Opposition Brief — Byron James Shepard, Petitioner v. Oklahoma

No. 23-7029

CAPITAL CASE

____________________________________

In the

SUPREME COURT OF THE UNITED STATES

____________________________________

BYRON JAMES SHEPARD,

Petitioner,

-vsSTATE OF OKLAHOMA,

Respondent.

____________________________________

On Petition for Writ of Certiorari

To the Oklahoma Court of Criminal Appeals

____________________________________

BRIEF IN OPPOSITION

____________________________________

Gentner F. Drummond

Attorney General of Oklahoma

Tessa L. Henry

Assitant Attorney General

Counsel of Record*

Oklahoma Office of the Attorney General

313 NE Twenty-First St.

Oklahoma City, OK 73105

tessa.henry@oag.ok.gov

(405) 521-3921

____________________________________

April 18, 2024

CAPITAL CASE

QUESTION PRESENTED

Whether this Court should consider if Oklahoma’s statutory continuing threat

aggravating circumstance—which Petitioner argues fails to perform its narrowing

function because it does not direct Oklahoma juries to consider only whether a

defendant is a continuing threat while incarcerated—is constitutional when that

issue was neither pressed nor passed upon below and is otherwise uncompelling.

i

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................................................................................... i

STATEMENT OF THE CASE .................................................................................... 1

A.

Factual Background ............................................................................. 1

B.

Procedural Background ...................................................................... 8

REASONS FOR DENYING THE WRIT ................................................................. 14

CERTIORARI REVIEW SHOULD BE DENIED BECAUSE

THE QUESTION PRESENTED WAS NOT PRESSED OR

PASSED UPON BELOW, THE QUESTION PRESENTED

IS NOT A COMPELLING ONE, PETITIONER’S CASE IS

A POOR VEHICLE FOR DECIDING THE QUESTION

PRESENTED, AND PETITIONER’S CASE IS WITHOUT

MERIT UNDER THIS COURT’S PRECEDENT ....................................... 15

A.

Certiorari review should be denied because the

question presented was neither pressed nor passed

upon below ........................................................................................... 15

B.

Certiorari review should be denied because, by

pointing to an illusory conflict among courts,

Petitioner does not present a compelling federal issue............. 19

C.

Certiorari review should be denied because

Petitioner’s case is a poor vehicle for the question

presented .............................................................................................. 23

D.

Certiorari review should be denied because the

question presented lacks merit under this Court’s

precedent .............................................................................................. 26

CONCLUSION ........................................................................................................... 28

ii

TABLE OF AUTHORITIES

FEDERAL CASES

Adams v. Robertson,

520 U.S. 83 (1997) ....................................................................................... 16, 17, 19

Apprendi v. New Jersey,

530 U.S. 466 (2000) ........................................................................................... 18, 20

Arave v. Creech,

507 U.S. 463 (1993) ................................................................................................. 26

Atkins v. Virginia,

536 U.S. 304 (2002) ................................................................................................. 14

Barefoot v. Estelle,

463 U.S. 880 (1983) ................................................................................................. 27

Boltz v. Mullin,

415 F.3d 1215 (10th Cir. 2005) .............................................................................. 27

Brown v. Sanders,

546 U.S. 212 (2006) ................................................................................................. 25

Byrd v. United States,

584 U.S. 395 (2018) ................................................................................................. 16

Cardinale v. Louisiana,

394 U.S. 437 (1969) ................................................................................................. 16

Castro v. Ward,

138 F.3d 810 (10th Cir. 1998) ................................................................................ 27

Clemons v. Mississippi,

494 U.S. 738 (1990) ................................................................................................. 25

Cutter v. Wilkinson,

544 U.S. 709 (2005) ........................................................................................... 16, 19

Forsyth v. City of Hammond,

166 U.S. 506 (1897) ................................................................................................. 19

Godfrey v. Georgia,

446 U.S. 420 (1980) ................................................................................................. 26

iii

Halbert v. Michigan,

545 U.S. 605 (2005) ................................................................................................. 20

Hooks v. Ward,

184 F.3d 1206 (10th Cir. 1999) .............................................................................. 27

Howell v. Mississippi,

543 U.S. 440 (2005) ........................................................................................... 16, 19

Hurst v. Florida,

577 U.S. 92 (2016) ............................................................................................. 18, 20

Illinois v. Gates,

462 U.S. 213 (1983) ................................................................................................. 17

Jurek v. Texas,

428 U.S. 262 (1976) ............................................................................... 12, 17, 19, 27

Lucia v. S.E.C.,

585 U.S. 237 (2018) ................................................................................................. 17

McClung v. Silliman,

19 U.S. 598 (1821) ............................................................................................. 24, 26

McKinney v. Arizona,

589 U.S. 139 (2020) ................................................................................................. 25

Mollett v. Mullin,

348 F.3d 902 (10th Cir. 2003) ................................................................................ 23

Nguyen v. Reynolds,

131 F.3d 1340 (10th Cir. 1997) .............................................................................. 27

Penry v. Johnson,

532 U.S. 782 (2001) ..................................................................................... 12, 17, 19

Rice v. Sioux City Mem’l Park Cemetery,

349 U.S. 70 (1955) ................................................................................................... 22

Ring v. Arizona,

536 U.S. 584 (2002) ........................................................................................... 18, 20

Romano v. Gibson,

239 F.3d 1156 (10th Cir. 2001) ........................................................................ 22, 24

iv

Shafer v. South Carolina,

532 U.S. 36 (2001) ................................................................................................... 18

Simmons v. South Carolina,

512 U.S. 154 (1994) ........................................................................................ Passim

The Monrosa v. Carbon Black Exp., Inc.,

359 U.S. 180 (1959) ................................................................................................. 24

Tuilaepa v. California,

512 U.S. 967 (1994) ................................................................................................. 26

United States v. Allen,

247 F.3d 741 (8th Cir. 2001) .................................................................................. 22

United States v. Bernard,

299 F.3d 467 (5th Cir. 2002) .................................................................................. 22

United States v. Fields,

516 F.3d 923 (10th Cir. 2008) ................................................................................ 21

United States v. Peoples,

74 F. Supp. 2d 930 (W.D. Mo. 1999) ..................................................................... 21

United States v. Savage,

970 F.3d 217 (3d Cir. 2020) ................................................................................... 21

United States v. Williams,

504 U.S. 36 (1992) ................................................................................................... 16

Webb v. Webb,

451 U.S. 493 (1981) ........................................................................................... 16, 19

Zant v. Stephens,

462 U.S. 862 (1983) ..................................................................................... 25, 26, 27

Zivotofsky v. Clinton,

566 U.S. 189 (2012) ................................................................................................. 17

v

STATE CASES

Berget v. State,

824 P.2d 364 (Okla. Crim. App. 1991) ........................................................... 23, 24

Davis v. State,

268 P.3d 86 (Okla. Crim. App. 2011) ................................................................... 11

Eizember v. State,

164 P.3d 208 (Okla. Crim. App. 2007) ................................................................. 20

Goode v. State,

236 P.3d 671 (Okla. Crim. App. 2010) ................................................................. 13

Hanson v. State,

206 P.3d 1020 (Okla. Crim. App. 2009) ............................................................... 25

Harris v. State,

164 P.3d 1103 (Okla. Crim. App. 2007) ............................................................... 27

Littlejohn v. State,

85 P.3d 287 (Okla. Crim. App. 2004) ................................................................... 23

Nolen v. State,

485 P.3d 829 (Okla. Crim. App. 2021) ........................................................... 13, 27

Ryder v. State,

83 P.3d 856 (Okla. Crim. App. 2004) ................................................................... 11

Sanchez v. State,

223 P.3d 980 (Okla. Crim. App. 2009) ................................................................. 13

Shepard v. State,

538 P.3d 518 (Okla. Crim. App. 2023) ........................................................ Passim

Tryon v. State,

423 P.3d 617 (Okla. Crim. App. 2018) ................................................................. 25

Williams v. State,

22 P.3d 702 (Okla. Crim. App. 2001) ................................................................... 27

vi

FEDERAL STATUTES

18 U.S.C. § 3591 .......................................................................................................... 21

