Petition for Writ of Certiorari — Jacky Cardale Mayfield, Petitioner v. Oklahoma

ORIGINAL IIUIIIU1

* 1 0 5 1 9 1 1 2 9 2 *

IN THE COURT OF CRIMINAL APPEALS OF

THE STATE OF OKLAHOMA

JACKY CARDALE MAYFIELD,

NOT FOR PUBLICATION

Appellant,

Case No. F-2020-639

v.

THE STATE OF OKLAHOMA,

Appellee.

SUMMARY OPINION

ROWLAND, PRESIDING JUDGE:

FILED

IN COURT OF CRIMINAL APPEALS

STA1E OF OKLAHOMA

MAR 3 1 2022

JOHN D. HADDEN

CLERK

*r-

Appellant Jacky Cardale Mayfield appeals his Judgment and

Sentence from the District Court of Tulsa County, Case No. CF-20163502, for Murder in the First Degree (Counts 1 and 2), in violation of

21 O.S.Supp.2012, § 701.7, and Possession of a Firearm, After

Former Conviction of a Felony (Count 3), in violation of 21

O.S.Supp.2014, § 1283. The Honorable Clifford Smith, District

Judge, presided over Mayfield’s non-jury trial, found him guilty, and

sentenced him to life imprisonment on each of Counts 1 and 2 and

ten years imprisonment on Count 3.1 Judge Smith ordered the

1 Under 21 O.S.Supp.2015, § 13.1, Mayfield must serve 85% of his sentence of

imprisonment on Counts 1 and 2 before he is eligible for parole consideration.

j

sentences to run concurrently and concurrently with Case No. CF2018-4205. Mayfield raises five claims for review:

(1)

whether the district court erred in denying his motion to

suppress and rejecting his claim that the search warrant

was a prohibited general warrant;

(2)

whether the search warrant affidavits established

probable cause for the issuance of the search warrants;

(3)

whether the district court erred by allowing prosecution

witnesses to refresh their recollections with police reports;

(4)

whether the district court erred in denying his request for

disclosure of a confidential witness without a hearing; and

(5)

whether he was denied a fair trial because he was shackled

during trial.

We find relief is not required and affirm the Judgment and

Sentence of the district court.

L

Mayfield claims his Fourth Amendment right against unlawful

searches and seizures was violated because the search warrant

obtained by police for a data search of his cellular telephone

authorized a general search prohibited by both the Oklahoma and

United States Constitutions.

2

J

The challenged search warrant provided for the seizure and

downloading of data contained in Mayfield's cell phone identified in

the affidavit solely by its phone number:

to include call detail records, text messages (including

drafts), contacts, photographs and videos, GPS

information, device identification number, and all other

data associated with the cellular phone.

Mayfield moved before trial to suppress “all information and data

obtained by and/or as a result of the execution of the June 20, 2016

general warrant purporting to authorize the boundaiy-free extraction

oF the phone's contents listed in the warrant quoted above. Citing

Riley v. California, 573 U.S. 373, 393-96 (2014), he quoted the

Supreme Court's description of the modern-day cell phone with its

ability to hold vast amounts of personal information about its user

and asserted such devices merit stringent privacy protection. He

argued the search warrant for his cell phone contained unlimited

authorization for police to rummage through its contents and

maintained the warrant’s failure to place any restrictions on the

officer's search required the fruits of the search to be suppressed.

The district court denied Mayfield's motion to suppress evidence

garnered from the search of his cell phone and rejected his claim that

3

the warrant lacked the necessary particularity required under the

Fourth Amendment.

In reviewing the district court’s denial of Mayfield’s suppression

motion, we view the evidence in the light most favorable to the State

and accept the district court’s factual findings unless clearly

erroneous. Smith v. State, 2018 OK CR 4, If 3, 419 P.3d 257, 259. We

consider its legal conclusions concerning the reasonableness and

constitutionality of the search de novo. Id. See also Brigham City v.

Stuart, 547 U.S. 398, 403 (2006) (stating, “the ultimate touchstone of

the Fourth Amendment is ‘reasonableness.”’). Whether a warrant is

overbroad is a legal question we review de novo.

