City, Oklahoma 73102

(405) 713-1550

(405) 713-7169 -— facsimile

Andrea.Miller@oscn.net

COUNSEL FOR PETITIONER

November 26, 2018

CAPITAL CASE

QUESTION PRESENTED

After invalidating one of four (4) aggravating factors found by the jury, the

Oklahoma Court of Criminal Appeals reweighed the remaining aggravating

circumstances against the evidence the court determined was mitigating and

concluded that the aggravating factors outweighed the mitigating

circumstances and affirmed the death sentence.

The question presented is in light of Ring v. Arizona and Hurst v, Florida does

the Sixth Amendment prohibit a state appellate from reweighing aggravating

and mitigating circumstances and determining that death is the appropriate

punishment because those factual determinations must be made by a jury and

found beyond a reasonable doubt?

TABLE OF CONTENTS

Page

Questions Presented 0.0.00... iccccccceccneee ee teeeeeeeeeneeeeaaeeceeeeneeeeaa senna eeeaaneenaapeeaees i

Opinion Below 00.0.0... ccc ccc cence cea en een e eee e eee ee nea n eee eeeenea sean essen estan eegenenenbes 2

ATULISMICCION 000... cect eee e renee eee eee e Ene RADE ADEE ERO EEAA OH EORU SOO BOGE OGu SEO DORE HEEES 2

Constitutional and Relevant Statutory Provisions ...............cccccsececeseseseeneee 2

Statement of the Case... cece ee cenee cee eee eee eee renner seen eee eee cA USE EEO FE OME O BES e EEE 4

Fact of the CAS€ 2... ceececeseceseeceetereeseeneeseneeseenenssenessaeereureeseeesenceeeeeerys 4

Disposition of Petitioner’s direct appeal... .ccccccececeeceseeeceeneeeerecnesen centers 8

REASON FOR GRANTING THE WRIT ...........ccccccsscccsseseeceeeueceeenenerenseaseneenees 1i

THE COURT SHOULD GRANT THE WRIT TO ANSWER THE

IMPORTANT QUESTION WHETHER UNDER THE CIRCUMSTANCES

OF THIS CASE THE REWEIGHING OF AGGRAVATING AND

MITIGATING CIRCUMSTANCES BY A STATE APPELLATE COURT

VIOLATES THE SIXTH AMENDMENT RIGHT TO JURY TRIAL IN

LIGHT OF RING V. ARIZONA AND HURST V. FLORIDA. .............::::0c0000 11

A. Oklahoma’s death sentencing scheme requires a finding

that aggravating factors outweigh mitigating

circumstances before a death sentence may be considered........ 11

B. The court’s reweighing of aggravating factors and

mitigating circumstances violates the Sixth Amendment

as explained in Ring v. Arizona and Hurst v. Florida that

any fact necessary to increase the statutory maximum

sentence must be made by a jUry. .......ccccececcceceeesecneneteesensaneeeees 13

C. This case presents a question left unanswered by the

Court in Ring and Hurst as to whether the determination

that aggravating factors outweigh mitigating

circumstances is a finding of fact that must be made by a

jury and found beyond a reasonable doubt.................- neers 17

D. The application of Hurst in weighing states has produced

a split in jurisdictions requiring this Court’s clarification.......... 18

it

E. This case presents a good vehicle for the Court to

determine whether appellate courts can reweigh

aggravating and mitigating circumstances after

invalidating an aggravating circumstance considered by

the sentencing JUTY. 2.0... cece c ee eeeeeeseneeena rosea nensaaeenoarenes 19

(010). (03 0 05-3 (0) ines EEE 20

CERTIFICATE OF SERVICE. .........::csccstcseseteseeteretssenenenseeneneceneenete eerie 21

TABLE OF AUTHORITIES

CASES

Apprendi v. New Jersey,

530 U.S. 466, 120 S.Ct. 2348, 153 L.Ed.2d 556 (2000)... eceeeeeeeeeereee 14

Blystone v. Pennsylvania,

494 U.S. 299, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990)... ceeeecceenseeeeeees 17

Ex Parte Bohannon,

No. 1150640, 2016 WL 5817692 (Ala. Sept. 30, 2016) ......ccscecceeseeeeeeeeeeeees 18

