Petition for Writ of Certiorari — Bosse v. Oklahoma, 137 S. Ct. 1 (2016) (No. 15-9173)

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ORIGINAL

oe ORIGINAL

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 2015

THE STATE OF OKLAHOMA

Respondent.

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

MICHAEL D. MOREHEAD

Oklahoma Bar No. 18114

Oklahoma Indigent Defense System

P.O. Box 926

Norman, Oklahoma 73070

Telephone (405) 801-2666

Telefacsimile (405) 801-2690

ATTORNEY FOR PETITIONER

April 29, 2016

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

Petitioner, Shaun Michael Bosse, an indigent inmate of the Oklahoma State Penitentiary,

submits this Motion for Leave to Proceed In Forma Pauperis with his Petition for Writ of Certiorari

to the Oklahoma Court of Criminal Appeals.

As demonstrated in the attached affidavit, Shaun Michael Bosse, has been in the continuous

custody of the State of Oklahoma since his arrest on criminal charges.

The attached affidavit is on the form provided by the Clerk of this Court, and complies with

this Court's Rule 39.1 and 28 U.S.C. Section 1746(b) and 1915.

It is respectfully requested that this Court grant this Motion for Leave to Proceed In Forma

Pauperis, and permit Shaun Michael Bosse, to submit his petition for writ of certiorari for filing

without prepayment of filing fees or costs.

Respectfully,

Michael D.

Okiahoma Bar Assoc. No. #18114

Oklahoma Indigent Defense System

Homicide Direct Appeals Division

P.O. Box 926

Norman, OK 73070

(405) 801-2666

(405) 801-2690 (telefascsimile)

ATTORNEY FOR PETITIONER

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AFFIDAVIT OR DECLARATION

IN SUPPORT OF MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

: , am the petitioner in the above-entitled case. In

in forma pauperis, I state that because of my poverty | am unable to

case or to give security therefor, and [ believe I am entitled to redress.

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Description

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 2015

FLED

9 2016

SHAUN MICHAEL BOSSE APR 2

Petitioner,

THE STATE OF OKLAHOMA

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE OKLAHOMA COURT OF CRIMINAL APPEALS

MICHAEL D. MOREHEAD*

Oklahoma Bar No. 18114

JAMIE D. PYBAS

Oklahoma Bar No. 13000

Oklahoma Indigent Defense System

P.O. Box 926

Norman, Oklahoma 73070

Telephone (405) 801-2666

Telefacsimile (405) 801-2690

ATTORNEYS FOR PETITIONER

*COUNSEL OF RECORD

April 29, 2016 Sa

CAPITAL CASE

QUESTION PRESENTED

DO OKLAHOMA COURTS VIOLATE THE EIGHTH AMENDMENT AND THIS

COURT’S HOLDINGS IN BOOTH V. MARYLAND AND PAYNE V. TENNESSEE

WHEN THEY CONSISTENTLY ALLOW FOR THE ADMISSION OF VICTIM

IMPACT TESTIMONY IN CAPITAL SENTENCING TRIALS THAT CONSISTS

OF FAMILY MEMBERS’ CHARACTERIZATIONS OF THE CRIME AND

FAMILY MEMBERS’ SENTENCING RECOMMENDATIONS?

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STATEMENT OF JURISDICTION IN THIS COURT ..... 2.0... 6062 oe cece nes l

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ................ 2

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REASON THIS COURT SHOULD GRANT THE WRIT ...................-60-45. 12

Certiorari Should Be Granted Because the Oklahoma Court of Criminal

Appeals’ Analysis on the Admissibility of Victim Impact Evidence in

Capital Sentencing Trials Is Consistently and Clearly Contrary to Payne

v. Tennessee, Booth v. Maryland, and the Eighth Amendment.

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APPENDIX

Opinion Of The Oklahoma Court Of Criminal Appeals

Bosse v. State, 360 P.3d 1203 (Okla.Crim.App. 2015) ...... 000.00. 00 0000. Exhibit A

Order Denying Petition for Rehearing and Motion to Recall the Mandate

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TABLE OF AUTHORITIES

CASES

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Bosse v. State,

360 P.3d 1203 (Okla. Crim. App. 2015) ... 26... 06. c cece eee cece eee eee eees 1, 16

507 U.S. 619, 113 S.Ct. 1710, 123 L.Bd.2d 353 (1993) 2... 2. cece ee eee ee 13

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280 P.3d 337 (Okla. Crim. App. 2012) ...... 2.2... ccc ce ccs e ere ceeeteeeecneees 7

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89 P.3d 1124 (Okla. Crim. App. 2004) 0.0.02... ccccceeeceecerecneneeceeeeees 7

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ee 2001 WL 298636 (March 28, 2001) ............. Q

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Ware v. State,

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Welch v. State,

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Welch v. Workman,

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Woods v. Johnson,

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Young v. State,

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STATUTORY AUTHORITY

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CONSTITUTIONAL AUTHORITY

The Petitioner Shaun Michael Bosse respectfully prays that a writ of certiorari issue

to review the judgment and opinion of the Oklahoma Court of Criminal Appeals, entered in

the above-entitled proceeding, on October 16, 2015.

LIST OF PARTIES:

All parties to this action are named in the caption.

OPINIONS BELOW:

The judgment for which certiorari is sought is Bosse v. State, 360 P.3d 1203 (Okla.

Crim. App. 2015). The decision in Bosse was filed on October 16, 2015. See Appendix,

Fxhibit A. Rehearing was denied on December |, 2015. See Appendix, Exhibit B.

STATEMENT OF JURISDICTION IN THIS COURT:

The Oklahoma Court of Criminal Appeals, the highest Oklahoma court in which

Petitioner may obtain relief, issued its decision affirming Petitioner’s judgment and death

sentence on October 16, 2015, and denied rehearing in the case on December 1, 2015.

Pursuant to this Court’s Rule 13.5, Petitioner timely sought from the Honorable Associate

Justice Sonia Sotomayor an extension of time to file a petition for a writ of certiorari. Justice

Sotomayor entered an order on February 26, 2016, giving Petitioner Bosse up to and

including April 29, 2016, to file a petition. This Court’s jurisdiction arises pursuant to 28

U.S.C. § 1257.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED:

Constitutional Provisions:

Eighth Amendment:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted.

Fourteenth Amendment:

No State shall make or enforce any law which shail abridge the privileges or

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

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

person within its jurisdiction the equal protection of the laws.

Constitution of the United States.

Okia. Stat. tit. 21, § 142A-8(A) (2011) Victim Impact Statements:

A. Each victim, or members of the immediate family of each victim or person

designated by the victim or by family members of the victim, may present a written victim

impact statement, which may include religious invocations or references, or may appear

personally at the sentence proceeding and present the statements orally. Provided, however,

if a victim or any member of the immediate family or person designated by the victim or by

family members of a victim wishes to appear personally, the person shall have the absolute

right to do so. Any victim or any member of the immediate family or person designated by

the victim or by family members of a victim who appears personally at the formal sentence

i shall not be cross-examined by opposing counsel; provided, however, such

cross-examination shall not be prohibited in a proceeding before a jury or a judge acting as

a finder of fact. A written victim impact statement introduced at a formal sentence

proceeding shall not be amended by any person other than the author, nor shall the statement

be excluded in whole or in part from the court record. The court shall allow the victim impact

statement to be read into the record.

STATEMENT OF THE CASE:

A. Facts Material to the Question Presented.

Petitioner Bosse was tried by a jury on three counts of First Degree Murder and one

count of First Degree Arson for the deaths of Katrina Griffin and her two children, Chasity

Hammer and Christian Griffin. Following guilty verdicts on all counts, the jury heard

evidence in aggravation and mitigation and returned three death sentences on the three counts

of First Degree Murder.

This petition questions the continued practice of Oklahoma trial courts, prosecutors,

and the Oklahoma Court of Criminal Appeals to present and/or sanction victim impact

testimony regarding family members’ characterizations of the crime and their recommended

sentences in capital sentencing proceedings in light of this Court’s holdings in Booth v.

Maryland, 482 U.S. 496, 505, 107 S.Ct. 2529, 2525-36, 96 L.Ed.2d 440 (1987) and Payne

v. Tennessee, 501 U.S. 808, 830 n.2, 111 S.Ct. 2597, 2611 0.2, 115 L.Ed.2d 720 (1991).

Prior to trial, Mr. Bosse filed a Motion seeking to prohibit the State from eliciting a

recommendation of death by the victims’ surviving family members. (O.R. 772-83). Prior

to the presentation of evidence during the penalty phase of the trial, the trial court heard

argument on this motion and, at the conclusion of the argument, overruled the motion and

permitted the State to elicit a recommendation of death by the witnesses providing victim

impact testimony. (X Tr. 9-13) The last three witnesses presented by the State of Oklahoma

were Rebecca Allen, Katrina’s mother, and Christian and Chasity’s grandmother; Ginger

Griffin, Katrina’s stepmother, and Christian and Chasity’s step-grandmother; and Johnny

Griffin, Katrina’s father, and Christian and Chasity’s grandfather. (X Tr. 197-223) Each

delivered a prepared victim impact statement. Each witness concluded his or her testimony

by asking the jury to sentence Mr. Bosse to death. (X Tr. 202, 212, 223) The presentation

of this evidence deprived Mr. Bosse of fundamental constitutional rights, and rendered his

sentencing trial fundamentally unfair and the resulting death sentence unreliable.

B. How the Issue Was Raised and Decided Below.

On direct appeal to the Oklahoma Court of Criminal Appeals (“OCCA”), Petitioner

argued that the trial court and prosecutor presented the aforementioned victim impact

testimony in violation of this Court’s holdings in Booth v. Maryland and Payne v. Tennessee.

Petitioner argued that this Court, in lifting the per se Eighth Amendment ban on victim

impact evidence in Payne v. Tennessee, 501 U.S. 808, 830 n.2, 111 S.Ct. 2597, 2611.2, 115

L.Ed.2d 720 (1991), expressly limited its holding to “evidence and argument relating to the

victim and the impact of the victim’s death on the victim’s family ....” Payne left untouched

that portion of Booth v. Maryland, 482 U.S. 496, 508-09, 107 S.Ct. 2529, 2525-36, 96

L.Ed.2d 440 (1987), holding that victims’ family members’ characterizations about the crime,

the defendant, and the appropriate sentence are irrelevant and violate the Eighth Amendment.

Payne, 501 U.S. at 830 n.2, 833, 111 S.Ct. at 2611 n.2. Petitioner pointed out that in light

of these holdings, the OCCA has erroneously held that the Supreme Court “implicitly

overruled” that portion of Booth. Conover v. State, 933 P.2d 904, 920 (Okla. Crim. App.

1997) (citing Ledbetter v. State, 933 P.2d 880 (Okla. Crim. App.1997)).

Petitioner reasoned that the OCCA reached this novel conclusion based on its view

that “the entire discussion [in Booth] dealing with family members’ opinions and

characterizations of the crimes was covered in two paragraphs, after an extended discussion

of the other victim impact evidence, and appeared based on the same rationale.” Ledbetter,

933 P.2d at 890-91. The argument seems to be that since the underlying rationale was

declared invalid as to one holding, it must also be invalid as to other holdings based upon that

same rationale. Petitioner acknowledged this reasoning would make sense, until one looks

at the rationale used in Payne to validate testimony relating to the victim and the impact on

the victim’s family. Petitioner asserted that this Court repeatedly stressed in Payne that the

reason testimony about the victim and the impact of the death on the victim’s family is

relevant and admissible, and thus not violative of the Eighth Amendment, is that “victim

impact evidence is simply another form or method of informing the sentencing authority

about the specific harm caused by the crime in question, evidence of a general type long

considered by sentencing authorities.” Payne, 501 U.S. at 825, 111 S.Ct at 2608.

Characterizations of the crime and opinions as to the appropriate punishment, on the other

hand, do nothing to inform the sentencing authority about the specific harm caused by the

crime in question. Accordingly, “the formal presentation of this information by the State can

serve no other purpose than to inflame the jury and divert it from deciding the case on the

relevant evidence concerning the crime and the defendant.” Booth, 482 U.S. at 508, 107

S.Ct. at 2536. Therefore, Petitioner argued, admission of this evidence “is inconsistent with

the reasoned decisionmaking we require in capital cases” and violates the Eighth

Amendment. /d. at 508-09, 107 S.Ct. at 2536.

Petitioner observed that the OCCA had recently acknowledged that in both footnote

two of the majority opinion in Payne and in Justice O’Connor’s concurring opinion (joined

by two Justices who also joined the majority Opinion), the Supreme Court “left open the

question about admissibility of victim impact evidence regarding characterizations and

opinions about the crime, the defendant, and the appropriate sentence because no such

evidence was presented in that case.” Murphy v. State, 47 P.3d 876, 885 (Okla. Crim. App.

