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

Supreme Court briefNov 26, 2018

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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

APPENDIX “A”

Direct appeal Opinion of the

Oklahoma Court of Criminal Appeals

Issued on May 31, 2018

Tryon v. State, 423 P.3d 617 (2018)

2018 OK CR 20

423 P.3d 617

Court of Criminal Appeals of Oklahoma.

Isaiah Glenndell TRYON, Appellant

STATE of Oklahoma, Appellee.

Case Number: D-2015-331

Decided: 05/31/2018

Synopsis

Background: Defendant was convicted in the District

Court, Oklahoma County, Cindy H. Truong, J., of first

degree murder and was sentenced to death. He appealed.

Holdings: The Court of Criminal Appeals, Hudson, J.,

held that:

[1] defense counsel asked improper hypothetical questions

during voir dire;

[2] trial court acted within its discretion in declining to

remove prospective juror for actual bias;

[3] photographs showing murder victim's injuries were not

unduly prejudicial;

[4] defendant was not entitled to instruction on second

degree murder as a lesser included offense of first degree

malice aforethought murder;

[5] defendant was not entitled to instruction on voluntary

intoxication;

[6] defendant was not subject to aggravator for serving a

sentence of imprisonment on conviction of a felony; and

[7] aggravating circumstances outweighed mitigating

evidence,

Affirmed.

Lumpkin, P.J., concurred in part, dissented in part, and

filed opinion.

Kuehn, J., concurred in part, dissented in part, and filed

opinion.

West Headnotes (88)

0g] Jury

= Examination of Juror

Jury

Laying foundation for peremptory

challenges

The purpose of voir dire examination is

to discover whether there are grounds to

challenge prospective jurors for cause and

to permit the intelligent use of peremptory

challenges.

Cases that cite this headnote

[2] Jury

¢ Extent of examination

Both the State and defense must have a

reasonable opportunity to supplement the

trial court's examination of prospective jurors.

Okla. Dist. Ct. R. 6.

Cases that cite this headnote

3] Jury

> Discretion of court

The manner and extent of examination of

jurors is not prescribed by any definite,

unyielding rule, but instead rests in the sound

discretion of the trial judge.

Cases that cite this headnote

[4] Jury

¢ Discretion of court

The trial court retains broad discretion during

voir dire in restricting questions that are

repetitive, are irrelevant or regard legal issues

upon which the trial court will instruct the

jury. Okla. Dist. Ct. R. 6.

Cases that cite this headnote

Tryon v. State, 423 P.3d 617 (2018)

2018 OK CR 20

16]

Jury

¢= Discretion of court

There is no abuse of discretion as long as the

voir dire examination affords the defendant a

jury free of outside influence, bias or personal

interest. Okla, Dist, Ct. R. 6.

Cases that cite this headnote

Criminal Law

¢ Summoning, impaneling, or selection of

jury

Where a defendant challenges the restrictions

placed upon his voir dire examination, the

question is whether the trial court's actions

rendered his trial fundamentally unfair. Okla,

Dist. Ct, R. 6.

Cases that cite this headnote

Jury

& Mode of examination

During voir dire in capital murder trial,

defense question regarding feelings of jurors

about death penalty in hypothetical situation

in which defendant was convicted of

intentional first degree murder of person who

committed malice aforethought murder was

an impermissibly hypothetical scenario, Okla.

Dist. Ct. R. 6.

Cases that cite this headnote

Jury

$= Mode of examination

During voir dire of capital murder trial,

defense counsel asked improper hypothetical

questions by asking prospective jurors what

they would want to know about a person

before sentencing them to death; whether

jurors could realistically consider life with

possibility of parole where murder victim was

defendant's girlfriend and mother of his baby;

and whether’ jurors could imagine imposing

life with possibility of parole for defendant

who killed loved one as opposed to stranger.

Okla. Dist. Ct. R. 6.

Pp]

(10)

(14)

12]

Cases that cite this headnote

Criminal Law

¢= Overruling challenges to jurors

Defendant failed to preserve for appeal the

denial of his for-cause challenge to prospective

juror, where defendant failed to excuse her

with available peremptory challenge and

used peremptory challenges against other

prospective jurors whom he failed to claim

could not be impartial.

Cases that cite this headnote

Jury

sg Punishment prescribed for offense

Prospective juror’s answers did not show

that his views on sentencing option of life

with possibility of parole would prevent

or substantially impair performance of his

duties as a juror in accordance with his

instructions and his oath, even though he

provided inconsistent responses concerning

his ability to give meaningful consideration to

option of life imprisonment where victim was

a loved one; prospective juror made it clear

that he could listen to all evidence and give

meaningful consideration to all sentencing

options, and prospective juror's responses to

defense counsel's questions revealed his ability

to give fair and meaningful consideration to

life sentence.

Cases that cite this headnote

Criminal Law

$= Jury selection

A trial court's finding regarding a juror's

ability to serve may be upheld even in the

absence of clear statements from the juror that

he or she is impaired.

Cases that cite this headnote

Criminal Law

& Jury selection

Tryon v. State, 423 P.3d 617 (2078)

2018 OK CR 20

[13]

14]

{15]

[16]

The Court of Criminal Appeals will reverse

the lower court's ruling on a for-cause

challenge where there is no support for it in

the record, but where the record demonstrates

a thorough vetting of the prospective juror's

views and the Court of Criminal Appeals is

left simply with ambiguous responses, the trial

court's ruling will be honored on appeal.

Cases that cite this headnote

Criminal Law

@ Necessity of Objections in General

Under the plain error test, an appellant must

show an actual error, that is plain or obvious,

affecting his substantial rights.

Cases that cite this headnote

Criminal Law

$= Necessity of Objections in General

The Court of Criminal Appeals 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.

Cases that cite this headnote

Jury

= Bias and Prejudice

Trial court acted within its discretion in

declining to remove prospective juror for

actual bias in capital murder trial, even

though prospective juror initially provided

inconsistent answers concerning her ability

to set aside her previous experiences with

domestic violence; prospective juror made

clear that she could set aside her personal

experiences, and record showed that her

initial concerns about her ability to be fair

and impartial vanished as parties and court

explained what the law required. 22 Okla.

Stat. Ann. § 659. :

Cases that cite this headnote

Criminal Law

[18]

{19]

(20)

ge Reception and Admissibility of Evidence

The Court of Criminal Appeals typically

reviews a trial court's decision to admit

evidence for an abuse of discretion.

Cases that cite this headnote

Criminal Law

& Review De Novo

The determination of whether admission of

hearsay evidence violates the Confrontation

Clause is a question of law the Court of

Criminal Appeals reviews de novo. U.S.

Const. Amend. 6.

Cases that cite this headnote

Criminal Law

@ Reception of evidence

Defendant waived for all but plain error his

claim that admission of exhibit violated his

rights under Confrontation Clause, where he

did not assert at trial a claim that admission

of exhibit was a constitutional violation. U.S.

Const. Amend. 6.

Cases that cite this headnote

Criminal Law

& Evidence as to fact of making

declarations and not as to subject-matter

Statements not offered to prove the truth of

the matter asserted are generally admissible.

Cases that cite this headnote

Criminal Law

$= Out-of-court statements and hearsay in

general

Text message sent from victim to defendant

on night before alleged murder, which was an

informal message that appeared to be threat

to defendant, was nontestimonial and thus

did not implicate Confrontation Clause when

admitted at trial; message was not made in

context of police interview or in response to

police questioning, U.S. Const. Amend. 6.

Tryon v. State, 423 P.3d 617 (2018)

2018 OK CR 20

124]

[22]

[23]

Cases that cite this headnote

Criminal Law

¢= Then-existing state of mind or body

Homicide

$= Declarations of victim

Text message from victim to defendant in

which victim stated that she was going to tell

the truth and that she was tired of “holding

lies” for defendant were admissible in murder

trial under state-of-mind exception to hearsay

rule to indicate victim's intent toward future

conduct and as direct statement of her state of

mind, 12 Okla. Stat. Ann. § 2803(3),

Cases that cite this headnote

Criminal Law

= Documentary and demonstrative

evidence

Any error in admission of sentence in

text message from victim to defendant that

defendant had nearly choked and killed victim

was harmless in capital murder trial; properlyadmitted portion of text message, combined

with domestic violence evidence introduced

by State during trial's first stage, constituted

strong evidence identifying defendant as

perpetrator of previous attack and showing

motive for killing, and videotape of killing

itself represented overwhelming evidence

demonstrating defendant's responsibility for

victim's death and that murder was committed

with malice aforethought.

Cases that cite this headnote

Criminal Law

&» Exclusion of evidence

Defendant waived review of all but plain error

regarding his claim that trial court violated his

right to fundamentally fair trial and to present

a defense by barring testimony as to whether

defendant had made threats toward victim in

days leading up to murder or had otherwise

mentioned receiving text message from victim,

where defendant did not raise trial court's

[24

25]

[26]

[27]

[28]

earlier ruling when witnesses testified at trial

and did not make offer of proof concerning

what testimony he wanted to present.

Cases that cite this headnote

Criminal Law

= Exclusion of evidence

After a motion in limine is sustained, the party

seeking to introduce the evidence must make

an offer of proof at trial; this affords the trial

court an opportunity to make a final ruling on

the evidence.

Cases that cite this headnote

Criminal Law

@» Exclusion of evidence

Failure to make an offer of proof following

the sustaining of a motion in limine waives

review on appeal of all but plain error.

Cases that cite this headnote

Criminal Law

@> Necessity and scope of proof

The rules of evidence may not be used to

arbitrarily impinge on the defendant's right to

present competent evidence in his defense.

1 Cases that cite this headnote

Criminal Law

€» Necessity and scope of proof

Whether defendant was denied the right to

present a defense ultimately turns on whether

the evidence at his disposal was admissible,

1 Cases that cite this headnote

Criminal Law

& Acts, admissions, declarations, and

confessions of accused

Even if trial court erred in refusing to admit

evidence regarding whether defendant had

made threats to victim in days prior to

murder to show defendant's state of mind,

Tryon v. State, 423 P.3d 617 (2018)

2018 OK CR 20

[29]

[30]

{32]

defendant failed to show plain error; proposed

evidence did not overwhelming

evidence showing defendant's guilt for

victim's murder, including surveillance tape

showing defendant repeatedly stabbing

victim, eyewitness testimony, testimony

concerning victim's injuries, and defendant's

refute

confession.

Cases that cite this headnote

Homicide

g» Time required

Premeditation sufficient to constitute murder

may be formed in an instant or it may be

formed instantaneously as the killing is being

committed.

Cases that cite this headnote

Homicide

= Intent or mens rea

The jury may rely upon circumstantial

evidence to ascertain a person's intent at the

time of the homicidal act,

Cases that cite this headnote

Criminal Law

@= Documentary evidence

The Court of Criminal Appeals reviews

the trial court's admission of photographic

evidence for an abuse of discretion.

Cases that cite this headnote

Criminal Law

@ Evidence calculated to create prejudice

against or sympathy for accused

Criminal Law

= Cumulative evidence in general

The issue in the admission of photographs is

whether the probative value of the evidence

is substantially outweighed by the danger of

unfair prejudice, confusion of the issue, or

needless presentation of cumulative evidence,

{2 Okla, Stat. Ann. §§ 2401, 2042, 2403.

133]

[35]

{(36]

Cases that cite this headnote

Criminal Law

@ Points and authorities

Defendant waived for appellate review his

objection to admission of photographs

of murder victim's bloody clothes, where

defendant failed to provide citations to record

showing where those particular photographs

were admitted into evidence and photographs

were not referenced on any of the transcript

pages cited by defendant.

Cases that cite this headnote

Criminal Law

@= Purpose of admission

Photographs showing murder victim's injuries

were not unduly prejudicial in capital murder

trial; photographs were relevant to prove

intent to kill and conscious physical suffering,

and photographs were not cumulative. 12

Okia. Stat. Ann. §§ 2401, 2042, 2403.

Cases that cite this headnote

Criminal Law

= Documentary evidence

Defendant waived all but plain error review

of admission of photographs showing murder

victim's injuries, where record did not show

whether defendant had objected to those

particular photographs during in camera

hearing, let alone what grounds may have

been asserted,

Cases that cite this headnote

Homicide

= Evidence justifying or requiring

instruction on other degree or offense in

general

In a first degree murder case, the trial court

should instruct on any lesser form of homicide

supported by the evidence,

Tryon v, State, 423 P.3d 617 (2018)

2048 OK GR 20

{371

138]

[39]

2 Cases that cite this headnote

Criminal Law

= Evidence Justifying or Requiring

Instructions

Prima facie evidence of the lesser included

offense is required to support giving a lesser

included instruction; “prima facie evidence”

of a lesser included offense is that evidence

which would allow a jury rationally to find the

accused guilty of the lesser offense and acquit

him of the greater.

2 Cases that cite this headnote

Homicide

$= Degree or classification of homicide

There was no evidence showing that

defendant acted without any premeditated

design to effect death, and thus defendant

was not entitled to instruction on second

degree murder as a lesser included offense

of first degree malice aforethought murder;

defendant stabbed victim seven times in the

head, neck back, torso, and hand, defendant

admitted grabbing victim and stabbing her

repeatedly, defendant said that he brought

kitchen knife from home so that he could stab

victim if he saw her, and defendant said that he

and victim had been arguing about his support

of their child and that relationship between

them had recently ended. 21 Okla, Stat. Ann.