Brown v. Sanders,

546 U.S. 212, 126 S.Ct. 884, 163 L.Ed.2d 723 (2006)... cecseeeseneeeeeeeneerees 8

Hurst v. Florida,

__ US. _, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016) .......eeeeeeeeeeteeserteee passim

Hurst v. State,

202 S0.3d 40 (Fla. 2016) ..cccccsccccsseceeesssssteeesssnseeerseessieeeerenssaesensesaneeees 19

Jones v. United States,

526 U.S, 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)... eee 14, 15

Matthews v. Workman,

577 F.3d 1175 (LOth Cir, 2009) ....... ce eeeesceseseseereeeeeeeerer ere reeertnrerneenaes 10, 11

Pavatt v. Royal,

859 F.3d 920 (LOth Cir. 2017) ..ecccccceceettnee ee eteereee teeter ere terenseneeeernareeenen 15

Paxton v. State,

1993 OK GR 59, 867 P.2d 1309 iisecccccseccetseseeeersereeeessereeseuanneneneesereeees 13

Rauf v. State,

145 A.3d 430 (Del. 2016) .cecccccssecccsssessseseecsecrenesresseeseseseseeeeasensenesesnsereereey 19

iti

Ring v. Arizona,

536 U.S. 584, 122 $.Ct. 2428, 153 L.Ed.2d 556 (2002)... eens passim

State v. Belton,

149 Ohio St.3d 165, 2016-Ohio-1581, 74 N.E,.3d 319 .......ccccceececceneseveceees 19

State v. Gales,

694 N.W.2d 124 (Neb. 2005)... ccccceeeecccceeesseceeeaaceesenseveceeenececeeseesecetyes 19

Torres v. State,

2002 OK CR 35, 58 P.3d 214... cccccsececseeeeceneceueessueseeuesaneveseeseeaageeas 16

Tryon v. State,

2018 OK CR 20, 423 P.3d G17 i cccsececccceeeseeceneneeeenseeeseensaereserse 2, 8,9, 10

Underwood v. State,

2011 OK CR 12, 252 P.3d 221 i ceeecccccseeesecceseeeeseneeseeeeeuegeeseeageeseesena 16

United States v. Barrett,

496 F.3d 1079 (LOth Cir, 2007) eee ccneeeecceeenceeceaeeeeceeeeuseeessnersresssaes 11

STATUTES

28 U.S.C. § L257 (8) 0. cccceneceeeeceeeeeceree nee ee en cnaenereeeeeeeeeeaneaaeaenetererseseaseesenene 2

Okla. Stat. tit. 21, § 701.7 ceccccccccsesesceesesessevecsessessessecsesvsssssvasstetevereeneetevens 3

Okla. Stat. tit. 21, § 7JOLALO we eeeeeeceeneeeeceene PRESSES EEE ESSE ESEESESSESESSSESSSSIOSESESON 3

Okla. Stat. tit. 21, § TOLL... eee ccceccecceansenecneenersceeenaeeesecnaereesonnan tess 3, 11,13

Okla. Stat. tit. 21, § TOL. 1Q ic ceccscneeeeeerereeerereesaeaeeeaeeeseeeeeseeseeneaeanees 4,7

Okla. Stat. tit. 21, § 7OL.13 2... eeeccccsesescccneeceeeee see eeeseaaeeceseuaeeeeeanaaeeeseenaapesetee 4

CONSTITUTIONS

U.S. Const. AMEN. Vio. cccccccseeeece eee nes eeeen eee necea ee neeneea pasa eeneese bee seene eee eeeeeeanea 14

US, Const. amend, Vivicccsecececccesescncnssssseseseeesescussesseeeeeseasesessseseeenenea passim

U.S. Const. amend, XIV... ccceececeeeeneeecaueeeeeeceeneeeeaseseae sense seaeaeeeneeseneeseaenseenas 2

RULES

Rules of the Supreme Court of the United States, Part I, Rules

13.1, 138.2 and 13.3 cece c cece teense eae e eee ne ence eee renee eran en ee OT ESAS EEE ESSERE EEE 2

iv

CAPITAL CASE

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2018

ISAIAH GLENNDELL TRYON,

Petitioner,

vs.

THE STATE OF OKLAHOMA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO

THE OKLAHOMA COURT OF CRIMINAL APPEALS

To: The Honorable Chief Justice and Associate Justices of the

United States Supreme Court:

Petitioner prays that a Writ of Certiorari issue to review the judgment of

the Oklahoma Court of Criminal Appeals entered in this case.

OPINION BELOW

The Oklahoma Court of Criminal Appeals issued a published opinion in

this case, Tryon v. State, 2018 OK CR 20, 423 P.38d 617. (Appendix A)

JURISDICTION

Jurisdiction of this Court is invoked under 28 U.S.C. § 1257(3}. The

judgment of the Oklahoma appellate court was entered May 31, 2018.

(Appendix A) A Petition for Rehearing and Motion To Recall Mandate was filed”

on June 20, 2018 and subsequently denied in an unpublished order on June

29, 2018. (Appendix B and C) Petitioner sought an extension of time to file this

Petition for a Writ of Certiorari from the original ninety (90) days under the

Rules of the Supreme Court of the United States, Part III, Rules 13.1, 13.2 and

13.3. That request was granted on September 21, 2018. The Court granted a

sixty (60) day extension to and including November 26, 2018.

CONSTITUTIONAL AND RELEVANT STATUTORY PROVISIONS

United States Constitution, Amendment VI:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury of the state and district wherein the crime

shall have been committed, which district shall have been previously

ascertained by law, and to be informed of the nature and cause of the

accusation; to be confronted with the witnesses against him; to have

compulsory process for obtaining witnesses in his favor, and to have the

assistance of counsel for his defense.

