Petition for Writ of Certiorari — Derek Don Posey, Petitioner v. Oklahoma

APPENDIX:

Exhibit A:

Opinion in Pose)’ v. State, 548 P.3d 1245 (Okia. Crim. App. 2024)

Exhibit B:

Order Denying Petition for Rehearing in Posey v. State, Case No.

D-2019-542 (Okia. Crim. App. May 15, 2024)

Posey v. State, 548 P.3d 1245 (2024)

20240K CR 10

548 P.3d 1245

Court of Criminal Appeals of Oklahoma.

Derek Don POSEY. Appellant

V.

The STATE of Oklahoma. Appellee

—

EXHIBIT

A

,

defendant’s motion for new trial was untimely. and thus

procedurally barred from consideration on the merits.

Judgiuent and sentence affirmed, application for evidentiary

hearing denied, motion for new trial dismissed.

Luiupkin, J., filed opinion concurring in the result.

Case No. D-2019-542

Posture(s): Appellate Review: Post-Trial

Hearing Motion: Trial or Guilt Phase Motion or Objection:

Jury Selection Challenge or Motion.

Procedural

Filed: April 18. 2024

IIO).I.

Background: Defendant was convicted in the District Court.

Canadian County, Bob Hughey. J.. for first-degree murder,

and sentenced to death, for the killings of victim who died

from blunt force head trauma and her child who died in

fire that was intentionally set. Defendant appealed, seeking

evidentiaiy hearing on claim of ineffective assistance of

counsel, and subsequently moved for new trial based on

newly discovered evidence

Holdings: The Court of Criminal Appeals, Rowland, P.J.,

held that:

convictions did not violate the prohibition against multiple

punishments or require application of the felony murder

merger rule:

*1254 AN APPEAL FROM THE DISTRICT COURT

OF CANADIAN COUNTY; THE HONORABLE BOB

W HUGHEY, ASSOCIATE DISTRICT JUDGE

Attorneys and Law Firms

APPEARANCES AT TRIAL

MITCHELL SOLOMON, SHEA SMITH, BENJAMIN C.

BROWN, OKLAHOMA INDIGENT DEFENSE SYSTEM,

Ill N. PETERS AVE., SUITE 100, NORMAN. OK 73069,

ATTORNEYS FOR DEFENDANT

ERIKA SIMPSON, JOHN SALMON, AUSTIN MURREY,

ASST. DISTRICT ATTORNEYS, CANADIAN CO.

COURTHOUSE, 303 N. CHOCTAW, EL RENO. OK 73036,

ATTORNEYS FOR STATE

APPEARANCES ON APPEAL

there was no clear error in determination that prosecutor’s use

of peremptory strike was not race discrimination in violation

of Baison:

jury instruction on felony murder fairly and accurately stated

the governing law:

sufficient evidence proved aggravating circumstance that

probability existed that defendant would commit acts that

would constitute a continuing threat:

MICHAEL D. MOREHEAD. ALEX RICHARD, JAMIE D.

PYBAS, OKLAHOMA INDIGENT DEFENSE SYSTEM,

111 N. PETERS AVE., SUITE 100, NORMAN, OK 73069,

ATTORNEYS FOR APPELLANT

JOHN M. O’CONNOR, ATTORNEY GENERAL OF

OKLAHOMA, JULIE PITTMAN. JOSHUA R. FANELLI,

ASST. ATTORNEYS GENERAL, 313 N.E. 21 ST STREET,

OKLAHOMA CITY, OK 73105, ATTORNEYS FOR

APPELLEE

sufficient evidence proved aggravating circumstance that

murder was especially heinous, atrocious, or cruel:

OPINION

defendant was not entitled to an evidemiary hearing on claim

of ineffective assistance of counsel for failure to present

expert evidence: and

ROWLAND, PRESIDING JUDGE:

¶1 Appellant Derek Don Posey appeals his Judgment and

Sentence from the District Court of Canadian County. Case

No. CF-2013-463, for his First Degree Murder convictions

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Posey v. State, 548 P.3d 1245 (2024)

20240K CR 10

*1255 and death sentences for the deaths of Amy Gibbins

(Counts 1 and/or 2) and her son, Bryor Gibbins (Counts 3 and/

or 4), in violation of 21 0.S.Supp.2012, § 701.7. Poseys

jury fixed punishment at death for both murder convictions

after finding the same three aggravating circumstances as

to each victim, namely: (1) that Posey’ knowingly created a

great risk of death to more than one person: 2 (2) that the

murders were especially heinous, atrocious, or cruel: and

(3) that there existed a probability that Posey’ would commit

criminal acts of violence that would constitute a continuing

threat to society. The Honorable Bob W Hughey, Associate

District Judge. presided over Posey’s jury trial and sentenced

him to death for each murder pursuant to the jur’s verdicts,

with all semences to be served concurrently. Posey raises

eleven claims for review: however, no claim warrams relief.

We affirm Posey’s Judgment and Sentence.

BACKGROUND

¶2 Amy Gibbins and her young son. Bryor. were murdered in

their Calumet, Oklahoma home around 4:00 am. on Father’s

Day 2013. 6 Amy died from blunt force head trauma and

Bryor died from smoke inhalation and thermal burns from the

fire started by the killer to cover up the crime scene.

¶3 Posey became the prime suspect early in the investigation

after an employee at Amy’s bank notified law enforcement

about a series of transactions on her debit card after her

death. These transactions occurred at 4:35 am. and 4:37

am, at an ATM in nearby El Reno while Amy’s house was

ablaze. The bank captured video from the ATM showing

Posey using Amy’s debit card. Posey tried to slueld his face

with a towel, but ultimately abandoned the towel to complete

his transactions. Police recovered the towel and transaction

slips in a field. Posey admitted using the debit card during a

police interview, but his explanation for his possession of the

debit card was refuted. S

¶4 An investigator showed the ATM photographs to Amy’s

sister, Dera King, and she identified Posey. She said she

knew him from a local club and family restaurant in Calumet.

Investigators learned that Posey worked on an oil rig two

miles south of Calumet and stayed in a company trailer

outside of town. They also learned that he had previously been

to the bar directly’ across the alley from Amy’s house and that

he had prior encounters with her and her sister.

¶5 A witness, who lived across from the company trailer,

testified she saw two males, one white and one black, arrive

in a tnmck and go inside the company trailer on June 16 around

3:00 am. Fifteen to twemy minutes later, the white male

got in the truck and headed toward El Reno. Some thirty

minutes later, around 3:30 to 3:45 am., time black male exited

the trailer, got in a different, dark-colored truck, and headed

toward Calumet. She noticed he had his jeans tucked in his

boots and was muttering to himself. This witness had seen

Posey and his co-workers at * 1256 the restaurant where she

worked a couple of weeks before the murders. She claimed

they were rowdy and said loud and inappropriate things about

Amy’s sister, who was sitting at the cash register. Although

all the workers joined in, Posey was the most vocal and made

most of the derogatory statements, including that he knew

Amy’ and her sister from the bar, and they were nothing but

“little bitches.”

6 Amy’s sister described an incident where she and Amy

were at the bar near Amy’s house and Posey and a friend

introduced themselves, Posey called himself the “Black

Cowboy” and wore his pants tucked inside his cowboy boots.

When Amy set her drink down, Posey picked it up and took

a drink, irritating Amy. He sent Amy’s sister a Facebook

message a few days later that read “ha ha late night drunk text

lol.” On another occasion at the bar, Posey told Anw’s sister,

“y’all think you’re hot shit” and ‘‘you and your sister think

you’re the baddest bitches in town.”

¶7 A criminalist with the Oklahoma State Bureau of

Investigation’s biology unit conducted DNA testing on the

vaginal and anal swabs taken from Amy’s body’ during

autopsy. She first performed traditional DNA analysis on

the vaginal swab and obtained both an epithelial and sperm

fraction with the same female profile, both of which matched

Amy. 10 A comuparison with Posey, Amy’s current boyfriend.

her ex-boyfi’iend, and her ex-husband yielded no matches as

all were excluded. The criminalist then performed Y-STR

DNA testing on the vaginal swab which identifies only male

DNA and compared the same men’s profiles.

Posey”s DNA

profile matched the Y-STR profile from both the epithelial

aid sperm fractions at all sixteen points analyzed while all

the other men were excluded. Because Y-STR testing is male

specific. the results would include not only Posey, but also all

his male blood relatives. The database used in Y-STR analysis

calculated this profile would appear in African American men

1 in 4,301 times.

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Posey v. State, 548 P.3d 1245 (2024)

20240K CR10

¶8 Posey denied any physical relationship with Amy in his

police interview and denied ever going to her home. He

maintained his innocence at trial and presented evidence of

an alternate suspect as the likely perpetrator. namely Amy’s

former boyfriend, Brady Almaguer. He further challenged the

adequacy of the criminal investigation. Other facts viil be

discussed in relation to the claims raised for review.

1. DOUBLE JEOPARDY

¶11 We begin by observing that Posey raised no double

jeopardy objection at trial. Our review therefore is for plain

error only. See Frazier i State, 2020 OK CR 7. ¶ 8, 470 P.3d

296, 302. Plain error review “provides a very limited avenue

of appellate review.” Barnett i tate, 20120K CR2, ¶ 3,271

P.3d 80, 82. To obtain relief, Posey must show that a planl.

obvious error affected lus substantial rights, and we must

find that without conection. the error would seriously affect

the fairness, integrity, or public reputation of the udiciai

proceedings or constitute a miscarriage of justice. Fraziei;

2020 OK CR 7, ¶ 8, 470 P.3d at 302.

‘9 The State charged Posey with four counts related to the

murders of Amy and her soil, alleging alternative theories

for each victim. Count 1 alleged Posey murdered Amy with

malice aforethought while Count 2 alleged lie murdered her

during the commission of forcible rape. Count 3 alleged Posey

murdered Bryor during the commission of arson while Count

4 alleged he murdered the child during the commission of

murdering the child’s mother. The district court instructed on

the elemems of each of the four counts. It further instructed,

over objection, that when a crime is charged in the alternative

with more than one “underlying factual theory,” tue jury need

not be unanimous concerning the underlying theory but only

as to the finding of guilt. 12 The district court submitted one

general verdict form for *1257 Counts 1 and 2 and one for

Counts 3 and 4. Each of the two verdict forms gave the jury

the option only to find Posey guilty or not guilty without any

delineation of the theory which served as the basis for the

verdict. 13 Hence, the record does not reveal the underlying

basis ofPosey’s murder convictions for either Amy or her son.

¶ 10 Posey argues his convictions on alternative Counts 1 and

2 for Amy’s death and Count 4 for Bryor’s death violate the

prohibition against double jeopardy and the felony murder

merger doctrine. See Jones : State, 1995 OK CR 34, ¶ 61.

899 P.2d 635, 650 (“Under the doctrine of merger, the State is

prohibited from prosecuting a person for felony murder and

the predicate felony.”) He maintains Ins murder conviction

for Amy’s death in Counts I and/or 2 is tile predicate felomly

for the felony murder charged in Count 4. i.e., that Bryor’s

death occurred during the comnussion of tile murder of ilis

illother. He maintains Counts 1 and, or 2 must be dismissed

because tiley merge into Count 4. See Lainbert : .State, 1999

OK CR 17, i 14, 984 P.2d 221, 229 (per curia,,,) (holding

proper resolution of double punishment problem is to vacate

tile convictions and sentences for the underlying felonies). We

disagree.

¶ 12 It is well settled that the Double Jeopardy Clause proilibits

“multiple punishments for the same offense.” Mack v Icile,

2008 OK CR 23. ¶ 4, 188 P.3d 1284, 1287: see a/so U.S.

Const. amends V. XIV: Okla. Const. art. II, § 21. ‘ And,

we ilave stated that the Double Jeopardy Clause protects a

defendant from being convicted of both felony nlurder and

the underlying felony cc Jones, 1995 OK CR 34, ¶ 61, 899

P.2d at 650 (stating State is prohibited from prosecuting a

person for felony murder and tile predicate felony): Peru

V

tate, 1988 OK CR 252, ¶ 22, 764 P.2d 892, 898 (“It

is abundantly clear that a defendant cannot be convicted

of both felony—murder amId the underlying felomly.”). This

rule, however, presumes one victim is the subject of both

the murder and predicate felony. Tilus, conviction for both

the victim’s illurder and predicate felony results uI double

punisilment because the elements of tile predicate felony are

also included im the elements of the felomly nllmrder convictioml

ofthat vjctjm The defemldant in that instance is punisiled twice

for the predicate felony.

¶13 The State argues that there is no double jeopardy multiple

punishment problem here because tilere were two murder

victims and Posey is being punisiled for separate and distinct

criminal acts rather than one. Thus, the State contends tiliS

is not a situation that triggers tile felomly murder merger rule.

It cites the reasoning in State u El/ion, 186 \V.Va. 361, 412

S.E.2d 762, 766-67 (1991), which held that “where tilere is

more than one underlying felomly supporting a felony murder

conviction and one of the underlying felonies is committed

upon a separate and distinct victim fromll tile tim who was

actually murdered, tilat underlying felony conviction does mlot

merge with tile felony murder conviction for the purposes

of double jeopardy.” Id cc also Stilt : State, 256 Ga. 155,

156.345 S.E.2d 578. 580 (1986) (holdimlg where there is a

single victim the defendant may not be comlvicted of both tile

underlying *1258 felony and felony murder, but this rule

does not apply where there are separate victims).

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Posey v. State, 548 P.3d 1245 (2024)

20240K CR10

¶14 According to Posey, however, the “question is not the

number of victims, but the elements of the crime.” He

contends that the State’s reliance on Elliott is not binding, and

that the merger rule governs his case because the elements

in Counts 1 and/or 2 were included iii Count 4. We disagree.

Principles of fairness and justice dictate that we not resolve

this claim without consideration of the number of victims lest

a defendant in that situation goes unpunished for murdering

one of his or her two victims. It is obvious to any casual

observer that Posey is not being punished twice for Amy’s

murder in this case. but rather for the two distinct murders he

committed.

proscribe the “same” conduct under B/oc/thuiger[.j’

Knapper v tate, 2020 OK CR 16, ¶ 93, 473 P.3d 1053.

1081 (quoting Missouri v Hunter, 459 U.S. 359, 368, 103

S.Ct. 673, 74 L.Ed.2d 535 (1983)). Here, by’ including in

the felony murder statute the predicate felony of murder

committed during the murder of another, the Legislature

recognized that one murder may result from the commission

of another and muade clear its intent to authorize punishments

for both the original murder under the applicable statute and

the second murder of *1259 another that occurred during it.

See Id. 2020 OK CR 16. C 94, 473 P.3d at 1081 (observing

legislatures. not courts, prescribe punishment for crimes).

Ct 7 For these reasons, we find Posey”s murder convictions on

¶ 15 Oklahoma generally applies the Blockhuigei’ test to

1)

evaluate constitutional double jeopardy claims.

Logsdon

: State, 2010 OK CR 7, I 19, 231 P.3d 1156, 1165. “Under

the Bloc/thaigee test, this Court asks whether each offense

requires proof of an additional fact that the other does not.”

Id. While the elements of Counts 1 and 2 are tecluucally

included in Count 4.5cc’ Proposition 7. i,,fa. the criminal

conduct being punished is not the same and this

made

abundantly clear by the jury instructions. 16 The first element

is the death ofa human and that element corresponded to Amy

in Counts 1 and 2, the alleged victim in those charges, and to

Bryor in Count 4. 17 The jury found Posey murdered Amy in

Counts 1 and/or 2 either with malice aforethought or during

the commission of rape. 18 Yet in Count 4 the jury found

Posey murdered Bryor during the commission of the murder

ofhis mother. The elements of Counts 1 and or 2—that Posey

murdered Amy—were included in Count 4 but nevertheless

that crime was distinctly different and required proof of at

least one different fact, i.e., the death of Bryor.