18 U.S.C. § 3592 .......................................................................................................... 21

18 U.S.C. § 3593 .......................................................................................................... 21

18 U.S.C. § 3594 .......................................................................................................... 21

18 U.S.C. § 3595 .......................................................................................................... 21

18 U.S.C. § 3596 .......................................................................................................... 21

18 U.S.C. § 3597 .......................................................................................................... 21

18 U.S.C. § 3598 .......................................................................................................... 21

18 U.S.C. § 3599 .......................................................................................................... 21

28 U.S.C. § 1257 .............................................................................................. 15, 16, 19

STATE CASES

OKLA. STAT. tit. 21, § 701.12 (2011) ............................................................................ 9

OKLA. STAT. tit. 21, § 701.9 (2021) ...................................................................... 22, 24

vii

Respondent respectfully urges this Court to deny Petitioner Byron James

Shepard’s Petition for a Writ of Certiorari to review the published opinion of the

Oklahoma Court of Criminal Appeals (“OCCA”) entered in this case on September 21,

2023, Shepard v. State, 538 P.3d 518 (Okla. Crim. App. 2023), Pet. Appx. A. 1

STATEMENT OF THE CASE

A.

Factual Background.

The OCCA set forth the relevant facts in its opinion below:

On March 26, 2017, at approximately 11:30 p.m., Tecumseh police

officer Justin Terney was fatally shot by [Shepard] during a traffic stop

of a car driven by Brooklyn Williams. The dashcam video from Officer

Terney’s patrol car was introduced into evidence at [Shepard]’s trial as

State’s Exhibit 3. This video captured the sights and sounds of the

encounter that night between [Shepard] and Officer Terney.

The dashcam video shows that Officer Terney first made contact

with Williams who was unable to produce a driver’s license. When

Officer Terney asked [Shepard], who was sitting in the front passenger

seat, for identification, [Shepard] said his driver’s license was suspended

and was confiscated after an arrest several months earlier. Officer

Terney requested the name and date of birth for both Williams and

[Shepard]. Williams disclosed her true information. [Shepard], by

contrast, told the officer his name was “James Bishop” and then

provided a false date of birth.2 Williams said nothing in response to

[Shepard]’s lies.

The record shows James Bishop is the name of

[Shepard]’s grandfather. [Shepard]’s actual date of birth is

July 17, 1981—not July 17, 1979 as he told Officer Terney.

2

Before returning to his patrol car, Officer Terney informed

Williams that he had stopped her for a defective tag light. Officer Terney

1 Record references in this brief are abbreviated as follows: citations to the original

record will be referred to as “O.R. [Vol.]”; citations to the jury trial will be referred to

as “Tr. [Vol.]”; citations to formal sentencing will be referred to as “Sent. Tr.”; and

citations to any other transcripts will be referred to as “[Date] Tr.” See Sup. Ct. R.

12.7. References to Petitioner’s Petition for Writ of Certiorari will be cited as “Pet.,”

and references to Petitioner’s Appendix will be cited as “Pet. App.”

said he would return in a moment and then walked back to his patrol

unit where he radioed in the information for both subjects. The

dispatcher responded that she had a return on Williams’s information

and that her driver’s license was flagged as suspended. The dispatcher

got no return on the name and date of birth provided by [Shepard].

Officer Terney returned to the passenger side of the white Buick

and asked [Shepard] to step out of the car. With both men standing

outside the car, Officer Terney asked [Shepard] to again provide his

name. [Shepard] responded that his name was “James Bishop, Jr.”

Officer Terney radioed the dispatcher to ask her to check the same name

only this time adding “Jr.” At one point, the officer requested [Shepard]

to remove his hands from his pockets. [Shepard] complied and indicated

that he was only holding a lighter. The dispatcher asked for [Shepard]’s

middle name. [Shepard] responded “Bunyon.” Officer Terney laughed,

said “Bunyon? Whatever” then gave the name to the dispatcher. Officer

Terney said that he thought [Shepard] was lying to him and asked

whether that was the case. [Shepard] denied lying and responded that

was his name. When asked whether the license was issued in Oklahoma,

[Shepard] responded that his license was from Ohio.

After reporting this information to the dispatcher, Officer Terney

stated again that he thought [Shepard] was lying about his identity. The

two men spoke casually while the dispatcher ran the information. At one

point, [Shepard] asked whether Williams would be getting a ticket.

Officer Terney responded she would be receiving a ticket at the least.

[Shepard] told Officer Terney he was arrested in Columbus, Ohio, and

had only been living in Oklahoma two months. When the dispatcher

responded over the radio that the only man with the name given was

born in 1939, [Shepard] claimed that was his father. He also offered they

should “check again.” Officer Terney responded that he needed

something with [Shepard]’s name on it for identification.

As these events unfolded, Lieutenant Michael Mallinson of the

Tecumseh Police Department was on patrol a few miles away with new

officer trainee Alana Colan. Lt. Mallinson monitored the radio traffic for

the stop and responded to Officer Terney’s location to provide backup.

Lt. Mallinson was concerned the male subject in Officer Terney’s traffic

stop was providing false information. When Lt. Mallinson and Officer

Colan arrived on the scene, Williams was still seated in the driver’s seat

of the white Buick and [Shepard] was standing outside the passenger

side of the car with his hands on the rolled down passenger window.

Officer Terney was standing a few feet away from [Shepard].

2

The dashcam video next shows [Shepard] leaning down to the

passenger window and asking Williams whether she had anything in

the car with his name on it. As if to foreshadow his next move, [Shepard]

raised his head twice while talking to Williams and looked across the

road in the direction of the tree line. Shortly after Lt. Mallinson’s patrol

unit came to a full stop behind Officer Terney’s vehicle, and after Officer

Terney again asked whether [Shepard] was lying to him about his

identity, [Shepard] took off running across the road, into the tree line

and underbrush separating the roadway from an adjacent field.

Officer Terney gave chase while yelling at [Shepard] to stop and

warning that [Shepard] was about to be tased. Officer Terney’s

flashlight can be seen on the video, in the tree line just off the side of the

road, as he deployed his taser and warned that he would tase [Shepard]

again. When Officer Terney’s flashlight moves out of camera range, the

sounds of the dashcam’s audio reveal what happened next. A distinctive

metallic clicking sound resembling a gun being racked precedes the

sound of Officer Terney yelling at [Shepard] to get on the ground.

Seconds later, multiple gunshots were fired and sustained screams from

both men can be heard on the recording. Officer Terney reported over

the radio that he had “been hit” in the leg and had “been shot”.

Lt. Mallinson got caught in the top rung of a barbed wire fence

separating the field from the road and he had to pull himself off the

fence. Free of the wire, Lt. Mallinson made his way through the dense

underbrush. Before he could exit the tree line, however, the gunfire

erupted. Lt. Mallinson called out to Officer Terney and located him in

the darkness, lying on the ground with his head resting on a round hay

bale in the middle of the large, open field. [Shepard] was on the ground,

roughly four feet away by Lt. Mallinson’s recollection, screaming and

moaning in pain. [Shepard]’s body was positioned facing Officer Terney.