United States Constitution, Amendment XIV:

Section 1. All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the United

States and of the State wherein they reside. No State shall make or

enforce any law which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State deprive any

person of life, liberty, or property, without due process of law; nor

2

deny to any person within its jurisdiction the equal protection of

the laws.

OKLA. STAT. TIT. 21, § 701.10:

Sentencing Proceedings for First Degree Murder - State Seeking Death

Penalty

A. Upon conviction or adjudication of guilt of a defendant of murder in the first

degree, wherein the state is seeking the death penalty, the court shall conduct

a separate sentencing proceeding to determine whether the defendant should

be sentenced to death, life imprisonment without parole or life imprisonment.

The proceeding shall be conducted by the trial judge before the same trial jury

as soon as practicable without presentence investigation.

B. If the trial jury has been waived by the defendant and the state, or if the

defendant pleaded guilty or nolo contendere, the sentencing proceeding shall

be conducted before the court.

C. In the sentencing proceeding, evidence may be presented as to any

mitigating circumstances or as to any of the aggravating circumstances

enumerated in Section 701.7 et seq. of this title. Only such evidence in

aggravation as the state has made known to the defendant prior to his trial

shall be admissible. In addition, the state may introduce evidence about the

victim and about the impact of the murder on the family of the victim.

OKLA, STAT. TIT. 21, § 701.11:

Jury Instructions for Sentencing - Aggravating Circumstances in Jury and

Nonjury Cases.

In the sentencing proceeding, the statutory instructions as determined by the

trial judge to be warranted by the evidence shall be given in the charge and in

writing to the jury for its deliberation. The jury, if its verdict be a unanimous

recommendation of death, shall designate in writing, signed by the foreman of

the jury, the statutory aggravating circumstance or circumstances which it

unanimously found beyond a reasonable doubt. In nonjury cases the judge

shall make such designation. Unless at least one of the statutory aggravating

circumstances enumerated in this act is so found or if it is found that any such

aggravating circumstance is outweighed by the finding of one or more

mitigating circumstances, the death penalty shall not be imposed. If the jury

cannot, within a reasonable time, agree as to punishment, the judge shall

dismiss the jury and impose a sentence of imprisonment for life without parole

or imprisonment for life.

OKLA. STAT. TIT. 21, § 701.13:

Review of Death Penalty Sentence:

A. Whenever the death penalty is imposed, and upon the judgment

becoming final in the trial court, the sentence shall be reviewed on the

record by the Oklahoma Court of Criminal Appeals.

C. With regard to the sentence, the court shall determine:

1. Whether the sentence of death was imposed under the influence of

passion, prejudice, or any other arbitrary factor; and

2. Whether the evidence supports the jury's or judge's finding of a

statutory aggravating circumstance as enumerated in Section 701.12 of

this title.

E. In addition to its authority regarding correction of errors, the court, with

regard to review of death sentences, shall be authorized to:

1. Affirm the sentence of death; or

2. Set the sentence aside and remand the case for resentencing by the

trial court.

STATEMENT OF THE CASE

1. Facts of the case.

Isaiah Tryon was convicted of first degree murder in violation of Okla.

Stat. tit. 21, 701.7 and sentenced to death by an Oklahoma jury. Mr. Tryon

and Tia Bloomer began a relationship in approximately 2008 when she was

fourteen (14) or fifteen (15) years old and Mr. Tryon was approximately eighteen

(18) years old, (Tr.IV 997) They had a son, Royal, together. (Tr. VIII 2019) Ms.

Bloomer lived with Mr. Tryon’s family on and off before and after Royal was

born. (Tr.VIII 2018) She wanted Mr. Tryon to be able to support her and the

baby so together they worked toward Mr. Tryon getting his GED. She herself

finished high school after Royal was born and took college courses in addition

to working.

Mr. Tryon and Ms. Bloomer sometimes fought and she would leave, then

forgive him and call him to go pick her and the baby up. (Tr.VIII 2081) They

always got back together. (Tr.VIII 2082) There was pressure put on them by

their families. (Tr.VIII 2079-2080) Their relationship was at times violent.

(Tr. VIII 2065) Detective Jeffrey Padgett suspected that Mr. Tryon was

responsible for choking Ms. Bloomer several days before the stabbing.

However, she had named someone else as being responsible for the choking

and was not cooperating with the police. (Tr. VIII 841-843)

In March 2012 Mr. Tryon was living in an apartment with his mother,

Ms. Bloomer and Royal, his sister and her boyfriend. (Tr.IV 998-999) His

brother Rico lived in the same complex as did their cousin Eric “Evil” Wilson.