2002) (citing Payne, 501 U.S. at 830, 833, 111 S.Ct. at 2611-13). Nevertheless, Petitioner

noted, the OCCA suggested its expansive interpretation of Payne was validated by the fact

that “the Supreme Court has denied certiorari in Turrentine [(one of the cases in which the

OCCA wrongly upheld characterizations of the defendant, the crime, and opinions regarding

sentence)], and, since that time, we have continued to approve such evidence in other capital

cases.” Murphy, 47 P.3d at 885 (citing Young v. State, 12 P.3d 20 (Okla. Crim. App. 2000),

cert. denied, 532 U.S. 1055, 121 $.Ct. 2200, 149 L.Ed.2d 1030 (2001); Welch v. State, 2 P.3d

356, 373 (Okla. Crim. App. 2000), cert. denied, 531 U.S. 1056, 121 S.Ct. 665, 148 L.Ed.2d

567 (2000)).

Petitioner pointed out to the OCCA that a denial of a petition for writ of certiorari is

not a ruling on the merits. Missouri v. Jenkins, 515 U.S. 70, 85, 115 S.Ct. 2038, 2047, 132

L.Ed.2d 63 (1995) (“Of course, ‘[t]he denial of a writ of certiorari imports no expression of

opinion upon the merits of the case, as the bar has been told many times.””) (quoting United

States v. Carver, 260 U.S. 482, 490, 43 S.Ct. 181, 182, 67 L.Ed. 361 (1923)). Accordingly,

Petitioner argued, this Court’s denial of petitions for writ of certiorari in Turrentine, or any

other of the cited cases, for that matter, should not be read as approval of this Court’s

decision to overrule Booth v. Maryland.'

Petitioner also addressed another OCCA case in which the OCCA responded

summarily to a capital defendant’s claims on improper victim impact testimony as follows:

such evidence, the decision in Payne left open the question of the validity of such

evidence. The legislature of this State has specifically provided for the admission of

this kind of victim impact evidence. And this Court has rejected claims like DeRosa’s

in the past. The Court will not re-examine the issue here.

DeRosa v. State, 89 P.3d 1124, 1151-52 (Okla. Crim. App. 2004) (footnotes omitted). See

also Bush v. State, 280 P.3d 337, 349-50 (Okla. Crim. App. 2012)(acknowledging such

evidence is admissible in capital sentencing procedures and declining to revisit the issue);

Malone v. State, 168 P.3d 185, 204, n.89 (Okla. Crim. App. 2007)(acknowledging that the

prohibition in Booth is still good law post-Payne, but nevertheless declining to revisit the

issue). Petitioner pointed out to the OCCA that, in the first place, the fact that the Oklahoma

Legislature has allegedly provided for the admission of this kind of opinion testimony does

not answer the question of whether that legislative pronouncement is constitutionally valid.

Article Six of the United States Constitution provides:

This Constitution, and the Laws of the United States which shall be made in

Pursuance thereof ... shall be the supreme Law of the Land; and the Judges in every

' Indeed, this issue was not even presented for the Court’s consideration in Turrentine’s Petition

for Writ of Certiorari.

State shall be bound thereby, any Thing in the Constitution or Laws of any State to

the Contrary notwithstanding.

U.S. CONST., art. VI, § 2 (emphasis added). Secondly, Petitioner argued, for the

OCCA to say that this Court has “left open” this question is inaccurate. This Court answered

this question in Booth. That is the last command on this topic, and until this Court decides

to reconsider this issue, that is the Law of the Land. Petitioner is aware of no other precedent

equating a court’s decision not to reconsider a prior ruling with overruling that prior ruling.

Petitioner reminded the OCCA that the Tenth Circuit has consistently recognized that

Booth’s prohibition of opinions and characterizations about the crimes, the defendant, and

appropriate punishment is still in force. See Dodd v. Trammell, 753 F.3d 971, 996-97 (10"

Cir.2013); Grant v. Trammell, 727 F.3d 1006, 1015~17 (10® Cir.2013); Lockett v. Trammell,

711 F.3d 1218, 1226, 1238-40 (10" Cir.2013); Lott v. Trammell, 705 F 3d 1267, 1202, 1214,

1218-19 (10 Cir.2013); DeRosa v. Workman, 679 F.3d 1196, 1236-37, 1240 (10*

Cir.2012); Selsor v. Workman, 644 F.3d 984, 1025, 1027 (10 Cir.201 1); Welch v. Workman

(Gary Welch), 639 F.3d 980, 996-1000, 1002-04 (10" Cir.2011); Welch v. Sirmons (Frank

Welch), 451 F.3d 675, 703-04 (10 Cir.2006); Hooperv. Mullin, 314 F.3d 1162, 1174 (10*

Cir.2002); Willingham v. Mullin, 296 F.3d 917, 930-32 (10* Cir.2002); Hain v. Gibson, 287

F.3d 1224, 1234-36, 1239-40 (10 Cir.2002), as have the Fifth and Eighth Circuits, see

Woods v. Johnson, 75 F.3d 1017, 1037-38 (5* Cir. 1996) (noting that Payne “largely

overruled” Booth and Gathers and pointing out habeas petitioner’s case did not involve

“evidence or argument concerning ‘the opinions of the victim’s family about the crime, the

defendant, and the appropriate sentence”); Parker v. Bowersox, 188 F.3d 923, 931 (8* Cir.

1999) (citing Payne and stating that “family members of the victim may not state

at the penalty phase”).

Petitioner also pointed out that a number of states are in agreement that Payne did not

overrule Booth’s ban on victim impact evidence in toto. For example, the State of

Tennessee, from whence Payne v. Tennessee originated, has recognized that “the Supreme

Court did not disturb that portion of its opinion in Booth that excluded information relating

to family members’ characterization of and opinions about the crime, the defendant, and the

appropriate sentence.” State v. McKinney, No. W1999-008440CCA-RD-DD, 2001 WL

298636, at *14 (March 28, 2001) (citing Payne, 501 U_S. at 830 n.2, 111 S.Ct. at 2611 n.2).

Similarly, the State of Maryland, from whence Booth v. Maryland originated, has treated

Booth as having been overruled only “in part,” thus continuing to hold that “[t}he sentencing

authority ... may not consider statements of the victim’s family that amount to an opinion

regarding the appropriate sentence to be imposed upon the defendant. See Booth v.

Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), overruled in part on other

grounds, Payne v. Tennessee, 501 U.S. at 830 & n.2, 111 S.Ct. 2597.” Ware v. State, 759

A.2d 764, 783 (Md. Ct. App. 2000). The State of Texas, meanwhile, has been more blunt

about the issue, finding that “Booth 's latter holding remains binding precedent.” Fryer v.

State, 68 S.W.3d 628, 630 (Tex. Crim. App. 2002). Other state courts are in agreement with

this general principle. See Ex parte McWilliams, 640 So.2d 1015, 1017 (Ala. 1993) (noting

that Payne only “partially” overruled Booth and “conclud{ing] that McWilliams’s Eighth

Amendment rights were violated if the trial judge in this case considered the portions of the

victim impact statements wherein the victim’s family members offered their characterizations

or opinions of the defendant, the crime, or the appropriate punishment”); Farina v. State, 680

So.2d 392, 399 (Fla. 1996) (“The only part of Booth that Payne did not overrule was ‘that

the admission of a victim’s family members’ characterizations and opinions about the crime,

the defendant, and the appropriate sentence violates the Eighth Amendment.”); People v.

Harris, 695 N.E.2d 447, 467 (Ill. 1998) (“Payne did not address, however, the prohibition

in Booth on the introduction of surviving family members’ views regarding appropriate

punishment. We note that this court has held that witnesses’ opinions regarding the proper

punishment in a capital case are irrelevant and therefore inadmissible at a capital sentencing

hearing.” (citations omitted); State v. Taylor, 669 So.2d 364, 369-70 (La. 1996) (explaining

that Payne left that portion of Booth “undisturbed” and “highlight[ing] the Supreme Court’s

consistent holding that, ‘[e]vidence of the victim’s survivors’ opinions about the crime and

the murderer is clearly irrelevant to any issue in a capital sentencing hearing.””) (citations

omitted); State v. Muhammad, 678 A.2d 164, 172 (N.J. 1996) (“Payne left undisturbed the

holding in Booth that the admission of a victim’s family members’ characterizations and

opinions about the crime, the defendant, and the appropriate sentence violates the Eighth

Amendment.”) (citing Payne, 501 U.S. at 830 n.2, 111 S.Ct. at 2611 n.2).

In response to Petitioner’s arguments, the OCCA , while acknowledging the fact that

the Tenth Circuit has found Oklahoma’s position on this issue constitutionally infirm,

nevertheless declined “the invitation to reconsider [its] consistent position on this issue.”

Exh. A, 9 56. Judge Lumpkin, in a concurring Opinion, elaborated on the OCCA’s view of

this issue. Judge Lumpkin, referring to previous opinions of the Oklahoma court, maintained

that Payne overruled Booth in its entirety. Exh. A, J 18 (Lumpkin, J., concurring in

part/dissenting in part). Judge Lumpkin did note, however, that footnote number 2 in Payne

“has caused some confusion.” /d. at § 17. That footnote, by Chief Justice Rehnquist,

observed that Payne was overruling only that portion of Booth that pertained to evidence and

argument relating to the victim and the impact of the victim’s death on the victim’s family,

and that portion of Booth that prohibited victim’s family members’ characterizations and

opinions about the crime, the defendant, and the appropriate sentence was left intact. Payne,

501 U.S. at 830 n.2, 111 S.Ct. at 2611 1.2.

Judge Lumpkin then dismisses the import of the Chief Justice’s footnote by noting

that fuotnotes have no precedential value and are merely obiter dictum: Exh. A, | 19

(Lumpkin, J., concurring in part/dissenting in part). While this may be true, the concurring

judge wholly ignores the fact that Justice O’Conner, in a concurring Opinion joined by two

of the six Justices writing for the majority Opinion, said the very same thing as did the Chief

Justice in footnote 2, to wit: “Booth also addressed another kind of victim impact

evidence—opinions of the victim's family about the crime, the defendant, and the appropriate

sentence. As the Court notes in today's decision, we do not reach this issue as no evidence

of this kind was introduced at petitioner's trial.” Payne, 501 U.S. at 833, 111 S.Ct. at 2612

(O’Conner, J., concurring.) Thus, four of the six Justices writing for the Payne majority

explicitly acknowledged that those portions not directly at issue in Booth were still the law

of the land, and at no place in any of the Payne Opinions was there so much of a hint that the

law should be interpreted otherwise.

Judge Lumpkin practically begged this Court to clear up the “confusion”: “We are

waiting for the issue to be presented to the United States Supreme Court. [Citation omitted.]

Until the United States Supreme Court issues a definitive opinion on the issue, we will

continue to apply the explicit language of Payne and approve of such evidence in other

capital cases.” Exh. A, ¥ 21 (Lumpkin, J., concurring in part/dissenting in part). Mr. Bosse

is now presenting the issue to this Court.

REASON THIS COURT SHOULD GRANT THE WRIT:

Certiorari Should Be Granted Because the Oklahoma Court of Criminal

Appeals’ Analysis on the Admissibility of Victim Impact Evidence in

Capital Sentencing Trials Is Consistently and Clearly Contrary to Payne

v. Tennessee, Booth v. Maryland, and the Eighth Amendment.

Oklahoma stands alone, an outlier, in holding that the Constitution permits victim

characterizations of crimes and recommendations of an appropriate sentence in capital

sentencing proceedings. Every jurisdiction which has addressed this issue, with the lone

exception of Oklahoma, has held that the prohibition of this form of evidence, as explained

in Booth v. Maryland, remains intact following Payne v. Tennessee. In a recent Oklahoma

capital case, the Tenth Circuit reminded the OCCA that “it remains constitutionally improper

for the family members of a victim to provide ‘characterizations and opinions about the

crime, the defendant, and the appropriate sentence’ during the penalty phase of a capital

case.” DeRosa v. Workman, 679 F.3d 1196, 1237 (10" Cir. 2012)(internal citations omitted).

Accordingly, the Tenth Circuit found the OCCA’s analysis to the contrary was in clear

contravention of Payne and Booth.” Id. at 1240. The Tenth Circuit further found that the

OCCA’s “prejudice analysis necessarily failed to take into account the full scope of the

constitutional errors that resulted from the admission of the challenged victim impact

testimony, and thus is not entitled to any deference in this federal habeas proceeding.” Jd.

Ultimately, in DeRosa, the Tenth Circuit found the admission of such improper

evidence to be harmless under the standards provided for habeas review in Brecht v.