Lt. Mallinson can be heard on the dashcam video ordering

[Shepard] repeatedly to show his hands. When Lt. Mallinson asked

Officer Terney whether [Shepard] had a gun, Terney confirmed that

[Shepard] had a gun and had shot him in the leg. A Springfield XD 9mm

semiautomatic pistol was on the ground just a few feet from [Shepard].

This gun was the one used by [Shepard] to kill Officer Terney. DNA

analysis of swabbings taken from the backstrap, grip and trigger of the

9mm pistol confirmed the presence of male-specific YSTR DNA that

matched [Shepard]’s known DNA profile, meaning that [Shepard] and

all of his male blood relatives could not be excluded as a potential source

of this DNA.

3

Lt. Mallinson kicked away the gun and held [Shepard] at

gunpoint while backup officers from surrounding agencies responded to

the scene. Officer Terney’s Glock 22, .40 caliber semiautomatic pistol

was recovered nearby. A short time later, Officer Terney said “Mike, I’m

fixing to pass out man.” Lt. Mallinson told Terney to “stay with me,

brother.”

Lt. Mallinson asked Officer Terney whether he got any shots off.

Terney responded “Yeah, I shot him.” Lt. Mallinson can also be heard on

the video yelling more directions at [Shepard] to show his hands and

stay down. [Shepard] continued to holler and complain that he “can't

breathe”. Officer Terney, who by this point was nonresponsive and

becoming paler by the minute, had suffered a gunshot wound to the right

lower abdomen and to the right thigh. [Shepard] too was shot several

times, including in the scrotum, chest, hand and arm. All of [Shepard]’s

gunshot wounds were to the front of his body; none of the gunshot

wounds were to [Shepard]’s backside. The gunshot wounds to

[Shepard]’s chest/rib cage area and arm were located on the left side of

his body which is significant because [Shepard] is left-handed. When an

officer rolled [Shepard] over to look for injuries, two taser probes were

still attached to the blue jeans over [Shepard]’s right buttock, with an

insufficient distance between the probes to be incapacitating when the

taser probes made contact.3

3 The State’s evidence shows that the effectiveness

of a taser correlates to the distance between the probes

when they attach to the body. The closer the probes attach

on a subject’s body, the less effective they are in causing

incapacitation because the electrical currents delivered by

the taser affect fewer muscle groups. Officer Trevour Story

responded to the scene just minutes after the shootout and,

in checking [Shepard] for weapons, observed the taser

probes still attached to [Shepard]’s buttock. Although he

could not give an exact distance, Officer Story testified the

taser probes were not located far enough apart on

[Shepard]’s body to be incapacitating. Officer Story opined,

based on his training and experience, that the taser probes

were anchored far enough apart on [Shepard]’s buttock to

be painful, and to cause cramping, but not to keep a person

from moving. Lt. Mallinson similarly testified that, in his

opinion, the taser deployment was not effective.

Both men were transported to OU Medical Center for emergency

treatment. [Shepard] survived. Officer Terney, age 22, died from his

4

injuries. Dr. Eric Pfeiffer, the state’s chief medical examiner, observed

two separate areas of gunshot injury for Terney.4 First, a perforating

(through-and-through) gunshot wound was observed on the victim’s

right thigh. Second, a gunshot wound to the victim’s lower right

abdomen, just above the hip, was also observed and was the cause of

death. There was no exit wound for this gunshot injury. The bullet

penetrated Terney’s handcuff case and duty belt, then entered just

below his Kevlar vest. The bullet severed Terney’s iliac vein and lodged

in his left hip. Terney ultimately bled to death due to this injury. The

bullet that caused this injury was recovered internally from Officer

Terney’s left hip.

4 Dr. Pfeiffer did not conduct the autopsy in this case.

Dr. Clay Nichols, a pathologist with the state medical

examiner’s office, conducted the autopsy of Justin Terney

and generated a written report. Sometime before

[Shepard]’s trial, Dr. Nichols suffered a massive stroke,

leaving him one hundred percent debilitated and

unavailable to testify. Dr. Pfeiffer testified at trial as a

substitute witness concerning the cause and manner of the

victim’s death. Dr. Pfeiffer examined archive data from his

agency’s file for the victim’s death which included the

autopsy photographs, toxicology report and investigator

narrative. Dr. Pfeiffer clarified in his testimony that he did

not base his opinions on Dr. Nichols’s autopsy report.

At the crime scene, investigators found the blast doors for the

victim’s taser in the dense undergrowth of the tree line, near the

roadway. The blast doors fall away when the taser is deployed by pulling

the trigger and allows the probes and their wires to deploy. Roughly

sixty yards away, in the vast open field, investigators recovered spent

shell casings, and a projectile, in the area near two round hay bales

where Officer Terney and [Shepard] were found. Four .40 caliber shell

casings, two 9mm shell casings and a fired projectile that was consistent

with a .40 caliber cartridge were recovered in this area. A photograph of

this area showed the .40 caliber shell casings were found a short

distance away from the 9mm shell casings, on opposite sides of each

other. The projectile was found face-down in the dirt near the 9mm shell

casings. No shell casings or projectiles were found anywhere beyond this

area of the round hay bales.

Examination and comparison by OSBI ballistics examiner

Terrance Higgs revealed the .40 caliber shell casings were fired from

Officer Terney’s Glock 22, .40 caliber semiautomatic pistol. The 9mm

5

shell casings were fired from [Shepard]’s Springfield XD 9mm

semiautomatic pistol. According to Higgs, the size and weight

configuration of the bullet recovered during the autopsy from Officer

Terney’s left hip was consistent with a 9mm projectile. The projectile

found face-down in the dirt was a jacket hollow point bullet that was not

fired by the 9mm pistol but instead was consistent with a .40 caliber

bullet fired from Officer Terney’s gun.

The murder weapon had been stolen from the Tulsa residence of

Phillip Pfanstiel in July 2016. On the stand, Pfanstiel matched the serial

number on the gun with the serial number from the box of his missing

pistol. Pfanstiel does not know [Shepard] and testified there was no

reason for [Shepard] to have been in possession of his firearm at the time

of Officer Terney’s murder. Pfanstiel did not ever give [Shepard]

permission to have his gun. The gun turned up missing after Pfanstiel’s

niece and her boyfriend (who was not [Shepard]) did some landscaping

at his home while Pfanstiel was away. Pfanstiel immediately reported it

stolen but the gun was never recovered by the police until [Shepard] shot

and killed Officer Terney.

When the paramedics cut off [Shepard]’s clothes to look for

injuries, Officer Jaime Breedlove recovered from [Shepard]’s person a

cell phone, a glass pipe containing burnt methamphetamine residue, a

lighter and a plastic bag inside a cigarette box filled with 8.5 grams

(gross weight) of methamphetamine. A cell phone for Williams was

recovered from inside the white Buick and was also taken into evidence.

Police executed a search warrant for [Shepard]’s truck found parked in

front of Williams’s house. Inside, police found another cell phone

belonging to [Shepard], thirteen rounds of 9mm ammunition loaded

inside a .40 caliber Springfield XD magazine, recent fast-food receipts,

clothes, a billfold and two glass pipes.

Investigators soon discovered [Shepard]’s real identity was Byron

James Shepard. [Shepard] was a known fugitive with an active arrest

warrant from Okfuskee County for the crime of knowingly concealing

stolen property. Investigators with the District 23 Task Force had

searched unsuccessfully for [Shepard] at a residence in Pottawatomie

County associated with Brooklyn Williams on March 15, 2017, and again

on March 22, 2017. Text messages exchanged between [Shepard]’s and

Williams’s cell phones in the days and hours leading up to the murder

reveal not only an awareness that local police were actively searching

for [Shepard], but an effort to avoid arrest altogether. Some of the text

messages also reveal [Shepard]’s volatile personality and potential for

violence on the day of the murder.