(Tr.IV 999) In the days before the stabbing, Ms. Bloomer had left Mr. Tryon for

several reasons including her frustration that he was using his disability

money to take care of his mother instead of taking care of her and Royal. To

try and live up to what Ms. Bloomer wanted from him Mr. Tryon had spent the

days before the stabbing going to job fairs and employment agencies with Rico

and his cousin Eric trying to find a job. (Tr.IV 1000}

However, his efforts towards finding a job to try and support Ms. Bloomer

and Royal were frustrated by Mr. Tryon’s almost constant drug use, Rico

Wilson testified that he saw Mr. Tryon snorting cocaine and smoking PCP that

week. (Tr.IV 1002) On the evening of March 15 he observed his brother

sitting on the stairs feeling down because of losing Ms. Bloomer and Royal,

(Tr.IV 1006} He believes Mr. Tryon was high that night because of the way he

was talking. (Tr.IV 1006)

Eric Wilson testified that he was with Mr. Tryon every day in the days

prior to the stabbing. (Tr.IV 1054) They went out looking for jobs but having

no luck finding jobs they would go home and get high. (Tr.IV 1054) According

to Mr. Wilson they were drinking, smoking PCP and snorting lines of cocaine.

(Tr.IV 1055-1059) Mr. Tryon smoked two (2) vials of PCP on the 13% and the

14th, He snorted cocaine on the 13 but not the 14%. (Tr.[V 1059) Mr. Tryon

stayed at Eric Wilson’s apartment on the night of the 14%. When they got up

on the 15 they started getting high again. (Tr.IV 1060) Mr. Tryon again used

two (2) vials of PCP that covered six cigarettes. Mr. Wilson explained that when

you are using PCP you can smoke a regular cigarette and it would renew the

PCP high. (Tr.IV 1061) Mr. Tryon also snorted cocaine and ingested alcohol on

the 15%, (Tr.IV 1062) They began drinking gin around 9:00 that night after

using PCP all day. (Tr.IV 1063) Mr. Tryon left around 3:00 a.m. or 4:00 a.m. on

the 16%, (Tr.IV 1063-1064)

During his custodial interview Mr. Tryon admitted he knew that Ms.

Bloomer had business to take care of that day but he did not know he would

run into her at the Downtown Bus Station. (State’s exhibit 58, 25:14) When he

arrived at the station he stood outside and smoked a cigarette, possibly retriggering some of the PCP in his system. (State’s exhibit 58, 25:22) He went

into the bus station to get a schedule and saw her talking to a man who drew

caricatures at the bus station. Mr. Tryon approached Ms. Bloomer to try and

6

talk to her but she told him to get away from her. (State’s exhibit 58, 25:38,

31:55) Mr. Tryon told Detective Benavides that his emotions got away from him

and when she told him “I don’t want to talk to you” he pulled out a knife and

began stabbing her. (State’s exhibit 58, 31:55-32:21). He thought he had

stabbed her six (6) times. (State’s exhibit 58, 29:22)

The surveillance video from the bus station shows Mr. Tryon

approaching Ms. Bloomer while she was sitting with the caricature artist and

attempting to talk to her. (State’s exhibit 4, 0:50-1:25) She got up and walked

away from him then began to leave the station at which time he began to stab

her. (State’s exhibit 4, 1:25-1:35) Numerous people were in the bus station

and witnessed some or all of the stabbing.

Dr. Inas Yacoub performed the autopsy on Ms. Bloomer, (Tr.IV 941)

Based on the diagram she prepared during the autopsy Dr. Yacoub testified

that she observed wounds on Ms, Bloomer’s right side of the face and ear, on

her neck, the right breast, right torso and right hand. (Tr.IV 952) She also had

injuries on the back of the neck and the upper back. Dr. Yacoub counted

seven (7) major stab wounds but could not determine what order the wounds

were received. (Tr.IV 957, 967) The wound to the right breast entered the

chest cavity and damaged a lung and vital structures such that it alone would

have been fatal. (Tr.IV 962) Dr. Yacoub’s conclusion was that Ms. Bloomer’s

cause of death was multiple stab wounds. (Tr.IV 986)

At trial the State alleged the existence of four (4) statutory aggravating

circumstances under Okla. Stat. tit. 21, § 701.12: 1) the homicide was

7

especially heinous, atrocious or cruel; 2) Mr. Tryon was serving a sentence of

imprisonment at the time of the homicide; 3) Mr. Tryon had a prior violent

felony conviction; and 4) Mr. Tryon constitutes a continuing threat to society.

All but the heinous, atrocious or cruel aggravators were supported, at least in

part, with Mr. Tryon’s single felony conviction for four (4) counts of shooting

with intent to kill for which he entered a “no contest” plea and received a

deferred sentence.! Because of a probation violation Mr. Tryon’s deferred

sentence was accelerated to a suspended sentence (and became a conviction at

that time) on November 21, 2011 to four ten (10) year suspended sentences

with supervised probation for the first two (2) years.