¶16 When we compare the alternative crimes in Counts 1

and 2 and in Count 4, it is evident they are not part of

a single crime which requires application of the merger

rule. See Davis’ 1’ tate, 1999 OK CR 48, ¶ 4-5, 993

P.2d 124, 125 (holding offenses requiring different elements

of proof are not the same for purposes of the double

eopardy proscriptions). Murder committed aga inst separate

victims in this situation necessarily creates an exception

to the general felony murder merger nile. And, equally

important. there is legislative intent to provide for two

punishments in this instance. “[T]he Blockhuiger test is a nile

of statutory construction that does not apply [w]here, as here,

a legislature specifically authorizes cunmlative punishment

under two statutes, regardless of whether those two statutes

WESTLAW

Counts 1 and/or 2 and 4, which are authorized by the plain

language of the first degree murder statute and supported by

overwhelming evidence, do not violate either the federal or

state prohibition against multiple punishment or require any

application of the felony murder merger nile. Accordingly.

there is no error and thus no plain error. Tins proposition is

denied.

2. OTHER CRIMES EVIDENCE

¶18 Posey argues propensity evidence of a prior sexual

assault, for which he was tried, but not convicted, should have

been excluded from his trial. He acknowledges that the United

States Supreme Court has upheld the use of acquitted conduct

in subsequent proceedings in Doiiling i: United States, 493

U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990). Posey

submits, however, that the final disposition of his prior sexual

assault case was a final disposition of an ultimate issue in the

case and ought to operate as a bar to use in any subsequent

proceeding. He urges this Court to “follow the lead of other

courts around the nation and expressly prolubit the use of a

prior bad act which resulted in an acquittal.”

¶19 The State filed pre-trial notice of its intent to admit

the testimony of M.K.M., the alleged victim of the prior

sexual assault, under either the common scheme or plan or

the identity exceptions to the prohibition of other crimes and

bad acts evidence outlined in 12 O.S.20l1, § 2404(B) or

the exception for admission of sexual propensity evidence

under 12 O.S.2Oll, § 2413. Posey filed written objections

and the district court held hearings on the admissibility

of the evidence. According to defense counsel, the State

previously charged Posey with First Degree Burglary, Rape

by’ Instnuuentation. and Sexual Battery’ and a jury acquitted

© 2024 Thomson Reuters. No claim to original U.S. Government Works.

4

Posey v. State, 548 P.3d 1245 (2024)

2024 OK CR 10

him of the burglaiy and sexual battery. Because the jury

reached no verdict oti the rape by instnimentation charge.

that charge was later dismissed with prejudice. The district

court concluded the propensity evidence was admissible

under 12 0.S.201 1, § 2413 and admitted the evidence over

Posey’s repeated objections. We review a district court’s

ruling admitting sexual propensity evidence for an abuse of

discretion. Pere: v tate. 2023 OK CR 1, ¶ 3, 525 P.3d

46. 48. We will find an abuse of discretion only where the

ruling is ruireasonabie or arbitrary and made without proper

consideration of the facts and law pertaining to the matter at

issue. Id.: Ne/oii,s v tate, 20120K CR7, ¶ 35, 274 P.3d 161,

170.

¶20 Posey first contends the factors this Court outlined

in Horn v tate, 2009 OK CR 7, ¶ 40, 204 P.3d 777,

786 for the admissibility of propensity evidence weighed

in favor of excluding the challenged evidence. In Horn,

we instructed trial courts to consider the following factors

in deciding whether to admit sexual propensity evidence:

1) how clearly the prior act has been proved: 19 2) how

probative the evidence is of the material fact it is admitted to

prove: 3) how seriously disputed the material fact is: and 4)

whether the government can avail itselfof any less prejudicial

evidence.” 20 Id. (footnote added). “Horn instructs the trial

court, when considering the dangers posed by the admission

of propensity evidence, to consider: 1) how likely is it such

evidence will contribute to an improperly-based jury verdict:

and 2) the extent to which such evidence will distract the ju

from the central issues of the trial.’ Perez, 2023 OK CR 1,

¶ 4, 525 P.3d at 48 (quoting Horn, 2009 OK CR 7. ¶ 40, 204

P.3d at 786).

“

¶21 Posey claims the prior charges related to M.K.M. were

not sufficiently proven by clear and convincing evidence

under Horn * 1260 because he was acquitted of the burglary

and sexual battery charges and the trial court dismissed with

prejudice the remaining charge. He maintains the only way

to reconcile the verdicts and evidence is to surmise that some

evidence in the prior trial suggested a consensual encounter

considering M.K.M.’s identification and DNA consistent with

his profile being collected at the scene. Posey also maintains

that the challenged evidence had little probative value and was

extremely prejudicial.

¶22 Evidence is relevant when it has “any tendency to

make the existence of a fact that is of consequence to the

determination of the action more probable or less probable

than it would be without the evidence.” Postel/e : State.

2011 OK CR 30, ¶ 31, 267 P.3d 114, 131. It need not

establish the defendants guilt directly or conclusively: it need

only, when taken with other evidence in the case, tend to

establish a material fact. Id. “When measuring the relevancy

of evidence against its prejudicial effect, the court should give

the evidence its maximum reasonable probative force and its

minimum reasonable prejudicial value.” Beier v tate, 2020

OK CR 13, 74, 467 P.3d 693, 707. This Court employs

the presumption that trial courts should lean in favor of

admission Mmes : State, 1994 OK CR 44, ¶ 77, 887 P.2d

1288, 1309-10. Relevant evidence may be excluded, however,

“if its probative value is substantially outweighed by tile

danger of unfair prejudice [on conftmsion of tile issues

Poste//e, 2011 OK CR 30, 31, 267 P.3d at 13 1.

.

¶23 The district court found tile testimony of the investigators

and the victim, M.K.M., about the break-ill, beating, and

rape in the prior case probative and necessaly to support the

State’s burden of proof ill tile imlstant case. M.K.M. identified

Posey as her nighttime attacker which was corroborated by

DNA consistent with his profile being collected from carpet

in iler apartment. Posey denied murdering Am’ or ever being

in iler home. He contended that Amy’s ex-boyfriend was

tile perpetrator. Testimony comlcernimlg the prior break-in and

sexual assault demonstrated his propensity to break into and

attack single women ill their homes in the nighttime aild to

beat them about the ilead and sexually assault tileill while tile

women were face dowmi. This evidence was relevant to prove

whether Posey was Amy’s rapist and killer, as charged in the

present case. The testimony of M.K.M. and tile investigators

tended to silow that Posey was iyillg about ilis involvement

in Amy’s death, thus refuting his claim of innocemlce and

altenlative suspect defense. Even thougil Posey was acquitted

of tile crimes, we fluId there was no less prejudicial evidence

tile State could have tised to meet its bimrden in this regard.

We are unconvinced on this record that the State’s evidence

was insufficient under Horn to prove, by clear and convimlcing

evidence, the prior sexual assault of M.K.M. because of

Posey’s acquittal.

24 There is no question tins evidence was prejudicial to

Posey at trial. “The real question. however, is whether it is

antdrIv so.” James v.State 2009 OK CR 8, ‘ 10. 204 P.3d

793, 797 (citing 12 0.S.2001, § 2403). We find the probative

value of this evidence was not substantially outweighed

by the danger of unfair prejudice, conft,sion of the issues

or misleading the jury. 12 0.S.201l, § 2403. The sexual

propensity evidence provided important insight into Posey’s

motive and capacity to commit these crimes. And this is

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Posey v. State, 548 P,3d 1245 (2024)

20240K CR 10

simply not a case where the sexual propensity evidence had

the potential to contribute to an improperly based jury verdict,

in large part, because of the courts instructions concerning

the propensity evidence. Prior to M.K.M.s testimony. the

district court read the uniform instruction on the use of

sexual propensity evidence to the jury. See Instruction No.

9-1 OA OUJI-CR (2d) (Supp. 2010). 21 The court instructed

the *1261 jury that it could not convict Posey solely

because of a belief he tended to engage in acts of sexual

assault and that the State had the burden to prove each

element of the charged offenses beyond a reasonable doubt.

The court also included the former charges against Posey

and the outcome of those charges in its instruction, i.e.,

acquittal or dismissal. Instniction No. 17 in the written

jury charge repeated the previous, oral instructions for this

evidence. These limiting instructions reduced the possibility

of a verdict based upon iiupermissible grounds. See Pu//en

i: .Sate, 2016 OK CR 18, ¶ 8, 387 P.3d 922, 926 (observing

submission ofuniform instructioll emphasizing limited nature

and use of propensity evidence favors admissibility). The

uniform instruction is designed to reduce, if not eliminate.

the likelihood of an improper verdict based upon admission

of propensity evidence. The district court’s instruction further

lessened the prejudicial impact of the propensity evidence by

informing the jury that Posey had been acqiutted oftwo of the

three charges and the third had been dismissed. We presume

the jurors followed these instructions and find no evidence to

the comrary. See WI//lanis State, 2021 OK CR 19, ¶ 7, 496

P.3d 621, 624 (presuming jury followed limiting instruction

concerning propensity evidence).

¶25 Posey also argues the evidence should have been

excluded because his acquittal verdict and the dismissal with

prejudice of the rape by instrumentation charge were final

dispositions ofultimate issues. He maintains Doit/ing bars the

use ofprior acquitted conduct in that instance. In Dow/jug, the

Supreme Court held neither the Double Jeopardy Clause nor

the Due Process Clause barred testimony concerning a crime

a defendant had previously been acquitted of committing.

Dow/lug, 493 U.S. at 348-50. 352-54, 110 S.Ct. 668. Dowling

appealed his conviction for bank robbery and challenged the

Government’s admission of evidence under Rule 404(b) of

the Federal Rules of Evidence that lie had previously broken

into a home, attempted to rob, and assaulted the homeowner.

The district court instructed the jury that Dowling had been

acquitted of the charges and emphasized the limited purpose

of the evidence both at the time the homeowner testified and

in the final charge to the jury.

WESTLAW

¶26 The Court observed that tinder the doctrine of collateral

estoppel “when an issue of ultimate fact has once been

determined b a valid and final judgment, that issue cannot

be litigated between the same parties in any future lawsuit.”

Don/lug, 493 U.S. at 347, lIt) S.Ct. 668 (quoting As/ic i

Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189. 25 L.Ed.2d

469 (1970)). The Court accepted that Dowling’s acquittal

established reasonable doubt as to whether lie was one of the

intruders. Id. 493 U.S. at 348, 110 S.Ct. 668. It observed,

however, that the government at the bank robbery trial did

not have to prove Dowling was one of the intruders beyond

a reasonable doubt: it had to show for admission under Rule

404(b) only that the jury’ could “reasonably conclude’ that

Dowling was an actor involved in the home invasion. Id. 493

U.S. at 348-49, 110 S.Ct. 668. The Court found no violation

of the collateral estoppel component of the Double Jeopardy

Clause because ofthe lower burden of proof required for Rule

404(b) evidence, noting a “july might reasonably conclude

that Dowling was the masked man who entered [thel home

even if it did not believe beyond a reasonable doubt that

Dowhng committed the crimes charged

Id. Accordingly.

the Court held that an acquittal verdict in a criminal case does

not preclude the government from relitigating an issue when

it is presented in a subsequent case with a lower burden of

proof. Id.

¶27 Despite this holding. the Court also addressed Dowling’s

burden of proof, finding lie had not sufficiently demonstrated

that his acquittal in his first trial represented a jury

determination that lie was not one of the intruders. 22 * 1262

Id. 493 U.S. at 350, 110 S.Ct. 668. The burden is on the

defendant to “demonstrate that the issue whose relitigation

lie seeks to foreclose was actually decided in the first

proceeding.” Id. The Dow/lug Court repeated its finding

from As/ic that courts must examine the entire record on an

acquitted charge based upon a general verdict and decide

whether a rational jury could have grounded its verdict on an

issue other than that which the defendant seeks to foreclose

from consideration. Id. The Court observed that the record

concerning the charges resulting in Dowlings acquittal was

sparse and consisted of a discussion between the parties and

the trial court. Id. 493 U.S. at 351, 110 S.Ct. 668. Neither

the trial court nor the Supreme Court found that Dowling

had been acquitted on the issue of identification. Dowling

defended the home invasion case, arguing that no robbery was

committed and that he and another man were present to collect

a debt. The Supreme Court found there were “any number

of possible explanations for the jury’s acquittal verdict” and

that nothing in the record persuasively indicated that the

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question of identity was at issue and was determined in

Dowling’s favor. Id. 493 U.S. at 352, 110 S.Ct. 668. Because

Dowling failed to satisfy his burden of demonstrating that the

jury concluded lie was iiot one of the intruders in the honie

invasion, the Court found Dowling would not be entitled to

relief even if the Court were inclined to apply the Double

Jeopardy Clause. Id.

¶28 Based oii the holding inDowling, we find the district court

did not en in admitting evidence related to the charges Posey

was acquitted of committing or that were dismissed. The

burden of proof for admission of the challenged propensity

evidence under Section 2413 (clear and convincing) was

lower than the beyond a reasonable doubt burden utilized in

his prior criminal trial on the charges related to M.K.M. Under

Dow/lag, an acquittal in a criminal case does not preclude the

government from relitigating an issue in a subsequent case

with a lower burden ofproof. Id. 493 U.S. at 348-49, 110 S.Ct.

668.

29 Nor are we convinced that Posey met his burden of proof

to show the issue lie seeks to foreclose was decided in his

favor in the prior trial. As iii Dow/lag, the record concerning

his acquittal is sparse. 23 It appears identity was not seriously

disputed based upon DNA consistent with Posey’s DNA

profile at the scene, M.K.M.’s identification, and Posey’s

police interview admission that lie had a consensual encounter

with an Asian female. 24 Posey insists, however, that the july

must have acquitted him based upon a finding that mio crimes

were committed because of consent. Given the sparseness of

the record of the prior trial, we are hard pressed to find Posey

has met his burden of proof. All things considered, a rational

july in the prior trial niight reasonably have concluded that

Posey was the man who entered M.K.M.’s home but grounded

its verdict of acquittal based upon a finding that the State

simply did not meet its demanding and highest burden of

proof that he committed the charged crinies rather than

that no crimes were committed because of consent. Posey

simply has not shown on this record that lie was deprived

of a fundamentally fair trial in violation of due process by

admission of the challenged propensity evidence, especially

considering the liniiting instructions issued in this case. Id.

493 U.S. at 352-54, 110 S.Ct. 668. Accordingly. we find the

district court did not abuse its discretion in admitting the

challenged propensity evidence. This claim is denied.

3. MATERIAL WITNESS

¶30 Posey claims the State unlawfully secured a material

witness warrant for a rape victim and forced her to testis’

against *1263 him in violation of22 0.S.2011, 720(A). 2

§

The State called TW in the penalty phase to testis’ that Posey

raped her in 2012 to support the continuing threat aggravating

circumstance. On cross-examiiination she explained that she

had been arrested on a material witness warrant and detained

for nvo days before being released on the condition that

she would cooperate and make weekly contact vithi the

prosecution’s witness coordinator. 26

L3 1 Posey argues T.W.’s status as a crime victim exempted

her from the reach of a material witness warrant and thus

the State could not lawfully secure her attendance and

present her testimony with its use. According to Posey,

the district court should have excluded T.W.’s illegally

coerced testimony against him. He insists admission of her

testimony violated his rights to fundaniental fairness and a

reliable sentencing proceeding in violation of the Eighth and

Fourteenth Amendments. He fiu’ther insists that the enor

is not harmless because her testimony tended to show a

likelihood of future nusconduct. Based upon this alleged

error, lie asks us to vacate his death sentences. Because Posey

failed to contemporaneously object to T.W’s testimony. our

review of this claim is for plain error only.