§§ 701.8, 711(2).

1 Cases that cite this headnote

Homicide

€ What constitutes voluntary

manslaughter, in general

The elements of heat of passion manslaughter

are (1) adequate provocation; (2) a passion or

emotion such as fear, terror, anger, rage or

resentment; (3) homicide occurred while the

passion still existed and before a reasonable

opportunity for the passion to cool; and (4)

a causal connection between the provocation,

{40}

{41}

[42]

143]

passion and homicide. 21 Okla, Stat. Ann. §§

701.7(A), 7112).

Cases that cite this headnote

Homicide

a= What constitutes voluntary

manslaughter, in general

In a prosecution for heat of passion

manslaughter, the question is whether, in

addition to evidence of intent, there was

evidence that defendant killed the deceased

with adequate provocation, in a heat of

passion, without the design to effect death. 21

Okla. Stat. Ann, §§ 701.7(A), 71 [(2).

Cases that cite this headnote

Homicide

o= Degree or classification of manslaughter

Evidence was insufficient to show adequate

provocation, and thus defendant was not

entitled to instruction on first degree heat

of passion manslaughter as a lesser included

offense of first degree malice aforethought

murder; evidence showed that victim told

defendant simply to leave her alone, and

evidence uniformly showed that defendant

killed victim with malice aforethought. 21

Okla. Stat. Ann. §§ 701.7(A), 7L1().

Cases that cite this headnote

Criminal Law

& Failure to instruct

The Court of Criminal Appeals reviews a trial

court's refusal to instruct on the defense of

voluntary intoxication for abuse of discretion.

Cases that cite this headnote

Homicide

& Intoxication

Before a voluntary intoxication instruction is

given in a murder prosecution, the evidence

must be sufficient to establish a prima facie

case that the defendant was intoxicated to the

Tryon v. State, 423 P.3d 617 (2018)

2018 OK CR 20

[44]

145]

[46]

(47)

point he was unable to form deliberate intent

to kill.

Cases that cite this headnote

Homicide

= Intoxication

Capital murder defendant was not entitled

to instruction on voluntary intoxication, even

though there was evidence that defendant had

used drugs and drank gin in hours leading

up to killing; defendant did not indicate that

he was under influence of anything when he

murdered victim, defendant calmly described

his reasons for stabbing victim, detective

did not observe anything in his interactions

with defendant suggesting intoxication, and

defendant calmly explained his actions as

being fueled by depression and anger he felt

over victim's termination of their relationship.

Cases that cite this headnote

Constitutional Law

g Fair and impartial jury

A criminal defendant has a due process

right to a fair trial by a panel of impartial,

indifferent jurors. U.S..Const. Amend. 14;

Okla. Const. art. 2, § 20.

Cases that cite this headnote

Jury

> Discharge of juror or jury pending trial

Trial court acted within its discretion in

declining to remove juror for allegedly

discussing case with another juror prior

do deliberation; juror testified that she did

not hear any conversations about case, and

yemoval of another juror for improperly

discussing case cured any prejudice. 12 Okla.

Stat. Ann. § 581.

Cases that cite this headnote

Jury

@= Discharge of juror or jury pending trial

[48]

149]

[50]

61]

Trial court acted within its discretion

in choosing certain alternate juror to

replace another juror who was removed for

improperly discussing case with other jurors;

evidence did not show that alternate juror

had engaged in conversation about case with

removed juror, and removal of that juror

cured any prejudice.

Cases that cite this headnote

Criminal Law

@= Objections and disposition thereof

A claim of juror misconduct before a criminal

case is submitted to a jury must be established

by clear and convincing evidence.

Cases that cite this headnote

Criminal Law

é Misconduct of jurors in general

The defendant must show actual prejudice

from any jury misconduct; defense counsel's

mere speculation and surmise is insufficient

upon which to cause reversal.

Cases that cite this headnote

Criminal Law

¢ Selection and impaneling

The Court of Criminal Appeals will not

disturb the trial court's refusal to allow

additional questioning and/or excuse the

allegedly offending juror for misconduct

absent an abuse of discretion.

Cases that cite this headnote

Sentencing and Punishment

@ Expert evidence

In penalty phase of capital murder trial,

trial court did not violate defendant's Eighth

Amendment right to present mitigating

evidence by prohibiting defense expert from

testifying as to what other people had told

him; expert's testimony was based in large part

on same first-hand accounts of risk factors

and events from defendant's life history

Tryon v. State, 423 P.3d 617 (2018)

2018 OK CR 20

152}

[53]

[54]

[55]

relayed through defendant's family witnesses,

and effect of trial court's ruling was to disallow

cumulative accounts by expert witness that

would have needlessly prolonged trial. U.S.

Const. Amend. 8; 12 Okla. Stat. Ann. §§ 2703,

2705.

Cases that cite this headnote

Sentencing and Punishment

= Presentation and reservation in lower

court of grounds of review

In penalty phase of capital murder trial,

defendant waived ail but plain error review

of his claim that trial court violated his

right under Eighth Amendment to present

mitigating evidence, where defendant did

not raise that claim in connection with

trial court's ruling disallowing evidence. U.S.

Const, Amend. 8.

Cases that cite this headnote

Sentencing and Punishment

¢= Evidence in mitigation in general

A capital murder defendant must be given

the opportunity to present relevant mitigating

evidence for consideration by the jury. U.S.

Const. Amend. 8.

Cases that cite this headnote

Sentencing and Punishment

¢= Evidence in mitigation in general

The Eighth Amendment forbids imposition of

a death sentence if the jury is 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, U.S. Const. Amend. 8.

Cases that cite this headnote

Criminal Law

$= Sources of data

156]

(57)

[58]

An expert may base an opinion solely on

inadmissible hearsay, 12 Okla. Stat. Ann. §

2703.

Cases that cite this headnote

Sentencing and Punishment

@= Evidence in mitigation in general

In penalty phase of capital murder trial,

trial court did not violate defendant's Highth

Amendment right to present mitigating

evidence by disallowing mitigating testimony

from defendant's aunt concerning domestic

violence between defendant's parents before

defendant was born; defendant did not

witness those incidents and they did not affect

his development, and defense counsel elicited

extensive testimony concerning domestic

abuse defendant witnessed as a child as well

as dynamics of his parents' relationship. U.S.

Const. Amend. 8.

Cases that cite this headnote

Sentencing and Punishment

é Evidence in mitigation in general

The state cannot bar the consideration of

evidence if the sentencer could reasonably find

that it warrants a sentence less than death.

Cases that cite this headnote

Sentencing and Punishment

= Mentally ill or incompetent persons

Under Eighth Amendment, capital murder

defendant was eligible for death penalty

despite expert testimony that he was

low functioning and suffered both from

mental illness and brain damage; defendant

did not present insanity defense or

otherwise show that he suffered diminished

capacity, defendant's neuropsychological

expert testified that defendant was not

mentally retarded, and there was no evidence

suggesting that mental illness prevented

defendant from comprehending reasons for

death penalty or its implications, U.S. Const.

Amend. 8.

Tryon v, State, 423 P.3d 617 (2018)

2018 OK CR 20

[59]

[60]

[61]

[62]

Cases that cite this headnote [63]

Sentencing and Punishment

@= Mentally ill or incompetent persons

Under the Eighth Amendment, mentally ill

persons are not categorically ineligible for the

death penalty. U.S. Const. Amend. 8.

Cases that cite this headnote [64]

Sentencing and Punishment

= Dual use of evidence or aggravating

factor

Prior violent felony aggravator and

continuing threat aggravating circumstances

were not impermissibly duplicitous in

penalty phase of capital murder trial; both

aggravators focused on different aspects of

defendant's conduct.

[65]

Cases that cite this headnote

Sentencing and Punishment

= Offense committed while in custody or

legal restraint

In penalty phase of capital murder trial,

defendant was not subject to aggravator

for serving a sentence of imprisonment on

conyiction of a felony, where defendant

was serving unexecuted, suspended sentence

at time of murder. 21 Okla. Stat. Ann. §

701.12(6).

Cases that cite this headnote 166]

Sentencing and Punishment

¢ Duration

Sentencing and Punishment

& Revocation

Until a suspended sentence has been fully

served, a defendant remains under the

jurisdiction of the trial court with the sentence

subject to revocation. 22 Okla. Stat. Ann. §

991a(B).

[67]

Cases that cite this headnote

Criminal Law

@= Requisites and Sufficiency of Judgment

A judgment and sentence where execution of

all or a portion of the assessed sentence is

suspended is a “conviction.”

Cases that cite this headnote

Sentencing and Punishment

@= Violation of probation condition

When the State files an application to revoke

a suspended sentence, the issue is whether

the suspended sentence previously imposed

should be executed; the court makes a factual

determination as to whether or not the terms

of the suspension order have been violated.

Cases that cite this headnote

Sentencing and Punishment

¢ Duration

Sentencing and Punishment

& Violation of probation condition

During the time span of a suspended sentence,

the defendant is obligated to abide by the

terms and conditions of his probation or

face revocation of the unexecuted portion of

his sentence; the unexecuted portion of the

sentence consists of any time during that time

span not spent in custody.

Cases that cite this headnote

Pardon and Parole

@ Parole

Pardon and Parole

& Discretionary nature

“Parole” is a discretionary act of the

Governor which releases a person from jail,

prison, or other confinement, after actually

serving a part of the sentence.

Cases that cite this headnote

Sentencing and Punishment

@= Nature and purpose of probation

Tryon v, State, 423 P.3d 617 (2018)

2018 OK CR 20

[68]

[69]

[70]

(71]

“Probation” relates to judicial action taken

before the prison door is closed, and is part of

the sentence imposed.

Cases that cite this headnote

Sentencing and Punishment

=» Presumptions

Sentencing and Punishment

_$ Verdict and findings

In reviewing an evidentiary sufficiency

challenge to an aggravating circumstance, the

Court of Criminal Appeals takes the record

evidence in the light most favorable to the

State to determine whether any rational trier

of fact could have found the aggravator

beyond a reasonable doubt.

Cases that cite this headnote

Sentencing and Punishment

¢= Vileness, heinousness, or atrocity

A particular murder is especially heinous,

atrocious or cruel, within the meaning of that

aggravating factor, where the evidence shows:

(1) that the murder was preceded by either

torture of the victim or serious physical abuse;

and (2) that the facts and circumstances of the

case establish that the murder was heinous,

atrocious or cruel, 21 Olda. Stat. Ann. §

701.12(4).

Cases that cite this headnote

Sentencing and Punishment

The term “torture,” under the aggravating

factor for a murder that is especially heinous,

atrocious or cruel, means the infliction of

either great physical anguish or extreme

mental cruelty. 21 Okla, Stat. Ann. §

701.12(4).

Cases that cite this headnote

Sentencing and Punishment

@ Vileness, heinousness, or atrocity

[72]

{73]

[74]

(75)

A finding of “serious physical abuse”

or “great physical anguish,” under the

aggravating factor for a murder that is

especially heinous, atrocious or cruel, requires

that the victim have experienced conscious

physical suffering prior to death. 21 Okla.

Stat. Ann, § 701.12(4).

Cases that cite this headnote

Sentencing and Punishment

€ Vileness, heinousness, or atrocity

The term “heinous,” under the under the

aggravating factor for a murder that is

especially heinous, atrocious or cruel, means

extremely wicked or shockingly evil. 2! Okla.

Stat, Ann. § 701,12(4).

Cases that cite this headnote

Sentencing and Punishment

& Vileness, heinousness, or atrocity

The term “atrocious,” under the aggravating

factor for a murder that is especially heinous,

atrocious or cruel, means outrageously wicked

and vile. 21 Okla. Stat. Ann, § 701,124),

Cases that cite this headnote

Sentencing and Punishment

é Vileness, heinousness, or atrocity

The term “cruel,” under the aggravating

factor for a murder that is especially heinous,

atrocious or cruel, means pitiless, designed

to inflict a high degree of pain, or utter

indifference to or enjoyment of the suffering

of others. 21 Okla. Stat. Ann. § 701.12(4).

Cases that cite this headnote

Sentencing and Punishment

¢ Vileness, heinousness, or atrocity

In penalty phase of capital murder

prosecution, evidence supported finding of ,

aggravating factor that murder was especially

heinous, atrocious or cruel; evidence showed

that victim was aware of attack, that victim

cried for help and actively resisted stabbing

Tryon v, State, 423 P.3d 617 (2018)

2018 OK CR 20

[76]

(77)

178]

[79]

for significant period, that attack inflicted

numerous and repeated severe injuries to vital

areas of victim's body, that victim was alive

and conscious during attack, that victim had

defensive wound, and that defendant stabbed

at victim many more times that what was

required to inflict stab wounds that were

inflicted. 21 Okla. Stat. Ann. § 701.12(4).

Cases that cite this headnote

Sentencing and Punishment

$= Vileness, heinousness, or atrocity

Evidence that the victim was conscious and

aware of the attack supports a finding of

torture and serious physical abuse, under

the aggravating factor for a murder that is

especially heinous, atrocious or cruel, 21 Okla.

Stat. Ann. § 701,12(4).