2. Disposition of Petitioner’s direct appeal.

On direct appeal the Oklahoma Court of Criminal Appeals invalidated the

serving a sentence of imprisonment aggravating circumstance finding that

because Mr. Tryon was serving a suspended sentence, his sentence of

imprisonment was not executed prior to Ms. Bloomer’s death. Tryon at §117,

423 P.3d at 649. In light of the invalid aggravating circumstance the state

appellate court conducted a harmless error analysis under Brown v. Sanders,

546 U.S. 212, 126 S.Ct. 884, 163 L.Ed.2d 723 (2006) and determined “the

invalid aggravator could not have skewed the sentence imposed, and no

constitutional violation occurred.” Tryon at § 148, 423 P.3d at 656. In making

that determination the court stated it was conducting “an independent

reweighing of the aggravating and mitigating evidence to determine the validity

1 A deferred sentence in Oklahoma is not a conviction if probation is successfully completed.

8

>

of Appellant’s death sentence.” Id. at ¢ 149, 423 P.3d at 656. The court

described the remaining aggravating circumstances:

The evidence supporting all three aggravating circumstances was

strong. The evidence detailed earlier showed not only Appellant's prior

felony convictions for four counts of Assault with a Dangerous

Weapon but also numerous instances of prior violent acts towards

police officers, family members, the victim, other inmates and the

public supporting the continuing threat aggravator. Appellant's

murder of Tia Bloomer in a crowded public place while serving a

sentence of supervised probation likewise supports this aggravator as

does the callous and brutal nature of the killing itself...Moreover, as

discussed in Proposition XIII, the evidence showed the victim endured

conscious physical suffering as Appellant stabbed her repeatedly in

the bus station, thus supporting the especially heinous, atrocious, or

cruel aggravator. (citation omitted).

Id. at ¢ 150, 423 P.3d at 657. In relation to the mitigating evidence that was

admitted the court described exactly what the court considered in reweighing:

Appellant presented abundant mitigation evidence from his family

members covering virtually every aspect of his life. This included

first-hand accounts concerning Appellant's drug abuse; learning

disabilities; educational background; prior incarcerations; prior

head injuries; suicide attempts; family background; mental health

treatment and institutionalization; prior incarcerations of his

mother, father and siblings; gang involvement; the crowded

conditions at the family home; the fact the family constantly

moved; the non-stop drug activity at the family home; the routine

absence of Appellant's mother from the family home while on

multi-day drug binges; Appellant's mother buying drugs from

Appellant and his brother; Sheryl's? physical abuse of her children;

Appellant's drug dealing; Appellant's love for his son; the nature of

Appellant's relationship with the victim; and the nature of

Appellant's relationship with his mother.

The defense also presented expert testimony from Dr. Fabian, a

neuropsychologist, that Appellant was low functioning (but not

mentally retarded) and suffered both from mental illness and brain

damage. Appellant presented this testimony along with anecdotal

evidence from family members concerning his cognitive and

developmental limitations, his mental health treatment and his

2 Petitioner’s mother.

experience taking—then discontinuing—medications prescribed

specifically for his mental issues. Dr. Musick, a sociology

professor, was presented by the defense as an expert witness to

discuss the risk factors and events from Appellant's life history

which impacted his development. This was offered to explain

Appellant's pattern of illegal behavior culminating in his murder of

Tia Bloomer.

Id. at J] 151-152, 423 P.3d at 657. The court’s summary of what it considered

mitigating did not fully encompass the entirety of what the jury was instructed

it could consider as mitigating evidence including Mr. Tryon’s remorse for the

homicide, the fact that he was only twenty-two (22) years old when he killed

Ms. Bloomer and the abject poverty in which he was raised.

The court concluded that the valid aggravating circumstances

outweighed the mitigation evidence and supported the death penalty. Id. at

158, 423 P.3d at 657. Petitioner filed a Petition For Rehearing arguing that the

court’s reweighing of aggravating factors and mitigating circumstances violated

Hurst v. Florida, ___ U.S. __, 136 §.Ct. 616, 193 L.Ed.2d 504 (2016), The court

rejected the argument finding that Hurst “did not address the authority of a

state appellate court to conduct reweighing.” The court further stated:

Our determination on appeal whether the remaining valid

aggravating circumstances outweighed the mitigating

circumstances presented in this case was not a factual

determination. Rather, this decision amounted to “a balancing

process which is not amenable to the ‘beyond a reasonable doubt’

standard of proof. Underwood v. State, 2011 OK CR 12, { 62, 252

P.3d 221, 246.

Citing with approval the Tenth Circuit Court of Appeals opinion in Matthews v.

Workman, 577 F.3d 1175, 1195 (10% Cir. 2009) the court wrote “The Tenth

10

Circuit has recognized that the balancing of aggravating and mitigating

circumstances is ‘not a finding of fact...but a ‘highly subjective, largely more

judgment regarding the punishment that a particular person deserves.”

REASONS FOR GRANTING THE WRIT

THE COURT SHOULD GRANT THE WRIT TO ANSWER THE IMPORTANT

QUESTION WHETHER UNDER THE CIRCUMSTANCES OF THIS CASE THE

REWEIGHING OF AGGRAVATING AND MITIGATING CIRCUMSTANCES BY A

STATE APPELLATE COURT VIOLATES THE SIXTH AMENDMENT RIGHT

TO JURY TRIAL IN LIGHT OF RING V. ARIZONA AND HURST V. FLORIDA.