¶32 The State frames this issue as one of standing and

maintains Posey lacks standing to enforce T.W.’s rights as an

alleged crime victim based upon the crinie victini exception in

Section 720(A). Posey counters that lie has standing because

lie is asserting Ins own constitutional rights to findamental

fairness and a reliable sentencing hearing.

¶33 We observe that Posey does not cite any authority from

this—or any other—Court to show that the rights established

in § 720 are rights held by the accused. In Powers i: 0/i/o,

499 U.S. 400, 111 S.Ct. 1364. 113 L.Ed.2d 411 (1991). the

Supreme Court considered whether a criminal defendant had

standing to raise the equal protection rights of a prospective

juror excluded from service oii account of race. The Court

stated:

In the ordinary course, a litigant must

assert his or her own legal rights and

interests, and cannot rest a claim to

relief on the legal rights or interests

of third parties. This fundamental

restriction on our authority admits of

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certain, limited exceptions. We have

recognized the right of litigants to

bring actions on behalfof third parties,

provided three important criteria are

satisfied: The litigant must have

suffered an “injury in fact,” thus giving

him or her a “sufficiently concrete

interest” in the outcome of the issue

in dispute, the litigant must have a

close relation to the third party, and

there must exist some hindrance to

the third party’s ability to protect his

or her own interests. These criteria

have been satisfied in cases where we

have permitted criminal defendants to

challenge their convictions by raising

the rights of third parties. By similar

reasoning, we have permitted litigants

to raise third-party rights in order to

prevent possible future prosecution.

Id 499 U.S. at 410—11, 111 S.Ct. 1364 (citations omitted).

c34 We have considered the issue of standing to challenge

material witness proceedings in an unpublished decision and

found the defendant in that case had no standing. * 1264

Boyd i: Slate, Case No. F-20 13-633 (unpublished) (July 30,

2014). We further observe a New York court considering

whether a defendant had standing to challenge material

witness proceedings found it is the witness and not the

defendant who possesses all the rights. See People : Davis.

163 A.D,2d 826, 558 N.Y.S.2d 358 (1990) (holding defendant

lacked standing to challenge propriety of material witness

proceedings).

¶35 In the absence of any contrary authority, we find that

Posey has no standing to challenge T.W’s material witness

proceeding, a proceeding involving a third party, as the

rights outlined in Section 720 belong to her rather than

Posey. His case does not fall within the exception to the

rule which would allow a litigant to vindicate the legal

rights or interests of a third party. His jury was well aware

of the circumstances leading to T.W.’s testimony and could

weigh these circumstances in evaluating her testimony and

credibility. This claim is therefore denied.

4. JURY SELECTION

36 Posey argues the district court committed reversible

error when it denied defense counsel’s request to remove

seven prospective jurors for cause. 27 According to Posey.

the district court’s denial of his cause challenges forced him

to use his discretionary peremptory challenges to remove

these panelists and to accept six other objectionable jurors.

Posey preserved this issue for appellate review by first

using his peremptory challenges to strike the panelists he

had unsuccessfully challenged for cause. Next, he requested,

without success, additional peremptory challenges, and after

that, he made a record of the six other “unacceptable”

prospective jurors he would have excused with peremptory

challenges had he not been forced to use his on the panelists

the district court refused to excuse for cause. See Nolen v

State, 2021 OK CR5, ¶ 97, 485 P.3d 829, 852-53, cert. denied,

142 S. Ct. 566, 211 L.Ed.2d 353 (2021)

U.S.

(setting forth prerequisites for preservation of erroneous

rulings on for cause challenges).

—

,

37 We review a district court’s decision on whether to

disqualify a prospective juror for cause for an abuse of

discretion. No/en, 2021 OK CR 5, ¶ 98, 485 P.3d at 853. As

stated previously, we will find an abuse of discretion only

where the challenged ruling is a clearly erroneous conclusion

and judgment which is contrary to the logic and effect of the

facts presented. We find no abuse of discretion in this case.

¶38 thu dire examination allows the parties to discover

whether there are grounds to challenge prospective jurors

for cause and to permit the intelligent use of peremptory

challenges. The proper standard for determining when a

prospective juror may be excluded for cause because of his

or her views on capital punishment is “whether the juror’s

views would prevent or substantially impair the performance

of his duties as a juror in accordance with his instructions and

his oath.” Wainwi’ight t1n, 469 U.S. 412, 424, 105 S.Ct.

844, 83 L.Ed.2d 841(1985) (internal quotations omitted) cc

also flyn v State. 2018 OK CR 20, ¶ 2$. 423 P.3d 617, 630.

“Inherent in this determination is that the potential juror has

been fully informed of the law and his or her responsibilities

under the law and oath of a juror.” Eizenther v tate, 2007

OKCR29,41. 164P.3d208,22l.

39 Under Win, jurors in a capital case must be willing to

consider each of the three statutory punishments: the death

penalty, life imprisomunent without the possibility of parole,

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and life imprisonment with the possibility of parole. No/en,

2021 OK CR 5, ¶J 100. 485 P.3d at 853: Tnvii, 2018 OK CR

20. ¶ 28. 423 P.3d at 630. We have held that “[d]ue process

of law requires that a prospective juror be willing to consider

all the penalties provided by law and not be ilTevocably

committed to a particular punishment before the trial begins.”

Jo/insoii

State, 2012 OK CR 5, ¶ 30. 272 P.3d 720, 730

(quoting .SincIiez i: State, 2009 OK CR 31. 44. 223 P.3d

980, 997). Doubts regarding juror impaiiialitv are resolved

in favor of the accused. No/en, 2021 OK CR 5, ¶ 100, 485

P.3d at 853. In our review, we consider the entirety of each

potential juror’s i oil’ dire examination and give deference

to the ruling of the district *1265 court because of its

personal observation of the panelists and ability to consider

non-verbal factors that cannot be observed from a transcript.

1(1. As the Supreme Court observed, “[d]eference to the trial

court is appropriate because it is in a position to assess the

demeanor of the venire. and of the individuals who compose

it, a factor of critical importance in assessing the attitude

and qualifications of potential jurors.” (/11cc/it Brown. 551

U.S. 1,9, 127 S.Ct. 2218, 167 L.Ed.2d 1014 (2007): see a/so

Eienther Trainme//. 803 F.3d 1129. 1135 (10th Cir. 2015)

(stating significant deference must be afforded a trial judge’s

assessment because he or she is best positioned to determine

whether a potential juror will be able to follow his or her

instructions rather than a court of appeals who is removed

from the live proceedings).

¶40 Posey claims that these seven panelists were biased

in favor of the death penalty based on their questionnaire

responses and oral responses during questioning. He

complains several panelists indicated they would not consider

a sentence of life under certain circumstances. He zeroes in on

specific responses to argue the panelists bias in favor of the

death penalty prevented or substantially impaired their ability

to perform their duties as a juror. The State counters that when

the panelists’ responses are considered in their entirety and in

context, each of these panelists was willing to adhere to their

oaths, to follow the law provided by the court, and to consider

the three punishment options.

panelists’ responses were, at times, equivocal about their

ability to consider life with or without parole. Posey’s counsel

asked questions designed to test each panelist’s willingness

to vote for the death penalty and to consider a life sentence

for an intentional murder. Counsel asked or attempted to

ask two panelists about a particular facnial circumstance the

panelist indicated walTanted a death sentence. Counsel asked

the remaining panelists if they could envision a set of facts

where they could not consider a life sentence.

¶42 That R.B. and M.S. gave examples on their questionnaires

of circumstances they felt merited a death semence that were

present in Posey’s case did not make them automatically unfit

to serve and removable for cause. 29 See Eizemhei; 2007 OK

CR 29, ¶ 40, 164 P.3d at 221 (stating pre-trial questionnaire

cannot trump the actual mo/i’ dire). Each said they would

consider the three penalty options in this case and follow

the law. That the other challenged panelists could envision

factual circumstances that, in the panelist’s viexx would not

warrant a life sentence also did not make them unfit to serve.

Whether the panelists could envision a set of facts where they

would not impose life is not the same inquiry as whether he or

she could consider the three punishment options in this case

and follow the court’s instructions. The panelists during tins

portion of jury selection were without details concerning the

charged crimes against Posey, making it difficult to identify

those circumstances where they would or would not consider

voting for life with or without parole. The record shows these

panelists understood any punishment determination would be

made after finding Posey guilty beyond a reasonable doubt

and hearing the evidence and weighing the aggravating and

mitigating evidence. In the end, these panelists were willing

to meaningfully consider the three punishment options and

follow the law as provided by the court. Reviewing the

panelists’ responses in toto with deference to the district

court’s ruling, we find their responses do not demonstrate

an impermissible bias towards the death penalty or an

unwillingness to consider * 1266 a life sentence, individual

responses read in isolation notwithstanding. Accordingly. we

find the district court did not err in denying Posev’s for cause

challenges of these panelists. This proposition is denied.

41 None of the challenged panelists had any philosophical

opposition to the death penalty and all but one rated their

support for capital punishment between eight to ten on a

scale of one to ten. 28 After the court advised the panelists

5. JURY SELECTION

of the three possible punishments for a first-degree murder

conviction, each said he or she was willing to consider

all three statutory punishments. When the parties probed

the panelists’ views on the three punishment options, the

¶43 Posey claims the district court also committed reversible

error by excusing for cause, over his objection, four panelists

based on their purported inability to consider the death

penalty as a sentencing option. According to Posey. S.C., S.Y..

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C.B., and C.H. each indicated she could consider the death

penalty as a sentencing option in this case and thus the States

for cause challenges should have been rejected. We review

the district court’s decision striking these prospective jurors

S.C. replied that she would not consider it regardless of the

facts and circumstances. The State moved to excuse S.C.

based upon her responses about the death penalty. The court

elected to allow the parties to question her.

for cause for an abuse of discretion .Xolen, 2021 OK CR 5,

¶ 98, 485 P.3d at 853.

‘44 As discussed in the prior proposition. the law has long

been that a juror in a capital case must be able to consider

all three punishment options under the law and cannot be

ilTevocably committed to a particular prmishment option prior

to trial Mi/la,’ i State. 2013 OK CR 11, ¶ 46-47, 313

P.3d 934, 953-54, overruk’d on other groiiiidc b Harris

: State, 2019 OK CR 22, 450 P.3d 933. To sustain a for

cause challenge, a panelist need not state that he or she

will automatically vote against the death penalty, nor must

he prosecution prove the panelist’s bias with unmistakable

clarity. Coddinglon : State, 2011 OK CR 17, ¶ 5, 254

P.3d 684, 694. As stated in the prior proposition, we afford

the district court’s ruling considerable deference because

of its personal observations and firsthand ability to assess

each panelists response to the death eligibility questions

in context, including intonat ion and non-verbal responses

which we are unable to glean from the written transcript.

Id. “[W]e are particularly deferential regarding jurors who

struggle to honestly and accurately answer the fundamental

capital—eligibility question at stake: whether they can and

will consider the death penalty. along with the punishments

of imprisonment for life and imprisonment for life without

parole. if the facts of the case establish that the defendant

is eligible for the death penalty.” Miller, 2013 OK CR 11, ¶

51. 313 P.3d at 955. This Court generally finds no abuse of

discretion in striking a panelist for cause where the district

court gave both parties a fair opportunity to question the

panelist and he or she simply cannot come to a definitive

conclusion. Id. We recognize, however, that the district court

should not excuse for cause panelists who oppose, harbor

doubts, or express scruples regarding imposing the death

penalty provided they can meaningfully consider it. Id. 2013

OK CR 11, 47. 313 P.3d at 953-54.

.

Prospective Juror S.C.

¶45 S.C. raised her hand when the court asked whether any

panelist was unable to consider the three punishment options

for first degree murder. S.C. explained that she was “against

the death penalty[.j” The court asked whether, assuming the

prerequisites for imposing the death penalty existed, were

her reservations so strong that regardless of the law and

evidence she would not consider imposing a death sentence.

¶46 The prosecutor laid out the obligations of jurors in

deliberations in a capital case and asked S.C. whether she

could, in good faith, participate in deliberations and consider

a death sentence if the State met its burden of proof.

She said that she would deliberate and did not realize the

law required consideration of all punishment options. The

prosecutor stressed that the law required panelists to be able

to affirm that if the process for a death sentence had been

satisfied that a juror could give “meaningful consideration

to actually assigning the death penalty, if the case warrants

it.” S.C. said “yeah.” The prosecutor asked S.C. to explain

her change of heart from her initial stance. She explaiHed

that she better understood the process and that she “didn’t

realize that it was the law that I had to, you know, go in

there considering something even that I don’t agree with, that

I don’t believe in, you know, for personal reasons

there’s

a multitude of reasons.” Given her personal opposition to

capital punishment. * 1267 the prosecutor asked if she could

live with whatever happened in this case. She reiterated that

she did not agree with the death penalty and her disagreement

is a “big factor[.j” She then questioned her ability to consider

the death penalty and whether she could live with herself.

noting it would probably affect her. The prosecutor pressed.

over defense counsel’s objection, whether she could vote for

a death sentence and she said no because she does not believe

in it. After argument at the bench, the prosecutor asked S.C. if

she could envision any set of facts and circumstances in this

case in which she would actually be able to cast a vote for the

death penalty. She said no because she believes life without

parole is fair and sufficient. Asked if she thought it was fair

to the State for her to sit as a juror in Poseys case, she said

“[p]robably not. I mean, I wouldn’t.”

...

47 In the midst of defense’s questioning. defense counsel

explained she was not trying to put anyone on the spot, but

emphasized the importance of understanding the panelists’

views on the death penalty in their “heart of hearts[.j” She

asked if the panelists could consider all three punishments and

S.C. volunteered she could consider all three and would listen

to the reasons behind all three. Defense counsel confirmed

S.C. was stating she could meaningfully consider all three.

S.C. responded with a tentative “yeah, I mean yeah” to

defense counsel’s question asking whether she could imagine

a situation where she could consider all three punishments.

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Once defense counsel finished questioning the panel. the State

renewed its motion to strike S.C. based on her inability to

consider the death penalty. The parties parsed her answers

to argue their respective positions that she either should or

should not be excused for cause. The prosecutor observed

the difficulty in a capital case with a panelist who vacillates

on the death penalty and a vole dire process where for

cause challenges are not resolved in “real time” meaning

immediately after a response or colloquy which provokes a

challenge for cause. Defense counsel countered with now that

S.C. knew the law, her final position was she would follow it

and she should remain on the panel. The court excused S.C.

without explanation.

¶48 We cannot find that the district court abused its

discretion in excusing S.C. for cause. She vacillated from

opposing capital punishment regardless of the circumstances

to stating she could consider the three punishment options.

Her responses about her ability to meaningfully consider the

death penalty considered in their entirety. however, created

doubt. The court observed the inconsistent nature of her

responses poiming out she said both that she would consider

the death penalty but would not consider voting for it. The

conflict in these statements made it apparent to the district

court that she would not, in reality, give a death sentence

meaningful consideration. Her admission that it would be

unfair to the State for her to serve on this jury further showed

her ability to perform her duties as a juror was compromised,

especially considering she believed life without parole was

a fair and sufficient punishment for first degree murder.