It is well settled that general searches “violate fundamental

rights.” Marron v. United States, 275 U.S. 192, 195 (1927). At issue

in this case is the effect of the language in the warrant, authorizing

a search of “all other data associated with the cellular phone.” The

warrant described, with specificity, areas and/or items to be

searched, but concluded with rather broad authorization language,

which Mayfield argues failed to limit the scope of the search and to

comply with the particularity requirement.

4

J

We find the Severability Doctrine resolves any problem with the

warrant in this case. See Norris v. State, 1982 OK CR 22, | 13, 640

P.2d 1374, 1376 (adopting rule of severability); see also United States

v. Brown, 984 F.2d 1074, 1077 (10th Cir. 1993) (observing that a

majority of federal circuits have held that “where a warrant contains

both specific as well as unconstitutionally broad language, the broad

portion may be redacted and the balance of the warrant considered

valid.”). Under the severability doctrine, suppression is required only

of those items confiscated under the overbroad portion of the

warrant. Norris, 1982 OK CR 22, ^ 12, 640 P.2d at 1376; Brown, 984

F.2d at 1078.

In reaching this conclusion, we observe that the search was

limited to the areas of the phone authorized by the warrant, namely

the call detail records, text messages, contacts, photographs and

videos, GPS information, and the device identification number. We

further observe that the officer executing the warrant limited his

search when possible. See United States v. Loera, 923 F.3d 907, 916

(10th Cir. 2019) (“Our electronic search precedents demonstrate a

shift away from considering what digital location was searched and

5

toward considering whether the forensic steps of the search process

were reasonably directed at uncovering the evidence specified in the

search warrant. Shifting our focus in this way is necessary in the

electronic search context because search warrants typically contain

few—if any—restrictions on where within a computer or other

electronic storage device the government is permitted to search.”).

We further note that Mayfield complains about the admission of

only two text messages garnered from the search. The first was a text

from Mayfield to his cousin, Rebecca Williams, less than four hours

before the murder. The text informed Williams, who was looking for

Mayfield, that he was in a meeting with one of the leaders of his street

gang and would call her later. The lead detective found the text

significant insofar as it raised the question of whether the gang put

a “hit” on one of the victims which Mayfield then carried out. The

second was a text conversation with one of his fellow gang members

some three and a half hours after the murders in which Mayfield

indicated he was “good” because “baby got the phones and clean up

the house for me just now Bxmpbxmp no need to change number

now.” The State argued this text corroborated the testimony of

6

j

Mayfield's cousin, who testified Mayfield had her retrieve one of the

victim's cellphones from the crime scene after the murders, resulting

in a "clean up” of evidence at the scene. These two texts clearly fall

within the scope of the valid portion of the search warrant and were

properly admitted. Accordingly, we find no relief is required and deny

this claim.

2.

Mayfield claims the probable cause affidavits supporting the

June 20, 2016 search warrant requests for his cellular phone's data

and cell site location information (CSLI) held by AT&T lacked

sufficient detail to establish probable cause for the issuance of the

two search warrants. The factual assertions in the affidavits that

Mayfield challenges are identical.2

Mayfield raised this claim in his written pretrial motion to

suppress, arguing the affidavits contained irrelevant, as well as

misstated, descriptions of the killer, attributed admissions by

Mayfield to unidentified and unknown informants without context or

2 The affidavits differed in their respective introductory paragraphs identifying

the data to be searched and seized.

7

facts for assessing the reliability of the alleged admissions, and

omitted facts bearing on the trustworthiness of the unidentified

informants. Defense counsel pressed his particularity complaint at

trial, but did not address his complaint that the affidavits supporting

the warrants lacked sufficient probable cause. The district court

found the warrant for Mayfield’s phone was not a general warrant

and denied the motion to suppress without specifically addressing

his probable cause complaint.

As previously stated, in reviewing the district court’s denial of

Mayfield’s suppression motion, we will view the evidence in the light

most favorable to the State and accept its factual findings unless

clearly erroneous, and consider its legal conclusions de novo. Smith,

2018 OK CR 4, T1 3, 419 P.3d at 259. Moreover, Mayfield’s failure to

reurge his attack on the sufficiency of probable cause in the affidavits

waives review of this claim for all but plain error. See Jones v. State,

2006 OK CR 5, t 24, 128 P.3d 521,536 (holding arguments in written

suppression motion not raised at trial are waived). He has the burden

in plain error review to demonstrate: 1) the existence of an actual

error (i.e., deviation from a legal rule); 2) that the error was plain or

8

obvious; and 3) that the error affected his substantial rights, meaning

the error affected the outcome of the proceeding. Hogan v. State, 2006

OK CR 19, If 38, 139 P.3d 907, 923. Even where this showing is

made, this Court will correct plain error only where the error

seriously affected the fairness, integrity or public reputation of the

judicial proceedings or represented a miscarriage of justice. Id.