Cases that cite this headnote

Sentencing and Punishment

= Matters Related to Jury

Trial court acted within its discretion

in penalty phase of capital murder trial

in declining to order mistrial based on

defendant's outburst before jury during his

mother's testimony; court admonished jury

to disregard fact that witnesses would be

called out of order following outburst and to

disregard outburst itself, incident was of short

duration, and defendant was responsible for

any prejudice arising from outburst.

Cases that cite this headnote

Criminal Law

¢ Conduct of trial

A mistrial is an appropriate remedy when an

event at trial results in a miscarriage of justice

or constitutes an irreparable and substantial

violation of an accused's constitutional or

statutory right,

Cases that cite this headnote

Criminal Law

{80]

[81]

[82]

(83]

& Estoppel or Waiver

A defendant will not be permitted to profit

on appeal! from alleged error he or his counsel

invited,

Cases that cite this headnote

Sentencing and Punishment

é* Death penalty as cruel or unusual

punishment

Capital punishment does not violate the

Eighth Amendment's prohibition against

cruel and unusual punishment. U.S. Const.

Amend. 8.

Cases that cite this headnote

Criminal Law

o Arguments and conduct of counsel

Criminal Law

g= Statements as to Facts, Comments, and

Arguments

The Court of Criminal Appeals 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 verdict is unreliable.

Cases that cite this headnote

Criminal Law

& For prosecution

Prosecutor did not commit misconduct during

voir dire or closing argument by defining

“justice” as “rendering unto each man or

woman that which he or she is due.”

Cases that cite this headnote

Criminal Law

é= Comments on Evidence or Witnesses

Prosecutor did not commit misconduct during

capital murder trial by urging that stabbing

someone in vital areas of the body, as

defendant had done to victim, showed malice

aforethought.

Tryon v, State, 423 P.3d 617 (2018)

2018 OK CR 20

(84]

[85]

[86]

(871

Cases that cite this headnote

Sentencing and Punishment

¢@» Arguments and conduct of counsel

Prosecutor did not commit misconduct during

penalty phase of capital murder trial by

stating that “fair” and “just” punishment for

victim's murder was the death penalty.

Cases that cite this headnote

Sentencing and Punishment

@ > Dangerousness

In a capital case, to support the aggravator

of continuing threat, the State must present

evidence showing the defendant's behavior

demonstrated a threat to society and a

probability that threat would continue to exist

in the future.

Cases that cite this headnote

Sentencing and Punishment

= Harmless and reversible error

In assessing the impact of an invalidated

aggravator on a death sentence, the Court

of Criminal Appeals must determine both

that the remaining aggravating circumstances

outweigh the mitigating circumstances and

the weight of the improper aggravator is

harmless,

Cases that cite this headnote

Sentencing and Punishment

& Effect of applying invalid factor

Invalid aggravator that capital murder

defendant was

imprisonment did not skew imposition of

sentence of death, where prior violent felony

aggravator and continuing threat aggravator

enabled jury to give aggravating weight to

same facts and circumstances used to support

invalid aggravator.

serving sentence of

Cases that cite this headnote

[88] Sentencing and Punishment

¢» Determinations based on multiple factors

Agegravating circumstances outweighed

mitigating evidence and supported sentence

of death for first-degree murder; there was

mitigating evidence of defendant's cognitive

and developmental limitations, his drug

abuse, and his upbringing, but strong evidence

supported imposition of prior violent felony

aggravator, continuing threat aggravator,

and aggravator that murder was especially

heinous, atrocious, or cruel, 21 Okla. Stat.

Ann. §§ 701.12(1), (4), (7), 701.13(C).

Cases that cite this headnote

*624 AN APPEAL FROM THE DISTRICT COURT

OF OKLAHOMA COUNTY; THE HONORABLE

CINDY H. TRUONG, DISTRICT JUDGE

Attorneys and Law Firms

APPEARANCES AT TRIAL MELANIE FREEMAN-

JOHNSON, JAMES T. ROWAN, LAURA SAMS,

ASSISTANT PUBLIC DEFENDERS, 320 ROBERT S.

KERR, SUITE 611, OKLAHOMA CITY, OK 73102,

COUNSEL FOR DEFENDANT.

SUZANNE LAVENUE, MERYDITH EASTER,

ASSISTANT DISTRICT ATTORNEYS, 320 ROBERT

S. KERR, SUITE 505, OKLAHOMA CITY, OK 73102,

COUNSEL FOR STATE.

APPEARANCES ON APPEAL ANDREA DIGILIO

MILLER, ASSISTANT PUBLIC DEFENDER, 320

ROBERT S. KERR, SUITE 611, OKLAHOMA CITY,

OK 73102, COUNSEL FOR APPELLANT.

E. SCOTT PRUITT, OKLAHOMA ATTORNEY

GENERAL, JENNIFER J. DICKSON, ASSISTANT

ATTORNEY GENERAL, 313 N.E. 21ST STREET,

OKLAHOMA CITY, OK 73105, COUNSEL FOR

APPELLEE.

OPINION

Tryon v. State, 423 P.3d 617 (2018)

2018 OK CR 20

HUDSON, JUDGE:

*625 1 Appellant, Isaiah Glenndell Tryon, was tried

by jury in the District Court of Oklahoma County,

Case No, CF-2012-1692, and convicted of Murder in

the First Degree in violation of 21 O.S,2011, § 701.7(A).

In a separate capital sentencing phase, Appellant's

jury found the existence of four statutory aggravating

circumstances! and sentenced Appellant to death. The

Honorable Cindy H. Truong, District Judge, presided

over the trial and pronounced judgment and sentence

accordingly. Appellant now appeals his conviction and

death sentence. We affirm.

BACKGROUND

q2 On March 16, 2012, around 10:30 a.m., Appellant

fatally stabbed Tia Bloomer inside the Metro Transit

bus station in downtown Oklahoma City. Tia recently

broke off her relationship with Appellant due in part

to his inability to support their infant child. Appellant

was terminally unemployed and drew as income a meager

$628.00 a month in Social Security disability benefits.

The couple too had a stormy relationship. The day

before her death——-March 15, 2012—Tia called Detective

Jeffrey Padgett of the Oklahoma City Police Department

(OCPD) Domestic Violence Unit to schedule a follow-up

interview for an assault case in which she was the named

victim. Tia previously denied to authorities that Appellant

had assaulted her. Instead, she claimed another man had

assaulted her.

43 During her phone conversation with Detective Padgett,

Tia repeated this claim but agreed nonetheless to meet

the next day. Later that night, Tia sent Appellant a text

message stating the following: ,

It's okay be im [sic] going to tell the

truth tomorrow. I'm tired of holding

lies for yhu [sic]. Isaiah Tryon is the

guy who choked nd [sic] nearly killed

me Saturday.

(State’s Ex. 38),

4 The next day, Appellant accosted Tia inside the

downtown bus station while she was talking on her cell

phone. Surveillance video from inside the terminal showed

Appellant speaking to Tia before stabbing her repeatedly

with a knife. Immediately before this brutal attack, an

eyewitness heard Tia yell for Appellant to leave her

alone. Appellant then stabbed Tia in the neck with the

knife, causing blood to gush out from her neck. The

surveillance video shows Appellant grabbing the victim

then stabbing her when she tried to leave the terminal

building, Appellant stabbed the victim repeatedly after

she fell to the floor. The victim said “help” as Appellant

continued stabbing her repeatedly and blood gushed out

of her wounds. During the attack, several bystanders

unsuccessfully attempted to pull Appellant off the victim.

At one point, a bystander can be seen on the surveillance

video dragging Appellant across the floor while Appellant

held on to Tia and continued stabbing her,

45 Appellant released his grip on the victim only after

Kenneth Burke, a security guard, sprayed him in the

face with pepper spray, The security guard then forced

Appellant to the ground, handcuffed him and ordered the

frantic crowd to move away both from Appellant and

the bloody scene surrounding the victim's body. A bloody

serrated knife with a bent blade was found resting a short

distance away on the floor.

6 While waiting for police to arrive, Burke checked on the

victim but found no signs of life. Paramedics soon arrived

and decided to transport the victim to the hospital *626

because they detected a faint pulse, Despite the efforts

of emergency responders, Tia died from her injuries. The

medical examiner autopsied the victim and found seven (7)

stab wounds to her head, neck, back, torso and right hand.

Several superficial cuts were also observed on the victim's

face and the back of her neck. The medical examiner

testified these cuts were consistent with having been made

by a serrated blade. The cause of death was multiple

stab wounds. In addition to these injuries, the medical

examiner observed redness and heavy congestion in the

victim's eyes, The medical examiner did not associate this

congestion with the victim's stab wounds but testified it is

sometimes found in cases of strangulation.

{7 OCPD Lieutenant Brian Bennett was one of the first

officers on the scene. He removed Appellant from the

ground and escorted him out of the bus station. Because

Appellant had a great deal of blood on his hands and ~

clothing, Lt. Bennett asked whether Appellant needed

medical treatment, Appellant replied that he did not.

Appellant said he was not injured and all of the blood on

Tryon v. State, 423 P,3d 617 (2018)

2018 OK CR 20

him “was hers.” Appellant was nonetheless transported

to nearby St. Anthony's Hospital where he was treated

for cuts to his hand. When asked by a doctor about these

injuries, Appellant calmly responded that he had stabbed

his girlfriend.

48 After being released from the hospital, Appellant was

transported to police headquarters. There, he was read the

Miranda” warning by OCPD Detective Robert Benavides

and agreed to talk. During his interview, Appellant

admitted stabbing Tia repeatedly while inside the bus

terminal. Appellant said he stabbed the victim six times

with a kitchen knife he brought from home, Appellant

explained that he and Tia recently broke up and that they

had been fighting over his support of their infant son,

When Appellant saw Tia at the bus station, he walked up

and tried to talk with her about their problems. Tia refused

and told Appellant to get away from her. That is when

Appellant said he pulled out his knife and began stabbing

her.

9 Appellant claimed he did not know Tia would be at

the bus station that morning or that he would even see

her that day. Appellant did know, however, that Tia had

some business to take care of that day. Appellant admitted

bringing the knife with him because if he saw Tia, he

planned to stab her, Appellant said Tia was facing him

when he grabbed her and started stabbing her in the

neck. Appellant described how he continued stabbing Tia

after she fell to the ground and how he kept hold of her

arm. Appellant said he was sad and depressed when he

stabbed Tia because he didn't want to be without her.

Nor did he want anyone else to be with her. Appellant

did not believe he could find someone else to be with.

Appellant admitted that what he did to Tia “wasn't right.”

At one point during the interview, Appellant demanded

protective custody because “people ain't gonna Tike that

type of shit” and would try to kill him in the county jail.

10 During the interview, Appellant asked whether Tia

was okay, Detective Benavides promised to let him know

about Tia's condition as soon as he found out. When

informed by Detective Benavides at the end of the

interview that Tia did not survive her injuries and was

dead, Appellant showed no emotion to this news.

JURY SELECTION

{11 In Proposition I, Appellant complains that the trial

court violated due process by limiting the questions

defense counsel was allowed to ask of the prospective

jurors. Appellant says the trial court improperly restricted

the questions he was allowed to ask the venire panel

concerning their views on both the death penalty

and mitigating evidence, This, Appellant says, limited

his ability to ask questions which would provide

the information needed to intelligently exercise his

peremptory challenges.

[1] [2] $12 The Supreme Court has recognized that a

critical part of the constitutional right to an impartial jury

is “an adequate voir dire to identify unqualified jurors.”

Morgan vy. Illinois, 504 U.S. 719, 729, 112 S.Ct. 2222,

2230, 119 L.Ed.2d 492 (1992). “The “627 purpose of voir

dire examination is to discover whether there are grounds

to challenge prospective jurors for cause and to permit

the intelligent use of peremptory challenges.” Harnion v.

State, 2011 OK CR 6, 4 7, 248 P.3d 918, 927 (citation

omitted), Rule 6 of the Rules of the District Courts, Title

12, O.S. 2011, Ch. 2, App., requires both the State and

defense have a “reasonable opportunity to supplement”

the trial court's examination of prospective jurors. Maves

y, State, 1994 OK CR 44, 7 15, 887 P.2d 1288, 1298.

3] [4] [5] [6] {13 Yet, this right is not unlimited.

The manner and extent of examination of jurors is not

“prescribed by any definite, unyielding rule, but instead

rests in the sound discretion of the trial judge.” Jd.

Towards that end, Rule 6 directs that “[clounsel shall

scrupulously guard against injecting any argument in their

yoir dire examination and shall refrain from asking a juror

how he would decide hypothetical questions involving

law or facts.” The trial court retains broad discretion

in restricting questions “that are repetitive, irrelevant or

regard legal issues upon which the trial court will instruct

the jury.” Harmon, 2011 OK CR 6, 97, 248 P.3d at 927.

“There is no abuse of discretion as long as the voir dire

examination affords the defendant a jury free of outside

influence, bias or personal interest.” Jd. Where, as here, a

defendant challenges the restrictions placed upon his voir

dive examination, the question is whether the trial court's

actions rendered his trial fundamentally unfair. Morgan,

504 U.S. at 730, 112 8.Ct. at 2230.?

[7] [14 Appellant challenges six separate instances in

which the trial court restricted his examination of

prospective jurors. In the first instance, defense counsel

Tryon v. State, 423 P.3d 617 (2018)

2018 OK CR 20

described for the prospective jurors a “hypothetical

situation” in which a defendant is convicted of

“intentional first degree murder of a person who

committed malice aforethought murder, planned it,

intended to do it, did it of an innocent person.” Defense

counsel then asked:

I want to know what each of your

individual feelings are about the

death penalty under that situation

for a person who's guilty of malice

aforethought murder.