6

On March 19, 2017, Williams’s phone sent a message to

[Shepard]’s phone indicating that one of the police officers looking for

[Shepard] lived down the street, “[s]o I might get a ride somewhere

before I met [sic] you just in case they follow.” During another exchange

about his stolen welding truck, [Shepard] texted “[t]hey made one

mistake LOL. Push me too far and jail isn’t an option. I can’t get them

all but I promise the first four or five are mine.”

Similar conversations continued the day of the murder. On March

26, 2017, at 1:11 p.m., Williams sent a message to [Shepard]’s phone

advising “[t]here is a sheriff at Seminole.” A few minutes later, Williams

sent two other text messages to [Shepard]’s phone asking why he was

not responding and proclaiming “[y]ou’re not ever going to learn until

they finally get your ass. And when they do, you better not call me[.]”

Later, at around 1:30 p.m., after receiving a text message from

[Shepard]’s phone that said “[h]eaded back west[,]” Williams replied

that “I hate you coming this way. It scars [sic] me right now.” Williams

also asked in another text, time stamped at 1:33 p.m., why [Shepard]

could not avoid “risking coming down here[.]”

Later, at 5:04 p.m., Williams sent [Shepard]’s phone a text

message stating, “[t]here was a highway patrol on Highway 9.” Just

hours before the murder, at 7:52 p.m., a text was sent from [Shepard]’s

phone to Williams threatening to “put one between your fucking eyes.”

Another text message sent from [Shepard]’s phone to Williams at 8:08

p.m. on March 26, 2017, stated Williams was “lucky” he loved her son

“or I would kill your fucking ass.”

Finally, the State argued at trial that the metallic clicking sound

heard on the dashcam recording, right before the victim ordered

[Shepard] to get on the ground, was the sound of [Shepard] racking his

gun to chamber a bullet before shooting the victim. Lt. Mallinson

testified that police officers are trained and taught to carry their

semiautomatic pistol loaded with a round in the chamber, ready to fire

while on duty. Consistent with this training, Lt. Mallinson testified that

he had never carried his service weapon while on duty without it being

chamber loaded.5 Lt. Mallinson further testified that part of his duties

as a field training officer was to ask Officers Terney and Colan before

their shift that night whether their firearms were chamber loaded and

fully topped off with rounds in the magazine. Lt. Mallinson testified that

he would always ask the officers, and tell them, to make sure they had

their service weapons at full capacity.6 Additional facts will be presented

below as needed.

7

5 Officer

Shawn Crowley similarly testified that,

during his twenty-four-year career, he had never carried

his semiautomatic pistol without it being chamber loaded.

6 Lt. Mallinson admitted on cross-examination that

he did not inspect the victim’s gun that night before

starting the shift. Defense counsel had Investigator Jason

Holasek demonstrate for the jury the sounds made when

Officer Terney’s taser was unholstered and re-holstered on

his duty belt. Defense counsel also had Lt. Mallinson

demonstrate the sounds made when he unholstered and reholstered his gun and taser. Based on this evidence,

defense counsel argued that the metallic clicking noise

heard on the dashcam recording was the sound of Officer

Terney re-holstering his taser—not [Shepard] loading a

round in the chamber of the murder weapon.

Shepard, 538 P.3d at 528-532 (paragraph numbering omitted).

B.

Procedural Background.

In 2019, Petitioner was tried by a jury for one count of Murder in the First

Degree (Malice Aforethought) (Count 1), one count of Knowingly Concealing Stolen

Property (Count 2), and one count of Possession of a Controlled Dangerous Substance

(Methamphetamine) (Count 3) in the District Court of Pottawatomie County, State

of Oklahoma, Case No. CF-2017-176. The State alleged five aggravating

circumstances in seeking the death penalty for the murder of Officer Terney:

1) Petitioner was previously convicted of a felony involving the use or threat of

violence to another person; 2) Petitioner knowingly created a great risk of death to

more than one person; 3) the murder was committed for the purpose of avoiding or

preventing a lawful arrest or prosecution; 4) there exists a probability that Petitioner

will commit criminal acts of violence that will constitute a continuing threat to

8

society; and 5) the victim, Officer Terney, was a peace officer and was killed while in

performance of his official duties. See OKLA. STAT. tit. 21, § 701.12(1), (2), (5), (7), (8)

(2011).

Prior to trial, Petitioner filed a litany of generic motions, including a request

to

strike

the

continuing threat

aggravator as factually insufficient

and

unconstitutional (O.R. III 608-11). In particular, Petitioner argued that the State, in

relying mainly on unadjudicated acts, failed to adequately support the aggravator

(O.R. III 609). Further, Petitioner argued that the aggravator was of a “highly

speculative nature” and did not “sufficiently channel the discretion of the jury” and

was therefore “facially unconstitutional” because it was vague and overbroad and had

not been construed or applied in a consistent manner in accordance with the Federal

and Oklahoma Constitutions (O.R. III 608-10). The State subsequently responded in

opposition to this motion and requested that the trial court deny it (O.R. IV 774-75).

At the conclusion of the first stage of trial, the jury found Petitioner guilty on

all three counts (Tr. XIII 116-20). As to the non-capital counts, the jury recommended

prison terms of five years (and a $500.00 fine) on Count 2 and ten years (and a

$5,000.00 fine) on Count 3 (Tr. XIII 116-20). Prior to the opening of second stage, the

trial court entered rulings on pending motions for second stage, 2 one of which was

Petitioner’s request to strike the continuing threat aggravator (Tr. XIV 6).

Ultimately, the trial court denied this motion, although it noted that second stage

The State disagrees with Petitioner’s assertion that he “renewed” his motion

challenging the continuing threat aggravator “at the beginning of the penalty stage

of trial.” Pet. at 8. See Sup. Ct. R. 15(2). Rather, the motion remained outstanding,

and the trial court ruled on pending motions prior to the opening of second stage.

2

9

“testimony could change that” (Tr. XIV 7). Petitioner did not object to this ruling or

later renew his challenge to the continuing threat aggravator. The State went on to

read the Bill of Particulars to the jury, including the allegation that Petitioner

constituted a continuing threat to society (Tr. XIV 23-25).

During

second

stage,

the

State

presented

overwhelming

evidence

demonstrating that Petitioner constituted a continuing threat to society. For

example, the State presented evidence of Petitioner’s violent criminal history. In

August 2007, Petitioner pointed a shotgun at a visibly pregnant Amanda Sanders

after a verbal altercation among Petitioner’s girlfriend, Petitioner, and Ms. Sanders—

Petitioner was subsequently convicted of Reckless Handling of a Firearm (a

misdemeanor) in Hughes County Case No. CF-2007-68 3 (Tr. XIV 53-58, 63-64). In

March 2011, Petitioner lured an unsuspecting Christopher Buxton (who was

apparently and unknowingly dating Petitioner’s romantic partner, Brittany Swayze)

to a house, pepper sprayed him, and brutally beat him with a metal pipe while

threatening Mr. Buxton that “the only way you are leaving here is in a body bag”—

Petitioner was subsequently convicted of Assault and Battery with a Dangerous

Weapon in Okfuskee County Case No. CF-2011-54 (Tr. XIV 137-43, 148-56).

Furthermore, the State presented evidence that Petitioner was extremely

violent and abusive toward his various romantic partners, even in the presence of his

children or other people. Indeed, Petitioner repeatedly beat, choked (including to the

point of unconsciousness at least once), and verbally abused Brandy Tillery—who

3 As this and other instances prove,

partners.” See Pet. at 4.