Giving deference to the district court who witnessed her

demeanor during questioning. we find Posey’s challenge to

S.C’s removal merits no relief.

Prospective Juror S.Y.

¶49 S.Y. did not raise her hand when the court asked about

the panelists ability to consider the three punishment options

for first degree murder, indicating she was Hot able to

consider the outlined options. She told the court that she had

reservations about the death penalty because she believed

anyone could be rehabilitated. The court asked whether.

assuming the prerequisites for imposing the death penalty

existed, were her reservations so strong that regardless of the

law and evidence she would not consider imposing a death

sentence. She replied. “I’m not sure I could sleep at night. if

I sentenced someone to death.” When asked if her feelings

would “substantially impair” her ability to meaningfully

consider the death penally, she said, “[i]f the jury were

composed completely of people who could impose the death

sentence, I’m not sure that’s fair.” The court explained the need

for seated jurors to be willing to consider the three options

and S.Y. stated again that she was not sure she could impose a

death sentence. She submitted that *1268 she “would like to

serve as a person who might vote against the death penalty.”

¶50 S.Y. told the prosecutor that on a scale of one to ten. her

support for the death penalty was a two. When the prosecutor

asked S.Y. if it was realistic that she could vote for death

in the right case, she stated she believed the death penalty

“should exist for sociopaths.” The prosecutor tried to clari’

her earlier response about serving as a juror who would vote

against the death penalty and S.Y. said that she believed

most, but not all, people can be rehabilitated. She felt her

reservations about the death penalty would not affect her

ability to fairly decide guilt or innocence. Nor did she think

her reservations would affect finding aggravators. She said, “I

believe I could trust my fellow jurors to find a person guilty or

not guilty and then decide later on a sentence.” The prosecutor

pressed S.Y. on her ability to impose the death penalty and

she said she could vote for a death sentence if psychologists

found the accused was a sociopath. The prosecutor asked her,

without knowing what the evidence would be, whether she

could meaningfully consider the three penalty options and

she answered affirmatively. S. Y. affirmed her questionnaire

answer that she would need “very strong evidence” to impose

death. With respect to the burden of proof, S.Y. said she

would expect a greater standard of evidence from the State

iii this murder case than she would in a shoplifting case

because of the resulting consequences. S.Y. also affirmed her

questionnaire response that she believed the death penalty

has been applied in a racially discriminatory manner based

on the percentage of minorities in prison and on death row.

That Posey was African American gave her “heightened

concern” about being involved in the process because of

her belief that the “poor and the non—white and the non—rich

are unfairly treated” in the criminal justice system. She told

the prosecutor, however, that she would keep an open mind

through the process. The court took the prosecution’s request

to strike S.Y for cause tinder advisement.

c5 1 S.Y. told defense counsel that she understood the

burden

of proof and would hold the State to it in the first stage

of trial. S.Y. further said she now understood the burden of

proof for aggravators. and she would hold the State to their

burden on those as well. When defense counsel asked if she

could consider the three penalty options, S.Y. stated, “I think

society must have the death penalty as a last resort. I can

consider all three.” The court clarified her response about

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the death penalty being appropriate only for sociopaths. She

responded that she could vote for the death penalty if she

found no possibility of redemption or rehabilitation and the

person posed a risk of escape or killing someone in prison.

That response concluded her questioning. and the district

court entertained the prosecutions request to strike her for

cause previously taken under advisement. The parties parsed

her responses to argue their respective positions about her

ability to meaningfully consider the death penalty. The court.

however, found S.Y.s responses about wanting to serve as

a juror who might vote against the death penalty revealing

and concerning, especially when considered with her other

responses. After her removal, the district court noted for

the record that S.Y.’s body language changed upon being

informed she was excused. The court found her actions

reflected that she “want[edj to be an advocate in this case.”

She responded by asking whether she could offer a situation

where she would, but the court refused. She explained that

she did not want to mislead the court and said, “I don’t know

that I can, regardless of what happens.” The State moved

to strike C.B. for cause and the court heard argument from

the parties about her responses and ability to consider the

death penalty. The court took the challenge under advisement

and allowed the prosecutor to continue his questioning. C.B.

affirmed her questionnaire response that she would rather

not be the person to determine a possible death sentence.

Ultimately, she agreed with the prosecutor’s assessment that

she could not trust herself to really consider all sentencing

options regardless of the facts. The district court granted

the State’s renewed for cause challenge, finding the totality

of the questioning showed she could not give meaningful

consideration of the death penalty.

¶52 The district court did not abuse its discretion in

excusing S.Y. for cause. Her responses-indicating she would

meaningftmlly consider the death penalty—left room for

doubt. Her stated parameters for a death sentence further

cast doubt about her ability to perform her duties as a juror,

especially considering her concerns about the inequity of the

criminal justice system and her desire to serve as a voice

against a death sentence. Giving deference to the district

court who witnessed her demeanor both during questioning

and after her removal, we reject Posev’s challenge to S.Y.s

removal.

¶54 C.B. was conflicted in her responses concerning her

ability to meaningfully consider the death penalty. She

understood the death penalty was available under the law

but questioned her ability to truly consider it if selected as

a juror. She wanted to follow the law and “do the right

thing” by following her oath as a juror which required her

to meaningfully consider the death penalty. She, however,

had doubts about her ability to do so and candidly conceded

that she did not believe she could follow through if it came

to weighing the question of punishment during deliberations.

Her internal struggle was evident and supported the court’s

finding she was unable to perform her duties in a capital

case. Accordingly. we find the district court did not abuse its

discretion in excusing C.B. for cause.

Prospective Juror C.B.

¶53 C.B. raised her hand when the court asked if the panelists

could consider the three punishment options for first degree

murder, indicating she could do so. C.B. told the prosecutor

that on a scale of one to ten, her support for the death penalty

was a * 1269 three. The prosecutor inquired further about

her score and C.B. said site understood the death penalty was

part of the law, but she was unsure “if she [couldi actually

deliver it.” She stated, reluctantly. that she could consider

the death penalty provided the State met its burden. She

veHt on to explain that knowing herself she did not know

if she could vote to impose the death penalty. She affirmed

her questionnaire responses expressing reservations about her

ability to impose a death sentence. The prosecutor asked again

whether she could meaningfully consider the penalty options.

including the death penalty. and she responded. “I don’t think

so.” The court interjected and asked whether, assuming the

prerequisites for imposing the death penalty existed, were

her reservations so strong that regardless of the law and

evidence she would not consider imposing a death semence.

WESTLAW

Prospective Jum’om’ C.H.

¶55 C.H. raised her hand when the court asked if the

panelists could consider the three punishment options for

first degree nuirder, indicating she could do so. When asked

by the prosecutor about her feelings on the death penalty.

she said she would choose not to impose it “as much as

possible.” The prosecutor asked her to explain, and she said

“[ills hard to say” without knowing the facts of the case,

the background of those involved, and whether the accused

has “room for redemption.” On her questionnaire C.H. had

written that the death penalty is a “hard punishment to wrap

your head around.” The prosecutor asked her to elaborate

on her response. and she explained she was unsure how she

felt about the death penalty and had no definitive answer

about it. She agreed that she was generally opposed to it

and believed it is applied unfairly. She also disclosed that

her mother was a survivor of the Murrah Building bombing.

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Because she was in junior high when it happened. she did

not believe the bombing had much of an impact on her views

on capital punishment, noting her views on the death penalty

had changed as she aged. She conceded that it would be

difficult for her to consider a death sentence and that she

believed the death penalty should be utilized in “extremely

limited situations,” although she was unable to identify those

situations. She also agreed that she would not consider it

in every case. When asked about her change in views, she

explained that she, as a teenager, was in favor of the death

penalty for those involved in the bombing because of her

personal connection to the crime. Over time, however, she had

tried to adopt an attitude of “positivitv” and to balance “love

and understanding.” If there was a possibility of reform or

help, that option in her opinion should be explored. She listed

premeditated * 1270 and mass murder on her questionnaire

as possible death penalty offenses, but she acknowledged

she would not consider the death penalty in every case and

the ones where she would, “it would be very difficult” and

in extremely limited situations. The court interjected and

asked whether, assuming the prerequisites for imposing the

death penalty existed, were her reservations so strong that

regardless of the law and evidence she would not consider

imposing a death sentence. Without particulars, she said she

could not answer. The prosecutor explained to C.H. that

her responses were confusing. and she agreed because she.

herself, was confused about her views on capital punishment.

56 The State moved to strike C.H. for cause because of her

inability to commit to meaningful consideration of the death

penalty. Although the defense had unsuccessfully moved to

quash the entire panel based on a purported inappropriate

comment made to CR. in front of the entire panel, defense

counsel did not believe C.H. should be removed based on her

views on capital punishment and objected to her removal on

that basis. The court elected to leave C.H. on the panel at

that time. Defense counsel questioned the panel but did not

question C.H. individually. The State renewed its for cause

challenge to C.H. based on her inability to consider all three

punishments in conjunction with another for cause challenge

of panelist L.H. whose family members had been murdered.

The prosecutor and defense feared L.H.’s personal experience

could affect her ability to perform her duties as a juror. The

prosecutor argued that C.H. was similarly situated based on

her responses and the court excused both C.H. and L.H.

consider the death penalty. She was generally opposed to

the death penalty and was unsure, without details, she could

consider it in this case. She readily admitted her responses

were confusing on the issue because she

uncertain about

her stance on the death penalty. She appeared to question her

ability to truly consider a death sentence if selected as a juror.

Her hesitancy and indecision about her ability to consider

the death penalty supported a finding that she was unable to

perform her duties as a juror in a capital case. Giving due

deference to the district court, we reject Poseys challenge to

C.H.s removal.

¶58 In conclusion, the record shows the district court allowed

counsel a fair opportunity to question prospective jurors

about the basic capital eligibility question at issue. The

record contains substantial ambiguity or equivocal responses

from the challenged panelists regarding their ability and

willingness to consider the death penalty. We cannot find

on this record that the district court abused its discretion

in excusing S.C., S.Y., C.B., or C.H. Accordingly, we find

reversal of Posey’s death sentences is not required.

6. JURY SELECTION-BA TSON CHALLENGE

L5()

Posev claims he was denied equal protection and

an impartial jury drawn from a fair cross—section of the

community because of the prosecution’s discriminatory

use of a peremptory challenge. He argues the prosecutor

removed T.W., a minority panelist, from the venire without

demonstrating adequate race—neutral reasons for her removal

in violation ofhis constitutional rights and Batson : Kentuckm,

476 U.S. 79, 106 S.Ct. 1712,90 L.Ecl.2d 69(1986).

¶60 It is well settled that the government may not discriminate

based on race when exercising peremptory challenges against

prospective jurors in a criminal trial. Batson, 476 U.S. at

89. 106 S.Ct. 1712. Posey insists the district court ciTed by

failing to consider whether the purported race-neutral reasons

supplied by the prosecutor were a pretext for discrimination.

We review a district court’s Batson rulings for an abuse of

discretion. Grant i: Stow, 2009 OK CR 11, ¶ 26, 205 P,3d 1,

14.

¶61 The Court set forth the applicable analysis of a Batson

claim in Grout, stating:

¶57 We cannot find on this record that the district court abused

its discretion in excusing C.H. for cause. Like C.B., C.H. was

conflicted in her responses about her ability to meaningfully

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Batson establishes a three-part inquiry.

First, the defendant must make aprinla

ftc/c showing that the prosecutor has

exercised peremptory challenges on

the basis *1271 of race. Generally,

he does this by simply objecting

to the removal and pointing out

the apparent race of the panelist.

Once he does so, the burden shifts

to the prosecutor to articulate a

clear, reasonably specific, and raceneutral explanation for striking the

panelist. That explanation need not be

particularly persuasive it must only

be race-neutral, and will be deemed

so unless a discriminatory intent is

inherent in the answer. Once a facially

race—neutral explanation is given, the

opponent of the strike bears the burden

of proving discriminatory intent.

Id cc a/so (‘odci,icton i: State, 2006 OK CR 34, ‘ 11, 142

P.3d 437, 443.

62 Posey objected based on Ba/con to the prosecutor’s

use of the States seventh peremptory challenge to excuse

T.Vc and asked for a race-neutral reason for the strike. The

prosecutor explained that T.W. had worked on death row

at the Oklahoma Department of Corrections (DOC) as well

as at Avalon Corrections “which is central to some of the

propensity evidence” in this case. The defense challenged the

prosecutors explanation for the panelist’s removal because

a white panelist, DR., who had not been challenged by the

State, also had a law enforcement background. In support of

its stated reason, the prosecutor cited the private questioning

of T.W by both sides where she was asked extensively about

her job duties at DOC and the defense’s detailed questioning

of her knowledge of the three punishment options and inmate

classification sinicture. The prosecutor further observed T. W.

indicated on her juror questionnaire that she was unsure

she could be fair to either side and that during questioning

she had expressed some hesitation about imposing the death

penalty. Defense counsel countered that T.W had explained

her questionnaire responses and stated she could be fair. The

prosecutor also offered the reason that T.W. had people in her

family who had been convicted of crimes and that the State

typically strikes those individuals regardless of race. Defense

counsel observed there were panelists remaining who had

family members with criminal backgrounds. The district

court, without explanation. found the State had sufficiently

articulated race neutral reasons and permitted the strike.

63 Because the prosecutors reasons showed no

discriminatory intent inherent in the explanation, the reasons

given for the strike were race-neutral cc ,Sniitli v tate. 2007

OK CR 16, ¶ 12, 157 P.3d 1155, 1162 (holding “ia] neutral

explanation in the context of this analysis means one based

on something other than the race of the juror”). The district

courts finding that the prosecutors explanation provided

facially valid reasons not revealing an intent to discriminate

based on race therefore is supported by the record. The States

race-neutral explanations for striking the panelist shifted the

burden to Posey to prove purposeful discrimination. Id., 2007

OKCR l6,j 16,157 P.3dat 1163.

¶64 Posey challenges the prosecutors explanation for striking

Panelist T.W. citing again as evidence of discrimination

the State’s failure to strike DR., the white panelist with a

law enforcement background and family member previously

involved in the criminal justice system. We observe racially

motivated discrimination, however, is not established simply

because panelists of different races provide similar responses.

and one is excused while the other is not. Graiti, 2009 OK CR

l1428,205P.3dat 15:.Sniith, 2007OKCR 164 19, 157P.3d

at 1164. We consider all the attendant circumstances relevant

to whether the strike was racially motivated. Grcoit, 2009 OK

CR 11. ¶ 28, 205 P.3d at 15. The fact that the prosecution failed

to challenge other panelists who also had family members

in prison or specifically DR.. with both a family member

with a criminal background and a personal law enforcement

background. does not alone erode the legitimacy of the raceneutral explanation for challenging T.W.

¶65 Our review of the record shows that the backgrounds of

the two panelists were not comparable and that the differences

in their law enforcement experience was considerable. T.W.

was a former employee of the Oklahoma Department of

Corrections and she had worked in various correctional

facilities from 1992 to 2006. She was first a unifonned prison

guard and then a correctional case manager. In her tenure,

she had worked * 1272 with inmates on death row and was

somewhat familiar with the inmate classification system. She

then worked for a contractor with Immigration and Customs

Enforcement in Colorado and then for the Colorado DOC.

Her last job in corrections was as the deputy warden for

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Avalon Corrections in Tulsa. Although T.W said she would

do her best to be fair, she voiced concern that she got out of

corrections because she was tired of working with criminals

and would be uncomfortable working with criminals again.