(Tr. 1248).

415 The prosecutor immediately objected and, at a bench

conference, argued defense counsel was impermissibly

posing a hypothetical scenario to the jury by “running

his facts of this case by them, and wanting to know

are they predisposed to consider any of these three

punishments.” Defense counsel responded that Appellant

had a constitutional right under Morgan v. Illinois, supra,

to ask the challenged question. Defense counsel urged that

he could only ascertain whether the prospective jurors

would automatically vote for the death penalty if they

first knew “what first degree murder is, It doesn't involve

heat of passion, doesn't involve some of the other things.”

The trial court stated it would provide definitions and

sustained the objection.

16 The trial court did not abuse its discretion in limiting

defense counsel's voir dire in this manner. In the challenged

passage, defense counsel was attempting to ascertain what

sentences the prospective jurors would give based on a

“hypothetical” scenario drawn from the facts of the case.

This is impermissible under our decisions, See Robinson

y, State, 2011 OK CR 15, § 16, 255 P.3d 425, 432-33

(“An attorney should not use voir dire to test prospective

jurors' willingness to accept a party's theory of the case,

rather than the juror's impartiality[.]”); Black v. State,

2001 OK CR 5, 4 19, 21 P.3d 1047, 1058 (“When counsel

attempted to ask questions dealing specifically with the

facts of this case or to give hypotheticals based on the

facts of this case, the trial court properly sustained the

State's objections.”); *628 Berney v. State, 1999 OK CR

37. 49 9-11. 989 P.2d 998, 1005-06 (no abuse of discretion

where defense counsel was prohibited from attempting

to rehabilitate six prospective jurors using “specific or

hypothetical factual patterns under which the prospective

juror might consider the death penalty appropriate.”);

Jackson y. State, 1998 OK CR 39, ¥ 12, 964 P.2d 875, 883

(no abuse of discretion where the trial] court restricted voir

dire questioning regarding legal issues upon which the trial

court would instruct).

{17 Appellant's citation to Morgan v. Illinois does not

support his claim. Morgan held that due process of

law mandates that a capital defendant must be allowed,

upon request, to ask whether a prospective juror would

automatically impose the death penalty upon conviction

of the defendant no matter what the facts are. Aforgan,

504 U.S. at 721, 735-36, 112 S.Ct. at 2233. The factintensive question posed by Appellant did not address this

issue. There is a difference between 1) asking whether a

prospective juror would automatically impose the death

penalty, regardless of the facts of the case, upon the

defendant's conviction for first degree murder; and 2)

asking prospective jurors to prejudge the appropriate

sentence in light of the supposed facts of the case, Defense

counsel was engaged in the latter exercise which we have

found impermissible. Lovell v, State, 1969 OK CR 177, {¥

9-10, 455 P.2d 735, 738 (hypothetical questions designed

“to have jurors indicate in advance what their decision will

be under certain state of evidence or upon a certain state of

facts” are improper) (citation omitted). Aforgen does not

require such questioning. 4

[8] {18 The remaining defense questions disallowed by

the trial court are of similar ilk. Asking prospective

jurors what they would want to know about a person

before sentencing them to death; whether jurors could

realistically consider life with the possibility of parole

where the murder victim was the defendant's girlfriend

and mother of his baby; and whether jurors could imagine

imposing life with the possibility of parole for a defendant

who killed a loved one as opposed to a stranger are the

types of questions we have previously ruled impermissible.

Frederick v. State, 2017 OK. CR 12, 22-28, 400 P.3d 786,

802-03 (no abuse of discretion where trial court disallowed

defense questioning of prospective jurors about their

ability to consider all three possible punishments in the

event appellant was convicted of murdering his mother);

Harmon, 2011 OK CR 6, 4 9 n.3, 248 P.3d at 927 0.3

(finding the trial court properly limited defense voir dire

asking, inter alia, “which punishment {a juror] would favor

if the State proved Harmon killed a convenience store

clerk[,]” “the kinds of circumstances that would warrant

the death penalty[,]” and “what the jurors thought were

proper circumstances to consider in deciding punishment

Tryon v, State, 423 P.3d 617 (2018)

2018 OK CR 20

and what circumstances jurors thought deserved the death

penalty.”); Lovell, 1969 OK CR 177, §f] 9-10, 455 P.2d at

738 (prosecutor's question whether any of the prospective

jurors “would not send [the defendant] to the penitentiary

if the evidence shows that he was guilty of driving while

under the influence of liquor, after former conviction” was

improper).

{19 The limitations imposed upon the defense voir

dire in this case were proper. Despite the restrictions,

defense counsel was nonetheless allowed to question

several jurors about whether they could consider a life

sentence with the possibility of parole where the victim

is a loved one and the mother of a child; whether

they understood that first degree malice aforethought

murder involyes an intentional killing; their feelings

on the death penalty for an intentional murder; and

whether they could consider all three punishments for

someone convicted of an intentional malice aforethought

killing. Moreover, the record shows defense counsel was

afforded an adequate voir dire which allowed Appellant to

probe the jurors’ attitudes toward the death penalty and

potential mitigating circumstances in the case.

{20 Under the total circumstances, the trial court did

not abuse its discretion in limiting the defense voir dire.

Appellant was *629 provided an adequate voir dire to

identify unqualified jurors and intelligently exercise his

peremptory challenges. Appellant's trial was not rendered

fundamentally unfair from the trial court's limitations on

yoir dire. Proposition I is denied,

{21 In Proposition II, Appellant complains that

Prospective Jurors K.T. and A.F. should have been

removed for cause, K.T. satas a juror. A.F., however, was

removed with the fifth defense peremptory. We have held

that:

In order to properly preserve for

appellate review an objection to a

denial of a challenge for cause, a

defendant must demonstrate that he

was forced over objection to keep an

unacceptable juror. This requires a

defendant to excuse the challenged

juror with a peremptory challenge

and make a record of which

remaining jurors the defendant

would have excused had he not used

that peremptory challenge to cure

the trial court's alleged erroneous

denial of the for cause challenge.

Eizember v, State, 2007 OK CR 29, ¥ 36, 164 P.3d

208, 220 (internal citations omitted). Here, Appellant

challenged the ability of both K.T. and ALF. to be

impartial and renewed his challenges at the conclusion

of voir dire, Appellant preserved his for-cause challenge

to A.F. by using a peremptory challenge against

him, requesting additional peremptory challenges and

effectively identifying three other jurors he would have

excused—R.G., P,S. or K.T.—with the peremptory

challenge he used to remove A.F.

(9] {22 Appellant failed to preserve his for-cause

challenge to K.T., however, by 1) failing to excuse her

with an available peremptory challenge and 2) using

peremptory challenges against other prospective jurors

whom he failed to claim could not be impartial. Our

review of the trial court's handling of Appellant's for-cause

challenge to K.T. is thus waived for all but plain error. Id,

2007 OK CR 29, 4 48, 164 P.3d at 223.

23 The trial court used the struck juror method of jury

selection in which thirty (30) prospective jurors were

seated and systematically questioned by the court and

parties. Judge Truong initiated the questioning of the

prospective jurors then allowed counsel for both parties to

question the prospective jurors. When prospective jurors

were excused, they were replaced so that thirty prospective

jurors remained on the panel,

{24 At the conclusion of the State's questioning, the

prosecutor passed the panel for cause, At the conclusion

of the defense questioning, defense counsel announced he

had no further questions of the venire panel but refused

to pass the panel for cause. Instead, defense counsel

made a lengthy record complaining about the trial court's

limitations on his voir dire examination. This argument

was based largely on the same issues raised by Appellant in

Proposition I above. At the conclusion of this argument,

defense counsel read for the court the names of twelve

prospective jurors he said should be removed for cause in

light of the trial court's restrictions on defense counsel's

voir dire of the prospective jurors. Defense counsel stated

that prospective jurors W.T., N.M., M.V., La.H., B.M.,

LF, LyH., AF. K.T., DW., R.G. and P.S. should

be removed for cause. Notably, with the exception of

AF. and K.T., Appellant did not challenge any of these

prospective jurors for cause earlier in the voir dire.

Tryon v. State, 423 P.3d 617 (2018) °

2018 OK CR 20

{25 The trial court denied Appellant's motion to strike

these particular jurors. Defense counsel then requested

nine extra peremptory challenges “because you are

requiring us to use peremptory challenges to kick people

that should have been kicked because they were excusable

for cause,” The trial court too denied this request. Both

parties then exercised nine peremptory challenges each,

leaving twelve jurors to hear the case. Defense counsel

used peremptory challenges to remove prospective jurors

W.T., N.M., M.V., La.H., A-F., B.M., LF., Ly.H., D.W.

——nine of the twelve prospective jurors defense counsel

identified just moments earlier as ones who should be

removed for cause based on the trial court's limitations

on the defense voir dire. Ultimately, K.T., P.S. and R.G.

survived the exercise of peremptory challenges by both

parties and sat on the jury.

26 Appellant made a conscious decision not to remove

K.T. with any of the eight peremptory challenges he

used against prospective jurors who were, in effect, not

properly challenged for cause. In Proposition I, *630

we rejected Appellant's challenge to the trial court's

limitations on the defense voir dire. Moreover, Appellant

never challenged these eight prospective jurors on any

other grounds. By failing to excuse K.T., who was

challenged for cause well before the end of the voir dire on.

grounds unrelated to the trial court's restrictions on voir

dire, Appellant has waived all but plain error relating to

K.T''s placement on the jury, Appellant may have had a

difficult choice in determining whether to strike K.T. from

the jury panel, But, as the Supreme Court has observed in

this context, “[a] hard choice is not the same as no choice.”

United States v. Martinez-Salazar, 528 U.S. 304, 315, 120

S.Ct. 774, 781, 145 L.Ed.2d 792 (2000).

427 We now turn to the merits of Appellant's challenges to

AF. and K.T. Appellant says the trial court was required

to remove prospective juror A.F. for cause. Appellant

argues that A.F.'s answers during defense voir dire showed

AF. could not uphold the juror’s oath due to his inability

to consider all three sentencing options. Specifically,

Appellant points to A.F.'s responses concerning his ability

to consider the sentence of life imprisonment with the

possibility of parole.

28 We have stated the following standard of review for

resolving challenges of this type:

The proper standard for determining when a

prospective juror may be excluded for cause because

of his or her views on capital punishment is “whether

the juror's views would ‘prevent or substantially impair

the performance of his duties as a juror in accordance

with his instructions and his oath.’ ” [Wainwright v.]

Witt, 469 U.S. [412], at 424, 105 S.Ct. [844], at 852,

(83 L.Ed. 2d 841 (1985) |. See also Gray v. Mississippi,

481 U.S. 648, 658, 107 S.Ct, 2045, 2051, 95 L. Ed. 2d

622 (1987). Inherent in this determination is that the

potential juror has been fully informed of the law and

his or her responsibilities under the law and oath of a

juror. This standard does not require a juror's bias be

proved with unmistakable clarity; neither must the juror

express an intention to vote against the death penalty

automatically. Witt, 469 U.S. at 425, 105 S.Ct. at 852.

“Deference must be paid to the trial judge who sees and

hears the jurors”. Jd., 469 U.S, at 425, 105 §.Ct. at 853.

See also Uttecht v. Brown, 551 U.S. 1, 127 S.Ct. 2218,

2224, 167 L. Bd, 2d 1014 (2007) (“deference to the trial

court is appropriate because it is in a position to assess

the demeanor of the venire, and of the individuals who

compose it, a factor of critical importance in assessing

the attitude and qualifications of potential jurors.”).

This Court has adhered to the principles set forth

in Witt. See Glossip y. State, 2007 OK CR 12, {f

31-33, 157 P.3d 143, 150-51; Williams v, State, 2001

OK CR 9, 7 10, 22 P.3d 702, 709 (and cases cited

therein). We have said the Witt standard only requires

that each juror be willing to consider each of the

three statutory punishments: the death penalty, life

imprisonment without the possibility of parole, and life

imprisonment (with the possibility of parole). Glossip,

2007 OK CR 12 at § 31, 157 P.3d at 150. See also

Williams, 2001 OK CR 9 at { 10, 22 P.3d at 709-10.

Further, all doubts regarding juror impartiality must be

resolved in favor of the accused. Williams, 2001 OK CR

9 at | 10, 22 P.3d at 709-10. This Court will look to the

entirety of the juror's voir dire examination to determine

if the trial court properly excused the juror for cause.

Id. As the trial court personally observes the jurors and

their responses, this Court will not disturb its decision

absent an abuse of discretion.

Eizember, 2007 OK CR 29, ff 41-42, 164 P.3d at 221-22.

[10] 29 We find prospective juror A.F.'s answers do not

show that his views on the life with possibility of parole

Tryon v, State, 423 P.3d 617 (2018)

2018 OK CR 20

sentencing option would prevent or substantially impair

the performance of his duties as a juror in accordance with

his instructions and his oath. A.F. provided inconsistent

responses concerning his ability to give meaningful

consideration to the life imprisonment sentencing option

where the victim was a loved one. When admonished by

the trial court to set aside counsel's characterization of

the victim's relationship with the defendant because the

jury had not heard evidence relating to it, AF. made clear

that he could listen to all *631 the evidence and give

meaningful consideration to all three sentencing options.