Petitioner’s violence was not limited to “his

10

mothered two of Petitioner’s children—and Ms. Tillery ultimately had to seek a

protective order against him (Tr. XIV 70-79). For example, Petitioner once kicked Ms.

Tillery in the chest and down a set of steps while she was holding their infant son,

and Petitioner’s young daughter witnessed this terrifying encounter (Tr. XIV 74-79).

Petitioner also repeatedly beat, choked, and verbally abused Ms. Swayze—who

mothered of one of his children (Tr. XIV 115, 117-32). Indeed, Petitioner choked Ms.

Swayze to the point of unconsciousness at least once and also dragged her by the hair

and busted her lip on a separate occasion (Tr. XIV 117-32). Further, at some point,

Petitioner also pushed Ms. Swayze’s teenage brother—Cody Swayze—and threatened

to make Mr. Swayze “suck” Petitioner’s penis after a confrontation (Tr. XIV 102-07).

Moreover, the text messages between Petitioner and Williams in March 2017

demonstrated that Petitioner was also verbally abusive toward Williams and

threatened to kill her at least twice, including a threat to “put one between [he]r

fucking eyes.” Shepard, 538 P.3d at 532.

Finally, the State presented evidence of Petitioner’s violent nature and flippant

and callous attitude about Officer Terney’s death via his calls from the Pottawatomie

County Jail. In these calls, Petitioner bragged that he was living the “gangster life”

as a celebrity in jail, laughed about his brutal attack on Mr. Buxton, and remarked

how “it’s always a shame when a cop dies.” Id., 538 P.3d at 547, 551. See Davis v.

State, 268 P.3d 86, 122 (Okla. Crim. App. 2011) (lack of remorse supports the

continuing threat aggravator); Ryder v. State, 83 P.3d 856, 873 (Okla. Crim. App.

2004) (a defendant’s callous attitude can support the continuing threat aggravator

11

because one who fails to appreciate the gravity of taking a life is more likely to take

another life). Ultimately, at the conclusion of the second stage, the jury found the

existence of all four aggravating circumstances alleged during the second stage, 4

including the continuing threat aggravator, and recommended a sentence of death on

Count 1 (Tr. XVII 101-05). The trial court subsequently sentenced Petitioner in

accordance with the jury’s recommendations, running Count 3 consecutively to Count

2 and running Counts 2 and 3 concurrently with Count 1 (Sent. Tr. 4-5).

On direct appeal, Petitioner argued, in Proposition XII, that two of the

aggravating circumstances found by the jury, including continuing threat, failed to

perform the narrowing function required by the Federal and Oklahoma

Constitutions. Shepard v. State, No. D-2020-8, Brief of Appellant at 95-99 (Okla.

Crim. App. Sept. 17, 2021) (“Pet.’s OCCA Brief”). With respect to the continuing

threat aggravator, while acknowledging the great deal of OCCA precedent against

him, Petitioner argued that the OCCA’s previous reliance on this Court’s opinion in

Jurek v. Texas, 428 U.S. 262 (1976), to uphold the continuing threat aggravator was

no longer legally sound in light of this Court’s opinion in Penry v. Johnson, 532 U.S.

782 (2001). Pet.’s OCCA Brief at 96-98. Petitioner also pointed to the evolving

standards of decency, noted that only a handful of states still embrace continuing

threat (or future dangerousness) as an aggravating factor in the selection process

(Idaho, Oregon, and Texas), and even fewer states utilize future dangerousness as an

The State dismissed the great risk of death aggravating circumstance prior to

closing arguments in first stage, so the jury did not consider this aggravating

circumstance in second stage (Tr. XIII Tr. 30-31; Tr. XIV 23-25).

4

12

aggravating factor in the eligibility process (Oklahoma and Wyoming) considering the

alleged lack of “ability to accurately predict” such future dangerous behavior. Pet.’s

OCCA Brief at 98-99.

In responding to Petitioner’s Proposition XII, the State—in addition to arguing

that Petitioner waived all but plain-error review by failing to properly preserve this

claim at the trial level—argued that Petitioner’s arguments failed to show error in

light of the OCCA’s many decisions, including a decision in 2021, upholding the

continuing threat aggravator. Shepard v. State, No. D-2020-8, Brief of Appellee at 97

(Okla. Crim. App. Feb. 14, 2022) (citing Nolen v. State, 485 P.3d 829, 859 (Okla. Crim.

App. 2021); Goode v. State, 236 P.3d 671, 684-85 (Okla. Crim. App. 2010); Sanchez v.

State, 223 P.3d 980, 1006-11 (Okla. Crim. App. 2009)).

Ultimately, in a published opinion, the OCCA affirmed Petitioner’s conviction

and sentence on Count 1, reversed Petitioner’s conviction and sentence on Count 2

(for insufficient evidence), and affirmed Petitioner’s conviction on Count 3 but

modified the sentence of imprisonment to a term of five years (and a $5,000.00 fine).

Shepard, 538 P.3d at 557. In denying relief with respect to Petitioner’s challenge to

the continuing threat aggravator in Proposition XII, the OCCA referenced its

repeated

rejection

of

claims

that

the

continuing

threat

aggravator

is

unconstitutionally vague and broad and therefore fails to perform the required

narrowing function. Id. at 557 (citing Nolen, 485 P.3d at 859). The OCCA also pointed

out that Petitioner “offer[ed] nothing in his current argument to cause [the OCCA] to

question the validity of those previous holdings.” Id. After the publication of the

13

OCCA’s opinion, Petitioner moved for rehearing and to recall the mandate based upon

his Atkins v. Virginia, 536 U.S. 304 (2002), claim but did not challenge the OCCA’s

ruling as to the continuing threat aggravator in Proposition XII. Shepard v. State,

No. D-2020-8, Petition for Rehearing and Motion to Recall the Mandate (Okla. Crim.

App. Oct. 11, 2023). The OCCA denied this request for rehearing on October 20, 2023.

Shepard v. State, No. D-2020-8, Order Denying Petition for Rehearing (Okla. Crim.

App. Oct. 20, 2023).

On March 15, 2024, Petitioner filed a Petition for Writ of Certiorari with this

Court seeking review of the OCCA’s decision.

REASONS FOR DENYING THE WRIT

Petitioner asks this Court to grant certiorari to consider whether Oklahoma’s

continuing threat aggravator, as applied by the OCCA, is too vague and broad and

therefore fails to perform its required narrowing function in violation of the

Constitution. Pet. at 13. In particular, Petitioner argues that Oklahoma’s continuing

threat aggravator is unconstitutional and does not adequately “narrow the class of

homicides eligible” for the death penalty “because it does not clearly convey to the

jury that it must find the aggravator beyond a reasonable doubt that a defendant is

a continuing threat while incarcerated.” Pet. at 13 (emphasis in original). Petitioner

insists that the instructions in his case were supposed to inform his jury that “it must

unanimously and specifically find [Petitioner] is a continuing threat to society while

incarcerated beyond a reasonable doubt.” Pet. at 13. Finally, Petitioner argues that

there is a split among federal courts regarding whether future dangerousness should

14

be limited solely to a prison setting, and he asks this Court to settle the dispute with

an affirmative answer to that question. Pet. at 14-16.