She expressed concern about her partiality because of her

previous employment. Converselc Panelist D.H. worked for

Oklahoma City Public Schools as a security guard. Although

he was CLEFT certified and carried a gun, badge, and

handcuffs, lie was not a comiriissioned peace officer and

would only detain suspects for police. Before his current

position, he served as a detention officer in the Oklahoma

County juvenile system for five to six years. He maintained

nothing about lus current or former employment would affect

his ability to be fair and impartial. His law enforcement

background and exposure to the correctional system clearly

differed from T.W.’s not only in terms of facilities but also

responsibilities.

¶66 The record also showed that T.W revealed she had two

nephews presently serving a nvelve-year prison sentence for a

home invasion, burglary, and assault with a deadly weapon in

Oklahoma County. DR., on the other hand, had a brother who

had been arrested and spent time in the Oklahoma County

Jail ten plus years before and the charges were ultimately

dismissed. It had been so long ago that D.H. could not

remember the reason for the arrest.

ultimate inquiry is whether the State was “motivated in

substantial part by discriminatory intent.”

Id. at 302-03, 139 S.Ct. 2228 (citations and quotations

omitted).

¶68 Like the district court, we are not convinced on this

record that the prosecutor imperniissibly removed T.W. based

on race, and Posey’s attenipt to conipare T.W.’s personal

experiences with those of D.H. falls far short of showing the

prosecutor harbored discriminatory intent in the exercise of

its peremptory challenge striking T.W To conclude otherwise

on this record would require us to ignore the considerable

differences in the panelists’ backgrounds as well as abandon

the proper deference to the trial judge who observed and

judged first-hand the prosecutor’s demeanor and credibility.

Accordingly, we find the district court’s decision—to accept

the prosecution’s race-neutral reasons and to reject the

defense’s claim ofpurposeful discrimination—was not clearly

erroneous. Id. at 303. 139 S.Ct. 2228; Snide,’ i: Louisiana,

552 U.S. 472, 477, 128 S.Ct. 1203, 170 L.Fd.2d 175, (2008)

(holding “[o]n appeal, a trial court’s niling on the issue of

discriminatory intent must be sustained unless it is clearly

erroneous”). This claim is denied.

7. FIRST STAGE JURY INSTRUCTION ERROR

¶67 A criminal defendant raising a Bai.son challenge may

present a variety of evidence to support a claim that a

prosecutors peremptory strikes were made based on race,

including “side-by-side comparisons of black prospective

jurors who were struck and white prospective jurors who were

not struck in the case.” Flowers i: Jltssissippi. 588 U.S. 284,

302, 139 S.Ct. 2228, 204 L.Ed.2d 638 (2019). The Court in

Floi’ers, however, stressed the importance of the trial judge’s

role in the resolution of a Batson challenge:

The trial court must consider the prosecutor’s race-neutral

explanations in light of all of the relevant facts and

circumstances, and in light of the arguments of the parties.

The trial judge’s assessment of the prosecutor’s credibility

is often important. The Court has explained that the

best evidence of discriminatory’ intent often will be the

demeanor of the attorney who exercises the challenge. We

have recognized that these deterninations of credibility

and demeanor lie peculiarly within a trial judge’s province.

The trial judge must determine whether the prosecutor’s

proffered reasons are the actual reasons, or whether the

proffered reasons are pretextual and the prosecutor instead

exercised peremptory strikes on the basis of race. The

6 Poses’ ai’gues the district court’s instruction on the

elements of Count 4 was *1273 defective and deprived him

of due process. He insists tlus error requires reversal of his

convictions on both Counts 3 and 4 because of the jury’s

general verdict concerning these alternative counts. Count 4

charged Posey with the felony murder of Bryor during the

commission oftlie murder ofhis mother. Posey acknowledges

that he failed to object to the court’s instruction and that

review is for plain error only. Metove,’ i: State, 2022 OK CR

27,120, 526 P.3d 1158. 1166. By statute, we may not reverse a

judgment based upon misdirection ofthe jury unless the en’or

“probably resulted in a miscarriage of justice. or constitutes

a substantial violation of a constitutional or statutory right.”

200.S.2Oll, § 3001.1.

¶70 Instniction No. 35 provided (lie elements for Count 4 and

stated:

No person may be convicted of murder in the first degree

unless the State has proved beyond a reasonable doubt each

element of the crime. These elements are:

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First, the death of a human:

Second. the death occurred as a result of an act or event

which happened in the defendants commission of first

degree murder:

Tiurd. the elements of the crime of first degree murder that

the defendant is alleged to have been in the commission of

are as follows:

The death of a human:

2. The death was un1avftil:

3. The death was caused by the defendant:

4. The death occurred during the murder of Amy Gibbins.

(OR. XVII 3215).

j7 1 Posey contends this felony niurder instruction was

incomplete because it did not include the basis of the first

or second alternative predicate felonies in the third element

under item number 4. i.e., either that Biyor was murdered

during the malice aforethought murder of Amy or during

Poseys commission of a forcible rape which resulted in the

felony murder of Amy. Without the complete elements of the

predicate felonies, he argues the instruction left unclear the

specific underlying murder the jury had to find to convict on

Count 4. According to Posev, the elements as written could be

satisfied by three possible scenarios none of which are legally

valid. 10 The State acknowledges that the uniform first degree

felony murder instruction requires listing the elements of the

predicate felony and that Instruction No. 35 failed to list the

elements of the alternative predicate felonies in this case. The

State nevertheless argues that no relief is required because the

jury instructions, viewed as a whole, stated the applicable law.

72 The parties discussed Instruction No. 35 during the jury

instruction conference. The court specifically asked about

the wording of item number 4 under the third element. The

prosecution argued that the template for the uniform first

degree felony murder instruction referred to the elements of

the crime of murder of a person other than the deceased

and did not require inclusion of the elements of the alleged

specific theories. The prosecutor contended that conviction

required only a finding that Bryor’s death was “caused

while the Defendant is in the commission of a murder of

some other person [lus motherl, not necessarily with malice

aforethought or first degree or anything like that.” The court

WESTLAW

confirmed the prosecution proposed that item number 4 read

“the death occurred during the commission of the murder

of Amy Gibbins” and defense counsel said. “I believe that

is correct.” Though there was additional brief discussion

about the wording. the parties seemingly agreed on the court’s

*1274 wording as neither party objected to the instruction.

73 We reject jury instruction attacks when the Jury

instnictions, as a whole, accurately state the applicable law.

Mt’!oiei; 2022 OK CR 27, ¶ 21, 526 P.3d at 1166. In this

case. the district court instructed the .jury in pertinent part:

1) that the instructions had to be considered as a whole: 2)

that Posey was charged in Count 4 with the felony murder

of Bryor Gibbins wherein Bryor’s life was taken during the

commission of a felony “that being the first degree murder of

[his mother] resulting in the death of’ Bmyor: 3) that Posey

was charged alternatively for the murder of Amy Gibbins

namely, first degree murder with malice aforethought or first

degree felony murder occurring during the commission of

forcible rape: 4) that Posey was charged with Bryor’s death

in the alternative, with one alternative alleging his death

occurred during the commission of the first degree murder

of his mother: 5) that a person “is in the commission of

first degree murder when he is performing an act which is

an inseparable part of first degree murder, or performing

an act which is necessary in order to complete the course

of conduct constituting first degree murder, or fleeing from

the immediate scene of a first degree murder.” Reviewing

the total instructions provided to Posey’s jurY, particularly

the instruction defining “in the commission of murder.” we

find there is nothing confusing about the necessary proof

required to prove Count 4—felony murder with the predicate

felony of the murder of a person other than the deceased.

Instruction No. 35 directed the jury to consider whether Bryor

died from an act or event that occurred during the murder

of his mother. The instructions, considered in toto, fairly’ and

accurately stated the governing law. There is no reasonable

likelihood the jury could have convicted Posev based on a

finding Bryor’s murder occurred from an act or event in his

own murder or an uncharged murder as argued in Posey’s

brief. Any error is this instruction does not rise to the level of

plain error. No relief is required.

8. SECOND STAGE JURY INSTRUCTION ERROR

¶74 Posey next complains constitutional error occurred when

the district court instnmcted his jury, per the uniform closing

charge instnmction in capital cases, that it could consider

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only evidence presented during the semencing phase of

32

trial to decide punishment.

He claims the instruction

unfairly restricted the circumstances his jury could consider in

mitigation of punishment by limiting the mitigating evidence

to evidence received in open court.

Posey faults both

defense counsel for failing to object to the instruction and the

district court for failing to correct the instruction sun ponte.

He acknowledges that he failed to object to the challenged

instruction and that review is for plain error only. Metoier

2022 OK CR 27, ¶ 20, 526 P.3d at 1166.

¶75 Posey’s reliance on Underwood v. State, 201 1 OK CR

12, 252 P.3d 221 for this claim is misplaced. He takes

out of context the following footnote in Underwood to

argue a capital sentencing jury is free to consider “whatever

circumstances” in mitigation to warrant a sentence less than

death:

1275

The unique. subjective

nature of this particular aspect of

capital sentencing is evidenced by

the fact that, while jurors must

unanimously agree on any aggravating

circumstances that make the death

penalty possible (again, by proof

beyond a reasonable doubt). there need

be no unanimity on the existence of,

or weight assigned to, any mitigating

factors. Each juror, individually and

privately, weighs the unanimously—

agreed-upon

aggravators

against

whatever circumstances they believe

might warrant a sentence less than

death. See QUiT—CR (2nd) No. 4—

78.

*

Undenood, 2011 OK CR 12, ¶ 62 n. 25, 252 P.3d at 246

n. 25. This footnote is in the Courts analysis considering

and rejecting Underwood’s complaint that his jury should

have been instructed that a death sentence could not be

considered unless the aggravating circumstances outweighed

any mitigating circumstances beyond a reasonable doubt. We

found Underwood’s reliance on Ring v.Arizona for this claim

flawed.

Id, 2011 OK CR 12, ¶ 6 1-62. 252 P.3d at 246.

We explained that the weighing of aggravating circumstances

versus mitigating circimstances is a balancing process that

is incompatible with the beyond a reasonable doubt standard

of proof. Id., 2011 OK CR 12, ¶ 62, 252 P.3d at 246. We

agreed with the Temh Circuit that the weighing process in

capital sentencing is a “highly subjective” and “largely moral”

judgment “regarding the punishment that a particular person

deserves” instead of a finding of fact that must be found

beyond a reasonable doubt for imposition of the death penalty.

Id. (citing Un lied States i Barren, 496 F.3d 1079, 1107 (10th

Cir. 2007) (quoting Ca/dwell Mississippi. 472 U.S .320, 340

n. 7, 105 S.Ct. 2633,86 L.Ed.2d 231 (1985)).

¶76 Contrary to his claim, the instruction challenged by

Posey did not unfairly limit the consideration of mitigating

circumstances in this case. The Underwood footnote, read in

context, does not define the scope of mitigation evidence but

rather addresses the burdens of proof concerning aggravating

and mitigating circumstances and the process involved in

the weighing of those circumstances in capital sentencing.

The Court in no way suggested that the scope of mitigating

evidence was limitless. Instead, each juror weighs “whatever”

mitigating factors he or she believes exist in the case against

the aggravating circumstances unanimously agreed upon by

the jury to arrive at the sentence he or she feels is warranted

by the evidence.

¶77 Furthermore, our review of the challenged instruction

in conjunction with the other sentencing phase instructions

defeats Pose’s claim that it unfairly limited his jury’s

consideration of mitigating circumstances. See Kio’tanic v.

State, 2023 OKCR l3,6, 534P.3d 1055, l058Thegeneral

rule is that where the trial courts instructions submitted to

the jury, considered as a whole, fairly and correctly state

the applicable law such instructions are sufficient.”) The

district court instructed Poseys july that mitigating factors

need not be unanimous but could be subjective to each

The court listed seventeen mitigating circumstances

juror.

based on the penalty phase evidence. Following the list,

the instruction provided, “In addition, you may decide

that other mitigating circumstances exist, and if so, you

should consider those circumstances as well.” Considering

the instructions as a whole, we find *1276 the challenged

instruction did not unfairly limit the ,jury’s consideration of

mitigating circumstances. Finding no instnictional error, plain

or otherwise, we deny this claim.

9. AGGRAV4TING CIRCUMSTANCE INSTRUCTION

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¶78 Posey contends he was denied a fair sentencing

proceeding because of the district court’s failure to adequately

instruct his jury on the alleged aggravating circumstance

that he knowingly created a great risk of death to more

than one person. His complaint is two-fold. He claims

not only that the district court ciTed by rejecting his

requested instruction on this aggravator but also that the

district court erred by not defining sua sponle the term

“knowingly” as used in conjunction with this aggravating

circumstance. 36 According to Posey, the jury’s finding of

this aggravator’s existence in both murders was the result

of the lack of a uniform instruction on its application

and misleading statements from the prosecution rather

than sufficient evidentiary support. \Ve review the district

court’s ruling rejecting Posey’s proposed instruction on this

aggravator for an abuse of discretion and his complaint about

the absence of a definition for the term “knowingly” for plain

error only.

¶79 We have rejected complaints that the great risk of death

to more than one person aggravating circumstance requires a

more specific uniform instruction on how to apply it. No/eu,

2021 OK CR 5, ¶ 124. 485 P.3d at 858-59. We have found

instead that the statutory language explaining this aggravating

circumstance sufficiently informs jurors what is necessary to

support its existence in each case. Bosse i State, 2017 OK CR

10, ¶ 73, 400 P.3d 834, 860: Ei:entheu: 2007 OK CR 29, ¶

137-39, 164 P.3d at 241. The district court instructed Posey’s

jury using the straightforward statutory language, stating the

•jur’ had to determine whether the aggravating circumstances

alleged by the State existed beyond a reasonable doubt,

including that the defendant during the commission of the

murder knowingly created a great risk of death to more than

one person. We continue to find that the use of the statutory

language is sufficient and hold that the district court did not err

by rejecting Posey’s proposed instruction on this aggravating

c ircum stance.

¶80 Nor do we find error in the absence of a definition

for the term “knowingly” as used in the great risk of death

to more than one person aggravator. “The gravamen of the

circumstance is the callous creation of the risk to more than

one person.” Fusion State, 2020 OK CR4, ¶ 130, 470 P.3d

306, 334 (quoting Ryder v.State, 20040K CR2, ¶ 77, 83 P.3d

856, 874). The State must show the defendant’s murderous

actions toward one victim created a risk of death to another

who was in close proximity in terms of time, location, and

intent to the killing. Fusion, 2020 OK CR4, ¶ 130, 470 P.3d

at 334. The term “knowingly” is commonly understood to

...

coimote awareness. By instructing the jury it had to find Posey

“knowingly” created a great risk of death to more than one

person when he murdered Amy and then her son, the jury

rmderstood it had to find his acts in killing each victim were

done with an awareness ofthe risks posed by his actions to the

others who were nearby. Because the plain language of this

aggravator in the court’s instructions sufficiently conveyed the

required proof. we find this claim is without merit.

*1277 10. SUFFICIENCY OF

EVIDENCE OF AGGRAVATOR

¶81 Posey argues the evidence was insufficient to prove he

knowingly created a great risk of death to more than one

person when he set the fire that killed Bryor. He contends the

district court abused its discretion when it failed to sustain his

objection to this aggravating circumstance and asks that we

either vacate his death sentence and remand for resentencing

or favorably modify his semence on Counts 3 and/or 4.

When the sufficiency of the evidence of an aggravating

circumstance is challenged on direct appeal, we review the

record to determine whether the evidence, considered in

the light most favorable to the State, was sufficient for a

rational trier of fact to find the existence of the aggravating

circumstance beyond a reasonable doubt. Fu.c,’on, 2020 OK

CR4, ¶ 129, 470 P.3d at 334.