Even after the trial court's questioning, A.F.'s responses

to defense counsel's questions revealed his ability to give

fair and meaningful consideration to a life sentence—

even though personally he did not see it as a desirable

sentencing option for the murder of a loved one.

[11] 30 We give broad deference on appeal to the trial

court's rulings on for-cause challenges precisely because

of the situation presented here. “A trial court's ‘finding

may be upheld even in the absence of clear statements

from the juror that he or she is impaired...’ ” White v.

Wheeler, —- U.S. —, 136 S.Ct. 456, 460, 193 L.Bd.2d

384 (2015) (quoting Utiecht, 551 US. at 7, 127 S.Ct.

at 2223). That is because we are presented on appeal

simply with the cold face of the record, The trial court,

by contrast, was able to see and hear prospective juror

A.F, Judge Truong was in a superior position to make the

credibility determinations critical to determining A.F.'s

qualifications to serve. The Supreme Court has made clear

that “when there is ambiguity in the prospective juror's

statements, ‘the trial court, aided as it undoubtedly [is] by

its assessment of [the venireman's] demeanor, [is] entitled

to resolve it in favor of the State.’ ” Uttecht, 551 U.S, at

7, 127 S.Ct. at 2223 (quoting Witt, 469 U.S. at 434, 105

S.Ct. at 857); Accord White, 136 S.Ct. at 461, We afford

that type of broad deference in the present case in denying

relief for Appellant's challenge to prospective juror A\F.

[12] 31 We will reverse the lower court's ruling on a

for-cause challenge where there is no support for it in

the record. Utrecht, 551 U.S. at 20, 127 S.Ct. at 2230

(“The need to defer to the trial court's ability to perceive

jurors' demeanor does not foreclose the possibility that

a reviewing court may reverse the trial court's decision

where the record discloses no basis for a finding of

substantial impairment.”). But where, as here, the record

demonstrates a thorough vetting of the prospective juror's

views and we are Jeft simply with ambiguous responses,

the trial court's ruling will be honored on appeal. We

are not faced in the present case with a prospective juror

who would automatically vote for, or against, any one of

the three penalty options. Nor were A.F.'s responses such

that he was substantially impaired in his ability to fairly

consider and impose a life sentence—even if the victim was

a loved one of the defendant.

932. Thus, we find the trial court did not abuse its

discretion in denying Appellant's request to remove

prospective juror A.F. from the venire panel. See Myers

y, State, 2006 OK CR 12, §f 6-9, 133 P.3d 312, 320-21,

overruled on other grounds, Davis v. State, 2018 OK CR

7, 1 26 0.3, 419 P.3d 271. The record does not show

A.F's views on the life imprisonment sentencing option

would prevent or substantially impair the performance of

his duties as a juror in accordance with his instructions

and oath. We deny relief for this aspect of Appellant's

Proposition IT claim,

[13] [14] $33 We likewise find no plain error from the

trial court’s refusal to remove prospective juror K.T.

Under the plain error test, an appellant must show

an actual error, that is plain or obvious, affecting his

substantial rights, 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. Jackson v. State, 2016

OK CR 5, 4, 371 P.3d 1120, 1121,

{15} 934 Appellant argues K.T. should have been

removed for cause for actual bias. See 22 0.8,2011, § 659

(defining “actual bias” as “the existence of a state of mind

on the part of the juror, in reference to the case, or to

either party, which satisfies the court, in the exercise of

sound discretion, that he cannot try the issue impartially,

without prejudice to the substantial rights of the party

challenging....”).

35 The record shows K.T. initially provided inconsistent

answers concerning her ability to set aside her previous

experiences with domestic violence. As K.T. went further

along in the questioning, however, it became evident that

she could in fact set aside her personal experiences and

render a fair and impartial verdict based solely on the

evidence admitted in court. She made clear—particularly

in her final responses to the court and *632 defense

counsel—that she could do this. The record shows too

that, as the parties and court explained what the law

Tryon v. State, 423 P.3d 617 (2018)

2018 OK CR 20

required of her, K.T.'s initial concerns about her ability

to be fair and impartial vanished. This is not atypical

in capital voir dire and hardly a basis for removing a

prospective juror for cause. Davis v. State, 2011 OK

CR 29, If 41-42, 268 P.3d 86, 105, “Any ambiguity or

inconsistencies in her responses were subject to resolution

by the trial court. Having benefit of observing [K.T.'s]

demeanor throughout voir dire, the court found her

responses credible and insufficient to excuse her for

cause.” Id., 2011 OK CR 29, ¢ 42, 268 P.3d at 105. Our

review of the totality of K.T.'s voir dire supports the trial

court's decision. The trial court therefore did not abuse

its discretion in denying Appellant's for-cause challenge to

K.T. Because there was no error, there is no plain error

warranting relief based on this claim. Pullen », State, 2016

OK. CR 18, (8, 387 P.3d 922, 926,

986 Finally, because the trial court did not abuse its

discretion in failing to remove prospective jurors A.F. and

K.T., we need not address whether Appellant was entitled

to additional peremptory challenges. Davis, 2011 OK CR

29, 43, 268 P.3d at 105. Proposition TI is denied.

ALLEGED EVIDENTIARY ERROR

§B7 In Proposition III, Appellant challenges the admission

of State's Exhibit 38, the text message sent from Tia

Bloomer to Appellant the night before the killing, which

stated:

It's okay be im [sic] going to tell the

truth tomorrow. I'm tired of holding

lies for yhu [sic]. Isaiah Tryon is the

guy who choked nd [sic] nearly killed

me Saturday.

(State's Ex, 38). Appellant argues this text message was

testimonial and, thus, its admission violated his Sixth

Amendment right to confrontation of witnesses. He also

argues it was inadmissible hearsay under state evidence

rules. The trial court admitted the text message, finding it

was not offered to prove the truth of the matter asserted

but, rather, was relevant simply because the text message

was sent to Appellant and was probative on the issue

of Appellant's motive to commit the murder the next

morning.

(16] [17]

decision to admit evidence for an abuse of discretion.

However, “the determination of whether admission of

hearsay evidence violates the Confrontation Clause ... is

a question of law we review de novo.” Hanson v. State,

2009 OK CR 13, J 8, 206 P.3d 1020, 1025. We note

too Appellant did not preserve his current Confrontation

Clause challenge to the admission of State's Exhibit

38. Appellant raised numerous objections on state law

grounds to this evidence at the pre-trial hearing. Appellant

renewed these same objections at trial, At no point below

did Appellant assert a claim that the admission of State's

Exhibit 38 was a constitutional violation. Appellant has

therefore waived review of his constitutional claim for all

but plain error, Miller v. State, 2013 OK CR 11,4 104, 313

P.3d 934, 971.

489 Appellant fails to show plain error. The Sixth

Amendment provides, in pertinent part, that “[ijn

all criminal prosecutions, the accused shall enjoy the

right ... to be confronted with the witnesses against

himf{.]” U.S. Const. amend. VI. The Sixth Amendment's

Confrontation Clause has been extended to the States

through the Fourteenth Amendment for over fifty years.

See Richardson v. Marsh, 481 U.S. 200, 206, 107 S.Ct.

1702, 1706-07, 95 L. Ed. 2d 176 (1987) (citing Pointer

vy. Texas, 380 U.S. 400, 404, 406-07, 85 S.Ct. 1065,

1068, 1069-70, 13 L.Ed. 2d 923 (1965) ), In Craw/ord v.

Washington, 541 US. 36, 124 8.Ct. 1354, 158 L.Ed. 2d

177 (2004), the Supreme Court held that under the Sixth

Amendment, testimonial out-of-court statements may be

admitted against the accused in a criminal trial only 1)

when the declarant is unavailable and 2) the defendant

has had a previous opportunity to cross-examine the

declarant. Jd., 541 U.S. at 51, 68, 124 S.Ct. at 1364, 1374.

[19] {40 “Statements not offered to prove the truth of

the matter asserted are generally admissible.” Primeaux v.

State, 2004 OK CR 16, 4 39, 88 P.3d 893, 902, Further,

the Supreme Court has held that the Confrontation Clause

does not bar the use of testimonial statements for purposes

other than establishing *633 the truth of the matter

asserted. Crawford, 541 U.S. at 59-60 n.9, 124 S.Ct. at 1369

n.9 (citing Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct.

2078, 85 L. Ed. 2d 425 (1985) ); Andrew v. State, 2007 OK

CR 23, 731, 164 P.3d 176, 189.

[20] §41 In the present case, assuming arguendo the

text message was offered to prove the truth of the

matter asserted, Appellant's Sixth Amendment claim

[18] 38 We typically review a trial court's fails because the victim's text message to Appellant

Tryon v. State, 423 P.3d 617 (2018)

2018 OK CR 20

was nontestimonial, Davis y. Washington, 547 U.S, 813,

821, 126 S.Ct. 2266, 2273, 165 L. Ed. 2d 224 (2006)

(only testimonial statements “cause the declarant to be

a ‘witness’ within the meaning of the Confrontation

Clause”); See also Michigan y. Bryant, 562 US. 344, 354,

131 S.Ct. 1143, 1153, 179 L. Ed. 2d 93 (2011) (noting

that Crawford limited the Confrontation Clause's reach

to testimonial statements); Whorton v. Bockting, 549 U.S.

406, 420, 127 §.Ct. 1173, 1183, 167 L. Ed. 2d 1 (2007) (the

Confrontation Clause has no application to out-of-court

nontestimonial statements under Crawford).

42 The victim's text message to Appellant was not made

in the context of a police interview. Nor was it made in

response to police questioning. See Crawford, 541 U.S.

at Sl, 68, 124 S.Ct. at 1364, 1374, It is an informal

three-sentence message, riddled with spelling errors, which

on its face appears to be a threat to Appellant. There

is no evidence suggesting the message was written so

that it could be used later as evidence in a formal court

proceeding, let alone that the primary purpose of the

message was to create an out-of-court substitute for

trial testimony. See Ohio v. Clark, — US, ——, 135

§.Ct. 2173, 2181, 192 L.Ed.2d 306 (2015). Rather, the

content and circumstances in which the text message

was sent shows it was simply an informal message sent

by the victim through her cell phone to Appellant's

cell phone the night before her murder and was never

disclosed to third parties. Under the total circumstances,

State's Exhibit 38 was unquestionably nontestimonial

and, thus, not subject to the Confrontation Clause. See

Clark, 135 S.Ct. at 2180, 2182 (the informality of the

situation in which the statement was made is a relevant

factor in determining whether “it was testimonial or

nontestimonial); (“Statements made to someone who is

not principally charged with uncovering and prosecuting

criminal behavior are significantly less likely to be

testimonial than statements given to law enforcement

officers.”). The statements at issue resemble (if not typify)

the casual remark to an acquaintance Crenvford said was

not testimonial, Crawford, 541 U.S, at 51, 124 8.Ct. at

1364, as well as the “[s]tatements to friends and neighbors

about abuse and intimidation” the Court likewise held

in Giles v. California 554. U.S. 353, 376, 128 8.Ct. 2678,

2692-93, 171 L.Ed.2d 488 (2008) were not subject to the

. Confrontation Clause. Thus, there is no constitutional

error arising from the admission of State's Exhibit 38 and,

thus, no plain error. Frederick, 2017 OK CR 12, 4 14, 400

P.3d at 800 (“Finding no error, we find no plain error.”).

943 There remains the matter of the specific basis for

admissibility of the text message under state evidence

rules again assuming arguendo it was hearsay. Bryant,

562 U.S. at 358-59, 131 S.Ct, at 1155 (“when a statement

is not procured with a primary purpose of creating

an out-of-court substitute for trial testimony ... the

admissibility of a statement is the concern of state

and federal rules of evidence, not the Confrontation

Clause.”). This issue caused considerable confusion

below. Appellant maintains on appeal that State's Exhibit

38 was inadmissible hearsay.

[21] 944 In making this determination, it is helpful to

realize that the text message itself is actually composed

of three separate sentences. The first two sentences (“Tt's

okay be im [sic] going to tell the truth tomorrow. I'm

tired of holding lies for yhu [sic].”) were unquestionably

admissible hearsay under the state of mind exception to

indicate the declarant's intent toward future conduct and

as a direct statement of her state of mind. 12 0.8.2011,

§ 2803(3) (“A statement of the declarant’s then existing

state of mind ... such as intent, plan, motive, design,

mental feeling ...” is not excluded by the hearsay rule). See

Frederick v. State, 2001 OK CR 34, 4 98, 37 P.3d 908, 935;

Davis v. State, 1983 OK. CR 57, 148, 665 P.2d 1186, 1198.

*634. 945 The third and final sentence of the text message

(“Isaiah Tryon is the guy who choked nd [sic] nearly killed

me Saturday”) was also arguably admissible under the

state of mind exception. 12 O.8.2011, § 2803(3). We have

held in domestic homicide cases that “[a] victim's hearsay

statements describing threats and beatings are admissible

to show the victim's state of mind and indicate fear of

a defendant ... evidence of prior threats, assaults, and

battery on a victim is proper to show the victim's state of

mind[.]” Hooper v. State, 1997 OK CR 64, § 28, 947 P.2d

1090, 1102. True, Section 2803(3) expressly disallows the

admission of “a statement of memory or belief to prove

the fact remembered or believed[.]” Consistent with this

provision, our cases have expressly distinguished between

admissible evidence of prior threats, assaults, and battery

on a victim showing the victim's state of mind from

“a specific description of a defendant's actions” such as

grabbing a gun or pulling the phone out of the wall which

we have deemed inadmissible. Huoper, 1997 OK CR 64,

4 28, 947 P.2d at 1102. Cf Andrew v. State, 2007 OK CR.