Abrahamson, 507 U.S. 619, 634, 113 S.Ct. 1710, 123 L.Ed.2d. 353 (1993). Jd. However,

in his dissent from a denial of en banc rehearing in DeRosa, Judge Lucero made the

following observation:

This case presents a troublesome and recurrent theme in capital cases arising out of

the Oklahoma state courts which causes me to dissent from the denial of en banc

review. AsI note herein, state prosecutors and courts have developed a pattern and

practice of non-compliance with — if not outright ignoring of - United States Supreme

Court precedent that specifically prohibits eliciting from a relative of the victim an

opinion as to whether the death penalty should be imposed.

DeRosa v. Workman, 696 F.3d 1302, 1303 (10" Cir. 2012)(Lucero, J., dissenting).

Lamenting the impotence of the harmlessness analysis to which federal courts are

confined under Brecht in addressing what can only be construed as the OCCA’s “intentional

disobedience of the federal Constitution...,” Judge Lucero argued that were “the option not

foreclosed by precedent, one could make a strong case that a state court system’s pattern of

ignoring the United States Supreme Court should be immune from harmless error review as

akin to structural error. /d. at 1305. “[Wy]hile there is no direct action we can take to halt this

contumacious behavior,” Judge Lucero observed, there is but “one federal court that can

directly correct the OCCA’s unreasonable interpretation: the United States Supreme Court.”

Id. at 1306.

Despite this Court’s clearly established law banning evidence of family members’

opinions about the crime and the appropriate sentence for the perpetrator, Oklahoma

prosecutors and trial courts continue to allow such evidence in capital sentencing trials, as

they did in this case. Moreover, the OCCA continues to uphold the admissibility of such

unconstitutional evidence and willfully ignore the dictates of this Court’s case law. As

already noted, the only answer the OCCA gave to Petitioner’s argument on this issue was that

the Tenth Circuit’s interpretation of the issue was not binding and that the OCCA would not

“reconsider [its] consistent position on this issue.” Exh. A, § 56. Judge Lumpkin, writing on

this issue in his concurring opinion, biuntly stated that the OCCA would continue to permit

the unconstitutional evidence until this Court orders it to do otherwise. Exh. A, J 21

(Lumpkin, J., concurring in part/dissenting in part).

Noting the Court’s “duty to search for constitutional error with painstaking care is

never more exacting than it is in a capital case,” this Court granted certiorari in the case of

Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), because there was

reason to question whether the Court of Appeals for the Fifth Circuit evaluated the

significance of undisclosed evidence under the correct standard. Jd. at 1560 (quoting Burger

v. Kemp, 483 U.S. 776, 785 (1987)). The reason for granting certiorari in this case is

similarly compelling, because the OCCA has signaled that it will continue to act in an

unconstitutional manner on this issue until told otherwise by this Court.

CONCLUSION

Shaun Michael Bosse respectfully requests this Court grant this petition for

certiorari to the Oklahoma Court of Criminal Appeals on the question presented. Petitioner

further requests that this Court vacate the death sentence in this case and grant such other

relief as it deems appropriate.

Respectfully submitted,

MICHAEL D. toe.

Appellate Defense Counsel

Oklahoma Bar Assoc. No. 18114

Oklahoma Indigent Defense System

Homicide Direct Appeals Division

P.O. Box 926

Norman, Oklahoma 73070

(405) 801-2666

(405) 801-2690 (FAX)

Email: Michael Morehead@oids.o}

D. PYBAS

Defense Counsel/Division Chief

Oklahoma Bar Assoc. No. 13000

Oklahoma Indigent Defense System

Homicide Direct Appeals Division

P.O. Box 926

Norman, Oklahoma 73070

(405) 801-2666

(405) 801-2690 (FAX)

Email: Jamie.Pybas@oids.ok. gov

ATTORNEYS FOR PETITIONER

SHAUN MICHAEL BOSSE

*COUNSEL OF RECORD

APPENDIX:

Exhibit A: Opinion in Bosse v. State, 360 P.3d 1203 (Okla. Crim. App. 2015)

Exhibit B: Order Denying Petition for Rehearing and Directing Issuance of

Mandate.

Bosse v. State, 360 P.3d 1203 (2015)

2015 OK CR 14

360 P.3d 1203

Court of Criminal Appeals of Olahoma.

Shaun Michael BOSSE, Appellant,

The STATE of Oklahoma, Appellee.

No. D-—2012~1128.

Oct. 16, 2015.

Synopsis

Background: Defendant was convicted in the District Court,

McClain County, Greg Dixon, J., of three counts of first

degree murder and one count of first degree arson, and was

sentenced to death, for his killing of a mother and her two

children. Defendant appealed.

Holdings: The Court of Criminal Appeals, Smith, P_J., held

that:

{1} fire research engineer's experiments were relevant and

reliable under Daubert,

[2] District Court's error, if any, in admitting evidence

regarding defendant's refusal to consent to search was

harmless;

{3] DNA analyst's visual! aids to testimony were admissible;

[4] District Court did not abuse its discretion in excepting

victim's mother and stepmother from sequestration;

{5] admission of unfairly prejudicial photographs did not

[6] District Court did not abuse its discretion in allowing

stepmother to provide testimony regarding murdered step-

grandchildren;

[7] evidence was sufficient to support aggravating

circumstances,

[8] admissibility of testimony from Medical Examiner's office

does not depend on accreditation;

[9] there was no prosecutorial misconduct, or any conduct

was cured, in closing argument; and

[10] defendant was not prejudiced by counsel's allegedly

deficient performance.

Affirmed,

Lumpkin, V.P.J., filed opinion concurring in part and

dissenting in part

Johnson, J., filed specially concurring opinion.

Lewis, J., filed specially concurring opinion.

Hudson, J., filed opinion concurring in part and dissenting in

part.

*1211 An Appeal from the District Court of McClain

County; the Honorable Greg Dixon, District Judge.

Attorneys and Law Firms

Gary Henry, Chief Capital Counsel, Mary Bruchi, Bobby

Lewis, Capital Counsel, Okla. Indigent Defense System,

Norman, OK, counsel! for defendant at trial.

Greg Mashburn, District Attiomey, Susan Caswell, Lori

Puckett, Assistant District Attomeys, Office of District

Attorney, Norman, OK, counse! for State at trial.

Michael D. Morehead, Appellate Defense Counsel, Jamie D.

Pybas, Division Chief, Homicide Direct Appeals Div., Okle.

indigent Defense System, Norman, OK, counsel for eppeliant

on appeal.

E. Scott Pruitt, Attorney General of Oklahoma, Thomas L.

Tucker, Assistant Attorney General, Oklahoma City, OK,

counsel for appellee on appeal.

OPINION

SMITH, Presiding Judge.

4 | Shaun Michael Bosse was tried by jury and convicted

of Counts |, Il and II, First Degree Murder in violation of

2i O.S.Supp.2009, § 701.7(A); and Count IV, First Degree

Arson in violation of 21 O.S.2001, § 1401(A), in the District

Court of McClain County, Case No. CR-2010-213. For each

Bosse v. State, 360 P.3d 1203 (2015)

2015 OK CR 14

of Counts I-III, the jury found that Bosse kn» ingly created

a great risk of death to more than one person, that cach

murder was heinous, atrocious or cruel; and that each murder

was committed for the purpose of avoiding or preventing a

lawful arrest or prosecution. In accordance with the jury's

recommendation the Honorable Greg Dixon sentenced Bosse

to three sentences of death (Counts I-III), and thirty-five (35)

years imprisonment and a fine of $25,000.00 (Count IV), to

run consecutively. Bosse appealed from these convictions and

sentences and raises fifteen propositions of error in support

of his appeal.

{2 On July 23, 2010, Katrina Griffin, her eight-year-old son

Christian and her six-year old daughter Chasity were found

dead in a mobile home near Dibble, where they lived on the

same rural property as her father and stepmother, Ginger.

Katrina, a single mother, had a seizure disorder and received

Social Security disability payments. At the time of her death,

she did not drive and she did not have a job. A few months

before her death, after receiving SSD payments, Katrina

bought furniture, televisions and a laptop computer for the

trailer. She spent a lot of time online on her laptop, and she and

the children watched movies and television and played video

games at home. Katrina put her initials, KRG, on many of her

Bosse met online in early July 2010. Bosse visited Katrina at

the trailer several times before her death and stayed overnight

at least once. Bosse met Katrina's stepmother, Ginger. One

weekend when the children visited their father, Bosse stayed

ovemight and met Katrina's cousin, Heather Molloy, and

Heather's boyfriend, Henry Price. Katrina told Molloy that her

relationship with Bosse was the best she'd been in.

| 3 On the evening of July 22, 2010, while Bosse was

visiting, Katrina realized some of Christian's video games

were missing. Katrina asked Ginger whether Christian had

left any games there, and Ginger said he'd taken them home.

Katrina talked to her mother, Rebecca Allen, several times

that night, beginning at about 10:00 p.m. Katrina said Bosse

was with her and the children. Katrina told Allen that she

thought Price had taken the games. Katrina tried several

times to call and text Molloy without success. Katrina told

Allen that Bosse was driving her to Molloy's house, and

one text message to Molloy said that Katrina had come

over and banged on the door. Eventually Katrina called

the McClain County Sheriff's Office. About 11:50 p.m.,

Deputy Cunningham arrived to take a missing property

report. Katrina, the children, and Bosse were there. *1212

Katrina told Cunningham that about fifteen video games were

missing, and she thought they had been gone since Molloy

and Price visited the previous Saturday. Sometime between

12:30 a.m. and 1:00 a.m., Katrina phoned Allen, saying the

deputy had left and she was going to bed.

4 4 Ginger Griffin left for work on July 23rd at around 7:00

a.m. She looked at Katrina's trailer, but saw neither smoke

nor Bosse’s truck. At 8:55 a.m. a neighbor, Daryl Dobbs,

drove by and saw smoke coming from the top of Katrina's

trailer, near the back door. Dobbs called 911 and reported

the fire, drove to the trailer, and honked his horn. He tried to

open the storm door, but it was jammed, so he walked around

the trailer hitting the walls and windows, without response.

Dobbs looked into the windows, but could not see anything;

it was pitch black. The back door was locked. Dobbs used a

garden hose to spray water on the trailer roof above the back

door. Later, Dobbs opened the front screen door and banged

on the closed front door. There was a small hole, about the

size of a golf ball, in the window to the left of the front door.

Neither the front nor back doors were damaged, and there was

no smoke from the doors or windows, other than a trickle from

the small hole in the front window. Dobbs disconnected the

trailer's propane tank and turned off the electricity.

495 The Dibble police chief, Walt Thompson, responded to

the 911 call shortly after 9:00 a.m. He saw smoke coming

from the west roof line, near the middle of the trailer. The

windows were unbroken, but he could not see inside because

the trailer was filled with black smoke, Thompson broke a

window at the trailer’s far southeast comer, leaned inside,

and shouted, but nobody responded. The front door opened

when it was touched, and the men on the porch were forced

back by heat and heavy black smoke. Both men noticed the

smoke was heavier and darker than each one had seen rising

from the back of the trailer. Soon flames began to roll out the

front door. By this time, they were aware that Katrine and the

children might be inside. Dibble volunteer firemen Bill Scott

and Mark Palmore arrived, and fought their way through the

front door. In heavy smoke, they cleared the two bedrooms

and bathroom on the trailer’s north end, before running low

on oxygen. Washington volunteer firemen Derek Cheek and

Gary Bolster, in turn, entered the trailer and began to search

the south side through thick black smoke. They extinguished

small flames in the living room, kitchen and utility room. The

master bedroom door was shut and warm to the touch. The

door had a hole in it, which appeared to have been there before

the fire started. When Cheek opened it, they saw the bodies

of Katrina and Christian on the floor. Heat was building

up, and the two had to retreat before finishing their search

Bosse v. State, 360 P.3d 1203 (2015)

2015 OK CR 14 .

for Chasity. While there were no flames as they left, within

fifteen minutes flames appeared. It took firefighters an hour

and a half to contain the fire. They focused on suppressing

the flames nearest the victims, to preserve what they could of

the crime scene.

16 When firefighters reentered the trailer, the fire had burned

significant parts of the master bedroom, including the wall

to the closet. The walls in the south part of the trailer were

burned, the trailer was filled with charred debris, and the floor

decking was saturated with water. The bodies of Katrina and

Christian were charred and covered in debris. The fire began

in the love seat on the living room's west wall. The State's

experts testified it could have burned for at least four hours

before Dobbs saw smoke at 8:55 a.m., smoldering until the

front door opened to reignite the flames.

4 7 Chasity’s body, severely charred, was in the closet of the

master bedroom, underneath a pile of debris. A chair had been

put under the outside knob of the closet door, preventing it

from being opened from the inside. Chasity was burned from

the waist down— her legs were charred to the muscle and

bone was exposed. She had a laceration to her right cheek and

blunt force trauma on the right side of her skull. The autopsy

showed soot in her stomach and lungs.