¶82 Under Oklahoma law, a defendant who knowingly places

others inj eopardy ofcleath during the conmiission ofa murder

is eligible for the death penalty. 21 0.S.2011, § 701.12(2).

This aggravating circumstance applies where the defendant’s

actions place a person(s) in the vicinity of his or her murder

victim at an actual risk of death and the defendant knows that

risk exists. MilIeu; 2013 OK CR 11, ¶ 177, 313 P.3d at 988.

To prove this aggravator, there must be evidence that another

person(s) was near the victim at the time of the murder and

in jeopardy of suffering real harm by the defendant’s actions

in killing the victim. Id.

¶83 The cnix of Posey’s claim is that Amy was not at any

risk of death when Bryor died in the fire he set because she

was already dead.

He contends that Bryor was the only one

in danger from the fire he started which ultimately took the

child’s life. He maintains a live person other than the mmmrder

victim is required for application of this aggravator.

¶84 The State argues that Posey’s acts of pouring gasoline

and a lubricating oil near Amy’s body and igniting a fire that

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killed Bryor also created a great risk of death to Amy. The

State, for the first time, disputes the contetition that Amy

was dead before the fire started, observing there was no first

hand account of the exact moment she took her last breath.

It acknowledges her carbon monoxide level was negative

and she did not inhale enough smoke or soot to confirm she

was alive during the fire. Nevertheless. the State contends

no conclusive proof ruled out she was still alive. Hence, the

State maintains that viewing the evidence in the light most

favorable to the prosecution. the evidence sufficiently proved

Posey knowingly created a great risk of death to Amy when

he killed her son by setting fire to their home.

¶85 The State charged Posey with Bryor’s murder, alleging

Bryor died during Poseys commission of arson (Count 3)

or, in the alternative, in the course of Posey’s murder of his

mother (Count 4). The State alleged Posey started a fire in

the house after killing Amy and Bryor died in the fire Posey

started. The State’s notice of this aggravating circumstance

alleged that at the time Posey started the fire that killed Brvor,

his mother was already dead.

During closing argument, the

prosecutor argued tins aggravating circumstance was proven

because of the deaths of two persons on the “same night in the

*1278 same house within minutes of each other at the same

invasion by the same man.”

¶86 We have often stated that this aggravator is not

determined by the number of victims killed, but by the

“callous creation of the risk to more than one person[ 1” during

the commission of a particular murder. Fusion, 2020 OK CR

4, 130, 470 P.3d at 334 (quoting Ride,: 20040K CR2, Ii 77.

83 P.3d at 874). We have generally upheld this aggravator in

cases where the “defendant either killed two or more people

contemporaneously with the intent to kill all the victims or

contemporaneously injured or killed one or more bystanders

in the line of fire.” Jackson v.State, 2006 OK CR 45, ¶ 43,

146 P.3d 1149, 1163. Conversely, we have invalidated this

aggravator in connection with the death of a second victim

when the first victim was not in jeopardy from the homicidal

act that killed the second victim cc J-fanso,i i State, 2009

OKCR 13,43, 206 P.3d 1020, [033.

Posey set the house ablaze and whether Posey must have

known Amy was still alive to knowingly create a great risk of

death to her by starting the fire that killed her son. We need not

parse the parameters of this aggravator in this case, however.

because even if Posey’s conduct of setting the house ablaze

did not constitute the kno\ving creation of great risk of death

to Amy, the submission of this aggravator to the jury did not

skew the jury’s decision to impose the death penalty.

¶188 When an aggravator is invalidated, we assess the

impact of the invalidated aggravator on the defendant’s death

sentence. We consider whether the remaining aggravating

circumstances outweigh the mitigating circumstances and

whether the weight of the improper aggravator is harmless.

Tevon, 2018 OK CR 20, ¶ 148. 423 P.3d at 656: Malone i

State, 2013 OK CR 1, ¶ 87. 293 P.3d 198, 221. Assuming

aignendo the great risk of death aggravator is invalid on

Counts 3 and or 4, the record shows that Posey was on notice

early on that the prosecution would rely on evidence of his

commission of both murders to support its continuing threat

allegation. i.e.. evidence that he murdered two people to

show his tendency to engage in violent acts which would

likely continue into the future.

An invalidated sentencing

factor renders a death sentence unconstitutional “by reason

of its adding an improper element to the aggravation scale

in the weighing process unless one of the other sentencing

factors enables the sentencer to give aggravating weight

to the same facts and circumstances.” Brown : .Sande,’s.

546 U.S. 212, 220, 126 S.Ct. 884. 163 L.Ed.2d 723 (2006)

(footnote omitted). In other words. impermissible skewing in

the weighing process occurs, and gives rise to constitutional

error, “only where the jury could not have given aggravating

weight to the same facts and circumstances tinder the rubric of

some other, valid sentencing factor.” Id. at 221, 126 S.Ct. 884.

There was no impermissible skewing and no constitutional

error in this case from the purportedly invalid great risk of

death to more than one person aggravator with respect to

Counts 3 and/or 4 because the continuing threat aggravator

enabled Posey’s jury to give aggravating weight to the same

facts and circumstances used to support the purportedly

invalid aggravator. See Thon, 2018 OK CR 20, ¶ 148, 423

P.3d at 656.

¶87 The circumstances and argument presented in this case

are unlike those in our prior cases. The two murders share

an undeniable connection insofar as they occurred in the

same small house within a short period of time. During

oral argument in this case, the parties addressed questions

concerning whether this aggravator should be invalidated

because scientific evidence showed Amy was dead when

*1279 ¶89 When there is no constitutional violation or

skewed sentence from the consideration of an invalidated

aggravating circumstance, we conduct an independent

reweighing of the aggravating and mitigating evidence to

determine the validity’ of the death sentence. Id.. 2018 OK

CR 20, ¶ 149. 423 P.3d at 656: Malone. 2013 OK CR 1. ¶

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87. 293 P.Sd at 22 1-22. In this regard. we wifl reweigh the

evidence and may uphold the death sentence provided we

determine the remaining aggravating circumstances outweigh

the mitigating circumstances and the weight of the improper

aggravator was harmless. Thon, 2018 OK CR 20, ¶ 149, 423

P.3d at 656. If, looking at the record, the Court finds that

the elimination of the improper aggravator did not affect the

balance beyond a reasonable doubt, we may find submission

of an improper aggravator to be harmless error. Id. 2018 OK

CR 20, ¶ 149, 423 P.3d at 656-57.

of Juvenile Affairs at age 14 Although she denied it. his

evidence showed that she evicted him at age 16, which forced

him to shelter with aiid obtain emotional and material support

from friends and their families. Posey presented multiple

friends and family members who described the emotional

and material support he provided them in times of need.

their willingness to maintain contact with him in prison,

and their pleas for mercy in semencing. His mitigation case

also included evidence that he was a responsible and helpftml

inmate in the county jail who had been of assistance to staff.

¶90 In the present case, two aggravating circumstances

remain: the especially heinous, atrocious, or cnmel aggravator

and the continuing threat aggravator. 21 0. S.20 11, § 701.12

(4), (7). The evidence supporting these two remaining

aggravating circumstances was compelling and proved their

existence beyond a reasonable doubt. The evidence showed

not only Posey’s prior rape and attack on M.K.M. but also

numerous instances of prior violent acts towards classmates,

acquaintances, strangers. as well as another inmate, thereby

supporting the existence of the continuing threat aggravator.

Posey’s murder of young. defenseless Bryor to conceal

his crimes against the child’s mother likewise supports

tIns aggravator as does the callous nature of the killing

itself. Moreover, the evidence supported a finding that both

victims endured conscious physical suffering thus supporting

the especially heinous. atrocious. or cruel aggravator. The

evidence showed Posey broke into Amy’s home in the

nighttime, raped and beat her, and extracted the pin niunber to

her debit card during the attack. He then set the house ablaze

as he fled to drain Amy’s bank account from an ATM. Bryor

died in the fire started by Posey from thermal burns and smoke

iathalation as he hid in the living room and his brutally raped

and murdered mother lay in his nearby bedroom in the tiny

home they had shared.

¶92 After reweighing the remaining valid aggravating

circumstances against the mitigating evidence, we find the

aggravating circumstances outweigh the mitigating evidence.

Had the jury considered only these two valid aggravating

circumstances in its sentencing determination, we are

convinced beyond a reasonable doubt the jury would have

imposed the same sentence of death on Counts 3 and/or 4.

Accordingly, we find relief is not required.

¶9 1 Posey presented abundant mitigation evidence from his

friends and family members covering virtually every aspect

of his life. These included accounts concerning Posey’s

family history and upbringing focused in large part on the

nature of his abusive relationship with lus mother. Posey

presented evidence his mother was emotionally distant and

both physically and emotionally abusive, leaving him and his

twin brother often to fend for themselves. She restricted their

food intake and other resources in the home while adequately

providing food, transportation, and entertainment for herself.

She was routinely absent from the home and provided little

to no supervision. She failed to cooperate with treatment

providers when Posey was placed in the custody of the Office

11. INEFFECTIVE ASSISTANCE OF COUNSEL

¶93 Posey claims lie is entitled to relief because of ineffective

assistance of trial counsel. He faults trial counsel for: 1

failing to *1280 lodge a double jeopardy objection: 2) failing

to contemporaneously object to the forced testimony of T.W.:

3) failing to object to first stage jury instruction No. 35 and

second stage jury instruction No. 20: and 4) failing to request

a second stage jury instruction on the term ‘‘knowingly”

with respect to the alleged aggravating circumstance that lie

knowingly created a great risk of death to more than one

person. (See Propositions 1. 3, 7, 8, and 9).

¶94 This Court reviews claims of ineffective assistance of

counsel to determine: (1) whether counsel’s performance

was constitutionally deficient: and (2) whether counsel’s

performance prejudiced the defense depriving the defendant

of a fair trial with reliable results ti’ick/aiic/ i:

466 U.S. 668, 687. 104 S.Ct. 2052. 80 L.Ed.2d 674 (1984):

lma/oiw, 2013 OK CR I, ‘ 14. 293 P.3d at 206. Prejudice in

this context is evidence supporting “a reasonable probability

that, but for counsel’s unprofessional en’ors. the outcome of

the trial would have been different.” Fuiglinin i: Stare, 2016

OK CR 30, ¶ 16, 400 P.3d 775, 780. “The likelihood of a

different result must be substantial, not just conceivable.”

Ma/oi,e, 2013 OK CR 1, ¶ 16, 293 P.3d at 207 (quoting

Hai’i’ington i: Richte,; 562 U.S. 86, 112, 131 S.Ct. 770, 178

L.Ed.2d 624(2011)). Unless both showings are made, we will

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not find that the conviction resulted from a breakdown in the

adversary process and produced an unreliable result Malone,

2013 OKCR 1,C 14, 293 P.3dat 206.

¶95 We rejected Posey’s double jeopardy claim and his jury

instruction challenges in Propositions 1, 7, 8, and 9, supra.

We also rejected his challenge to the material witness warrant

used to secure the testimony of T.W., finding that he lacked

standing to assert the rights of a third party. See Proposition

3. supra. Thus, he cannot show the necessary prejudice to

prevail, i.e., a reasonable probability the outcome of his trial

would have been different, had defense counsel objected to

the challenged evidence and instructions. This portion of his

ineffective assistance of counsel claim is therefore denied.

¶96 Posey also faults trial counsel for failing to present expert

testimony on the effects of the childhood and adolescent

trauma, abuse. and neglect he suffered at the hands of his

mother. He maintains one or more experts in child and

adolescent psychology were necessary to explain the impact

his mothers abuse had on him and to provide context so

the jury could properly weigh the balance of aggravating

and mitigating circumstances in its sentencing decision. He

contends the prosecution team recognized this missing link

in his mitigation case and repeatedly criticized and devalued

his mitigating evidence because of it during second stage.

According to Posev. such an expert was not only available

but also recommended to the defense team by another defense

expert.

¶97 In conjunction with this claim, Pose’s’ filed an Application

for Evidentiary Hearing on Sixth Amendment Claims

pursuant to Rule 3. 11(B). Rules of i/ic Okla/ionici Coo,’!

of (‘rimlual Appea/s’. Title 22, Ch. 18, App. (2024). His

application includes an extrajudicial affidavit from clinical

psychologist. Dr. Rahn Yukio Minagawa. Ph.D., who could

have testified about the long-term effects of childhood and

adolescent abuse and neglect. Dr. Minagawa believes that

his expert testimony would have been helpful to the jury in

understanding the adverse impact of Posey’s childhood and

teenage trauma that contributed to his development.

¶98 The analysis of an ineffective assistance of counsel claim

predicated on cormseFs failure to adequately investigate and

present mitigating evidence in a capital sentencing proceeding

is essentially the same as other ineffective assistance claims.

“requiring a showing of both deficient attorney performance

and prejudice.” Malone v. Stare, 20070K CR 34,’ 112. 168

P.3d 185. 229. We explained in Malone:

WESTLAW

The main difference is in the prejudice analysis, where

the reviewing court muust determine whether there is a

“reasonable probability” that if trial counsel had presented

the omitted mitigating evidence, the sentencer “would have

concluded that the balance of aggravating and mitigating

circumstances did not warrant death.” In making this

detenriination, the newly proffered * 1281 mitigating

evidence must be considered along with the mitigating

evidence that was presented and then weighed against the

aggravating evidence that was presented. Finally, we also

consider whether there is a reasonable probability that

inclusion of the omitted mitigating evidence could have

“alter{ed] the jury’s selection of penalty, even if it does

not undei’mine or rebut the prosecution’s death-eligibility

case.”

Id. (footnotes omitted).

¶99 In reviewing ineffective assistance claims, we employ

a strong presumption of regularity in trial proceedings and

competency of counsel. Rule 3.1 [(B)(3)(b)(i). Rules of the

Oklaho,,,a Con,’! of(i’u,ioial Appeals’, Title 22, Ch. 18, App.

(2024). Hence, an appellant’s application for evidentiary

hearing imist contain sufficient information to show us, by

clear and convincing evidence, a strong possibility that trial

counsel was ineffective for failing to identify or use the

evidence at issue. Id. Where nothing in the supplemental

materials alters or amplifies in any compelling way the

portrait that emerged from the trial evidence and testimony.

this Court will find the extrajudicial materials fail to establish

by clear and convincing evidence a strong possibility that trial

counsel was ineffective. See .S’a,iche: v. State, 2009 OK CR

31, ¶ 104. 223 P.3d 980, 1013.

¶ 100 The defense called twenty-nine mitigation witnesses in

the penalty phase in an effort to convince the jury to spare

Posey’s life and extend him mercy for his monstrous crimes

which culminated in the deaths of Amy and her young son.

Most of the mitigation witnesses were friends and family

who knew Posey at various stages in his life. The testnnony

fell into two main categories, namely evidence about the

abuse and neglect he suffered as a child and teen at the

hands of his mother and evidence of the caring, supportive

man he was to many people. 40 The mitigation evidence

included testimony concerning his mother’s wititholding of

food, clothing, toys, affection and attention, his preference

to live in state custody where he thrived rather than with his

mother, his mother’s failure to provide adequate supervision.

his mother’s strict discipline, his mother’s physical and verbal

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abuse, his mother’s use of alcohol during pregnancy and

his childhood and adolescence, his mother’s caring treatment

of her pets over her children, his living arrangements with

friends after his mother evicted him, his mother’s withholding

of the identity of his father, his fear of his mother and ins

demeanor changes in her presence, his good behavior as an

inmate in the county jail, his family background including

the time as a young child he lived in the loving home of his

grandmother before her death. his generosity to friends and

family in times of need. his friendly and outgoing personality.

his protective and respectful nature with female friends, his

emotional and financial support of friends, his character as

a role model, his care for the Garrett Tanner family when

Tanner’s mother was dying, and the love of Posey’s friends

and family, who want to continue to have a relationship with

him and who do not want him to receive the death penalty.