Mayfield begins this claim by questioning the validity of the

Court’s holding in State v. Marcum, 2014 OK CR 1, 319 P.3d 681, in

light of Carpenter v. United States, 138 S.Ct. 2206 (2018). In Marcum,

the Court considered the narrow issue of whether a defendant had a

reasonable expectation of privacy in cellular phone records seized

from a third-party cellular provider for his co-defendant’s cellular

phone which contained text messages the two had exchanged. Id

2014 OK CR 1, f 6, 319 P.3d at 683. We found there was no

reasonable expectation of privacy in that situation and adopted “the

reasoning of the courts which have concluded that there is no

expectation of privacy in the text messages or account records of

another person, where the defendant has no possessory interest in

the cell phone in question, and particularly where, as here, the actual

9

warrant is directed to a third party.” Id., 2014 OK CR 1, If 15, 319

P.3d at 687. Four years after our Marcum decision, the United States

Supreme Court, in Carpenter, held that a person maintains a

legitimate expectation of privacy in the record of his or her physical

movements as captured through third party CSLI data. Carpenter,

138 S.Ct. at 2219-20.

Mayfield’s argument about Marcum is undeveloped as it relates

to his probable cause challenge. He contends simply that Carpenter

"calls into question some of the language used in the Marcum

holding.” Nothing in Carpenter changed the narrow holding in

Marcum, and we have continued to hold that a defendant does not

have a reasonable expectation of privacy in cellular data held by a

third-party for another person’s cellular phone. Fuston v. State, 2020

OK CR 4, IHf 40-41, 470 P.3d 306, 319, cert denied, 141 S.Ct. 1400

(2021)

(acknowledging, under Carpenter, a defendant has a

reasonable expectation of privacy in at least seven days of CSLI data

held by a third party for that defendant’s phone). Because Mayfield

challenges only data obtained from a third party for his device, any

10

discussion concerning the impact of Carpenter on Marcum would be

dicta and we decline to consider that issue in this case.

The crux of Mayfield’s claim is that the probable cause affidavits

were

insufficient because they omitted a witness’s

suspect

description, misstated another witness’s suspect description, and

failed to include context and facts surrounding observations of

unidentified and unknown “informants” bearing on the reliability of

their observations as well as their trustworthiness.

We consider the totality of the circumstances in evaluating the

sufficiency of a search warrant affidavit. Smith v. State, 2018 OK CR

4, 1 5, 419 P.3d 257, 259. “Under the totality of the circumstances

approach, the task of the issuing magistrate is simply to make a

practical,

common

sense

decision

whether,

given

all

the

circumstances set forth in the affidavit before him [or her], including

the veracity and basis of knowledge of persons supplying hearsay

information, there is a fair probability that contraband or evidence of

a crime will be found in a particular place.” Marshall v. State, 2010

OK CR 8, H 49, 232 P.3d 467, 479. In making his or her

determination, the magistrate may draw reasonable inferences from

11

the material provided in the warrant application. Illinois v. Gates, 462

U.S. 213, 240 (1983). For a valid finding of probable cause, the

affidavit must provide enough underlying facts and circumstances to

enable the magistrate to independently judge the affiant's conclusion

that evidence of a crime is located in the place requested to be

searched. Marshall, 2010 OK CR 8, U 49, 232 P.3d at 479. On appeal,

we review a sufficiency challenge to an affidavit to ensure that the

magistrate had a substantial basis for concluding that probable

cause existed and afford the magistrate’s finding of probable cause

great deference. Id.