23, J 30, 164 P.3d at 189 (victim's recorded antecedent

declaration to Prudential Insurance representatives of his

Tryon v. State, 423 P.3d 617 (2018)

2018 OK CR 20

belief that his wife and her lover tried to kill him by cutting

the brake lines to his car was admissible under the state

of mind exception to show victim's fear and to provide

motive); Lamb v. State, 1988 OK CR 296, §{{ 7-8, 767

P.2d 887, 890 (testimony by witnesses that murder victim

told them that the defendant, her husband, had previously

committed battery on her, had threatened her and that

she was afraid of him admissible under state of mind

exception),

[22] 46 We need not reach this issue however

because assuming arguendo error, admission of the

third sentence in the text message was nonetheless

harmless. The properly-admitted portion of the text

message, combined with the domestic violence evidence

introduced by the State during the trial's first stage,

constituted strong evidence identifying Appellant as the

perpetrator of this previous attack and showing motive

for the killing. Moreover, the videotape of the killing

itself represented overwhelming evidence demonstrating

Appellant's responsibility for the victim's death and that

the murder was committed with malice aforethought.

Under the total circumstances, any imaginable error from

admission of the third sentence in the text message was

harmless and did not contribute to the verdict or sentence

given the strong evidence against Appellant. Proposition

II is denied. 20 0.8.2011, § 3001.1.

947 In Proposition IV, Appellant complains that the

trial court prevented him from presenting a defense by

disallowing questions to defense witnesses Rico Wilson

and Eric Wilson as to whether Appellant made any threats

towards the victim in the days leading up to the murder

or had otherwise mentioned receiving the text message

discussed in Proposition III. Rico Wilson is Appellant's

brother. Rico testified that he saw Appellant standing

in front of his mother's apartment around 9:30 or 10:00

p.m. the night before the murder and that Appellant

appeared to be high on drugs at the time. Rico testified

too that Appellant was “probably” drinking then because

Appellant had been drinking earlier in the day. Rico

saw Appellant several times previously during the week

leading up to the murder. Rico saw Appellant snorting

cocaine and using PCP earlier in the week.

948 Eric Wilson is Appellant's cousin. Eric testified he

was with Appellant and Rico on March 13—14, 2012,

and when they were not looking for employment, he

and Appellant were drinking and getting high on drugs.

Appellant stayed at Eric's apartment the evening of March

14 through the morning of March 15. Eric testified that

he and Appellant began using drugs early in the morning

on March 15 and Appellant continued drinking and using

drugs throughout the afternoon and evening hours of

March 15, According to Eric, Appellant left around 3:00

or 4:00 a.m. on March 16—just hours before the murder,

49 Prior to this testimony, defense counsel stated her

intent during an in camera hearing to ask Rico and Eric

on direct whether Appellant expressed any desire to harm

the victim or otherwise expressed concern about getting

a text message from her. Defense counsel argued that,

with this testimony, she wanted to elicit that Appellant did

*635 not make or express any threats towards the victim

during the five day period Rico and Eric reported being

with Appellant. This was to be part of defense counsel's

strategy to counter the State's motive evidence relating

to the text message. The prosecutor objected on grounds

that any such testimony would be inadmissible selfserving hearsay. The trial court sustained the prosecutor's

objection and ruled she would not allow this type of

testimony. Rico and Eric testified the next day.

950 Now on appeal, Appellant claims the trial court

violated his rights to a fundamentally fair trial and to

present a defense with this ruling. Appellant argues the

State “was allowed to take an isolated text message and

build an entire case around it[ ]” whereas the defense was

prohibited from challenging that evidence.

[23] [24] [25] 951 We review the district court's

evidentiary rulings for abuse of discretion. Cuesta-

Rodriguez v. State, 2010 OK CR 23, ¥ 14, 241 P.3d 214,

224, Notably, Appellant did not raise the trial court's

earlier ruling when either witness testified the next day at

trial. Nor did Appellant make an offer of proof to the

judge concerning what testimony he wanted to present.

“After a motion in limine is sustained, the party seeking

to introduce the evidence must make an offer of proof at

trial. This affords the trial court an.opportunity to make

a final ruling on the evidence.” Zd., 2010 OK CR 23, ]

86, 241 P.3d at 240 (internal citations omitted), Failure to

follow this procedure on a motion in limine waives review

on appeal of all but plain error. Zi.

26] [27] 952 Appellant fails to show plain error. The

rules of evidence may not be used to arbitrarily impinge

on the defendant's right to present competent evidence in

’

Tryon v. State, 423 P.3d 617 (2018)

2018 OK CR 20

his defense. Pavatt vy. State, 2007 OK CR 19, { 42, 159

P.3d 272, 286 (citing Chambers y. Mississippi, 410 U.S.

284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed. 2d 297 (1973) ).

However, “[w]hether Appellant was denied the right to

present a defense ultimately turns on whether the evidence

at his disposal was admissible.” Jd., 2007 OK CR 19, 4.45,

159 P.3d at 287.

[28] §53 Assuming arguendo the trial court abused

its discretion in disallowing this particular evidence,

Appellant fails to show plain error. We have held:

To establish a violation of ... due

process, a defendant must show a

denial of fundamental fairness..., It

is the materiality of the excluded

evidence to the presentation of the

defense that determines whether a

petitioner has been deprived of a

fundamentally fair trial. Evidence

is material if its suppression might

have affected the outcome. In other

words, material evidence is that

which is exculpatory—evidence that

if admitted would create reasonable

doubt that did not exist without the

evidence,

Primeaux, 2004 OK CR 16, { 49, 88 P.3d at 903-04

(quoting Ellis ». Adullin, 326 F.3d 1122, 1128 (10th

Cir, 2002) ). In the present case, Appellant's proposed.

evidence (we assume arguendo Eric and Rico would

have testified that Appellant had no reaction to the text

message or simply did not mention it and that he did

not threaten the victim) would at best call into question

the State's theory of the motive for the murder. However,

it does not refute the overwhelming evidence presented

showing Appellant's guilt for Tia Bloomer’s murder,

including the surveillance tape showing him repeatedly

stabbing the victim; eyewitness testimony describing this

attack and the efforts needed to stop Appellant's attack;

testimony concerning the victim's injuries; and Appellant's

videotaped interview describing how he came to be in

the bus station with a knife that morning along with his

confession to repeatedly stabbing Tia and the reasons

why—namely, his sad mental state upon their breakup

as a couple. The defense was able to elicit considerable

evidence from Eric and Rico regarding Appellant's

extended drug binge over the five day time span leading

up to the murder, Rico testified concerning Appellant's

emotional condition over the loss of his relationship with

the victim, Eric described Appellant's relationship with

Tia the week before the murder as “off and on” and “they

just always have been off and on.”

[29] [30] 54 We fail to see how the additional

evidence championed on appeal might have affected

the outcome of the first stage, *636

called into question the State's considerable evidence

showing malice aforethought. 21 O.S,2011, § 701.7(A)

(“Malice is that deliberate intention unlawfully to

take away the life of a human being, which is

manifested by external circumstances capable of proof.”).

“Premeditation sufficient to constitute murder may be

formed in an instant or it may be formed instantaneously

as the killing is being committed.” Davis, 2011 OK CR

29, | 76, 268 P.3d at 111. The jury too may rely upon

circumstantial evidence to ascertain a person's intent at

the time of the homicidal act. /d. In this sense, it matters

little for first stage purposes whether the motive behind

Appellant's murder of the victim was his deep sadness over

the end of the relationship or, instead, was an effort to

stop Tia from identifying him to police as her attacker

during the previous assault. The overwhelming evidence

at trial shows the killing was committed with malice

aforethought as alleged by the State even if the jury found

the State's theory of motive unpersuasive. Thus, under

the total circumstances, Appellant fails to show he was

deprived of a fundamentally fair trial through the denial of

critical defense evidence during the guilt stage of his trial.

Appellant therefore fails to show a plain or obvious error

affecting his substantial rights. Proposition IV is denied,

let alone

955 In Proposition V, Appellant challenges the

admission of what he describes as “numerous gruesome

photographs” during guilt stage. Specifically, Appellant

challenges State's Exhibits 21—36, 4149 and 51.

Appellant argues these photographs were unnecessary

because there was no dispute that he stabbed the victim

to death. Appellant argues these photographs “serve[d]

no legitimate purpose other than to inflame the passion

of the jury.” Appellant tells us the photographs were

more prejudicial than probative, unduly gruesome and

cumulative, and deprived him of a fair and reliable irial

and sentencing proceeding.

[31] [32] 56 We review the trial court's admission

of photographic evidence for an abuse of discretion.

Photographic exhibits are subject to the same relevancy

Tryon v. State, 423 P.3d 617 (2018)

2018 OK CR 20

and unfair prejudice analysis as any other piece of

evidence. 12 O.S.2011, §§ 2401-2403. As we have held:

Photographs may be probative of

the nature and location of wounds;

may corroborate the testimony of

witnesses, including the medical

examiner; and may show the nature

of the crime scene. Gruesome crimes

make for gruesome photographs,

but the issue is whether the probative

value of the evidence is substantially

outweighed by the danger of unfair

prejudice, confusion of the issue, or

needless presentation of cumulative

evidence,

Martinez v. State, 2016 OK CR 3, | 46, 371 P.3d 1100,

1112-13, cert. denied, — U.S. ——, 137 S.Ct. 386, 196

L.Ed,2d 304 (2016) (internal citations omitted).

[33] 97 Appellant's challenge to State's Exhibits 21—26,

which he describes as photographs of the victim's bloody

clothes, is procedurally defective and does not comply

with our Rules. Appellant fails to provide citations to

the record showing where these particular photographs

were admitted into evidence. These photographs are

not referenced on any of the transcript pages cited

by Appellant in this claim, Hence, this aspect of his

Proposition V claim is waived from appellate review.

Rule 3.5(A\(5), Rules of the Oklahoma Court of Criminal

Appeals, Title 22, Ch, 18, App. (2018); Logsdon v. State,

2010 OK CR 7, 941, 231 P.3d 1156, 1169-70.

[34] 958 State's Exhibit 27 depicts the victim's face

showing the redness and heavy congestion in the victim's

eyes observed by the medical examiner during the autopsy.

Appellant preserved his objection to this photograph

by making a contemporaneous objection which the trial

court overruled,

[35] 59 State's Exhibits 28-36 depict close-up views of the

various stab wounds to the victim's head, neck, back, torso

and right hand. Appellant registered a contemporaneous

objection to these photographs at trial but cited only his

previously-stated objections. The trial court overruled this

objection. From the record presented, we cannot ascertain

whether Appellant even objected to these particular

photographs during the in camera hearing, let alone what

grounds may *637 have been asserted. 5 Appellant has

therefore waived all but plain error review of State's

Exhibits 28-36. Simpson y, State, 1994 OK CR 40, { 2, 876

P.2d 690, 693 (failure to object with specificity to errors

alleged to have occurred at trial waives review on appeal

of all but plain error).

960 Appellant challenges too State's Exhibits 41-46.

Although neither party seems to notice, the record shows

State's Exhibits 44 and 45 were not published to the jury

and ultimately were withdrawn by the prosecutor at the

conclusion of the medical examiner's testimony. State's

Exhibits 41, 42, 43 and 46 depict an overview of the

constellation of injuries observed by the medical examiner

on the right side of the victim's head and neck, the right

side of her throat and jaw, her upper back and neck as well

as to the right side of her body. Appellant objected to these

photographs, thus preserving these challenges for appeal.

61 State's Exhibits 47 and 48 are photographs depicting

the directionality of the victim's stab wounds using

wooden Q-tip applicators placed inside each wound.

State's Exhibit 49 is a photograph of the victim’s hand

with a thin metal probe inserted to depict the directionality

of the stab wound through the full thickness of the

hand. Defense counsel objected to these photographs,

thus preserving these challenges for our review.

62 State's Exhibit 51 depicts an extracted portion of the

ribs from the victim's right side showing where the knife

passed and cut through the ribs. Appellant also objected

to this photograph, thus preserving this claim for appellate

review.

{63 We find no abuse of discretion from the trial

court's admission of these photographs. The photographs

depicted the victim's injuries, illustrated the testimony of

the medical examiner, and demonstrated the directionality

of the various stab wounds. The photographs were

relevant to numerous trial issues in the case including,

most notably, proving deliberate intent to kill and, during

penalty phase, conscious physical suffering to show the

murder was especially heinous, atrocious or cruel. See

Proposition XIII. These photographs were not unfairly

prejudicial considered both individually and collectively.

Nor were they cumulative. “[T]he State was not required

to downplay the violence involved or its repercussions.”

Jones v. State, 2009 OK CR 1, 157, 201 P.3d 869, 885.