It) 1 Dr. Minagawa states in his a ffidavit that he was

“appalled” that Posey’s trial team failed to call an expert

because. in his experience, jurors want to know how a

defendants history may have contributed to his or her

criminal actions. He claims the jurors in * 1282 this case

were left with an unconnected and incomplete presentation of

the abuse and neglect Posey experienced, which lessened the

impact of his mitigation evidence.

1102 Dr. Minagawa admits that Posey had been evaluated

by Dr. Antoinette R. McGarrahan. Ph.D., who conducted

numerous neuropsychological tests and found no evidence

Posey suffered from any intellectual disability or extensive

mental health issues. He states that it was Dr. McGarrahan

who recommended the defense hire a child development

expert like himself to “testify about the documented history

of abuse, neglect and trauma” Posey had suffered. Trial

counsel did not heed Dr. McGarrahan’s recommendation.

and according to Dr. Minagawa. “presented individual

witnesses who gave somewhat disjointed testimony about his

upbringing and abuse at the hands of his mother, without

providing a narrative that tied those details together in a way

that would persuade the jurors to consider a lesser sentence

than death.” Dr. Minagawa’s affidavit attests that trial counsel

was aware ofDr. McGarrahan’s findings and recommendation

but nevertheless elected not to ftmrther explore that avenue as

part of the defense’s mitigation strategy.

l03 It has long been the case that where counsel makes an

informed choice, his or her decision to pursue a particular

strategy over another, even if unsuccessful, is virtually

unchallengeable. Lee i Stoic’, 2018 OK CR 14, 14, 422

P.3d 782, 786. Counsel’s knowledge of the abuse and neglect

and awareness of Dr. McGarrahan’s testing that proved

unhelpful in mitigation support a finding that counsel re,jected

her recommendation for retention of a child development

expert based on sound trial strategy. Trial counsel knew

the prosecution would cross-examine any child development

psychologist about neuropsychological testing and mental

health issues associated with victims of abuse and neglect

which did not weigh in Posey’s favor. The expert would either

have to disclose, if known, the results of Dr. McGarrahan’s

testing or plead ignorance and risk looking inexperienced and

possibly incompetent. That counsel was well aware of Dr.

McGarrahan’s recommendation weighs in favor of finding

counsel exercised reasonable and deliberate trial strategy

in deciding the fashion and manner with which to present

the defense’s mitigation case concerning Posey’s traumatic

childhood.

904 The record reveals the defense sought to show that

the underlying basis for Posey’s periodic abhorrent criminal

behavior stemmed from the infliction of his mother’s long—

term abuse and neglect during his childhood and adolescence

which negatively affected his development. To counter the

portrait of an irreparably damaged person whose trauma

continued to pervade his adulthood and emotional responses,

the defense sought to humanize him and show he had also

developed into a compassionate, supportive person with many

friends thereby making him worthy of muercy. Too much

emphasis on Posey as permanently traumatized from his

mother’s abuse and neglect may very well have backfired and

been interpreted as aggravating evidence that he \vas beyond

repair and posed a cominuing threat to society. All things

considered, Dr. Minagava’s testimony would have been

inconsistent with the remainder of the mitigation strategy

and may have diminished the impact of the testinlony from

Posey’s friends and family seeking leniency and mercy.

¶105 The mitigation case in our review was credible and

well-developed. Counsel chose to present evidence of Posey’s

childhood and adolescence through witnesses who personally

interacted with him and related firsthand testimony of his

circumstances rather than Dr. Minagawa’s sterile textbook

conclusions gleaned from various records, police reports,

interview materials, and trial transcripts of the proceeding. 4t

Counsel evidently believed the lay witnesses were better

poised to offer the sort of intimate mitigation case that would

resonate with jurors rather than presenting the opinions of an

impersonal expert. The record shows the jury was well aware

of *1283 Posey’s upbringing and knew, based upon the

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testimony ofthe lay witnesses, that Posey’s childhood was rife

with purported abuse and neglect. Thai those circumstances

would have affected his development and behavior was not

beyond the common-sense grasp of lay jurors. This precise

view was, in fact, expressed by defense counsel in closing

argument:

affected the outcome of the trial. Therefore, he is not entitled

to an evidentiary hearing, and his motion, as well as this claim,

are denied cc .S’iinp.con t: Stoic, 2010 OK CR 6, 53, 230

P.3d 888, 905-06.

12. MOTION FOR NEW TRIAL

I’m not saying that Vanita Posev is

responsible for this crime by any

stretch of the imagination. I wouldn’t

insult you in that way, bitt we all know

that when you damage your kid to

the point that he was damaged, there

are going to be effects. You-all have

seen it in your own lives. You’ve all

known kids who are so damaged by

their parents that they

they were

damaged adults.

—

¶106 We are simply not convinced on this record that

Posey has shown by clear and convincing evidence a strong

possibility that trial counsel was ineffective for choosing

to forgo presentation of Dr. Minagawa’s expert testimony.

For reasons previously discussed, trial counsel’s decision

was part of a strategy To present Posey’s personal history

through mu igation witnesses who shared their knowledge

of and personal experiences with him. Some focused on his

abusive upbringing, while many attested repeatedly to his

upstanding character as a friend, confidant, role model, and all

around good and respectftil human being. This strategy was

reasonable, and the supplemental affidavit does not alter or

ampli’ in any compelling way the portrait that emerged from

the evidence and testimony at trial.

¶l07 Based on the penalty phase evidence, we conclude

that the proffered evidence concerning abuse and neglect

and its accompanying impact on Posey’s development would

not have appreciably altered the balance of aggravating and

mitigating circumstances considered by the jury at trial.

More specifically, we are not persuaded that Dr. Minagawa’s

proffered opinions regarding Posey’s development would

have caused the jury to find that the mitigating factors

outweighed the aggravating factors and to, in turn, sentence

him to life in prison rather than death. Accordingly. we find

that Posey has not shown by clear and convincing evidence a

strong possibility that trial counsel was ineffective or shown

a reasonable probability that expert testimony would have

WESTLAW

l 08 Posey filed a motion for new trial based on newly

discovered evidence on October 6, 2021, along with his

direct appeal brief and motion for evidentiary hearing.

Appended to his motion for new trial is an affidavit from

appellate counsel as well as seven attachments. (Exhibits A

through A-6) Appellate counsel states he received an email

on December 18, 2020, from one of the assistant district

attorneys who prosecuted this case concerning the defense’s

alternate suspect, Brady Almaguer. The email is attached

as Exhibit A. The email references an incident report and

screenshots of text messages the prosecutor received from the

Harmon County Sheriffs Office involving a series of alleged

threatening communications sent by Almaguer to Elizabeth

Whorton. The incident report and screenshots of the texts

attributed to Almaguer are attached as Exhibits A—2 through

A-6. The prosecutor believed one of the text messages may

have referred to the murder of Amy Gibbons and her son

for which Almaguer in the text seemingly confesses, The

prosecutor informed appellate counsel that he had requested

a thorough follow—up investigation concerning these text

messages by the OSBI case agent despite credible alibi

evidence presented for Almaguer at trial.

l09 Posey’s motion for new trial is untimely and must be

dismissed. 42 Under * 1284 22 O.S.201 1, § 952, a defendant

may file a motion for new trial when new evidence material

to the defendant is discovered and the new material could

not have been discovered with reasonable diligence before

trial. Motions for new trial filed during the pendency of

a direct appeal shall be filed with this Court rather than

the district court. Rule 2. l(A)(3), Rii/e. of the Oklahoma

Court of C’riminal.-lppeals. Title 22, Ch.18, App. (2024). The

Legislature has specified the time limits applicable to motions

for new trial. 22 O.S.201 I, § 953. “A motion for a new trial on

the ground of newly discovered evidence may be made within

three (3) months after such evidence is discovered bitt no such

motion may be filed more than one (1) year after judgment

is rendered.” 22 O.S.20l1, § 953. Section 953 sets the outer

time limit for such motions for new trial at one year from the

imposition of Judgment and Sentence by the district court. See

(,ndcnt’oocl, 2011 OK CR 12, ¶ 91, 252 P.3d at 254 (stating

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“[sjuch a motion must in any event be filed within one year

of the imposition of Judgment and Sentence.”): Rule 2.1(A)

(3) (requiring motion for new trial based on newly discovered

evidence be filed “prior to the expiration of one (1) year from

the date that the Judgment and Sentence is pronounced”).

¶ 110 The district court entered Judgment and Sentence in this

case on July 22. 2019, and signed the Death Warrant that

same day. The prosecutor sent the attached email to appellate

counsel on December 18, 2020, more than a year after formal

sentencing. Posey’s Motion for New Trial was not filed in

this Court until October 6. 202 1—more than two years after

the imposition of Judgment and Semence and nearly a year

after the new evidence had been discovered. Because Posey’s

motion for new trial was not timely filed under Section 953.

we are procedurally barred from considering it on the merits.

See Harris i. .Stale, 2019 OK CR 22, ¶ 94-95, 450 P.3d 933.

966-67 (dismissing capital defendant’s motion for new trial

based on newly discovered evidence because it was filed well

over a year after formal sentencing and was tunimely).

13. MANDATORY SENTENCE REVIEW

¶ 111 This Court must determine in every capital case:

1) “[w]hether the sentence of death was imposed under

the influence of passion, prejudice, or any other arbitrary

factor” and (2) “[wjhether the evidence supports the jury’s or

.judge’s finding ofa statutory aggravating circumstance

21

O.S.2011. § 701.1 3(C)( 1) & (2). After conducting this review,

this Court may order any corrective relief that is warranted or

affirm the sentence. 21 O.S.2011, § 701.13(E).

¶112 Having reviewed the record in tius case, we find that

Posey’s death sentence on Counts I and ‘or 2 was not the

result of trial error or improper evidence or witness testimony

and that the death sentence was not imposed under the

influence of any arbitrary factor, passion, or prejudice. The

jury’s finding on Counts 1 and/or 2 that Posey (1) knowingly

created a great risk of death to more than one person: (2)

that the murder was especially heinous, atrocious, or cruel:

and (3) that there existed a probability that Posey would

commit criminal acts of violence that would constitute a

continuing threat to society was amply supported by the

evidence. Weighing the aggravating circumstances against

the mitigating evidence presented, we find, as did the

jury below, that the aggravating circumstances in this case

outweighed the mitigating circumstances.

WESTLAW

¶113 Even assuming the knowingly creating a great risk

of death

aggravator is invalid on Counts 3 and/or 4, we

find upon reweighing that the remaining valid aggravating

circumstances outweighed the mitigating evidence and

supported the death sentence. The jury’s finding on Counts

3 and/or 4 that (1) the murder was especially heinous.

atrocious, or cruel: and (2) that there existed a probability

that Posey would commit criminal acts of violence that

would constitute a continuing threat to society was well

supported by the evidence. Had the jury considered only these

valid aggravating circumstances, we are convinced beyond

a reasonable doubt that the jury would have imposed the

same sentence of death. We are also satisfied from our review

of the record that neither passion. prejudice, nor any other

arbitrary factor contributed *1285 to the july’s sentencing

determination.

DECISION

¶114 The Judgment and Sentence of the District Court is

AFFIRMED. Posey’s Application for all Evidentiary Hearing

on Sixth Amendment Claims is DENIED. Poseys Motion for

New Trial is DISMISSED. The case is REMANDED to the

district court for entry of an Order Nunc Pro Tuiic to correct

Posey’s Judgment and Sentence to reflect the S3,000.00 fine

imposed on Count 5 has been waived. Pursuant to Rule 3.15.

Rules oil/me Oklahoma (‘our! qf( ‘i’iininal Appeals, Title 22,

Ch.18, App. (2024). the MANDATE is ORDERED issued

upon the delivery and filing of this decision.

MUSSEMAN, VP.J.: Concur

LUMPKIN, J.: Concur ill Results

LEWIS, J.: Concur

HUDSON, J.: Concur

LUMPKIN. JUDGE. CONCURRING IN RESULT:

¶1 I concur in tile results in this case. However, I write

separately to discuss three points. In addressing Proposition

I, the pinin attempts to restructure our plain error analysis,

rather than repeating it as set forth in our cases. In .S7n,pson

tate, 1994 OK CR 40, ¶ 2. 11, 23.30, 876 P.2d 690.

694-95, 698-70 1. we held that in order to be entitled to relief,

a defendant must show an actual error, which is plain or

obvious, and which affects his or her substantial rights. This

Court will only correct plain error if tile error seriously affects

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20240K CR10

the fairness, integrity or public reputation of the judicial

proceedings or otherwise represents a miscarriage of justice.

Id 1994 OK CR 40, ‘30, 876 P.2d at 701 See also Hogan

v State, 2006 OK CR 19. 38. 139 P.3d 907. 923 (citing

.Siiiipson). To ensure there is no misunderstanding regarding

the application of plain error review and what a defendant

must show to obtain relief for a finding of plain error, it is

important to set out the analysis as in Simpson and Hogan.

This will advise defendants they bear the burden to establish

plain error and that even if it is established, they may not be

entitled to relief.

¶2 Also, in addressing Proposition I. the opinion discusses a

case from West Virginia cited by the State. That case is not

binding precedent for this Court. Although this Court may

find its analysis helpful in deciding this case, it is not a holding

ofthis Court. Any nile established by this analysis depends on

the holding this Court sets out as the precedent to be followed

in later cases.

¶3 Finally, in Proposition X, the opinion addresses the

sufficiency of the evidence of the great risk of death to

more than one person aggravator. The opinion parses the

facts in a micro-analysis without regard to the fact that both

mother and child were alive when Appellant commenced his

horrendous acts in raping and killing the mother. These acts

instantaneously caused great risk of death to the child. Facts

must be viewed in sequence and not in isolation. The great

risk of death applied to more than one person when Appellant

began his assault and murder. There is no need to break down

the events into isolated sequences and cause an unrealistic

abbreviation of the facts as they occurred.

All Citations

548 P.3d 1245, 20240K CR 10

Footnotes

1

Posey’s jury also convicted him of Debit Card Theft (Count 5), in violation of 21 O.S.201 1, § 1550.22(a), and

fixed punishment at three years imprisonment and a $3,000.00 fine. He does not substantively challenge that

conviction on direct appeal. See Footnote 5, infra.

2

21 O.S.2011, § 701.12(2).

3

21 O.S.2011, § 701.12(4).

4

21 O.S.2011, § 701.12(7).

5

Judge Hughey waived all fines and costs in this matter at formal sentencing. Posey correctly observes that

his Judgment and Sentence reflects the $3,000.00 fine on Count 5, which was waived. Accordingly, we direct

the district court to correct this error by an Order Nunc Pro Tunc.

6

Because the two victims share the same last name, we will refer to the victims by their first names to

distinguish them.

7

There was evidence of forced entry through the front door. The State’s expert determined that the fire was

incendiary, and investigators found the presence of accelerants near Amy’s body which was near the fire’s

origin point.

8

Evidence showed Amy had used her debit card throughout the day before her death. Posey claimed he got

the card when he was breaking into cars and found Amy’s debit card in a Ford Platinum truck near her home.