However, a grant of certiorari review to consider this issue is both foreclosed

by 28 U.S.C. § 1257(a) and not warranted under Rule 10 of this Court’s Rules. As to

§ 1257(a), the federal-law question Petitioner now attempts to advance, specifically

that the continuing threat aggravator must be limited to a prison setting, was neither

pressed nor passed upon below. As to Rule 10, Petitioner has not identified a

compelling issue worthy of this Court’s review, as he has not demonstrated a true

split amongst state or federal courts, nor has he demonstrated that the OCCA’s ruling

in any way conflicts with a decision of this Court. Further, considering the specific

facts of this case, Petitioner’s case is a poor vehicle for the question presented. Finally,

Petitioner’s question presented is ultimately without any merit under this Court’s

precedent. The writ of certiorari should therefore be denied.

CERTIORARI REVIEW SHOULD BE DENIED

BECAUSE THE QUESTION PRESENTED WAS NOT

PRESSED OR PASSED UPON BELOW, THE

QUESTION PRESENTED IS NOT A COMPELLING

ONE, PETITIONER’S CASE IS A POOR VEHICLE

FOR DECIDING THE QUESTION PRESENTED,

AND PETITIONER’S CASE IS WITHOUT MERIT

UNDER THIS COURT’S PRECEDENT.

A.

Certiorari review should be denied because the question presented

was neither pressed nor passed upon below.

Section 1257 of Title 28 provides that this Court may review the decision of a

highest state court where, inter alia, “the validity of a statute of any State is drawn

in question on the ground of its being repugnant to the Constitution, treaties, or laws

15

of the United States.” 28 U.S.C. § 1257(a). However, the constitutional challenge to

the statute must have been presented to the state court below. “Under [§ 1257(a)] and

its predecessors, this Court has almost unfailingly refused to consider any federallaw challenge to a state-court decision unless the federal claim ‘was either addressed

by or properly presented to the state court that rendered the decision we have been

asked to review.’” Howell v. Mississippi, 543 U.S. 440, 443 (2005) (quoting Adams v.

Robertson, 520 U.S. 83, 86 (1997) (per curiam)). When the issue presented on

certiorari has not been addressed by the state court, this Court presumes “the issue

was not properly presented” and places the burden on a petitioner to show “that the

state court had ‘a fair opportunity to address the federal question that is sought to be

presented here.’” Adams, 520 U.S. at 87 (quoting Webb v. Webb, 451 U.S. 493, 501

(1981)). Failure to do so precludes this Court from addressing the federal issue a

petitioner seeks to be addressed for the first time in this Court. Id. at 90.

Refusal to consider claims raised in the first instance to this Court reinforces

the role of this Court as a “‘court of review, not of first view.’” Byrd v. United States,

584 U.S. 395, 404 (2018) (quoting Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005)).

Indeed, the longstanding practice of the Court is to refrain from considering a

question not pressed or passed upon below. See, e.g., Cutter, 544 U.S. at 718 n.7;

Howell, 543 U.S. at 443 (discussing almost “unfailing[] refus[al] to consider” any

issues not pressed or passed upon below); United States v. Williams, 504 U.S. 36, 41

(1992) (referencing refusal to consider claims not pressed or passed upon below as

this Court’s “traditional rule”); Cardinale v. Louisiana, 394 U.S. 437, 438 (1969)

16

(collecting cases) (“The Court has consistently refused to decide federal constitutional

issues raised here for the first time on review of state court decisions . . . .”).

Strict refusal to consider claims not raised and addressed below furthers the

interests of comity and federalism by allowing the states the first opportunity to

address federal law concerns and resolve any potential questions on state-law

grounds. Adams, 520 U.S. at 90; see also Lucia v. S.E.C., 585 U.S. 237, 244 n.1 (2018)

(Court will “ordinarily await ‘thorough lower court opinions to guide our analysis of

the merits’” (quoting Zivotofsky v. Clinton, 566 U.S. 189, 201 (2012))); Illinois v. Gates,

462 U.S. 213, 221-22 (1983). A further benefit of refusing to consider claims not raised

below is a practical one—“the creation of an adequate factual and legal record”

developed by the court below to better aid this Court’s understanding and

determination of the case presented. Adams, 520 U.S. at 90-91.

Here, the Petition should be denied because Petitioner’s claim that Oklahoma’s

continuing threat aggravator is unconstitutionally vague and overbroad because it

fails to limit a jury’s consideration to the prison setting was neither pressed nor

passed upon below. As previously described, in Proposition XII on direct appeal,

Petitioner’s argument was limited to questioning the OCCA’s reliance on Jurek v.

Texas in light of Penry v. Johnson, pointing to the evolving standards of decency and

the alleged inability to predict future conduct, and discussing the handful of states

that continue to utilize continuing threat or future dangerousness in the capital

context. Pet.’s OCCA Brief at 96-99. While Petitioner discusses these arguments by

way of background, Pet. at 7-12—and therefore unwittingly admits that the question

17

currently before this Court was not properly presented below—his actual question

presented deals solely with the issue of whether the continuing threat aggravator is

unconstitutional because it is not limited to the prison setting. Pet. at 13-16.

However, as effectively conceded by Petitioner, nowhere in Proposition XII did

Petitioner allege that Oklahoma’s continuing threat aggravator was insufficient due

to its lack of reference to the prison setting or its lack of limitation of evidence to the

prison setting, nor did he allege that Oklahoma juries should be required to

unanimously find, beyond a reasonable doubt, that a defendant is a continuing threat

solely while incarcerated. Pet. at 13-14. Relatedly, Petitioner did not even cite to

Apprendi v. New Jersey, 530 U.S. 466 (2000), Ring v. Arizona, 536 U.S. 584 (2002), or

Hurst v. Florida, 577 U.S. 92 (2016). 5 Pet. at 13-14. Nor did Petitioner marshal any

arguments regarding instructions concerning parole ineligibility as set out in

Simmons v. South Carolina, 512 U.S. 154 (1994), and Shafer v. South Carolina, 532

U.S. 36 (2001), or discuss the alleged split between numerous federal courts following

Simmons that he now references. Pet. at 14-15.

Nevertheless, Petitioner criticizes the OCCA’s rejection of his “claim in a single

paragraph, with no explanation other than its prior upholding of the aggravator in

previous cases.” Pet. at 11. However, as discussed above, when the issue presented

on certiorari has not been addressed by the state court, this Court presumes “the

issue was not properly presented,” and a petitioner has the burden to show “that the

state court had ‘a fair opportunity to address the federal question that is sought to be

5 As noted infra, it is not apparent how these cases specifically relate to the question

presented.

18

presented.’” Adams, 520 U.S. at 87 (quoting Webb, 451 U.S. at 501). Petitioner does

not even attempt to meet this burden—indeed, by his own account, he merely called

the OCCA’s attention to Jurek and Penry, discussed the evolving standards of

decency, and referenced the handful of states that still utilize continuing threat in

the capital context. Pet. at 7-12. Based on the above-cited authority, this Court should

refuse to grant certiorari to consider Petitioner’s challenge to the constitutionality of

Oklahoma’s continuing threat aggravator, both under § 1257(a) and this Court’s

general policy against considering issues in the first instance. See, e.g., Cutter, 544

U.S. at 718 n. 7; Howell, 543 U.S. at 443; Adams, 520 U.S. at 86-88.

B.

Certiorari review should be denied because, by pointing to an illusory

conflict among courts, Petitioner does not present a compelling

federal issue.

“A petition for a writ of certiorari will be granted only for compelling reasons,”

including, for example, where a state court of last resort’s decision on an important

federal question conflicts with another state court of last resort or federal court of

appeals or this Court, or the federal question is one this Court has not considered but

should intervene and settle. Sup. Ct. R. 10(b)-(c). See Forsyth v. City of Hammond,

166 U.S. 506, 514-15 (1897) (certiorari review “is a power which will be sparingly

exercised,” and it will be exercised “only when the circumstances of the case satisfy

us that the importance of the question involved, the necessity of avoiding conflict

between two or more courts of appeal, or between courts of appeal and the courts of a

state, or some matter affecting the interests of this nation”). Furthermore, “[a]

petition for a writ of certiorari is rarely granted when the asserted error consists of

19

erroneous factual findings or the misapplication of a properly stated rule of law.” Sup.