A. Oklahoma’s death sentencing scheme requires a finding that

aggravating factors outweigh mitigating circumstances before a

death sentence may be considered.

The maximum sentence allowed under Oklahoma law for first degree

murder is life without parole. The death penalty can only be considered by a

jury if it finds the existence of at least one aggravating factor and finds any

aggravating factors outweigh the mitigating circumstances. Oklahoma is a

weighing state meaning the jury is tasked with determining whether the

statutory aggravating circumstances outweigh the mitigating circumstances.

The jury then, and only then, is authorized to consider imposing a death

sentence. See Okla. Stat. tit. 21, § 701.11. The existence of at least one

aggravator must be found by the unanimous jury beyond a reasonable doubt

before the jury engages in the weighing process. That is the only finding in the

penalty phase of a capital trial under Oklahoma law that the jury has to find

beyond a reasonable doubt. Neither the decision of whether the aggravating

3 The Matthews opinion quotes United States v. Barrett, 496 F.3d 1079, 1107 (10 Cir, 2007).

Barrett considered the federal sentencing guidelines and did not address the issue being

addressed by the Oklahoma Court of Criminal Appeals.

11

circumstances outweigh the mitigating circumstances nor the ultimate

determination of the appropriate sentence is subject to any burden of proof.

During the penalty phase of a capital trial the jury is instructed on the

alleged statutory aggravating circumstances and told it must find at least one

aggravating circumstance beyond a reasonable doubt before it can consider the

death penalty. Oklahoma Uniform Jury Instruction-Criminal 2d. 4-76, The jury

is also instructed that “the death penalty shall not be imposed” unless it

unanimously find that the aggravating factors outweigh. the mitigating

circumstances. Oklahoma Uniform Jury Instruction-Criminal 2d. 4-80. The

aggravating factors found by the jury beyond a reasonable doubt are

memorialized in a verdict form. Oklahoma Uniform Jury Instruction-Criminal 2d.

4-84,

Oklahoma jurors are instructed that mitigating circumstances are;

1) circumstances that may extenuate or reduce the degree of moral culpability

or blame, or 2) circumstances which in fairness, sympathy or mercy may lead

the jurors individually or collectively to decide against imposing the death

penalty. Oklahoma Uniform Jury Instruction-Criminal 2d. 4-78. For the

mitigating circumstances jurors are instructed on specific circumstances

supported by the evidence presented at trial in mitigation. Oklahoma Uniform

Jury Instruction-Criminal 2d. 4-79. That instruction further tells the jurors that

they can consider anything else they might find mitigating. What the jury,

individually or collectively, considered mitigating is not memorialized in a

12

verdict form. Therefore there is no discernable way to determine what the jury

considered in the weighing process.

In order to consider a sentence of death the jury must find that the

aggravating factors outweigh the mitigating circumstances. Okla. Stat. tit. 21,

§ 701.11. It is this determination that allows the jury to consider the death

penalty and absent that finding, a death sentence is not a sentencing option.

Paxton v. State, 1993 OK CR 59, | 40, 867 P.2d 1309, 1323 (“It is sufficient

that the jury is instructed to weigh the mitigating and aggravating evidence,

and only when the aggravating circumstances clearly outweigh the mitigating’

may the death penalty be imposed). Therefore, in Oklahoma the jury must

make two critical findings in order to impose the death penalty. First, the jury

must find that an aggravating factor exists beyond a reasonable doubt. The

second and just as important critical factor that the jury must find is that the

aggravating factor(s) outweigh the mitigating circumstances.

B. The court’s reweighing of aggravating factors and mitigating

circumstances violates the Sixth Amendment as explained in

Ring v. Arizona and Hurst v. Florida that any fact necessary to

increase the statutory maximum sentence must be made by a

jury.

The Court invalidated the “serving a sentence of imprisonment”

aggravating circumstance then engaged in an “independent reweighing of the

aggravating and mitigating evidence to determine the validity of Appellant’s

death sentence.” Id. at { 149. The state court’s “independent reweighing” runs

afoul of Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002)

and Hurst v. Florida, __ U.S. __, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016). In

13

Ring this Court extending the holding in Apprendi v. New Jersey that any fact

necessary to increase the statutory maximum of a sentence must be found by a

jury beyond a reasonable doubt.

Jones v. United States, 526 U.S. 227, 243, n.6, 119 S.Ct. 1215, 1224,

n.6, 143 L,Ed.2d 311 (1999} held that “...under the Due Process Clause of the

Fifth Amendment and the notice and jury trial guarantees of the Sixth

Amendment, any fact (other than prior conviction) that increases the maximum

penalty for a crime must be charged in an indictment, submitted to a jury, and

proven beyond a reasonable doubt.” Applying that fundamental principle to

the states, the Court held in Apprendi v. New Jersey, 530 U.S. 466, 476, 120

S.Ct. 2348, 2355, 153 L.Ed.2d 556 (2000), that: “[t]he Fourteenth Amendment

commands the same answer [as Jones v. US] in this case involving a state

statute.”