4 8 Significant blood spatter was on the walls near Christian's

body. His head was partially wrapped in a blanket. He wore

underwear and unbuttoned, unzipped jean *1213 shorts. He

had been stabbed five times in the neck and chest, there was

a defensive stab wound on his right forearm, and he had blunt

force trauma over his right eyebrow.

{9 Katrina was clothed in a T-shirt, shorts and underwear;

her shirt was pulled up over her torso and her hands crossed

as if she had been dragged. When found after the fire, her

legs were laying over Christian's, and her body was covered

in debris. Her body had been partially burned, and there was

some indication that it might have been covered with @ sheet.

She had eight stab wounds to her neck and abdomen, and

blunt force trauma to the right side of her head. Her face was

charred and her glasses were attached to her burned hair. She

had defensive incised wounds on her right palm. Although

Katrina was left-handed, her right hand held a knife with the

blade pointing backwards, facing her body. Blood on this

knife was consistent with Katrina's blood. A pocketknife with

a broken blade was found undemeath Katrina's body. The

pocketknife belonged to Christian, and Katrina kept it in her

bedroom.

{ 10 The cause of death for both Katrina and Christian was

multiple stab wounds. Neither victim had soot in their noses

or mouths, suggesting they were dead before the fire. The

cause of death for Chasity was smoke inhalation and thermal

injury.

7 11 As investigators put out the fire and began working at

the crime scene on the moming of July 23, Katrina's family

members told police that she and Bosse were dating, and

authorities began looking for him. Bosse shared an apartment

in south Oklahoma City with his mother, Verna. Bosse left the

apartment on July 22 at about 8:00 p.m. At about 6:00 a.m.

on July 23, Verna saw Bosse getting ready to leave. He left

between 6:15 and 6:30 a.m., went to OCCC, and logged in to

a computer at about 7:30 a.m.

q 12 At about 2:30 p.m., McClain County Sheriff's Detective

Dan Huff called and asked Bosse to come to the Sheriff's

office. At about 4:00 p.m. Bosse met for about an hour

with Huff and David Tompkins, and OSBI Agent Bob Horn.

Officers saw Bosse had red abrasions on his knuckles. There

was blood on his tennis shoes and a long scratch on his

arm. Bosse admitted he was at Katrina's house the previous

evening. He talked about the missing games, and said he went

with Katrina and the children to Molloy's house about 10:00

p.m. Bosse said he was there when Deputy Cunningham took

Katrina's report. He said Katrina wanted him to stay, but he

left about 12:30 a.m. on July 23rd, reaching his apartment at

1:30 or 2:00 a.m., and was in bed by 3:00 a.m.

7 13 Bosse told investigators that he and Katrina had been

dating a few weeks and were not serious. He admitted he spent

the night with her a week earlier when the children were gone.

He said he'd spent some time there and had been in every room

of the trailer. Bosse said Katrina texted him that morning,

but he could not retrieve it from his phone. Justine Lyman

dated Bosse from early July 2010, until Bosse changed

his Facebook status to “in a relationship” with Katrina. At

midnight on July 23, Lyman sent Bosse a Facebook message

complaining about Katrina. Bosse responded at 7:44 a.m.,

saying Katrina was a crazy bitch, nothing was going on,

and he was dropping Katrina from his friends list. He told

Lyman she could check with Katrina to confirm this. Bosse

communicated with Lyman and a woman named Sarah by text

throughout that day.

1 14 Investigators asked to search Bosse’s truck. He refused,

but let them take photographs of its contents. A laptop

Bosse v. State, 360 P.3d 1203 (2015)

with cables, a Bic lighter and DVD case marked “KRO”

were in the front floorboards. A PlayStation console, video

games, and DVD cases marked “KRG” were in the front

and back seat areas. Bosse said the laptop belonged to a

friend, but would not give « name. Bosse left the Sheriff's

office after 5:00 p.m. Later that day, Ginger identified the

laptop, and other items in the photos, as Katrina's. OSB!

Agent Akers went to Bosse's apartment on the night of July

23 and asked again to search his truck, and this time Bosse

agreed. Akers also noticed Bosse's red knuckles, the scratch

and the blood on his shoes. Bosse told Akers he'd been to

several places that day, including OCCC and a Walmart, but

did not say he went anywhere north of 1-240 in *1214

Oklahoma City, or mention any pawnshops. Bosse’s brother,

Matthew, was also at the apartment. Matthew was 6 foot 2

or 3 inches and about 300 pounds, while Bosse was sbout

5 foot 8 or 9, and about 210 pounds, and the two could not

have shared clothing. When Akers searched Bosse's truck,

most of the property photographed earlier was gone, though

the movies were found in Bosse's bedroom. Investigators

searched Bosse's apartment and found items from Katrina's

trailer. Stains which might have been blood were on towels

and the laundry basket, but only one towel was presumptive’ y

tested for blood, and that was not confirmed. A pair of bloody

jeans was found in the back of Bosse's closet. DNA tests on

the jeans showed genetic profiles from Chasity and Bosse.

DNA tests of blood on Bosse’s shoes were consistent with

Chasity (right shoe) and Katrina (left shoe).

q |S Basse's billfold was in his tuck. A rip in the back created

a hidden pocket, which held pawn tickets. When Akers asked

Bosse if he forgot to mention the pawn tickets, Bosse turned

white, and Akers arrested him. Bosse had pawned more

than one hundred of Katrina's possessions at seven different

Oklahoma City pawnshops the morning of July 23, when

the trailer was sti!l burning. The pawned items included

televisions, a game console and VCR or DVD player, as

well as several dozen mo. 3 and video games. Mast of the

games and DVDs were n..rxed with the initials “KRG”, and

sales receipts confirmed that the electronic equipment was

Katrina's. Bosse's and Katrina's fingerprints were found on

some of the pawned items. A TV remote in Bosse's tuck

matched one of Katrina's TVs that Bosse pawned. Officers

were able to connect the items to Katrina by serial numbers.

Katrina's initials, and identification through witnesses.

Pretrial Issues

Admission of scientific evidence

{1} 4% 16 Bosse claims in Proposition | that the evidence

produced at the Daubert hearing was not sufficiently reliable

or relevant and should not have been admitted, and argues that

admission of this evidence violated his constitutional right to

due process. The State alleged that Bosse set the trailer on fire

after he killed Katrina and Christian and barricaded Chasity

in the closet. Bosse was at home in Oklahoma City, an hour

awey from the trailer, at 6 a.m. Ginger Griffin did not notice

any smoke at 7:00 a.m., but Dobbs saw smoke at 8:55 a.m. For

Bosse to have set the fire, it had to smolder for approximately

four hours before Dobbs saw the smoke. Billy Magalassi, an

arson investigator with the Tulsa office of the Federal Bureau

of Alcohol, Tobacco, and Firearms (BATF), determined that

the fire began on « love seat next to the west wall of the

trailer. Magalassi concluded that the fire was slow-burning.

He determined it flamed for a few minutes, then smoldered

in the limited oxygen in the trailer. Magalassi thought the fire

could have smoldered a minimum of two hours, and as long

as six or seven hours, before Dobbs and Thompson, breaking

in, introduced more oxygen and flames flared up. Based on

his investigation, he concluded that the fire was incendiary,

meaning it was intentionally set.

117 Magalassi wanted a second opinion, and called in Jamie

Lord, a fire research engineer for the BATF Fire Research

Laboratory in Ammendale, Maryland. Lord consults with

BATF investigators nationwide. Lord was asked to determine

(1) whether the origin of the fire on a love seat against the

living room west wail was consistent with the damage to the

mobile home, and whether it was possible that the fire burned

for as long as four hours before a neighbor saw it; and (2) what

was the likely time, in such a fire, before a young child located

in the master bedroom closet would become incapacitated

from the smoke and toxic products of the fire. Lord visited the

crime scene on August 3. He later conducted several tests at

his Ammendale laboratory, and testified as an expert for the

State. Lord agreed with Magalassi that the fire started in the

love seat and was incendiary in nature.

{2} Bl (41) 918 The wial court held a pretrial Dawbert

hearing on Lord's experiments and *1215 found them

admissible. ' Daubert v. Merrell Dow Pharmaceuticals, Inc..

509 U.S, 579, 592-93, 113 S.Ct. 2786, 2796, 125 L_Ed.2d

469 (1993); Kumho Tire Co., Lid. v. Carmichael, 526 U.S.

137, 147-49, 119 S.Ct. 1167, 1174, 143 L.Bd.2d 238 (1999).

Bosse claims this was error. We review a trial court's decision

Bosse v. State, 360 P.3d 1203 (2015)

2015 OK CRiZ = —

to admit or deny novel scientific evidence de novo. Taylor v.

State, 1995 OK CR 10, 9 23, 889 P.2d 319, 332.

An expert may testify to an expert opinion which is (1)

based on sufficient facts or data; (2) the product of reliable

principles and methods; and (3) the witness has applied

those principles and methods reliably to the facts of the

case. 12 O.S.2011, § 2702. Taken together, Dawber: v.

Merrell Dow Pharmaceuticals, inc. 509 U.S. 579, 113

S.Ct. 2786, 125 L.Bd2d 469 (1993), and Kumho Tire

Co., Lid. v. Carmichael, 526 U.S. 137, 119 S.Ct 1167,

1174, 143 L.6d2d 238 (1999), govern admissibility of

scientific and other technical or specialized evidence. We

adopted Daubert in Taylor v. State, 1995 OK CR 10,

889 P.2d 319, holding that “trial judges must continue

to act as gatekeepers, ensuring that al! novel scientific

evidence is both reliable and relevant.” 1995 OK CR 10,

7 17, 889 P.2d at 329 (emphasis added). in determining

whether novel scientific evidence is admissible, a trial

court should consider (a) whether the scientific method has

been or can be tested; (b) whether the theory or technique

has been subjected to peer review and publication; (c)

the technique’'s known or potential rate of error; and (d)

whether the theory has gained genera! acceptance in the

relevam scientific community; in addition, the testimony

must have a valid scientific connection to the pertinent

inquiry such that it assists the trier of fact. Taylor, 1995

OK CR 10, Ff 18-20, 889 P.2d at 330. Citing Dauders,

we noted that the Daubert analysis is flexible, designed

to accommodate many fectors without setting forth a

definitive checklist or test. Taylor, 1995 OK CR 10, § 21,

889 P.2d at 330.

Day v. State, 2013 OK CR 8, 7 4, 303 P.3d 291, 294, r‘hng

denied 2013 OK CR 15, 316 P.3d 931. Under Daubert's

second prong, the testimony must be relevant, assist the

mer of fact to understand the evidence or determine a fact

in issue, by bearing a valid scientific connection to the

pertinent inquiry. Daubert, 509 U.S. at $91—92, 113 S.Ct. at

2795-96. Bosse does not attack the reliability requirement,

and the record shows that requirement was met. Bosse

claims that the second prong was not met because Lord's

evidence wes not relevant.

7 19 Lord viewed the scene, taking photographs and

measurements, and reviewed the Medical Examiner's reports

and crime scene photographs. He bought a mobile home of the

same make and year as Katrina's, disassembled it, and shipped

it to Ammendale. Lord used materials from the trailer to

make five experimental! replications of the relevant inside and

outside parts of the Griffin trailer, using his measurements

of the crime scene. He used parts of the metal siding, studs,

and heat and air system with ductwork. Lord bought five

love seats like Katrina's. The primary parameters of the

tests, based on conditions at the crime scene, were that the

doors were closed, and the windows were intact (though

there was a smail hole in the front window near the door).

Instruments measured the temperature, oxygen and carbon

monoxide levels, and amount of energy feit in different parts

of the structure during each experimental fire. Based on the

results recorded by the measuring equipment, Lord estimated

Chasity would likely have been incapacitate in sixteen to

fifty minutes after the fire began.

¥ 20 Lord conducted five burns. The first three tests were

not representative of the actual trailer fire. For the first test,

glass windows were installed. One quickly broke and let in

air. The fire grew quickly and was burning within eight to ten

minutes, and there was no time for carbon monoxide buildup

in the closet area. Lord removed the windows, replacing

them with caulked drywall. The issue was how much air

was available to the fire, so rather than continuing to replace

windows in subsequent tests, Lord replicated the sealed-

window conditions of *1216 the actual fire. During the

second test, the fire burned up through the plywood roof,

let in air, and allowed flames to break out earlier than they

did in the original trailer fire. The roof in the original trailer

was noncombustible and did not burn through. A fter that test,

Lord installed a noncombustible cement board roof. During

the third test, the fire burned through the floor and developed

underneath the trailer. The original trailer had a tight trailer

skirting which limited air flow underneath the wailer, and

consequently fire had not taken hold under the trailer in the

original fire. The experimental trailers in the first three tests

had no trailer skirting. A fter the third test Lord installed a tight

trailer skirting.