Tryon v, State, 423 P.3d 617 (2018)

2018 OK CR 20

164 Appellant fails to show error from the admission of

any of these photographs (or, for that matter, plain error

in those instances where Appellant did not preserve his

claim below). Moreover, under the total circumstances,

Appellant fails to show he was denied a fundamentally

fair trial in violation of due process during either stage of

his capital murder trial based on the admission of these

photographs. Relief is thus denied for Proposition V.

JURY INSTRUCTIONS

65 In Proposition VI, Appellant complains that the trial

court violated his due process rights by failing to instruct

the jury on the lesser included offenses of second degree

depraved mind murder and first degree heat of passion

manslaughter. In Proposition VII, Appellant complains

that the trial court erred in failing to give voluntary

intoxication instructions.

[361 [37] {66 Appellant requested lesser-included offense

instructions on second degree murder and first degree

manslaughter at trial, thus preserving these issues for

appellate review. The trial court overruled these requests

and provided no lesser included offense instructions. “This

Court has held that it is the duty of the trial court to

determine *638 as a matter of law whether the evidence

js sufficient to justify the submission of instructions on a

lesser included offense. If there isa doubt, the court should

submit the matter to the jury.” Rumbo v, State, 1988 OK

CR 27, 3, 750 P.2d 1132, 1132. In a first degree murder

case, the trial court should instruct on any lesser form of

homicide supported by the evidence. Bland y, State, 2000

OK CR 11, 154, 4 P.3d 702, 719. We require prima facie

evidence of the lesser included offense to support giving

a lesser included instruction. Davis, 2011 OK CR 29, 7

101, 268 P.3d at 116. “Prima facie evidence of a lesser

included offense is that evidence which would allow a jury

rationally to find the accused guilty of the lesser offense

and acquit him of the greater.” Jd,

167 In capital cases, the Supreme Court has held that a

death sentence may not constitutionally be imposed unless

the jury is permitted to consider a verdict of guilt as to

a lesser-included non-capital offense which is supported

by the evidence. Beck v. Alabama, 447 US. 625, 633-45,

100 S.Ct. 2382, 2387-94, 65 L.Ed.2d 392 (1980). See

Davis, 2011 OK. CR 29, J 117, 268 P.3d at 119, Beck

does not, however, require the trial court to instruct

on offenses that are not lesser included offenses of the

charged offense under state law. Hopkins v. Reeves, 524

U.S. 88, 90-91, 118 S.Ct. 1895, 1898, 141 L.Ed.2d 76

(1998). The Court's “fundamental concern” in Beck “was

that a jury convinced that the defendant had committed

some violent crime but not convinced that he was guilty

of a capital crime might nonetheless vote for a capital

conviction if the only alternative was to set the defendant

free with no punishment at all.” Schad v. Arizona, 501 US.

624, 646, 111 S.Ct. 2491, 2504, 115 L.Ed.2d 555 (1991).

[38] 968 Homicide is murder in the second degree “[w]hen

perpetrated by an act imminently dangerous to another

person and evincing a depraved mind, regardless of

human life, although without any premeditated design

to effect the death of any particular individualf.]” 21

O.8.2011, § 701.8. The record fails to contain any evidence

showing Appellant acted without any premeditated design

to effect death. Appellant stabbed the victim seven (7)

times in the head, neck, back, torso and hand. Numerous

superficial cuts too were observed on the victim's head

and neck and were consistent with having been made by

a serrated blade.

{69 In his videotaped interview, Appellant admitted

grabbing the victim, holding on to her and stabbing her

repeatedly, Appellant was separated from the victim only

when a security guard sprayed him in the face with pepper

spray. Appellant said that he brought the kitchen knife

from home so that if he saw Tia, he could stab her.

Appellant said too that he and Tia had been arguing about

his support of their child and that the relationship between

them recently ended. Appellant admitted being angry and

depressed when he stabbed the victim. “Nothing in these

facts suggests anything but a design to effect the death

of one specific person.” Charm v. State, 1996 OK CR 40,

§ 10, 924 P.2d 754, 760, All things considered, there was

insufficient evidence presented to allow a jury rationally

to find the accused guilty of second degree depraved mind

murder and acquit him of first degree malice aforethought

murder. See Boyd y. State, 1992 OK CR 40, 45, 11, 839

P.2d 1363, 1366, 1367.

[39] [40] {70 Appellant's claimed entitlement to

instructions on first degree heat of passion manslaughter

also lacks merit. Under Oklahoma faw, homicide is

manslaughter in the first degree “[w]hen perpetrated

without a design to effect death, and in a heat of

passion, but in a cruel and unusual manner, or by means

Tryon v, State, 423 P.3d 617 (2018)

2018 OK CR 20

of a dangerous weapon; unless it is committed under

such circumstances as constitute excusable or justifiable

homicide.” 21 O.S8,2011, § 711(2). “The elements of heat

of passion are 1) adequate provocation; 2) a passion or

emotion such as fear, terror, anger, rage or resentment;

3) homicide occurred while the passion still existed and

before a reasonable opportunity for the passion to cool;

and 4) a causal connection between the provocation,

passion and homicide.” Cipriano v. State, 2001 OK CR

25, J 16, 32 P.3d 869, 874. “The question is whether, in

addition to evidence of intent, there was evidence that

Appellant killed the deceased with adequate provocation,

in a heat of passion, without the design to effect death.” Jd.

*639 [41] 71 The evidence presented at trial was

insufficient to show adequate provocation, The evidence

shows that when Appellant confronted the victim in the

bus station, she told him simply to leave her alone. At

that point, Appellant began stabbing the victim. This is

insufficient evidence to show adequate provocation. See

Washington v, State, 1999 OK CR 22, 7 13 n4, 989 P.2d

960, 968 n.4 (“Mere words alone, or threats, menaces,

or gestures alone, however offensive or insulting, do not

constitute adequate provocation.”); Grindstaff v. State,

1946 OK CR 12, 82 Okl. Cr. 31, 40, 165 P.2d 846,

850 (“mere words or threats, however opprobrious or

violent, constitute in law no adequate provocation for

passion such as will reduce a homicide from murder to

manslaughter.”), See also Jones v. State, 2006 OK CR 17,

47 n4, 134 P.3d 150, 154 n.4 (“Adequate provocation

requires personal violence by the deceased likely to cause

pain, bloodshed or bodily harm.”); OUJI-CR (2d) 4-98

(definition of adequate provocation). 6

{72 Additionally, as discussed earlier, there was

insufficient record evidence showing Appellant killed the

victim with no design to effect death. Rather, the evidence

uniformly showed Appellant killed the victim with malice

aforethought, ie., the deliberate intention to take away

the life of a human being. 21 O.S.Supp.2012, § 701.7(A).

Lesser-included instructions on first degree heat of passion

manslaughter were thus unwarranted. Black, 2001 OK CR

5, 4 48, 21 P.3d at 1066 (“the Oklahoma definitions of

malice and heat of passion show they cannot co-exist[.]”).

All things considered, insufficient evidence was presented

to support instructions on first degree heat of passion

manslaughter. Proposition VI is denied.

[42] 73 In Proposition VIL, Appellant complains that the

trial court's failure to instruct on voluntary intoxication

was reversible error. We review a trial court's refusal to

instruct on the defense of voluntary intoxication for abuse

of discretion. Cueste-Rodriguez, 2010 OK CR 23, q 11,

241 P.3d at 223. Appellant requested an instruction on

voluntary intoxication and, after an extended discussion,

the trial court denied this request. He has therefore

preserved this claim for our review.

[43] 974 “Before a voluntary intoxication instruction is

given, the evidence must be sufficient to establish a prima

facie case that the defendant was intoxicated to the point

he was unable to form deliberate intent to kill.” Jd, 2010

OK CR 23, 4 11, 241 P.3d at 223. We have held that:

Prima facie evidence is evidence that is “good and

sufficient on its face,” i.e., “sufficient to establish a given

fact, or the group or chain of facts constituting the

defendant's claim or defense, and which if not rebutted

or contradicted, will remain sufficient to sustain a

judgment in favor of the issue which it supports.”

Black's Law Dictionary 1190 (6th ed. 1990); Ball v,

State, 2007 OK CR 42, J 29 n4, 173 P.3d 81, 90

n.4. Under our law, the requirements for establishing

a voluntary intoxication defense are: (1) the defendant

was intoxicated; and (2) he was “so utterly intoxicated,

that his mental powers [were] overcome, rendering

it impossible for [him] to form the specific criminal

intent ... element of the crime” (emphasis added).

Simpson y, State, 2010 OK CR 6, { 28, 230 P.3d 888,

899; see also McElmurry y. State, 2002 OK CR 40, 972,

60 P.3d 4, 23.

Cuesta-Rodrigues v. State, 2011 OK CR 4, 17, 247 P.3d

1192, 1195 (denying rehearing).

[44] 75 The closest evidence in this case of Appellant's

purported intoxication at the time of the murder was from

Eric Wilson. Eric testified that starting at 9:00 p.m. on

March 15, he and Appellant were drinking gin at Eric's

apartment. Eric testified Appellant drank “a lot” of gin

that night. Eric testified that he and Appellant stayed

up into the early morning hours of March 16 snorting

powder cocaine and drinking beer, Eric testified that he

did not see Appellant using PCP at any point. Eric last saw

Appellant *640 around 3:00 or 4:00 a.m, on March 16

when Appellant left. 7

Tryon v. State, 423 P.3d 617 (2018)

2018 OK CR 20

976 In his videotaped interview, Appellant did not

indicate that he was under the influence of anything

when he murdered the victim. Instead, Appellant calmly

described his reason for stabbing the victim, i.e., that

he was depressed and angry over the breakup. Detective

Benavides, who commenced the interview within roughly

two hours after Appellant's arrest, did not observe

anything in his interactions with Appellant suggesting

intoxication. Neither Detective Benavides nor any of the

officers at the bus station who interacted with Appellant

observed any of the tell-tale signs and behaviors they

typically associated with PCP use based on their training

and experience. Instead, Appellant was very calm and

matter-of-fact. Appellant was able to communicate with

the officers at the bus station and, a short time later, with a

doctor at the emergency room concerning his injuries. As

Detective Benavides reviewed the Miranda warning with

Appellant at the beginning of the interview, Appellant

followed along, responded to the detective's questions and

appeared to understand.

77 During the videotaped interview, Appellant provided

a full account of how he came to be at the bus

station and why he stabbed the victim. Appellant

is seen on the videotape responding appropriately to

Detective Benavides's questions. Appellant gave a detailed

description of taking a knife from home with him to the

bus station, confronting the victim and then stabbing her

repeatedly inside the terminal. Appellant never claimed

during the interview that he was high or intoxicated

or that drug or alcohol use was somehow responsible

for his actions. Instead, Appellant calmly—and at times,

tearfully—explained his actions as being fueled by the

depression and anger he felt over Tia’s termination of

their relationship. Appellant asked if the detective would

contact his mother, asked about the victim's condition and

expressed his belief that he would be killed in jail for what

he had done to Tia. Appellant too interacted with the

detectives during the interview to facilitate their taking of

buccal swabs for later testing.

778 We have described the test for obtaining voluntary

intoxication instructions as “a high standard whose

threshold cannot be met simply by presenting conflicting

evidence of a defendant's level of intoxication.” Cuesta-

Rodriguez; 2011 OK CR 4, 7, 247 P.3d at 1195. The

evidence in this case falls well short of what is required for

voluntary intoxication instructions under our law. In this

regard, we have held that:

In a case like the current one, where

the defendant provides a detailed

description of the circumstances and

events leading up to and including

his own act(s) of killing the victim,

the very fact that the defendant was

aware of his circumstances and able

to recognize what was happening at

the time suggests that he will not

be able to make even a prima facie

showing that he was so intoxicated

that it was impossible for him to have

formed a specific intent to kill his

victim.

Id., 2011 OK CR 4, ¥ 10, 247 P.3d at 1196,

79 Here, the evidence shows at best Appellant used

drugs and drank gin in the hours leading up to the

killing. Nonetheless, Appellant provided a detailed, lucid

account of what happened before, during and: after

the killing of his ex-girlfriend. And his behavior and

interaction with the police after being arrested does

not suggest intoxication of any kind, Under the total

circumstances, an instruction on voluntary intoxication

was unwarranted. See Bland, 2000 OK CR 11,951,4P.3d

at 718 (voluntary intoxication instructions unwarranted

where, despite evidence showing appellant had ingested

drugs the day of the murder, appellant provided a

detailed account of the circumstances of the murder in his

testimony); Jackson, 1998 OK CR 39, fff] 69-70, 964 P.2d

at 892 (voluntary intoxication instructions unwarranted

where appellant testified he was aware of things going

on around him just before and just after the murder).

Proposition VII is denied.

*641 JUROR MISCONDUCT

980 In Proposition VIII, Appellant complains that the

trial court abused its discretion in failing to remove Juror

R.G. for misconduct during the first stage of trial based

on her purported discussion of the case with Juror C,E.,

who was removed. Appellant also complains that the trial

court abused its discretion in replacing C.E. with Alternate

Juror C.S. as the ninth juror on the panel. Appellant

argues the trial court should have replaced C.E. with

the other available alternate juror because C,S. too was

implicated in the juror misconduct.