Ct. R. 10. In other words, this Court sparingly grants review on compelling issues and

generally does not engage in mere error correction. See Halbert v. Michigan, 545 U.S.

605, 605 (2005) (explaining that, on “certiorari review in this Court,” “error correction

is not” this Court’s “prime function”).

Here, Petitioner has not presented a compelling issue of the sort contemplated

by Rule 10. While Petitioner points to an alleged “conflict” between lower federal

courts, federal courts of appeals, and Oklahoma to justify certiorari review, 6 this

alleged conflict is illusory. And, in pointing to this illusory conflict, Petitioner

essentially compares apples and oranges. Namely, Petitioner utilizes Simmons v.

South Carolina, and the line of cases following it, to imagine this conflict. In

Simmons, this Court held that when a capital “defendant’s future dangerousness [i]s

at issue,” he is constitutionally “entitled to inform the jury of his parole ineligibility,”

if applicable. Simmons, 512 U.S. at 171. The prosecution, this Court explained, “may

not create a false dilemma by advancing generalized arguments regarding the

defendant’s future dangerousness while, at the same time, preventing the jury from

learning that the defendant never will be released on parole.” Id.

6 Petitioner also makes fleeting—and therefore insufficient—references to a conflict

between the OCCA’s decision and this Court’s opinions in Apprendi, Ring, and Hurst.

Pet. at 14, 16. However, this alleged conflict, like the other alleged conflicts, is

illusory. Nothing about the OCCA’s decision in this case, or its approval of the

statutory continuing threat aggravator, conflicts with this Court’s decisions in

Apprendi, Ring, and Hurst. As mandated by this Court’s precedent, Oklahoma juries

are required to unanimously find at least one aggravating circumstance, including

continuing threat, beyond a reasonable doubt. See Eizember v. State, 164 P.3d 208,

243 (Okla. Crim. App. 2007). Petitioner’s jury was instructed of this requirement (Tr.

XVII 20-21, 27).

20

While Petitioner claims that, following Simmons, a mix of lower federal courts

and federal courts of appeals have “explicitly split on whether a defendant’s future

dangerousness must be proved specifically in the context of future life imprisonment,”

Pet. at 14, the cases he cites do not prove such an assertion. Notably, the cases

Petitioner cites are all appeals stemming from federal convictions involving the

Federal Death Penalty Act of 1994 (“FDPA”), 18 U.S.C. §§ 3591-3599, in which future

dangerousness was a non-statutory aggravating factor alleged by the government,

and where life imprisonment (without the possibility of release) and death were the

only potential sentencing options available to the sentencer. Pet. at 14-15 (citing

cases). See United States v. Savage, 970 F.3d 217, 290 (3d Cir. 2020) (future

dangerousness is non-statutory aggravating circumstance for purposes of FDPA); see

also United States v. Peoples, 74 F. Supp. 2d 930, 932 (W.D. Mo. 1999)

(“dangerousness should not be measured in the same manner as if a defendant were

to be ‘uncaged’; life in prison without parole, a firmly fixed federal requirement, must

mean that the focus of dangerousness analysis is on prison conditions”).

At most, the “conflict” in those cases was whether, per Simmons and the FDPA,

instructions, evidence, or arguments concerning the future dangerousness aggravator

were required to be explicitly limited to the prison setting or whether a general

instruction that the defendant was parole ineligible was sufficient. As noted by

Petitioner, while some lower federal courts have embraced the former opinion, the

United States Courts of Appeals for the Fifth, Eighth, and Tenth Circuits have held

that the latter is sufficient under Simmons. See, e.g., United States v. Fields, 516 F.3d

21

923, 942 (10th Cir. 2008); United States v. Bernard, 299 F.3d 467, 482 (5th Cir. 2002);

United States v. Allen, 247 F.3d 741, 788-89 (8th Cir. 2001), cert. granted and

judgment vacated on other grounds, 536 U.S. 953 (2002). Thus, while these various

federal courts differ in approaches, all agree that the dictates of Simmons must be

followed, where applicable, and juries must be made aware of the lack of parole

eligibility where Simmons applies. Considering this, Petitioner has failed to explain

how the cases he cites truly conflict with respect to a constitutional matter. Rice v.

Sioux City Mem’l Park Cemetery, 349 U.S. 70, 79 (1955) (there must be a “real and

embarrassing conflict of opinion and authority between” courts).

Moreover, Petitioner has failed to demonstrate how this alleged “conflict”

among federal courts relates to the question currently before this Court concerning

Oklahoma’s statutory continuing threat aggravator, or how the OCCA’s decision itself

conflicts with the federal court opinions concerning the FDPA and the application of

Simmons. Notably, unlike in the cases cited by Petitioner, capital juries in Oklahoma

are instructed to consider three sentencing options: life imprisonment, life

imprisonment without parole, and death. See OKLA. STAT. tit. 21, § 701.9(A) (2021).

In other words, Simmons does not strictly apply to Oklahoma considering the

possibility of parole, and while federal capital juries may be limited to considering

future dangerousness as it relates to the prison setting, Oklahoma juries are not. See

Romano v. Gibson, 239 F.3d 1156, 1178 (10th Cir. 2001) (noting that Oklahoma does

not limit “society” to the prison setting, in part, because “one of the sentencing options

before the jury [i]s life imprisonment, which admits the possibility” of eventual

22

parole); Berget v. State, 824 P.2d 364, 374 (Okla. Crim. App. 1991) (“society” not

limited to prison population). But see Mollett v. Mullin, 348 F.3d 902, 915-20 (10th

Cir. 2003) (applying Simmons to an Oklahoma case where continuing threat

aggravator was alleged and trial court gave conflicting instructions concerning jury’s

questions about parole, including instruction that consideration of parole was beyond

jury’s purview); Littlejohn v. State, 85 P.3d 287, 292-93 (Okla. Crim. App. 2004)

(directing trial courts, in order to avoid Simmons issues, to refer juries back to

instructions if there is any confusion regarding parole eligibility).

Consequently, Petitioner’s argument that Oklahoma’s “continuing threat

aggravator is unconstitutionally unsound” because it conflicts with certain lower

federal court cases is nonsensical based on these legal and factual distinctions.

Indeed, by comparing this case to factually and legally distinct federal cases,

Petitioner has compared apples and oranges—it is no surprise that certain federal

courts limit consideration of future dangerousness to the prison setting where release

is not an option. As a result, Petitioner has failed to show anything but an illusory

conflict. Certiorari review should be denied.

C.

Certiorari review should be denied because Petitioner’s case is a poor

vehicle for the question presented.

Certiorari review is also unwarranted here because Petitioner’s case is a poor

vehicle for resolution of the question now presented—whether Oklahoma’s statutory

continuing threat aggravator is unconstitutionally vague and overbroad because it

does not limit “society” to the prison setting. Pet. at 13. In other words, even if this

Court granted certiorari review on the question presented, Petitioner’s conviction and

23

death sentence would remain. See McClung v. Silliman, 19 U.S. 598, 603 (1821) (“The

question before an appellate Court is, was the judgment correct, not the ground on

which the judgment professes to proceed.” (emphasis in original)); see also The

Monrosa v. Carbon Black Exp., Inc., 359 U.S. 180, 184 (1959) (this Court only decides

“questions of public importance” in the “context of meaningful litigation,” and when

the challenged issue may not affect the ultimate judgment of the court below, that

issue “can await a day when the issue is posed less abstractly”). This is so for two

separate reasons.