9 21 The fourth and fifth tests more closely replicated

the conditions of the actual fire. The experimental trailer

for the fourth test had windows sealed with drywall, «

noncombustible roof, and a tight trailer skirting. During the

fourth test the fire burned slowly for four hours, until the door

was opened, air entered, and flames grew quickly. During the

fifth test, the giass windows were reinstalled. No windows

broke, but the front window developed a smai! hole similar

to that observed in the original trailer fire. The fire apparently

ran out of oxygen or fuel and went out after about two hours.

Bosse v. State, 360 P.3d 1203 (2015)

2015 OK CR 14

{ 22 The experiments had some differences from the original

fire? Lord did not add all the furniture in the trailer,

including only that which he thought would have been

involved in early stages of fire. Lord used fire caulk to seal the

drywall in the windows. The noncombustible roof installed

for the third expermment was fiberglass-reinforced cement

board, not rolled meta! like the roof of the original trailer, and

probably reflected more heat. Lord determined that the fire's

strength was influenced by the level of oxygen in the trailer,

during the initial growth phase, the fire consumed most of the

oxygen and the fire died down until revived by more oxygen.

Lord concluded the fourth burn experiment wes most similar

to the actual fire conditions.

[S} (6) 23 Bosse argues this testimony was not relevant

because tests did not simulate the actual conditions of the fire

and had no valid scientific connection to the issue at trial. On

the contrary, we find the testimony wes relevant because there

was @ genuine issue of fact regarding whether Bosse could

have set the fire. This Court has held that experiments to prove

that specific acts or operations present in the case led to an

alleged result should be made under similar conditions and

circumstances, and their admission is within the trial court's

diseretion. /rby v. State, 18 Okia.Crim. 671, 197 P. 526, 530

(1920), see also Gibbons v. Terr.. 5 Okl.Cr. 212, 115 P. 129,

137-38 (1911). An abuse of discretion is any unreasonable

or arbitrary action made without proper consideration of the

relevant facts and haw, also described as a clearly erroneous

conclusion and judgment, clearly against the logic and effect

of the facts. Neloms v. State, 2012 OK CR 7, 9 35, 274

P.3d 161, 170. The question is whether the experiment is

sufficiently sirnilar to help jurors understand the issue, or

whether the circumstances are so different that the evidence

will confuse the jury. Andrews v. State, 1976 OK CR 258,

4 14, 555 P.2d 1079, 1083-84. Bosse suggests that his case

should be controlled by the result in Andrews, where the Court

excluded the defense expert testimony because his ballistics

experiments used a gun with a different barre! length than

the gun used in the crime. However, the factual analysis

for cach case is necessarily different. The real question

is whether, under the circumstances of this case, the triai

court abusea its discretion in admitting the evidence. /d.

Bosse also relies on several nonbinding civil cases involving

automobiles: Navajo Freight Lines v. Mahaffy, 174 F.2d

305, 309-10 (10th Cir.1949) (no abuse of discretion in

refusing to admit an experiment which both failed to replicate

existing conditions of the accident, and was irrelevant to the

issue); Jackson v. Fletcher, 647 F.2d 1020, 1026-27 (10th

Cir.198!) (abuse of discretion to admit experiment results

*1217 where experiment conditions differed from accident

conditions); Jones v. Stemco Mfg. Co., 1981 OK 10,

14-15, 624 P.2d 1044, 1047 (abuse of discretion to admit

experimen conducted on significantly different vehicle in

dissimilar conditions); Guild v. General Motors Corp., 53

F.Supp.2d 363, 366 (W.D.New York 1999). The State cites

cases from other jurisdictions holding there is no abuse of

discretion in admitting experiments where conditions are so

substantially similar as to provide a fair comparison, though

the original conditions are not precisely reproduced. United

States v. Norris, 217 F.3d 262, 270-71 (Sth Cir.2000); Rankin

v. Commonwealth, 327 S.W.3d 492, 498-99 (Ky.2010). The

only important thread throughout these otherwise irrelevant

cases is that the determination whether experiment evidence

is sufficiently similar to the original conditions, and its

admission, is within the trial court's discretion.

7 24 Bosse argues that the experiment conditions were

too dissimilar to be relevant. He points specifically to the

substitution of drywall for windows in several of the tests.

Lord testified at the Daubert hearing that there were many

unpredictable variables involved in whether windows will

fail during a fire, including the framing and installation, and

properties of the glass. Lord testified that the drywall and

the closed windows had similar ventilation properties, with

a similar effect on the oxygen level in the house. Bosse

tnes to reframe the issue, asking whether a fire could burn

in the trailer for four hours without breaking any windows,

and complains that Lord's experiments did not answer that

question. Bosse argues that Lord merely tried to prove

the State’s theory. On the contrary, jurors heard evidence

that Lord tried several experiments, using both windows

and drywall. The record shows that, over the course of

several tests, Lord sufficiently replicated the conditions of the

original fire to simulate the actual conditions. The differences

between the experiment conditions and the original fire

go to the weight of the evidence, not its admissibility,

were thoroughly discussed in cross-examination, and were

disputed by the defense expert. /rby, 197 P. at 531; Rankin,

327 S.W.3d at 499. The record supports the trial court's

conclusion that the evidence was reliable and relevant, and

the trial court did not err in admitting it. Taylor, 1995 OK CR

10, 4 23, 889 P.2d at 332. This proposition is denied.

Exercise of the Fourth Amendment right to refuse

consent to search

1 25 In Proposition Ii, Bosse argues that the prosecution's

substantive use of his exercise of his Fourth Amendment

right to refuse to consent to a warrantless search of his

Bosse v. State, 360 P.3d 1203 (2015)

2075 OK CR 14

vehicle raised an impermissible inference as to his guilt,

depriving him of due process of law and a fair trial and

reliable sentencing hearing under the Fourth and Fourteenth

Amendments to the United States Constitution and Article

il, §§ 7, 9, 20 and 30 of the Oklahoma Constitution. Bosse

voluntarily talked to police on the afternoon of July 23.

Investigators asked to search Bosse’s truck. He refused, but jet

them take photographs of its contents. A laptop with cables,

a Bic lighter and DVD case marked “KRG” were in the

front floorboards. A PlayStation console, video games, and

DVD cases marked “KRG” were in the front and back seats.

Bosse said the laptop belonged to a friend, but would not

give a name. Ginger Griffin identified the laptop, and other

items in the photos, as Katrina's. OSB! Agent Akers went to

Bosse’s apartment on the night of July 23 and asked again

to search his truck, and this time Bosse consented. At trial,

Bosse's conversation with police was admitted, along with the

photographs of the truck's contents and the results of the later

consent search. Bosse does not complain sbout admission of

any of this evidence.

{ 26 Over Bosse's vigorous and continued objection, the trial

court allowed two witnesses to testify that Bosse initially

refused to let officers search his truck. Prosecutors admitted

Bosse had a right to refuse consent, but argued that they could

comment on that refusal because he was hiding evidence *

*1218 Prosecutors vigorously argued in closing that this

refusal was substantive evidence of Bosse's guilt. Bosse

claims admission of this evidence for this purpose, and its

use in closing argument, wes error. Bosse did not object to

the remarks in argument, waiving all but plain error for those

claims.

{7] 927 The Fourth Amendment guarantees the right

to be free from unreasonable search and seizure. U.S.

Const.Amend. |4. Any citizen has the right to refuse consent

to search his property, and to require the government to

get a warrant before conducting a search. Schneckioth v.

Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043-44, 36

L.Ed.2d 854 (1973). There is no binding lew on whether

& prosecutor violates a defendant's constitutions! right by

using a defendant's refusal to consent to a warrantless

search as substantive evidence of guilt. This Court has not

previously decided this issue. However, we have found that

prosecutors erred in arguing as substantive evidence of guilt

the defendant's exercise of constitutional rights, inciuding

refusing to give a written statement to police and consulting

attorneys when one is under investigation for a crime. Brewer

v. State, 2006 OK CR 16, Fj 10-11, 133 P.3d 892, 894-95.

[8] % 28 Admission of evidence is within the trial court's

discretion. Neloms, 2012 OK CR 7, ¥ 25, 274 P3d at

167. Bosse argues that the trie! court abused its discretion

in admitting this evidence and the subsequent argument

concerning it. Bosse argues that a person should not suffer

penalty for exercising a constitutional privilege. He relies on

Perry v. Sindermann, in which the United States Supreme

Court held that a non-tenured professor could not be denied

re-employment based on his exercise of his right to free

speech under the First and Fourteenth Amendmems. Perry v.

Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570

(1972). in Perry, the Court concluded that Sindermann's lack

of @ contract or tenure did not defeat his constitutional claims,

because the government may not deny a person a benefit as a

consequence of exercise of a constitutionally protected right.

Perry. 408 U.S. at 598, 92 S.Ct. at 2698. In another context,

the Supreme Court discussed the Fourth Amendment right

to refuse consent to search. Camara v. Municipal Court of

City and County of San Francisco, 387 U.S. 523, 87 S.Ct

1727, 18 L.Ed.2d 930 (1967). In finding that administrative

health and safety inspections require a warrant, the Court

noted that refusing entry to authorities for inspections often

carried criminal penalties. Camara, 387 U.S. at 532-33, 87

S.Ct at 1732-33. The Court concluded that Camara could

not be constitutionally prosecuted for exercising his Fourth

Amendment right to refuse to consent to an inspection without

@ warrant. Camara, 387 U.S. at 540, 87 S.Ct at 1736—-

37. Discussing when an encounter with police constitutes 8

seizure under the Fourth Amendment, the Court noted that

& person may refuse an officer's requests without fear of

prosecution. Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct.

2382, 2387, 115 L.Ed.2d 389 (1991).

19} 4 29 Bosse draws an analogy to Fifth Amendment

claims. It is settled that prosecutors cannot comment on a

defendant's exercise of the Fifth Amendment privilege against

seif-incrimination, using it as substantive evidence of guilt.

Griffin v. California, 380 U.S. 609, 614, 85 S.Ct. 1229, 1232-

33, 14 L.Ed.2d 106 (1965). However, Bosse is not making

a Fifth Amendment claim here. Rather, he suggests that

the principle in Griffin should apply equally in the Fourth

Amendment context. Every jurisdiction which has published

a case on this issue has either concluded or implied that

Griffin should be so extended. The State fails to provide any

persuasive or binding case law in which a court has reached

an opposite conclusion.

Bosse v. State, 360 P.3d 1203 (2015)

2015 OK CR 74

4 30 Several federal circuit courts have considered this issue

and concluded that exercise of the Fourth Amendment right

to refuse consent to search is not admissible as substantive

evidence of guilt. The Sixth Circuit has stated, “The exercise

of a constitutional right, whether to refuse to consent to a

search, to refuse to waive Miranda rights or to decline to

testify at tial, is not evidence of guilt.” United States v.

Clariot, 655 F.3d 550, 555 (6th Cir.201 1). The Third Circuit

explicitly extended the reasoning of Griffin to the Fourth

Amendment context, finding *1219 “little, if any, valid

distinction between the privilege against sel f-incrimination

and the privilege against unreasonable searches and seizures

which is relevant to the propricty of the prosecutor's

argument.” United States v. Thame, 846 F.2d 200, 206 (3rd

Cir.), cert. denied, 488 U.S. 928, 109 S.Ct. 314, 102 L_Ed.2d

333 (1988). The Third Circuit went on to note that to find

otherwise would undermine the law prohibiting use of a

defendant's testimony at a suppression hearing against him at

trial, finding that the “protection would be largely illusory”

if the defendant's reliance on the Fourth Amendment, proved

by evidence other than his testimony, could be used against

him at trial. Thame, 846 F.2d at 207. The Third Circuit cited

with approval a Ninth Circuit case, Prescott, in which the

Ninth Circuit extended the reasoning of Griffin to the Fourth

Amendment and, relying on Camara, supra, asserted that the

Fourth Amendment right at issue could be neither a crime

itself nor evidence of a crime. United States v. Prescott, 58!

F.2d 1343, 1350-51 (9th Cir.1978). The Ninth Circuit held

that a defendant can refuse consent to search, with the purpose

of concealing wrongdoing, and that this refusal cannot be

used against him in a criminal prosecution. Prescott, 581

F.2d at 1351-52. Prescott noted that both the innocent and

the guilty have the right to refuse consent to search, just as

they do to remain silent, but that the prosecutor's objective

in introducing a defendant's refusal of consent is to infer

guilt; the Court found this just as impermissible as using a

defendant's silence to infer guilt. Prescott, 581 F.2d at 1352.

31 The United States District Court for the Eastern District

of Virginia explained the reasoning behind the prohibition

against use of a defendant's refusal to consent! to a search as

substantive evidence of guilt:

If the Government was allowed to

admit a suspect's refusal of consent in

order to show consciousness of guilt,

a defendant's consent could never be

truly voluntary. In such an instance,

the defendant would be faced with

a “Hobson's choice.” He could either

consent to a search of his vehicle and

relieve the Government from getting

@ warrant, a key procedural safeguard

against unreasonable searches, or he

could assert his constitutional right

by refusing to grant consent, and

have that refusal incriminate him

by implication. Admitting such «

statement would punish a person for

asserting a constitutional right.