The facts set forth in the warrant’s supporting affidavit, under

the totality of the circumstances, established probable cause to

believe Mayfield’s phone contained information relative to the

murders. Mayfield’s complaints about the sufficiency of the affidavits

mistakenly focuses on individual pieces of information in isolation

which is contrary to the totality of the circumstances approach we

follow. We find the affidavits, considering the information as a whole,

provided reason not only to believe Mayfield’s cellular phone

contained evidence related to the homicides, but also supplied

12

probable cause to support a search of its “CSLI” information to

determine Mayfield's whereabouts at pertinent times identified in the

affidavit. Because Mayfield has not shown the affidavit failed to

establish probable cause, i.e. error, no relief is required and this

claim is denied. See Hogan, 2006 OK CR 19, K 39, 139 P.3d at 923

(“The first step in plain error analysis is to determine whether error

occurred.”)

3.

Mayfield argues the district court erred by allowing four

prosecution witnesses to refresh their recollections with police

reports, memorializing their statements to police during the

investigation. This claim has been preserved for review and we review

the district court's rulings for an abuse of discretion and find none.

See Tryon v. State, 2018 OK CR 20, 1 38, 423 P.3d 617, 632

(reviewing trial court's decision admitting evidence for abuse of

discretion); Reynolds v. State, 1979 OK CR 118, ^ 17-19, 617 P.2d

1357, 1362 (reviewing trial court's decision involving refreshment of

a witness's recollection for an abuse of discretion). This Court finds

an abuse of discretion only where the district court’s decision is

13

unreasonable

or

arbitrary

and

was

made

without

proper

consideration of the relevant facts and law. Bramlett v. State, 2018

OK CR 19, If 19, 422 P.3d 788, 795.

Title 12 O.S.2011, § 2612 governs refreshing a witness's

recollection with a writing. That section places no restrictions on the

origin of the record used to refresh the witness's recollection nor does

it require that the writing be created by the witness. The record shows

the officers involved in the investigation of this case prepared written

reports containing summaries of witnesses's statements. This case

went to trial four years after the investigation. Understandably, the

recollection of several witnesses required refreshing. The State

refreshed each witness's recollection with the portion of the police

report concerning that particular witness's statement. Based on this

record, we find no abuse of discretion in permitting the State to use

police reports to refresh the recollection of these witnesses. This

claim is denied.

4.

Mayfield argues the district court erred by denying his request

to disclose the identity of a confidential witness. He asks the Court

14

to remand the matter to the district court for an in camera hearing

to determine whether disclosure is necessary. We review the district

court’s ruling denying disclosure of the informant’s identity for an

abuse of discretion. See Morgan v. State, 1987 OK CR 139, If 6, 738

P.2d 1373, 1374 (reviewing for abuse of discretion district court’s

denial of motion to compel disclosure of informant); Hill v. State, 1979

OK CR 2, If 16, 589 P.2d 1073, 1077 (same).

The district court considered the defense’s request for

disclosure prior to receiving evidence. Defense counsel argued that

the confidential witness was a “key player, both in search and seizure

areas and on the merits” of the charges. Counsel contended that the

confidential witness was the reason police focused in on Mayfield and

that the witness was with police when Mayfield was arrested. The

State disagreed and, without challenge, noted that the witness

contacted police after investigators had already run Mayfield’s

cellular phone information and discovered Mayfield was the last

person the victim had contact with by phone minutes before his

death. Police had also located the car that matched the description

of the car leaving the crime scene. The prosecutor stated that the

15

informant was not a witness to the crime, but had “specific

information” though the witness had not been certified as reliable.

The court denied Mayfield's request, finding an insufficient showing

that the information provided by the informant formed the primary

basis for Mayfield's arrest or of the searches in the case. The district

court informed defense counsel that the matter could be re-urged

during trial if warranted by the trial testimony and evidence. Mayfield

has not cited to the record where the identity of the informant was

the subject of further discussion.