The evolution of the principle that any fact used to increase the

maximum penalty for a crime was taken a step further in Ring wherein the

Court held that the rules of law that commanded the outcome in Jones and

Apprendi are likewise applicable to capital cases. Ring, 536 U.S. at 607, 122

S.Ct. at 2442 (“We see no reason to differentiate capital cases from all others in

this regard.”) In so holding the Court reaffirmed the principle that if an

increase in the maximum sentence available under the law is contingent on a

finding of fact, that fact, regardless of the label placed upon it by the State,

must be found by a jury beyond a reasonable doubt. Id. In his concurring

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opinion Justice Scalia expounded on his view of the principle set forth in

Jones, Apprendi, and Ring:

I believe that the fundamental meaning of the jury-trial guarantee

of the Sixth Amendment is that all facts essential to imposition of

the level of punishment that the defendant receives—whether the

statute calls them elements of the offense, sentencing factors, or

Mary Jane-must be found by the jury beyond a reasonable doubt.

Ring, 536 U.S. at 610, 122 S.Ct. at 2444,

The Hurst Court likewise held that the critical findings necessary to

impose a death penalty must be made by a jury. id. at 622. The use of the

term “critical findings” by the Court suggests that the jury must find more than

just the existence of an aggravating circumstance. Among the findings the

Hurst Court addressed was the existence of mitigating and or aggravating

circumstances. Id. In fact, Hurst concludes with the statement “The Sixth

Amendment protects a defendant's right to an impartial jury. This right

required Florida to base Timothy Hurst's death sentence on a jury's verdict,

not a judge's factfinding.” Jd. at 624 (emphasis added). See also Pavatt v.

Royal, 859 F.3d 920, 957 (10 Cir. 2017)(“But the implications of Hurst seem

clear. Appellate reweighing at least under a capital sentence scheme like the

one at issue in Oklahoma, requires an appellate court to make a new and

critical finding of fact, ic, whether the remaining valid aggravating

circumstances outweigh any mitigating circumstances alleged by the

defendant.”)(Briscoe, J. concurring in part and dissenting in part). The state

appellate court has repeatedly rejected the argument that under Ring v.

Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), the “finding”

15

that authorizes a death sentence (and therefore should be subject to the

beyond a reasonable doubt standard of proof) is the finding that the

aggravating factors outweigh the mitigating circumstances. Underwood v.

State, 2011 OK CR 12, 7 61, 252 P.3d 221, 246; Torres v. State, 2002 OK CR

35, { 5-7, 58 P.3d 214, 215-216.

In conducting its independent reweighing the court had to make two key

determinations or findings. First, the court had to make a preliminary

finding of fact of what mitigating evidence to consider in its reweighing. The

reweighing court in Oklahoma has no way to know for sure what the jury that

sentenced a defendant to death considered in the weighing process. A list of

mitigating circumstances supported by the evidence is given to the jury in the

jury instructions but jurors are told they may also consider anything else they

find to be mitigating in determining the appropriate punishment. (Appendix D}

Jurors do not memorialize what evidence they actually considered mitigating or

considered in the weighing process. Therefore, in determining what mitigating

evidence warrants consideration in the reweighing process the court

necessarily substituted its own judgment for that of a jury regarding what

mitigating evidence to weigh.

While the court listed several mitigating points supported by the evidence

at trial, there is no way to know with any certitude what other evidence the

jury might have considered mitigating. The court’s independent reweighing

then necessarily makes the factual determination of what is relevant mitigating

evidence. Additionally, the fairness, sympathy and mercy jurors are instructed

16

they can consider does not appear to have entered into the state appellate

court’s reweighing process.

The second finding the court had to necessarily make is the ultimate

determination that the aggravating circumstances outweigh the mitigating

evidence. A death sentence is supposed to reflect the reasoned moral judgment

of a jury, not five (5) judges who were not in the courtroom during the

presentation of the mitigation case. In fact, in Blystone v. Pennsylvania, 494

U.S. 299, 317, 110 S.Ct. 1078, 1089, 108 L.Ed.2d 255 (1990) the Court

observed about the weighing process,

Thus, a reasoned moral response to the defendant's conduct

requires the consideration of the significance of both aggravating

and mitigating factors. “[IJn the end it is the jury that must make

the difficult, individualized judgment as to whether the defendant

deserves the sentence of death.” (citation omitted)

The ultimate finding that the death sentence is appropriate because the

aggravating factors outweigh the mitigating circumstances is a finding of fact

that the Sixth Amendment requires that the jury, not a reviewing court, make

and one that must be found beyond a reasonable doubt.

By token of the state court’s “independent reweighing,” Mr. Tryon’s death

sentence rests on the court’s finding of fact instead of a jury’s findings relating

to aggravating and mitigating evidence. The Sixth Amendment does not allow

such a sentence to stand as construed by Ring and Hurst.