United States v. Guess, 756 F.Supp.2d 730, 747-48

(U.S.D.C.E_D.Va.2010).

47 32 Other federal circuits have discussed the issue. The

Tenth Circuit has held that evidence the defendant refused

consent to search was admissible as evidence of dominion and

comtrol, but noted that, if the evidence were not admitted in

response to a defense claim or for another proper purpose,

its admission would be error. United States v. Dozal, 173

F.3d 787, 794 (10th Cir.1999). The Tenth Circuit has also

stated that, when determining reasonable suspicion for an

investigative detention, “it should go without saying” that

consideration of a defendant's refusal to consent to a search

violates the Fourth Amendment. United States v. Wood.

106 F.3d 942, 946 (10th Cir.1997). While not addressing

the issue directly, the Fifth and Seventh Circuits relied on

cases from other jurisdictions (discussed infra ), assuming

without deciding that such evidence would be constitutional!

error, before finding the error in cach case was harmiess

beyond a reasonable doubt. United States v. Runyan, 290

F.3d 223, 249-50 (Sth Cir.2002); United States v. Moreno,

233 F.3d 937, 940-41 (7th Cir.2000). Runyan particularly

noted that the circuit courts directly addressing the issue

had unanimously held a defendant's refusal to consent to a

warrantless search may not be used es evidence of guilt.

Runyan, 290 F.3d at 249.

4 33 Several state courts have held that refusal of consent

to search under the Fourth Amendment cannot be used as

substantive evidence of guilt or to show consciousness of

guilt. The Colorado Court of Appeals recently engaged in a

thorough discussion of this issue, summarizing the various

jurisdictions’ approaches described herein. That court noted

that refusal of consent to search might, as in Dozal, supra.

be admissible for some proper purpose, but determined that it

was always improper to admit such evidence to infer or show

guilt or consciousness of *1220 guilt. People v. Pollard, 307

P.3d 1124, 1130-31 (Colo.Ct.App.2u }3).

Bosse v. State, 360 P.3d 1203 (2015)

2015 OK CR 14 r, ee

4 34 Early discussions of this issue are found in cases from

Alaska, California, and New Mexico. In Padgett v. State, the

Alaske Supreme Court stated, “Padgett had a right under the

Fourth Amendment to the Federal Constitution, and article |,

section 14 of the state constitution, to refuse to consent to a

search of all or part of his car. That right would be effectively

destroyed if, when exercised, it could be used as evidence of

guilt. It was error to admit testimony of defendant's refusal,

and error to comment on it during summation.” Padget:

v. State, 590 P.2d 432, 434 (Alaska 1979). The Supreme

Court of New Mexico, noting that a defendant “has « right

to refuse to consent to # werrantless search without such

refusal later being used to implicate his guilt”, found that the

defendant did not testify, and his refusal to consent “could

not be mentioned unless he testified to the contrary on direct

examination.” Garcia v. State, 103 N.M. 713, 714, 712 P.2d

1375, 1376 (1986). See also Gomez v. State, 572 So.2d

952, 953 (Fla.Dist.Ct.App.1990) (“A defendant who has a

constitutional right to refuse to consent to a search ... should

be free to exercise that right with impunity. No comment

on its exercise should be permitted to raise an inference of

guilt, if the Fourth Amendment right against unreasonable

search and seizure is to be given its full meaning.”); People

v. Keener, 148 Cal.App.3d 73, 78-79, 195 Cal_Rptr. 733, 736

(Cal. App.1983) (defendant refused to consent to warrantless

entry into his apartment; assertion of this right is neither itself

a crime nor evidence of « crime).

7 35 Other states have reached the same conclusion. The

Georgia Court of Appeals held that a defendant's refusal to

consent to search may not be used against him as evidence

of guilty knowledge. Mackey v. State, 234 Ga. App. 554, 507

S.E.2d 482, 483-84 (1998). The Idaho Supreme Court applied

Griffin's reasoning to a defendant's exe:cise of the Fourth

Amendment right to refuse consent to search, finding thet

& prosecutor cannot use the exercise of that right to show

consciousness of guilt; in that case, the error was harmiess

beyond a reasonable doubt. State v. Christiansen, 144 idaho

463, 163 P.3d 1175, 1182-83 (2007). See also State v. Wright,

153 Idaho 478, 283 P.3d 795, 806 (App.2012) (“[E}liciting

testimony from a witness regarding a defendant's refusal to

consent to a search, when used for the purpose of inferring

guilt, is prosecutorial misconduct and may be fundamental

error.”) The Maryland Court of Appeals found that exercise

of the constitutional right to refuse consent to search of a

car may not be used to imply guilt, as that would place an

“unfair and impermissible burden” on the assertion of the

right. Longshore v. State, 399 Md. 486, 924 A.2d 1129, 1158—

59 (2007). in that case, the triel court had sustained the

defendant's objection to evidence that he hed refused consent

to search his cer, and admonished the jury to disregard

that evidence, but refused his request for a mistrial. The

Court held that the trial court erred in denying the request

for mistrial, and the curative instruction did not protect the

defendant's right to a fair trial. Jd. at 1159. The Kentucky

Supreme Court concluded that a defendant's refusal to consent

to fingerprint sampling was properly admitted to rebut and

impeach his claim of self-defense, but noted, “Generally, such

as in Deno, exercising one's privilege to be free of warrantless

searches is simply not probative (or has low probative

value) to a determination of guilt, and thus, the defendant's

right to not be penalized for exercising such a privilege

is paramount.” Coulthard v. Commonweatth., 230 S.W.3d

572, 584 (Ky.2007). See also Deno v. Commonweaith., 177

S.W.3d 753, 761-62 (Ky.2005) (A defendant has the Fourth

Amendment right to refuse to submit biological specimens;

refusal to consent to search is privileged conduct and cannot

be considered as evidence of guilt).

136 Where a defendant refused to consent to a warrantless

DNA sample, the Wisconsin Supreme Court noted the weight

of state and federal authority prohibited using the exercise of

the Fourth Amendment right to consent to search as evidence

of guilt, holding that comment on the exercise of that right

violates due process. State v. Banks, 2010 WI App 107, #42!

25, 328 Wis.2d 766, 790 N.W.2d 526, 533~34. The Nevada

Supreme Court, noting that many courts had already held the

State may not infer guilt froma *1221 defendant's exercise

of his Fourth Amendment right to refuse consent to search,

adopted that rule; the court emphasized that a defendant

should not be punished for asserting a constitutional right,

but found erroneous admission of the evidence harmless

beyond a reasonable doubt. Sampson v. State, 121 Nev. 820,

122 P.3d 1255, 1260-61 (2005). The Court of Appeals of

Texas followed the Ninth Circuit's reasoning in Prescott,

and concluded that the prosecutor could not infer guilt from

exercise of the right to refuse consent to search, and the error

was of constitutional magnitude, the error in admitting the

evidence was harmless beyond a reasonable doubt. Reeves

v. State, 969 S.W.2d 471, 495-96, (Tex.Ct.App.1998). The

Michigan Court of Appeals determined that assertion of the

right to refuse consent to search of a car cannot be a crime or

evidence of a crime, finding, “It would make meaningless the

constitutional protection against unreasonable searches and

seizures if the exercise of that right was allowed to become

a badge of guilt.” People v. Stephens, 133 Mich.App. 294,

349 N.W.2d 162, 163-64 (2010) (quoting Bargas v. State,

489 P.2d 130, 132 (Alaska 1971)). The Arizona Court of

Bosse v. State, 360 P.3d 1203 (2015)

2015 OK CR 14

Appeals found that using a defendant's refusal! of consent

to search as substantive evidence of guilt would appreciably

impair the Fourth Amendment's prohibition of unreasonable

searches, by penalizing defendants for exercising that right;

erroneous admission of the evidence was not prejudicial in

that case. State v. Stevens, 228 Ariz. 411, 267 P.3d 1203,

1208-09 (App.2012); see also State v. Wilson, 185 Ariz.

254, 914 P.2d 1346, 1350-51 (App.1995) (trial court erred

in admitting defendant's refusal of consent to show defendant

was uncooperative; generally cannot show guilt through

exercise of the Fourth Amendment right to refuse consent,

and the valid exercise of a constitutional right, standing alone,

does not show defendant is uncooperative. )

4 37 Although Bosse cites many of the cases discussed

above, the State wholly fails to address them. The State first

argues that the record here supports neither a search nor a

seizure—although Bosse does not claim that there was any

improper search or seizure. The State then argues that Bosse

has no claim under the Fifth Amendment- although Bosse

does not raise a Fifth Amendment claim. Finally, the State

turns to Bosse’s claim that the reasoning of Griffin should

be applied to the Fourth Amendment right to refuse consent

to a search. The State does not discuss what appears to be

the settled law from twenty-one separate state and federe!

jurisdictions, applying the Griffin reasoning in this precise

way. Instead, writing as if none of those cases exist, the State

argues that a recent United States Supreme Court case limits

Griffin in the Fifth Amendment context. In Salinas v. Texas, a

divided Supreme Court in a plurality opinion held that, during

noncustodial police questioning where no Miranda warnings

are given, a defendant must expressly invoke his Fifth

Amendment privilege against self-incrimination. Salinas v.

Texas, —— U.S. ——, 133 S.Ct. 2174, 2179-80, 186 L.Ed.2d

376 (2013). The plurality found that Salinas’ interview was

noncustodial and voluntary, his statements were outside the

scope of Miranda, not coerced, and he was free to voluntarily

and explicitly state that he refused to answer questions on

Fifth Amendment grounds, but failed to do so. Salinas, 133

S.Ct. at 2180-81.

{ 38 Salinas has very little relevance to the issue before this

Court, but what relevance it has appears to support Bosse's

claim. Salinas focuses exclusively on when, whether, and

how a defendant must claim his Fifth Amendment right

to silence during noncustodial questioning. As, during the

course of a noncustodial interview, Bosse did not exercise his

Fifth Amendment right, this discussion in Salinas is simply

irrelevant. However, Bosse did, explicitly and in writing,

exercise his Fourth Amendment right to refuse consent to

search—the precise thing the Salinas plurality would have

required of the defendant in that case in order to preserve his

Fifth Amendment right under Griffin‘and Garner. Nothing

in either the plurality opinion or the dissent suggest that

a majority of the Court considered in any way the issue

before this Court. Two Justices, concurring in the judgment,

clearly state that they disagree with Griffin and would allow

a@ prosecutor to infer guilt from a defendant's failure *1222

to testify, or from his silence during questioning. Salinas,

133 S.Ct. at 2184 (Thomas, J., concurring in the judgment)

(joined by Justice Scalia). Logically extended to the Fourth

Amendment issue, this would suggest these two Justices

would also overturn the weight of law discussed above in the

Fourth Amendment context. However, there is no indication

that the remaining Justices would agree. Essentially, the State

asks this Court to speculate, based on a plurality opinion

interpreting the Fifth Amendment end relying primarily on a

separate writing joined by only two Justices, that the Supreme

Court would overturn the settled Fourth Amendment law

discussed above—and, relying on that speculation, to reject

Bosse's claim.

{10} 939 This Court finds the weight of the law discussed

above persuasive, but we note that this issuc is subject to

harmiess error analysis. Most constitutional errors occurring

during trial are subject to harmless error analysis, as they

may be assessed, along with the evidence presented, for any

prejudice to the defendant. Robinson v. State, 2011 OK CR

15, 9 3, 255 P.3d 425, 428; Chapman v. California, 386

U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). For

purposes of this case, we assume without deciding that a

defendant's exercise of his Fourth Amendment right to refuse

consent to search may not be used as substantive evidence

of guilt. Because the error is of constitutional dimensions,

we review both admission of the evidence and its use in

closing argument to determine whether the error was harmless

beyond a reasonable doult. Robinson, 2011 OK CR 15, 7

12, 255 P.3d at 430; Bartell v. State, 1994 OK CR 59, 4 10,

881 P.2d 92, 95, Bosse does not contest admission of his

own statements, or any Of the incrimiriating evidence obtained

either with his consent or with a warrant; in addition, the

State presented forensic evidence and testimony supporting

the verdict. Under the circumstances of this case we find any

error in use of this evidence to infer guilt was harmless beyond

a reasonable doubt. Miller v. State, 2013 OK CR 11, 4 106,

313 P.3d 934, 971-72; Robinson, 2011 OK CR 15, 43, 255

P.3d at 428. This proposition is denied.