Tryon v, State, 423 P.3d 617 (2018)

2018 OK CR 20

[45] {81 The crux of Appellant's Proposition VIII claim

is that “[t]he record shows by clear and convincing

evidence that [C.E,] and [R.G.] engaged in a conversation

suggesting that they did not believe the defense witnesses

who appeared in orange.” The bedrock constitutional

principle at issue here is Appellant's due process right to

“a fair trial by a panel of impartial, ‘indifferent’ jurors.”

Irvin vy. Dowd, 366 U.S, 717, 722, 81 S.Ct. 1639, 1642, 6

L.Ed.2d 751 (1961). See U.S. Const. amends. VI and XIV;

Okla. Const, art. 2, § 20. Towards that end, trial judges

jn Oklahoma are required to instruct jurors “that it is

their duty not to converse with, or suffer themselves to be

addressed by, any other person, on any subject of the trial,

and that it is their duty not to form or express an opinion

thereon, until the case is finally submitted to them.” 12

0.8.2011, $581.

[46] {82 In the present case, the trial court repeatedly

admonished the juty not to discuss the case before

releasing the jurors for mid-trial and evening recesses. The

record shows Marva Banks, an assistant public defender

not involved with Appellant's case, informed the trial

court on the fifth day of trial that she heard three jurors

(two African American males and a woman with blonde

hair) the previous evening discussing witness testimony

in the parking garage while they were all waiting for the

elevator. Banks testified that two jurors were standing in

front of her waiting on the elevator in the parking garage

when a third juror approached and said “I've never seen

so much orange,” At that point, the other two jurors

started laughing and one said “Yeah, there were so many

family members that showed up in orange and it didn’t

help.” Banks said the jurors' reference to “orange” was to

jail orange. According to Banks, one of the jurors asked

“where was his mother? That would have helped.”

83 Notably, the last three witnesses before this purported

incident were Eric Wilson, Roy Tryon, and Rico Wilson

—Appellant's cousin, father and brother respectively. All

three of these witnesses were in custody, and wearing

orange jail garb, when they took the witness stand,

Based on Banks's description of the three jurors, the

trial court and parties questioned Juror C.E., Juror R.G,

and Alternate Juror C.S. When R.G. was brought in for

questioning, Banks stated R.G. was not the female juror

involved. R.G. was then returned to the jury room without

being questioned. Juror C.E, was brought in next and

admitted saying “I couldn't believe there was [sic] so many

people in orange coming today.” However, C.E. denied

saying this on the way to the elevator or in the parking lot.

Instead, he claimed to have made this comment upstairs in

the courthouse the day before when the jurors were leaving

as one of the witnesses in orange was also getting on an

elevator to leave. C.E. testified that the man in orange had

a “weird” stare.

§84 When asked by Judge Truong whether, when C.E.

left the day before, he rode with anyone in the elevator

on the way to his car, C.E. responded that he rode with

Juror R.G. CE. explained that he was waiting at the

elevator with R.G, and then rode the elevator up with her

and some other people. C.E. denied discussing anything

about the case. When asked whether anyone mentioned

too many people in orange or said they wished the mother

was there, C.E, replied “[nJo, not during there,” CE. then

immediately corrected himself and recalled that he “did

say I wish the mother would have got up here.”

§85 In follow-up questioning, the prosecutor asked

whether C.E. had predetermined the outcome of the case;

GE, said no. When asked to explain what precipitated

the comment about people being in orange, C.E. said

it was because of the behavior of the person *642 in

orange. C.E, acknowledged. too that the defense had no

burden of proof and had no obligation to present any

witnesses. When asked by the defense with whom he

was discussing all the orange, C.E, responded “I had

just said it out loud ... I just said that was a lot of

orange.” When asked whether there was discussion to

the effect that all the orange didn't help the client, C.E.

denied having any such conversation or ever saying it.

However, one of the other jurors—he believed Juror J.L.

—in response to his comment about all the orange told

him “shh,” Additionally, C.E. said he made the comment

about wishing they had heard from the mother to Juror

R.G. When C.E, made the comment, he said R.G, “just

didn't say nothing. She just kind of looked at me and just

acknowledged that I said something and that was it.” C.E.

denied that any other male jurors were present,

[47] 86 Alternate Juror C.S. did not recall walking the

night before with Jurors C.E. and R.G, to the parking

garage. C.S. denied saying to the other jurors anything

about having made up his mind on the case. Nor had he

talked to the other jurors about the case. C.S, also did

not remember hearing the other jurors talk about the case,

Tryon v, State, 423 P.3d 617 (2018)

2018 OK CR 20

CS, testified that he had not made up his mind on the case

because he had not yet heard all the evidence.

§87 Banks never identified C.S. as one of the people

involved in the conversation with C.E, At the conclusion

of C.S.'s testimony, defense counsel stated that Banks

thought the other male involved in the conversation may

have been Juror Q.A. The prosecutor noted too that

Banks gestured in a manner indicating she was not sure

it was C.S. when he first entered the room, When Q,A.

was questioned, he testified C.E. did walk ahead of him

on the way to the parking garage the night before. Q.A.

did not, however, hear C.E. talking. Nor had he heard any

of the jurors discussing the case or indicating that they

had reached a verdict. Q.A. denied doing the same. When

asked by defense counsel whether Q.A. heard any of the

jurors discussing what they saw yesterday as they were

leaving, Q.A. responded that he only saw “some shaking

of heads, but no discussion.” Q.A. clarified that no one

was shaking their heads to each other but only in “selfcontemplation” just as some had done when they were

sitting in the jury box listening to the testimony. Q.A.

clarified no one was talking about the case or deliberating

in any way when they were shaking their heads.

488 Juror R.G. was the last juror questioned, R.G, denied

discussing the case with anyone on the jury. Nor had

R.G, heard other jurors talking about the case in her

presence. R.G, admitted using the elevators in the parking

garage the previous evening but denied hearing anyone

talking about orange. R.G. could not remember other

jurors being around her as she walked to the parking

garage. R.G. explained she “want[s] to leave here as soon

as possible when I'm done at the end of the day. I don't

look or talk to anybody. I just want to get the heck out

of here.” R.G. testified the trial had been “very intense”

and she “just want[s] to leave” after court each day. Hence,

R.G. could not recall who she was with yesterday as she

jeft. Nor did she hear any conversations.

89 The parties agreed to remove Juror C.E. based on his

violation of the court's admonishment not to talk about

the case. The trial court granted that request. CE. was

replaced by Alternate Juror C.S., the first alternate juror.

Defense counsel objected because she said Banks thought

C.S. looked closer to the man she saw than Juror Q.A.

Defense counsel urged that the second alternate juror

replace C.E. instead. Defense counsel also requested R.G.

be removed from the panel. The trial court overruled

Appellant's objection as to C.S. because he heard nothing

and had not discussed the case with anyone. The trial court

likewise denied Appellant's challenge to R.G., concluding

that even if C.E. had been talking to R.G., her testimony

makes clear she was not paying any attention. The trial

court observed R.G.'s testimony that all she cared about

was going home at the time and noted too that there was

no evidence C.E. and R.G. had been discussing anything.

Unsuccessful in his quest to remove C.S. and R.G.,

Appellant requested a mistrial which was also denied.

90 In Jones v. State, 2006 OK CR 5, 128 P.3d 521, we

found no abuse of discretion *643 from the trial court's

refusal to remove a juror mid-trial who expressed in the

presence of another juror an opinion as to the appropriate

punishment. The trial court made inquiry when another

juror reported hearing Juror Y say “that they should place

him in a box in the ground for what he has done.” fd., 2006

OK CR 5, | 19 0.3, 128 P.3d at 535 n.3. This indicated

to the reporting juror that Juror Y had already made up

his mind on the issue of punishment. Jd., 2006 OK CR

5, 7 19, 128 P.3d at 535. When questioned by the trial

court, Juror Y denied making the statement but then later

admitted he “could have said that, yes.” Id. Juror ¥ also

admitted having formed a partial opinion on what he

thought should be the appropriate punishment but said

he was waiting to hear the rest of the evidence. When

the reporting juror was questioned again, she indicated

hearing only part of the statement and admitted she did

not know if it was related to the case. All of the other jurors

denied hearing another juror express an opinion as to the

appropriate penalty or punishment. The trial court denied

defense counsel's request to further question Juror Y and

to excuse him for cause. Id.

[48] [49]

applies here:

[50] §91 We find our previous holding in Jones

A claim of juror misconduct before a criminal case is

submitted to a jury must be established by clear and

convincing evidence. Glasgow v. State, 1962 OK CR

41, | 16, 370 P.3d [P.2d] 933, 936; Pemington v. State,

1995 OK CR 79, J 18, 913 P.2d 1356, 1363. Jones

must show actual prejudice from any jury misconduct

and “defense counsel's mere speculation and surmise is

insufficient upon which to cause reversal.” Woodruff

v. State, 1993 OK CR 7, {| 13, 846 P.2d 1124, 1132,

quoting Chatham y. State, 1986 OK CR 2, ¥ 7, 712

P.2d 69, 71. The trial court personally observed the

jurors and their responses. We will not disturb its

Tryon v. State, 423 P.3d 617 (2018)

2018 OK CR 20

refusal to allow additional questioning and/or excuse

the allegedly offending juror for misconduct absent an

abuse of discretion. Teafatiller v. State, 1987 OK CR

141, 7 18, 739 P.2d 1009, 1012. The trial court did not

abuse its discretion. Jones has failed to show that any

of his alleged misconduct was prejudicial; therefore, this

proposition fails.

Id., 2006 OK CR 5, 20, 128 P.3d at 535,

992 In the present case, the trial court excused C.F.

in light of his admission that he did not follow the

court's admonishment against not talking about the case.

However, the trial court did not abuse its discretion in

denying Appellant's request to strike C.S. and R.G., or

to seat the second alternate instead of C.S. Appellant

does little more on appeal than speculate and surmise

that these two jurors engaged in misconduct. The record,

on the other hand, supports the trial court's findings,

Appellant fails to show by clear and convincing evidence

these two jurors discussed the case with anyone, let alone

had predetermined the case. Considering the deference we

must afford the trial court in this context, we defer to the

trial court's ruling on these issues, See Jackson v, State,

2006 OK CR 45, J 11, 146 P.3d 1149, 1156 (“Whether

a prospective juror is biased depends heavily on the trial

court's appraisal of the juror's credibility and demeanor

and often the basis for these credibility findings cannot

be readily discerned from an appellate record.”), The trial

court did not abuse its discretion either in refusing to

remove C.S. and R.G, or in denying Appellant's related

motion for mistrial. The removal of C.E. cured any

possible prejudice arising from his admitted misconduct.

Knighton y. State, 1996 OK CR 2, ff] 64-65, 912 P.2d

878, 894 (a defense motion for mistrial is left to the

court's discretion and is warranted only when an event

at trial results in a miscarriage of justice or constitutes

an irreparable and substantial violation of a defendant's

constitutional or statutory rights). Proposition VIII is

denied.

SENTENCING ISSUES

{51] 993 In Proposition IX, Appellant complains that

the trial court impermissibly restricted his presentation

of mitigating circumstances. Appellant first challenges

the limitations placed on Dr. David Musick’s testimony

during penalty phase, 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

*644 history which impacted his development. This was

offered to explain Appellant's pattern of illegal behavior

culminating in his murder of Tia Bloomer. During this

testimony, the trial court sustained a hearsay objection

to Dr. Musick’s regurgitation on his direct examination

of hearsay statements by Appellant's mother concerning

Roy Tryon's violent conduct using a knife against one of

Sheryl Wilson's boyfriends, This testimony was offered to

show the facts relied upon by Dr. Musick in formulating

Appellant's life story which, in turn, was used to support

his conclusions and opinions. The trial court admonished

defense counsel that the witness “cannot testify to what

other people told him” in presenting his expert's opinion,

[52] 94 On appeal, Appellant complains that the trial

court's ruling violated his Eighth Amendment right to

present relevant mitigating evidence. He also claims that

the strict application of state evidence rules to disallow

this particular evidence deprived him of due process.

Appellant did not raise this claim in connection with the

trial court's ruling, thus waiving all but plain error review

on appeal. Brown ¥. State, 2008 OK CR 3, f 11, 177 P.3d

577, 580 (failure to object at trial on grounds raised on

appeal waives review of all but plain error). Appellant fails

to show plain error.

[53] [54] 995 “It is beyond dispute that mitigating

evidence is critical to the sentencer in a capital case.”

Warner y. State, 2001 OK CR 11, 9 15, 29 P.3d 569,

575, Mitigating evidence is a necessary component of

the individualized sentencing required in capital cases.

One of the cardinal principles of the Supreme Court's

Eighth Amendment jurisprudence is that a capital murder

defendant must be given the opportunity to present

relevant mitigating evidence for consideration by the jury.

Temard v. Drethe, 542 U.S, 274, 284, 124 §.Ct. 2562, 2570,

159 L.Ed.2d 384 (2004); Eddings v. Oklahoma, 455 U.S.

104, 113-14, 102 S.Ct, 869, 876-77, 71 L.Ed.2d 1 (1982),

The Eighth Amendment forbids imposition of a death

sentence if the jury “is ‘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.’ ” Sinith v. Spisak, 558 U.S. 139, 144, 130

S$.Ct. 676, 681-82, 175 L.Ed,2d 595 (2010) (quoting Afills

v, Maryland, 486 U.S. 367, 374, 108 S.Ct. 1860, 1865, 100

L.Ed.2d 384 (1988) ).

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