C. This case presents a question left unanswered by the Court in

Ring and. Hurst as to whether the determination that aggravating

factors outweigh mitigating circumstances is a finding of fact

that must be made by a jury and found beyond a reasonable

doubt.

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The Court in Ring granted certiorari to decide whether the aggravating

factor that increased the statutory maximum sentence to death could be found

by a judge or if it had to be found by the jury. Ring at 597, 122 8.Ct. at 2437.

However, the Hurst Court spoke in terms of the multiple findings that must be

made before a sentence of death may be imposed. Particularly relevant to the

question presented in this case, Hurst referred to the pivotal “facts” that the

Florida trial court had to make that ran afoul of Ring and Apprendi, that

sufficient aggravating circumstances exist and that there are insufficient

mitigating circumstances to outweigh the aggravating circumstances. Hurst at

622.

This case presents the question left unanswered by Ring and Hurst as to

whether the Sixth Amendment requires a jury to find that the aggravating

circumstances outweigh the mitigating circumstances beyond a reasonable

doubt. If the Sixth Amendment requires that finding to be made by a jury, can

a state appellate court engage in a reweighing process if an aggravating

circumstance is invalidated on appeal.

D. The application of Hurst in weighing states has produced a split

in jurisdictions requiring this Court’s clarification.

Currently, at least three other states hold as Oklahoma holds, that the

determination that aggravating factors outweigh mitigating circumstances is

not a fact that must be found by a jury beyond a reasonable doubt. Alabama,*

Ohio5 and Nebraska® have all ruled that Ring does not require the weighing

4 Ex Parte Bohannon, No. 1150640, 2016 WL 5817692, at 6 (Ala. Sept. 30, 2016).

5 State v. Belton, 149 Ohio St.3d 165, 2016-Ohio-1581, 74 N.E.3d 319.

18

determination to be made by a jury. On the other hand, Delaware”? and

Florida® hold that the ultimate determination that the aggravating factors

outweigh the mitigating circumstances must be made by a unanimous jury

beyond a reasonable doubt.

The Court should grant the writ of certiorari in this case to resolve this

split in authority.

E. This case presents a good vehicle for the Court to determine

whether appellate courts can reweigh aggravating and mitigating

circumstances after invalidating an aggravating circumstance

that was considered by the sentencing jury.

Petitioner’s case presents a good vehicle for the Court to decide the open

question of whether, in light of Ring and Hurst, an appellate court can reweigh

aggravating factors and mitigating circumstances. Petitioner submits that

weighing aggravating and mitigating circumstances is a “finding” that must be

made by a jury beyond a reasonable doubt. The issue was raised before the

state appellate court following the issuance of the direct appeal opinion when

the state appellate court reweighed the evidence and affirmed the death

sentence. In the reweighing process the state appellate court clearly made

findings about ;jwhat mitigation was relevant to that process. Those findings

did not encompass all of the mitigating evidence presented at trial. The court

also made a factual finding that the remaining valid aggravating factors

outweighed the evidence in mitigation. On rehearing the state court clearly and

6 State v. Gales, 694 N.W.2d 124, 145 (Neb, 2005).

7 Rauf v. State, 145 A.3d 430, 433-434 (Del. 2016)(per curium).

8 Hurst v. State, 202 So.3d 40, 44 (Fla. 2016)(per curium).

19

specifically held that reweighing did not constitute fact finding in the Ring and

Hurst context.

The issue is now before the Court having been fully developed below.

Accordingly, the case provides a good vehicle for determination of this issue

that impacts virtually all active capital jurisdictions in the United States.

CONCLUSION

Petitioner prays the Court grant his petition to decide that the Sixth

Amendment of the United States Constitution requires that the finding of what

circumstances are mitigating and the ultimate decision that the aggravating

factors outweigh mitigating circumstances must be made by a jury and found

beyond a reasonable doubt.

Respectfully submitted,

ROBERT A. RAVITZ

Public Defender of Oklahoma County

LLL be

°Y: CEBREA DIGILIO MILLER, (OBA # 17019)

Appellate Defense Counsel

Office of the Oklahoma County Public Defender

320 Robert S. Kerr

611 County Office Building

Oklahoma City, Oklahoma 73102

(405) 713-1550

ATTORNEY FOR PETITIONER

20

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2018

ISAIAH GLENDELL TRYON,

Petitioner,

vs.

THE STATE OF OKLAHOMA,

Respondent.

CERTIFICATE OF SERVICE

I, Andrea Digilio Miller, member of the bar of this Court, do hereby certify

that I have served a copy of the Petition for Writ of Certiorari to the Oklahoma

Court of Criminal Appeals on counsel for the Respondent, State of Oklahoma,

by depositing the same in the U.S. Mail, postage prepaid, to Jennifer Miller,

Chief of the Criminal Division, Office of the Attorney General, 112 State Capitol

Building, Oklahoma City, Oklahoma 73105, this 26th day of November, 2018.

All parties required to be served have been served.

A, [Ly

ANDREA DIGILIO MILLER

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