Bosse v. State, 360 P.3d 1203 (2015)

2015 OK CR 14 ee fa

Guilt Stage Claims

Admission of Visual Aids to Testimony

9 40 Bosse argues in Proposition [V that the erroneous

admission of hearsay evidence deprived him of a fair trial

and reliable sentencing. Antje Stambaugh, an OSBI DNA

analyst, testified regarding her analysis of DNA samples

from Bosse and all three victims. Stambaugh prepared two

tables illustrating the genetic profiles from the four subjects

and the items of evidence she tested. These were admitted,

over Bosse's objection that they were curnulative, as State's

Exhibits 304 and 305. Bosse argues this decision was error

because the exhibits were inadmissible hearsay. Admission

of evidence is within the trial court's discretion. Ne/oms, 2012

OK CR 7, 925, 274 P.3d at 167, Because Bosse did not object

to these exhibits on these grounds at trial, he has waived all

but plain error. Brown v. State, 2008 OK CR 3,411, 177 P.3d

577, 580. Bosse fails to show any actual error, that is plein

or obvious, and that affected a defendant's substantial rights,

affecting the outcome of the trial. Barnard v. State, 2012 OK

CR 15, 413, 290 P.3d 759, 764.

{11] 941 Bosse characterizes these exhibits as “investigative

reports by police and other law enforcement personnel,”

which are inadmissible under 12 O.S.2011, § 2803(8)(a); see.

e.g., Salazar v. State, 1998 OK CR 70, ¥ 22, 973 P.2d 315,

324 (motor vehicle theft report); Humphreys v. State, 1997

OK CR 59, 4 25, 947 P.2d 565, 574~75 (DOC investigative

reports); Frazier v. State, 1994 OK CR 31, 9.12, 874 P.2d

1289, 1292 (prison pen pack); but see Charm v. State, 1996

OK CR 40, 4 28, 924 P.2d 754, 764 (routine DOC records

were not investigative reports). The record does not support

this characterization of these documents. The tables consisted

of numbers—information—from Stambaugh's tests, without

any results or conclusions. Without her testimony, they ere

meaningless. They are simply not investigative reports.

[12] 942 Bosse also seems to suggest that State's Exhibits

304 and 305 were summaries of Stambaugh’s testimony, and

that their admission was improper because it put *1223 too

much emphasis on her testimony. Bosse relies on Moore v.

State, in which we held that it wes not error to give jurors a

summary of an expert's findings, noting that the summaries

were not admitted into evidence. Moore v. State, 1990 OK

CR 5, J 44, 788 P.2d 387, 398. He mistakenly suggests that

admission of these exhibits is like the admission, and use in

deliberations, of videotaped testimony and a transcript of a

recorded exhibit. It is not.

{ 43 Bosse argues admission of these exhibits placed undue

emphasis on Stambaugh's testimony. However, he does not

claim he was prejudiced by admission of these exhibits. He

neither argues they might have confused or misled the jury,

nor points to any other prejudice they might have caused him.

Stambaugh used the figures on the charts as 4 visual aid to

explain her testimony. Bosse does not show how this visual

presentation of the numbers overemphasized Stambaugh's

testimony. The trial court did not abuse its discretion in

admitting this evidence. Because there is no error, there is no

plain error. This proposition is denied.

Exceptions to Rule of Sequestration

{13} [14] 944 Bosse claims in Proposition VI that the

trial court abused its discretion in allowing the victims’ family

members to remain in the courtroom over his objection,

violating his rights to due process end a fair and impartial

trial under the Fourteenth Amendment to the United States

Constitution and Article {1, Sections 7 and 20 of the

Oklahoma Constitution. Katrina's mother, Rebecca Allen,

and her stepmother, Ginger Griffin, testified for the State

in both first and second stage. Over Bosse's objection, both

women were allowed to remain in the courtroom throughout

the trial, Bosse had invoked the rule of sequestration, which

allows a party to order the exclusion of witnesses from the

courtroom, so they cannot hear testimony of other witnesses.

12 O.S.2011, § 2615. The State may ask that persons who

are the victims of crime, or their representatives, parents or

relatives, be exempted from this exciusion. 12 O.S.2011, §

2615(5). A decision to include or exempt witnesses from the

rule of sequestration is within the trial court's discretion. 12

O.S.2011, § 2615; Edwards v. State, 1982 OK CR 204, 4 12,

655 P.2d 1048, 1051~52. The rule is intended to guard against

the possibility that a witness's testimony might be tainted or

manipulated by hearing other witnesses. McKay v. City of

Tulsa, 1988 OK CR 238, 9¥ 5-6, 763 P.2d 703, 704; Weeks

v. State, 1987 OK CR 251, 9 4, 745 P.2d 1194, 1195. Allen

was completely exempted from the rule of sequestration, and

Ginger Griffin was exempted after her testimony in first stage

was concluded. Ginger was the State's first witness.

445 Later in the trial, jurors viewed the autopsy photographs

on monitors. Both Rebecca Allen and Ginger Griffin were

seated behind the monitors on which pictures were shown

to the jurors, directly in some jurors’ line of sight as they

viewed the photographs. Bosse objected, arguing that the

women were showing emotion as they themselves viewed

the pictures, that jurors could see this, and that the mere

Bosse v. State, 360 P.3d 1203 (2015)

2015 OK CR 14

fact that family members were visible as jurors viewed the

photographs allowing jurors to forrn an emotional bond with

the family—was unduly prejudicial. The trial court denied

Bosse’s request for a mistrial, made the next day, but ordered

that family members should move out of the jury's line of sight

when jurors watched the monitors. Bosse raises this in support

of his claim that the witnesses never should have been in the

courtroom, but he does not claim that the trial court erred in

refusing to grant his request for a mistrial. *

4 46 Bosse argues, as he did at trial, thet he might be

prejudiced if jurors felt sympathy for the family members who

sat in the courtroom throughout the trial. He does not claim

that either witness altered her testimony based on the evidence

that she heard from other witnesses. This, of course, is the evi!

the rule of sequestration is designed to remedy. Bosse’s other

allegations of prejudice are speculative and not supported

by the record. The trial court did not abuse its discretion in

excepting Allen and Ginger *1224 Griffin from the rule of

sequestration. This proposition is denied.

Admission of Gruesome Photographs

{15} [16] {47}

that the trial court abused its discretion in admitting

gruesome and inflammatory photographs in violation of the

Eighth and Fourteenth Amendments to the United States

Constitution and Article [1, §§ 7, 9 and 20 of the Oklahoma

Constitution. Admission of photographs is within the trial

court's discretion. Mitchell v. State, 2010 OK CR 14, 4 57,

235 P.3d 640, 655. Photographs of a victim may depict the

scene of the crime, show the nature, extent and location of

wounds, or corroborate the medical examiner's testimony. /d.

Photographs should not be admitted if their effect is such

that the danger of unfair prejudice substantially outweighs

their probative value. Livingston v. State, 1995 OK CR 68,

q¥ 20, 907 P.2d 1088, 1094. This Court has often said that

gruesome crimes make for gruesome photographs. Co/e v.

State, 2007 OK CR 27, 4 29, 164 P.3d 1089, 1096. This alone

will not make them inadmissible, as long as they are not so

unnecessarily hideous or repulsive that jurors cannot view

them impartially. Hain v. State, 1996 OK CR 26, 445, 919

P.2d 1130, 1143; Livingston, 1995 OK CR 68, 4 20, 907 P.2d

at 1094.

¥ 48 The trial court admitted nine photographs of Katrina

taken at the scene and two of her taken at the morgue; three

photographs of Christian taken at the scene and one of him

taken at the morgue; and two photographs of Chasity taken at

4 47 Bosse claims ir Proposition VII

the scene. > Before trial, Bosse objected to State’s Exhibit 95

but not to State's Exhibit 65, both pictures of Chasity, arguing

that State's Exhibit 95 was cumulative. The trial court denied

that objection but required the State to choose between State's

Exhibits 65 and 66. Bosse objected to admission of both

photographs at trial. Bosse also moved, before trial began, to

exclude several photographs, including some of those raised

in this proposition as erroneously admitted, as cumulative

and overly prejudicial. That motion was sustained in part and

denied in part, and Bosse vigorously objected to admission

of the photographs at trial. The photographs were shown to

jurors on monitors in the courtroom during the testimony of

State witnesses.

{18} | 49 The photographs of Katrina's and Christian's

bodies at the scene are extremely disturbing. Poth of these

victims were dead before the fire began. Any effects the

fire had on their bodies were not relevant to their fatal

injuries, but those effects do reflect the consequences of

Bosse’s decision to leave the bodies and set the trailer on

fire. While in several of the pictures the bodies are covered

in charred material or rubble, none of the photographs show

marked or extensive effects of the fire. The photographs

are relevant to show the scence and corroborate the medical

examiner's testimony. They are not so hideous or repulsive

that jurors could not view them impartially. Anderson v.

State, 1999 OK CR 44, 4 38-39, 992 P.2d 409, 421. Bosse

also complains of morgue pictures of both these victims,

taken after the bodies were cleaned, and before the autopsies

were performed. Long cottcn-tipped probes are inserted into

the victims’ stab wounds, showing the location, direction

and trajectory of the wounds. Again, these photographs are

disturbing. However, they show jurors Bosse's handiwork and

corroborate the medical examiner's testimony. The trial court

did not abuse its discretion in admitting these exhibits. Co/e,

2007 OK CR 27, 4 28, 164 P.3d at 1096,

{19} [20] 950 The two pictures of Chasity, by contrast, are,

as we said of similar photographs in Livingston, “profoundly

disturbing.... [and] particularly perturbing.” Livingston, 1995

OK CR 68, 7 18, 907 P.2d at 1094. Chasity's body was badly

burned. Parts of her limbs were charred to the bone and

fire debris had melted onto her face. We recognize that the

photographs were relevant. That does not end our inquiry.

As in Livingston, these horrible pictures of this six-year-

old child “provoke an immediate visceral reaction.” /d. We

cannot say jurors *1225 were able to view these two pictures

impartially, and find their probative value was substantially

outweighed by the danger of unfair prejudice. The trial court

Bosse v. State, 360 P.3d 1203 (2015)

2015 OK CR 14

abused its discretion in admitting these exhibits. However,

this error does not require relief. Considering the entire

record, we conclude that these prejudicial photographs did

not contribute to the jury's verdict of guilt or determination

of sentence. Cole, 2007 OK CR 27, 4 32, 164 P.3d at 1097;

Mann v. State, 1988 OK CR 7, 4 13, 749 P.2d 1151, 1156.

This proposition is denied.

Admission of Pre-Mortem Photographs

(21) [22]

admission of pre-mortem photographs of the victims injected

into his trial. He claims that the amended § 2403 of the

Oklahoma Evidence Code is unconstitutional on its face and

as applied to his trial. Ginger Griffin was the State's first

witness. Over Bosse's objection, the State introduced, through

her testimony, photographs of all three victims taken while

each was alive. Bosse claims admission of this evidence

was error. Oklahoma law allows admission of this type of

evidence to show the general appearance and condition of the

victim while alive. Goode v. State, 2010 OK CR 10, 4 56, 236

P.3d 671, 682; 12 O.S.2011, § 2403. We have found § 2403

requires the trial court to balance a pre-mortem photograph's

probative value against its prejudicial effect. G/ossip v. Siate,

2007 OK CR 12, 9] 77-78, 157 P.3d 143, 156-57; Hogan v.

State, 2006 OK CR 19, 4.64, 139 P.3d 907, 931. We review

a trial court's decision to admit this evidence for abuse of

discretion. Goode, 2010 OK CR 10, 457, 236 P.3d at 682-83.

9 52 Bosse acknowledges the law but argues that § 2403

is unconstitutional on its face and as applied to him. He

argues that admission of pre-mortem photographs violates

due process, and that the balancing test is contrary to the

plain language of § 2403. Bosse does not overcome the

presumption that legislative acts are constitutional. G/ossip,

2007 OK CR 12, ¥ 78, 157 P.3d at 156-57. We have

previously rejected these claims, specifically finding that the

balancing test remains and applies to this clause after the

Statute was amended to permit this type of evidence. Hogan,

2006 OK CR 19, Ff 62-64, 139 P.3d at 930-31; Coddington

v. State, 2006 OK CR 34, Ff 53-57, 142 P.3d 437, 452-53.

Bosse also claims that the photograph had no relevance to any

issue in the second stage of trial. We have rejected this claim

as well. Malone v. State, 2007 OK CR 34, Fj 85-86, 168 P.3d

185, 218-19. We decline to reconsider these decisions. This

ition is denied.

Instruction on First Degree Murder

4 51 Im Proposition VIII Bosse argues that the

{23} [24] 53 In Proposition V, Bosse claims he was

deprived of e fair trial when jurors were not instructed that

malice aforethought cannot be presumed from the mere act

of killing, in violation of the Fifth Eighth and Fourteenth

Amendments to the United States Constitution and Article II,

§§ 7, 9, and 20 of the Oklahoma Constitution. The trial court

gave jurors the uniform jury insiwuction on malice murder:

“The external circumstances surrounding the commission of

a homicidal act may be considered in finding whether or not

deiiberate intent existed in the mind of the defendant to take

a human life. External! circumstances include words, conduct,

demeanor, motive, and el! other circumstances connected

with a homicidal act.” OUJI-CR 2d 4-63. Bosse objected,

and asked the trial court to add the sentence, “However, you

may not presume or infer the existence of the requisite intent,

i.e. ‘malice aforethought’ from the fact of the slaying alone.”