Generally, the State has a privilege of nondisclosure of the

identity of an informer with a few enumerated exceptions. 12

O.S.Supp.2020, § 2510(C)(1)(2)&(3). See also Hill, 1979 OK CR 2, f

16, 589 P.2d at 1077 (stating privilege to withhold identity of informer

applies unless the informer's identity is necessary and relevant to the

defense). The Court in Hill observed that the mere possibility that an

item of undisclosed information “might have helped the defense, or

might have affected the outcome of the trial, does not establish

materiality in the constitutional sense.” Hitt, 1979 OK CR 2, | 16,

589 P.2d at 1077.

16

Mayfield relied on the third exception in Section 2510(C). Under

Section 2510(C)(3), an exception to the State’s privilege exists “[i]f

information from an informant is relied upon to establish the legality

of the means by which evidence was obtained and the court or the

defendant is not satisfied that the information was received from an

informant reasonably believed to be reliable or credible....” The

district court found this exception inapplicable based upon the

prosecutor’s account that the investigation was zeroing in on

Mayfield by the time, and independent of, the informant’s contact

with police. That ruling is supported by the record. Accordingly, we

cannot find that the district court erred in finding that Mayfield failed

to show that disclosure of the confidential informant’s identity was

necessaiy and relevant to his defense.3 The informant’s connection

to the case was collateral to other utilized investigative measures,

making disclosure of the informant’s identity unnecessary. Because

3 Mayfield contends, without any record citation, that the informant observed

the offense of possession of a firearm, for which he was charged and convicted

and thus the privilege of non-disclosure does not apply. Defense counsel did not

make this claim below and we observe that Mayfield admitted he had a gun in

his possession when arrested, making the identity of the informant with regard

to that offense of no consequence.

17

there was no error, we deny Mayfield’s claim, including his request

to remand this matter for an evidentiary hearing.

5.

Mayfield argues his statutory rights under 22 O.S.2011, § 15

were violated when he was shackled during trial without a Sanchez

hearing.4 He contends the error was further exacerbated by his

placement in the jury box at the opposite end of the courtroom from

his attorneys.5 He maintains his shackling undermined his

presumption of innocence.

The plain text of Section 15 shows the prohibition against

physical restraint or shackles applies only to jury trials. We so held

in Application of Mitchell, 1964 OK CR 20, T) 7, 389 P.2d 647, 648

(rejecting petitioner’s claim that he was improperly shackled before

the court at sentencing). The Court stated that Section 15 applied

“only to trials before a jury” and held that Section 15 had no

application in a formal sentencing hearing conducted before a judge.

4 Sanchez v. State, 2009 OK CR 31 1 34, 223 P.3d 980, 994 (requiring district

courts to make specific findings justifying the need for restraint before permitting

a defendant to be tried before a jury in shackles or other forms of restraint).

5 The record shows Mayfield was seated in the jury box for social distancing

purposes because the trial was in July 2020 during the Covid-19 pandemic.

18

Mayfield opted for a bench trial making the requirements of Section

15 and Sanchez inapplicable. For these reasons, we find no error and

deny this claim.

DECISION

The Judgment and Sentence of the district court is AFFIRMED.

Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal

Appeals, Title 22, Ch. 18, App. (2022), the MANDATE is ORDERED

issued upon delivery and filing of this decision.

AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY

THE HONORABLE CLIFFORD SMITH

DISTRICT JUDGE

APPEARANCES AT TRIAL

APPEARANCES ON APPEAL

CORBIN BREWSTER

CHIEF PUBLIC DEFENDER

423 S. BOULDER AVE.

SUITE 300

TULSA, OK 74103

STUART W. SOUTHERLAND

TULSA COUNTY PUBLIC

DEFENDER’S OFFICE

423 S. BOULDER AVE.

SUITE 300

TULSA, OK 74103

COUNSEL FOR APPELLANT

JOHN ECHOLS

ATTORNEY AT LAW

MANNING LAW FIRM

624 S. DENVER AVE.

SUITE 201

TULSA, OK 74119

COUNSEL FOR DEFENDANT

19

^ »4

KENNETH ELMORE

BRETT MIZE

ASST. DISTRICT ATTORNEYS

TULSA COUNTY COURTHOUSE

500 S. DENVER AVENUE

TULSA, OK 74103

COUNSEL FOR STATE

OPINION BY: ROWLAND, P.J.

HUDSON, V.P.J.: Concur

Concur

LUMPKIN, J.:

Concur

LEWIS, J.:

20

JOHN M. O’CONNOR

ATTORNEY GENERAL

OF OKLAHOMA

JULIE PITTMAN

ASST. ATTORNEY GENERAL

313 N.E. 21st STREET

OKLAHOMA CITY, OK 73105

COUNSEL FOR APPELLEE

Additional material

from this filing is

available in the

Clerk's Office.