Police found no evidence of any car break-ins that evening. Other investigation showed, however, that Posey

may have had financial problems.

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25

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20240K CR 10

9

The criminalist conducted no further testing of the anal swab after P30, a protein found in high concentrations

in seminal fluid, was not detected on the anal swab.

10

The criminalist explained that she was able to separate the epithelial cells, i.e., skin cells, and the sperm in

the test sample from Amy’s vaginal swab.

11

This test is useful where there may be low amounts of male DNA which can be masked by high concentrations

of female DNA.

12

The district court also submitted Instruction No. 16 which instructed the jury to give “separate consideration

for each charge in the case.” It further provided:

The defendant has been charged with the murder of Amy Gibbins by two (2) alternative counts, Count 1

and Count 2. The defendant may only be convicted, if at all, of one crime to the murder of Amy Gibbins.

The defendant has been charged with the murder of Bryor Gibbins by two (2) alternative counts, Count 3

and Count 4. The defendant may only be convicted, if at all, of one crime to the murder of Bryor Gibbins.

(0.R.XVII 3195).

13

The uniform jury instruction comments, however, state “[i]f the jury is charged and instructed on the basis of

alternative felonies, separate verdict forms should be given in order to determine which felony was committed.

See Comments to Instruction No. 4-93, OUJI-CR(2d) (Supp. 2012).

14

‘[T]his Court construes and interprets Oklahoma’s Double Jeopardy Clause as providing the same protections

offered by the federal clause.” Kane v. State, 1996 OK CR 14, ¶ 6, n. 5, 915 P.2d 932, 934 n. 5.

15

Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 LEd. 306 (1932).

16

For example, Instruction No.20 provided:

No person may be convicted of murder in the first (sic) unless both the fact of the death of the person

allegedly killed and the fact that his or her death was caused by the conduct of another person are

established as independent facts and beyond a reasonable doubt.

(O.R.XVII 3199).

Instruction Nos. 28 and 29 outlined the charges related to Amy and the charges related to Bryor. (O.R.XVII

3208-09).

17

The elements in Count 4 were: 1) the death of a human (meaning Bryor); 2) the death occurred as a result of

an act or event which happened in the defendant’s commission of first degree murder; and 3) the elements of

the crime of first degree murder that the defendant is alleged to have been in the commission of, namely the

death of a human, the death was unlawful, the death was caused by the defendant, and the death occurred

during the murder of Amy Gibbins. (O.R.XVII 3215)

18

Had Posey been separately charged and convicted of raping Amy, the prohibition against double jeopardy

would require us to vacate that rape conviction under the felony murder merger rule.

19

Horn requires the propensity evidence to be proven by clear and convincing evidence. Perez, 2023 OK CR

1,4, 525 P.3d at48.

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20240K CR 10

20

The list was non-exhaustive and district courts are free to consider any other matter the court finds relevant.

Horn, 2009 OK CR 7, ¶ 40, 204 P.3d at 786. The district court in Posey’s case addressed the Horn factors

and concluded the probative value of the propensity evidence was not outweighed by its prejudicial effect.

21

Instruction 9-bA provides:

You have heard evidence that the defendant may have committed another/other offenses(s) of (sexual

assault)/(child molestation) in addition to the offense(s) for which he/she is now on trial. You may

consider this evidence for its bearing on any matter to which it is relevant along with all of the other evidence

and give this evidence the weight, if any, you deem appropriate in reaching your verdict. You may not,

however, convict the defendant solely because you believe he/she committed this/these other offense(s)

or solely because you believe he/she has a tendency to engage in acts of (sexual assault)/(child

molestation). The prosecution’s burden of proof to establish the defendant’s guilt beyond a reasonable

doubt remains as to each and every element of each/the offense charged.

22

The Court stated:

Even if we agreed with [Dowling] that the lower burden of proof at the second proceeding does not serve

to avoid the collateral-estoppel component of the Double Jeopardy Clause, we agree with the Government

that the challenged evidence was nevertheless admissible because Dowling did not demonstrate that his

acquittal in his first trial represented a jury determination that he was not one of the men who entered [the

homeowner’s] home.

Id. 493 U.S. at 350, 110 S.Ct. 668.

23

Posey concedes in his brief that “there is no record of the jury trial” and that “[w]e have no idea what evidence

was presented.”

24

Posey told the investigator, however, that he believed the sexual encounter with the Asian female occurred

in his apartment.

25

Section 720 governs the arrest and detention of a material witness in a criminal proceeding. It expressly

provides an exception for crime victims, namely “no person may be detained as a material witness to a crime

who is a victim of such crime.” 22 0.S.20 1 1, § 720(A). The statute further establishes rights that the material

witness enjoys at the time of his or her detention, such as the right to not be detained longer than 48 hours

before being brought before a judge, the right to be informed of the identity of the detaining officer as a law

enforcement officer, the right to be informed probable cause shows he or she is a material witness to a felony,

and the right to be informed probable cause shows he or she would be unwilling to accept service. Through

reference to 22 0.S.201 1, § 719, the statute also specifies other rights the material witness enjoys, like the

right to be kept separately from those accused of crimes, the right to counsel, the right to the witness fee for

the time he or she is in custody, and the right to release upon entry of a “written undertaking.”

26

T.W.’s own recognizance bond stated that she acknowledged she was indebted to the State in the sum of

$2,500.00 which would be void when she appeared in court at the prosecution’s request.

27

Posey challenges panelists: RB., MS., J.G., M.C., A.L., ME., and R.W.

28

R.W. rated her support for the death penalty at a 5.

29

R.B. was in favor of the death penalty for murder and child abuse. M.S. supported the death penalty for

arson-related deaths.

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27

Posey v. State, 548 P.3d 1245 (2024)

20240K CR10

30

The three options are: 1) Bryor died as a result of an act or event that happened in the commission of his own

murder, which occurred during his mother’s murder; 2) his death occurred as a result of an act or event that

happened in the commission of his mother’s murder, which occurred during her own murder; or 3) his death

occurred as a result of an act or event that happened in the commission of an unidentified, uncharged murder,

which occurred during his mother’s murder. Posey states the first two options are legally invalid because

“where felony murder is predicated on murder, the predicate must be murder of another person, a person

other than the deceased in the felony murder.” The third option fails for lack of evidentiary support.

31

We observe that use of the uniform instruction template would have eliminated the confusion Posey believes

exists in this case. It reads:

Second, the death occurred as a result of an act or event which happened in the defendant’s commission

of a murder of a person other than the deceased.

Instruction No. 4-64, OUJI-CR(2d) (Supp.2018) (emphasis added).

32

Instruction 20 stated in relevant part:

In arriving at your determination as to what sentence is appropriate under the law, you are authorized to

consider only the evidence received here in open court presented by the State and the defendant during

the sentencing phase of this proceeding.

(O.R.XVII at 3276; Instruction No. 4-82, OUJI-CR(2d).

33

According to Posey, jurors may believe many circumstances that were not specifically addressed in court

may warrant a sentence less than death, such as a disproportionate number of people of color face execution,

especially where the victim is white, or that a disproportionate number of mentally ill defendants are executed

or that convicted citizens are exonerated after spending years on death row.

34

Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (holding any fact rendering a

defendant eligible for the death penalty must be proven beyond a reasonable doubt).

35

Instruction No. 16 stated:

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

or blame, or 2) circumstances which in fairness, sympathy or mercy may lead you as jurors individually

or collectively to decide against imposing the death penalty. The determination of what circumstances are

mitigating is for you to resolve under the facts and circumstances of this case.

While all twelve jurors must unanimously agree that the State has established beyond a reasonable

doubt the existence of at least one aggravating circumstance prior to consideration of the death penalty,

unanimous agreement of jurors concerning mitigating circumstances is not required. In addition, mitigating

circumstances do not have to be proved beyond a reasonable doubt in order for you to consider them.

(O.R.XVII at 3271; Instruction No. 4-78, OUJI-CR(2d) (Supp.2008).

36

Posey’s requested instruction read:

The State has alleged that during the commission of the murder, the defendant knowingly created great

risk of death to more than one person.” This aggravating circumstance is not established unless the State

proves beyond a reasonable doubt:

First, there was a risk of death;

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28

Posey v. State, 548 P.3d 1245 (2024)

2024 OK CR 10

Second, that risk must be to more than one person; and

Third, that the defendant must know that great risk of death to another person exists.

The fact that more than one person dies is not sufficient proof of this aggravating circumstance. The State

must prove beyond a reasonable doubt that defendant’s actions created a great risk of death to another

person who was in close proximity, in terms of time, location and the intent of the act of the killing itself.

The State must also prove that there was an actual risk to the bystander rather than just possible risk and

that the risk of death to another person was more than a mere possibility.

Court’s Exhibit 14 (footnotes omitted).

37

He also claims the evidence failed to show he knew Bryor was present in the house and thus insufficient to

prove that at the time of the fire he intended to create a great risk of death to anyone.

38

In the Special Bill of Particulars, Amended Special Bill of Particulars, and Second Amended Special Bill of

Particulars, the State’s notice of the great risk of death to more than one person aggravator with respect to

Bryor’s murder read:

On June 16, 2013, the defendant murdered Amy Gibbins by means of striking her head with great force and

violence and then he murdered Amy Gibbins’ five year old son Bryor Gibbins, whose death was caused

by smoke inhalation and thermal burns. The murders of Amy Gibbins and Bryor Gibbins were committed

in close proximity of time and inside the house in Calumet, Oklahoma, where both Amy Gibbins and Bryor

Gibbins resided.

The defendant also created a risk of death to more than one person by willfully and maliciously causing

to burn the house where both Amy Gibbins and Bryor Gibbins resided after Amy Gibbins was murdered

and while the house was occupied only by Bryor Gibbins; thereby creating a risk of death to Bryor Gibbins

and others near the house.

(O.R.lll at 405-06; OR. Xl at 2105; O.R.XlVat27lO-11).

39

The Special Bill of Particulars and amended versions gave notice the State would support its continuing

threat allegation with:

[ajIl evidence relating to the nature and circumstances of the murders of Amy Gibbins and her five year

old son Bryor Gibbins, which demonstrates the brutal and callous actions of the defendant, including

that the defendant brutally murdered Amy Gibbins by striking her head with great force and violence and

penetrated her vagina with his penis. The defendant then took deliberate measures to conceal and destroy

the evidence of his acts of violence by causing to burn the bodies of Amy Gibbins and Bryor Gibbins and

the house where they both lived.

(O.R.lll at 403, 406-07; OR. XI at 2102, 2106; O.R.XIV at 2707-08, 2712).

40

The jury heard from multiple witnesses about his mother’s abuse and neglect including from Anna Marie

Stockley, a former worker and supervisor for the Office of Juvenile Affairs (OJA), Robert Rolen, a former officer

with the Tulsa Police Department, Carolyn Dubie, Posey’s third grade teacher, Keeper Johnson, Jr., another

former OJA worker, Rita Posey, Posey’s aunt, Darius Posey, Posey’s cousin and Erick Posey, Posey’s

twin brother who offered a firsthand account of his childhood and the cruel treatment he and his brother

endured. Trial counsel also presented Posey’s mother, Vanita Posey, who mostly denied being abusive but

was declared a hostile witness upon trial counsel’s request. The defense also presented many witnesses

to attest to Posey’s character as a friend, confidant, role model, inmate, and to his valued presence in their

lives, including Randy Wood, David “Bo’ Posey, Steven Wingfield, Katee Bruns, William ‘Bill” Griffis, Gilbert

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29

Posey v. State, 548 P.3d 1245 (2024)

20240K CR 10

Thomas, Anna Templin, Philip Schrepel, Guy Johnson, Ramona Johnson, Carma Jones, Kathryn Klein

Fehrenbach, Joshua “Tiger” Mcintosh, Kimberly Mcintosh, Charles Tanner, Garrett Tanner, Kendra Gladson,

Brian O’Leary, and Meghan Parks.

41

Dr. Minagawa did not interview Posey personally or personally interview any mitigation witnesses. instead,

he reviewed Posey’s school, DHS, juvenile, and health records, police reports, interview materials of family

members and friends, and trial transcripts of the proceeding. For this reason, jurors may have viewed his

testimony with a degree of skepticism.

42

Posey has tendered for filing a motion to supplement his motion for new trial with a recording of the interviews

conducted in the follow-up investigation as well as transcriptions of those interviews as an aid to the Court.

Because his motion for new trial must be dismissed, we find his motion to supplement, tendered for filing on

November 2, 2022, is procedurally moot. The Clerk of this Court is directed to file the motion to supplement

to preserve it.

End of Document

© 2024 Thomson Reuters. No c’aim to original U.S. Government Works.

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30

IT

IN THE COURT OF CRIMINAL APPEALS QFJ1T CF ‘H APPEALS

STATb Oh Q\L/Q[JA

THE STATE OF OKLAHOMA

‘ii\’

DEREK DON POSEY,

)

JOHN D. HADDEN

CLERK

Appellant,

v.

THE STATE OF OKLAHOMA,

)

)

)

)

15 224

Case No. D-2019-542

Appellee.

ORDER DENYING PETITION FOR REHEARING

Appellant Derek Don Posey appealed his Judgment and

Sentence from the District Court of Canadian County, Case No. CF

2013-463, for his First Degree Murder convictions and death

sentences for the deaths of Amy Gibbins (Counts 1 and/or 2) and

her son, Bryor Gibbins (Counts 3 and/or 4), in violation of 21

O.S.Supp.2012, § 701.7.’ Posey’s jury fixed punishment at death

for

both

murder

convictions

after

finding

the

same

three

aggravating circumstances as to each victim, namely: (1) that Posey

knowingly created a great risk of death to more than one person;2

Posey’s jury also convicted him of Debit Card Theft (Count 5), in violation of

21 O.S.201 1, § 1550.22(a), and fixed punishment at three years imprisonment

and a $3,000.00 fine. He did not substantively challenge that conviction on

direct appeal.

221 O.S.2011,701.12(2).

D-2019-542, Posey v. State

(2) that the murders were especially heinous, atrocious, or cruel;3

and (3) that there existed a probability that Posey would commit

criminal acts of violence that would constitute a continuing threat

to society.4 The Honorable Bob W. Hughey, Associate District

Judge, presided over Posey’s jury trial and sentenced him to death

for each murder pursuant to the jury’s verdicts, with all sentences

to be served concurrently. On April 18, 2024, we affirmed Posey’s

Judgment and Sentence in Posey v. State, 2024 OK CR

10,

__P.3d_. Thereafter, Posey timely filed the instant Petition for

Rehearing in this case.

This Court reviews petitions for rehearing to determine if:

(1) Some question decisive of the case and duly submitted

by the attorney of record has been overlooked by the

Court, or

(2) The decision is in conflict with an express statute or

controlling decision to which the attention of this

Court was not called either in the brief or in oral

argument.

Rule 3.14, Rules of the Oklahoma Court of Criminal Appeals, Title

22, Ch. 18, App. (2024).

3210.S.2011, § 701.12(4).

21 O.S.2011, § 701.12(7).

2

D-2019-542, Poseyv. State

The decision handed down in this case adequately disposed of

the issues raised relying upon appropiiate authority and all

questions duly submitted were reviewed by the Court prior to

rendering the decision in this case.

IT IS THEREFORE THE ORDER OF THE COURT that the

Petition for Rehearing is DENIED. The Mandate previously issued in

this case will remain in effect.

IT IS SO ORDERED.

WITNESS OUR HANDS AND THE SEAL OF THIS COURT this

day of

/

‘&-Ci-

,

2024.

SCOTT ROWLAND, Presiding Judge

ROBERT L.

ATTEST:

Clerk

3