First, as previously pointed out, Oklahoma law is distinct from the line of cases

applying Simmons that Petitioner discusses. Pet. at 14-16. As relevant here, and as

Petitioner admits, capital juries in Oklahoma are instructed to consider three

sentencing options: life imprisonment, life imprisonment without parole, and death.

Pet. at 13. See OKLA. STAT. tit. 21, § 701.9(A) (2021). Indeed, Petitioner’s own jury

was instructed on these options, as well as the potential for parole (Tr. XVII 27-28).

In other words, limiting the continuing threat aggravator to the prison setting would

be incompatible with Oklahoma’s statutory scheme—considering the possibility of

parole accompanying a life sentence, it would be nonsensical to limit consideration of

continuing threat to the prison setting only. See Romano, 239 F.3d at 1178 (noting

that Oklahoma does not limit “society” to the prison setting, in part, because “one of

the sentencing options before the jury [i]s life imprisonment, which admits the

possibility” of eventual parole); Berget, 824 P.2d at 374. Perhaps Petitioner’s question

24

presented would be more compelling if Oklahoma’s sentencing options, like the

federal system, were limited to death or life without parole.

Second, Petitioner’s case is a poor vehicle for the question presented

considering that the jury found the existence of three other aggravating

circumstances 7 which Petitioner does not now challenge: 1) that Petitioner murdered

Officer Terney to avoid arrest or prosecution; 2) that Petitioner had previously been

convicted of a felony involving the use of violence against another; and 3) that Officer

Terney was a Tecumseh peace officer and was killed while in performance of his

official duties (Tr. XVII 101-05). Thus, even if this Court grants certiorari review on

the question presented, reverses the continuing threat aggravator, and remands to

the OCCA for further consideration, the OCCA could undoubtedly affirm Petitioner’s

death sentence upon a reweighing analysis and pursuant to harmless-error review. 8

See McKinney v. Arizona, 589 U.S. 139, 143-147 (2020); Brown v. Sanders, 546 U.S.

212, 220-21 (2006); Clemons v. Mississippi, 494 U.S. 738, 745-46, 754 (1990); Zant v.

7 Interestingly, Petitioner omits any mention of these three other aggravators from

his Petition.

This Court, in Brown, found the reweighing process or harmless-error review

unnecessary where “one of the other sentencing factors enable[d] the sentencer to

give aggravating weight to the same facts and circumstances.” Brown, 546 U.S. at

220. See also Hanson v. State, 206 P.3d 1020, 1033-34 (Okla. Crim. App. 2009).

Arguably, here, some of the evidence presented to support the continuing threat

aggravator (such as the attack on Mr. Buxton that also formed the basis of the prior

violent felony aggravator) would have been admissible to prove the other alleged

aggravating circumstances. However, even if the OCCA were to determine that some

of this evidence would not have otherwise been admissible in terms of aggravation, it

would go on to reweigh/apply harmless-error review with the remaining aggravating

circumstances and mitigating factors. See Tryon v. State, 423 P.3d 617, 656-57 (Okla.

Crim. App. 2018).

8

25

Stephens, 462 U.S. 862, 888-90 (1983). Considering this, certiorari review should be

denied. McClung, 19 U.S. at 603.

D.

Certiorari review should be denied because the question presented

lacks merit under this Court’s precedent.

As a final and brief matter, certiorari review should be denied considering the

meritless nature of Petitioner’s question presented—not only does the OCCA’s

decision here not conflict with this Court’s precedent or the Constitution, but it also

actually comports with this Court’s precedent and the Constitution. As relevant here,

this Court has held that in order for an aggravating circumstance to be utilized in the

eligibility decision and perform the requisite narrowing function, the circumstance

may not be overbroad in that it “appl[ies] to every defendant convicted of a murder,”

and the “circumstance may not be unconstitutionally vague.” Tuilaepa v. California,

512 U.S. 967, 972 (1994) (citing Arave v. Creech, 507 U.S. 463, 471, 474 (1993);

Godfrey v. Georgia, 446 U.S. 420, 428 (1980)). 9 Oklahoma’s continuing threat

aggravator fulfills both requirements.

As to the first requirement, the continuing threat aggravator is not overly or

unconstitutionally broad because not every first-degree murderer constitutes a

continuing threat to society—as such, this aggravator undoubtedly limits the class of

defendants eligible for death in Oklahoma. See Arave, 507 U.S. at 476 (although some

might consider every first-degree murderer pitiless, not all first-degree murderers are

9 This Court has held that there are “two different aspects of the capital decision[-

]making process: the eligibility decision and the selection decision.” Tuilaepa, 512

U.S. at 971. There is a separate requirement for the selection decision—an

individualized determination of sentencing—that is not at issue here. Id. at 972.

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“cold-blooded” or lack the ability to feel); Boltz v. Mullin, 415 F.3d 1215, 1232 (10th

Cir. 2005) (rejecting argument that every first-degree murderer is “callous”). As to

the second requirement, this Court has explicitly rejected arguments that the

question of “whether there is a probability that the defendant would commit criminal

acts of violence that would constitute a continuing threat to society” 10 is

unconstitutionally vague. Barefoot v. Estelle, 463 U.S. 880, 896 (1983) (noting that

the “likelihood of a defendant committing further crimes is a constitutionally

acceptable criterion for imposing the death penalty”); Jurek, 428 U.S. at 272-75 (1976)

(rejecting vagueness challenge as to Texas’s continuing threat aggravator); Nguyen

v. Reynolds, 131 F.3d 1340, 1352-54 (10th Cir. 1997) (applying Jurek’s reasoning to

Oklahoma’s continuing threat aggravator). As both requirements are fulfilled,

Oklahoma’s continuing threat aggravator performs its constitutional duty to “narrow

the class of persons eligible for the death penalty and [] reasonably justify the

imposition of a more severe sentence on the defendant compared to others found

guilty of murder.” Zant, 462 U.S. at 877. 11 Certiorari review should be denied.

10 The language of Oklahoma’s continuing threat aggravator is nearly identical to the

language from the Texas aggravator in Jurek (Tr. XVII 20-22 (continuing threat

means “there exists a probability that the Defendant will commit future acts of

violence that constitute a continuing threat to society”; jury must find, beyond a

reasonable doubt, “that the Defendant’s behavior has demonstrated a threat to

society” and “a probability that this threat will continue to exist in the future”)).

11 The Tenth Circuit and the OCCA have repeatedly determined as much. See, e.g.,

Hooks v. Ward, 184 F.3d 1206, 1238-39 (10th Cir. 1999); Castro v. Ward, 138 F.3d

810, 816-17 (10th Cir. 1998); Nguyen, 131 F.3d at 1352-54; Nolen, 485 P.3d at 859;

Harris v. State, 164 P.3d 1103, 1112 (Okla. Crim. App. 2007); Williams v. State, 22

P.3d 702, 722 (Okla. Crim. App. 2001).

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CONCLUSION

For the reasons set forth above, Respondent respectfully requests this Court

deny the Petition for Writ of Certiorari.

Respectfully submitted,

GENTNER F. DRUMMOND

ATTORNEY GENERAL OF OKLAHOMA

s/ TESSA L. HENRY

TESSA L. HENRY, OBA #33193*

ASSISTANT ATTORNEY GENERAL

313 N.E. 21st Street

Oklahoma City, Oklahoma 73105

Phone: (405) 521-3921

Fax: (405) 522-4534

tessa.henry@oag.ok.gov

fhc.docket@oag.ok.gov

ATTORNEY FOR RESPONDENT

*Counsel of Record

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