The trial court refused. Bosse claims this was error. The trial

court must instruct jurors accurately on the applicable law.

Soriano v. State, 2011 OK CR 9, 4 36, 248 P.3d 381, 396. We

review ae trial court's decisions to grant or deny instructions

for abuse of discretion. Cipriano v. State, 2001 OK CR 25, 4

14, 32 P.3d 869, 873-74.

154 Bosse argues that the uniform jury instruction shifted the

burden of proof to him. He argues that, once jurors decided

he killed a victim, they “might” want him to disprove that the

killing was done with malice aforethought. Bosse claims the

instruction implicitly required him to prove he did *1226 not

act with malice aforethought. At heart, Bosse is complaining

about Oklahoma's use of “malice aforethought” as opposed

to “premeditated design”. He suggests that, because malice

requires no ill-will, because it may be formed instantly before

commission of the act, and because it may be proved by

extemal circumstances, the State no longer has the burden

to prove the essential elements of the crime. He argues the

possibility of confusion was exacerbated when the prosecutor

argued to jurors that intent could be formed in an instant;

although Bosse suggests the prosecutor really meant jurors

could presume intent from the fac. of the crime, that is not

what the prosecutor said We have previously rejected this

claim. Marquez-Burrola v. State, 2007 OK CR 14, ¥ 27, 157

P.3d 749, 759. Bosse offers no new reason to reconsider our

Sentencing Stage Ciaims

Admission of Victim Impact Evidence

Bosse v. State, 360 P.3d 1203 (2015)

2015 OKCTR 14 .

[25] 4 55 Bosse claims in three subpropositions in

Proposition 1X that his death sentence must be vacated

because the admission of improper opinion testimony during

the presentation of victim impact evidence violated his rights

under the Sixth, Eighth, and Fourteenth Amendments to the

United States Constitution and Article I, §§ 7, 9, and 19 of

the Oklahoma Constitution. We review a trial court's decision

to allow victim impact evidence for an abuse of discretion.

Malone, 2007 OK CR 34, 4 62, 168 P.3d at 211. Bosse first

claims that victim impact evidence generally acts as a “super”

aggravating circumstance that will be present in every case,

and thus defeats the narrowing function required in capital

cases. We have repeatedly rejected this argument. See, e.g..

Bush v. State, 2012 OK CR 9, 4 62--64, 280 P 3d 337, 349-—

50; Malone, 2007 OK CR 34, 4 46, 168 P.3d at 204.

456 Next, Bosse claims that the three victim impact witnesses

should not have been allowed to offer their opinions asking

for a death sentence. Bosse objected to this evidence at

trial, preserving the issue for review. We have repeatedly

rejected this claim as well. See, ¢.g., Bush, 2012 OK CR

9, 4 67, 280 P.3d at 350; Malone, 2007 OK CR 34, 4 47,

168 P.3d at 204-05. Bosse argues that the Tenth Circuit

has routinely disagreed with this Court's reasoning on this

issue, and asks this Court to reconsider its position. See, ¢.g..

DeRosa v. Workman, 679 F.3d 1196, 1240 (10th Cir.2012).

While always mindful of the respect due to other courts,

the Tenth Circuit's interpretation of this issue is not binding

on this Court. We decline the invitation to reconsider our

consistent position on this issue.

{26} | 57 Finally, Bosse argues that Ginger Griffin's

Chasity, was improper. Victim impact statements may be

given in homicide cases by surviving family members

including a parent by birth or adoption, a grandparent, child or

stepchild, stepbrother, stepsister or stepparent, 21 O.S.2011,

§ 142A-1(1), (4).© Bosse argues that this list does not

include stepgrandparents, and Ginger’s testimony should not

have been admitted. Basse objected on these grounds at trial

not abuse its discretion in permitting Ginger’s testimony.

As Katrina's stepparent, Ginger was a “victim” permitted

to testify under § 142A-1{1). As a victim, she properly

testified about the emotional and psychological effects the

murders had on her, including information about the victims,

circumstances surrounding the crimes, the manner in which

the crimes were committed, and her recommendations for

sentences on cach count. 21 O.S.2011, § 142A—1(8). Bosse's

reliance on Goode v. State is misplaced. In Goode, a person

was allowed to testify as a family representative who did

not fit into the “victim” categories of § 142A-1(1) or the

“immediate family member” categories of § 142A—1(4).

Goode, 2010 OK CR 10, Ff 62-65, 236 P.3d at 683-

84. We held that, under those circumstances, the family

representative should not have testified about the effect of the

deaths on her and her own daughter. *1227 Goode, 2010 OK

CR 10, 9.64, 236 P.3d at 683-84.’ Here, by contrast, Ginger

Griffin was herself a victim under § 142A-1(1). The trial

court did not abuse its discretion in admitting this evidence.

Malone, 2007 OK CR 34, 62, 168 P.3d at 211.

{7 58 Bosse argues that the combined effect of improperly

admitted victim impact testimony denied him a fair and

reliable sentencing hearing. We have found that there was no

error in admission of victim impact testimony. The trial court

did not abuse its discretion in admitting the evidence, and this

proposition is denied.

Claims Regarding Aggravating Circumstances

[27] [28] 59 In Proposition X1 Bosse claims that the

evidence was insufficient to support the heinous, atrocious or

cruel aggravating circumstance as to cach victim, violating

his rights under the Eighth and Fourteenth amendments to

the United States Constitution and Article tl, §§ 7, 9 and 20

of the Oklahoma Constitution. “[T]he term ‘heinous’ means

extremely wicked or shockingly evil; the term ‘atrocious'

means outrageously wicked and vile; and the term ‘cruel’

means pitiless, designed to inflict a high degree of pain, or

utter indifference to or enjoyment of the suffering of others.”

Postelle v. State. 2011 OK CR 30, ¥ 79, 267 P3d 114,

143 (quotation omitted). The State had the burden to show

beyond a reasonable doubt that Bosse inflicted either torture,

including great physical anguish or extreme mental cruelty,

or serious physical sbuse on each victim; in cases of great

physical anguish or serious physical abuse, the victim must

have experienced conscious physical suffering before death.

Coddington v. State, 2011 OK CR 17, 4 59, 254 P.3d 684,

708-09. The victim's awareness of the defendant's actions is

crucial to this aggravating circumstance. Underwood. 2011

OK CR 12, ¥ 64, 252 P.3d at 247-48. We review the

evidence in the light most favorable to the State, considering

whether any rational tier of fact could find the aggravating

circumstance beyond a reasonable doubt. Coddington, 2011

OK CR 17, 4 62, 254 P.3d at 710. The State alleged that cach

victim experienced conscious physical and mental suffering.

and that the likelihood they saw the other victims attacked

Bosse v. State, 360 P.3d 1203 (2015)

2015 OK CR 14 .

subjected them to extreme mental cruelty and anguish.

Bosse’s pretrial motion to strike this aggravating circumstance

as to each victim was denied after a hearing. At trial, Bosse

demurred to the evidence of this aggravating circumstance as

to each victim. The demurrer was overruled.

[29]

which may or may not have rendered her unconscious. Her

blood was found on Bosse's right shoe. She was put in the

master bedroom closet, and the doorknob was blocked from

the outside with a chair. She was in the closet when the

trailer was set on fire. Evidence showed that depletion of

oxygen would have incapacitated Chasity in sixteen to fifty

minutes. Chasity's brain was swollen, her tissues showed

she had been exposed to high levels of carbon monoxide,

she had soot in her airways, esophagus and stomach, and

her body was charred. Dr. Yacoub testified that the soot in

Chasity's stomach indicated she tried to cough out the smoke

and swallow it, and that Chasity could not have done this if

she were unconscious. Chasity died of smoke inhalation and

thermal! injury—-that is, she burned to death. Bosse argues

there was no conclusive evidence that Chasity consciously

suffered after she sustained the head wound and was put

in the closet. We continue to decline to hold that proof of

conscious suffering required for serious physical abuse must

be conclusive and definitive. Browning, 2006 OK CR 8, §

50, 134 P.3d at 842-43. Bosse relies on cases where the

medical examiner testified the victim died within seconds, or

the victim was unconscious, and possibly deaf and blind, at

the scene. Simpson v. State, 2010 OK CR 6, 4 44, 230 P.3d

888, 903; Turrentine v. State, 1998 OK CR 33, 9] 75-76, 965

P.2d 955, 977. In both these cases, unlike the present case,

testimony *1228 showed the victim had no awareness and

was not able to consciously suffer for any appreciable length

of time. Here, by contrast, jurors could reasonably infer that

Chasity was alive and conscious as she was hit in the head,

locked in the closet, and the trailer was set on fire. Taking

the evidence in the light most favorable to the State, any

rational trier of fact could find beyond a reasonable doubt that

Chasity’s murder was heinous, atrocious or cruel.

[31] % 61 Bosse also claims evidence was insufficient

to show that Katrina and Christian's deaths were heinous,

atrocious or cruel. Katrina had eight separate stab wounds.

She bled into her airway and lungs. Death would have taken

anywhere from minutes to hours, during which time her

body diverted blood to her vital organs. Katrina also had

incised wounds to her hand consistent with defensive wounds

inflicted by grabbing or holding a knife blade. The stab

{30} 60 Chasity had blunt force trauma to her head,

wounds on her arms were also consistent with defensive

wounds, inflicted while Katrina was conscious and trying

to protect herself. Katrina was most likely conscious when

these were inflicted. Katrina had also suffered blunt force

trauma to the right side of her head. When Katrina's body was

found, her legs were laying across Christian's legs. Christian

had five stab wounds. Two of the injuries to his neck, and

the wound to his chest, damaged major veins and caused

significant bleeding. Like Katrina, Christian's body diverted

blood to vital organs, which would have taken some time. The

stab wound to Christian's arm was consistent with a defensive

wound received when he was consciously trying to defend

himself. He also had biunt force trauma to the head.

¥ 62 Other evidence supported an inference of a struggle.

When Bosse was interviewed on July 23, he had several

injuries, including abrasions on his right knuckles and a

long scratch on his arm. There was a hole in the door to

the master bedroom consistent with a fist punch. Evidence

showed Christian was protective of Katrina; a pocketknife

of Christian's, which was kept in Katrina's dresser, was

found underneath Katrina's body. Evidence that a victim was

conscious and aware of an attack supports a finding of torture

and serious physical abuse, as does the presence of defensive

wounds. Black vy. State, 2001 OK CR 5, 4 79, 21 P.3d 1047,

1074; Alverson v. State, 1999 OK CR 21, 4 51, 983 P.2d 498,

515. Taking the evidence in the light most favorable to the

State, any rational trier of fact could find beyond a reasonable

doubt that the deaths of Katrina and Christian were heinous,

atrocious or cruel. Eas/ick v. State, 2004 OK CR 21, 415, 90

P.3d 556, 559. This proposition is denied.

{32} [33] 63 Bosse claims in Proposition XII that the

evidence was insufficient to prove the “murder to avoid

arrest” aggravating circumstance beyond a reasonable doubt

in violation of his rights under the Eighth and Fourteenth

Amendments to the United States Constitution and Article

il, §§ 7, 9 and 20 of the Oklahoma Constitution. Bosse's

demurrer to this evidence was overruled at trial. The State

had to show that Bosse committed a predicate crime, separate

from the three murders, and that the killings were done

to avoid arrest or prosecution for that predicate crime.

Coddington, 2011 OK CR 17, 4 46, 254 P.3d at 705. The

defendant must intend, not just to commit the predicate crime,

but to eliminate a witness to that crime by killing the victim.

Smith v. State, 2013 OK CR 14, 459, 306 P.3d 557, 576; Lort,

2004 OK CR 27, 4117, 98 P.3d at 348. The defendant's intent,

which may be proved by circumstantial evidence, is crucial

to proof of this aggravating circumstance. Coddington, 2011

Bosse v. State, 360 P.3d 1203 (2015)

2015 OK CR 14

OK CR 17, § 48, 254 P.3d at 706; Lott, 2004 OK CR 27, §

116, 98 P.3d at 348.

4 64 The State alleged that the predicate crime was Bosse's

theft of the Griffins’ personal property. On July 22, 2010,

Katrina discovered that fifteen video games were missing

from the trailer. Katrina suspected that a friend, Henry Price,

had stolen the games. Before calling the sheriff, Katrina

persuaded Bosse to take her to her friend Heather Malloy's

house in search of Price that night. When she could not

find Malloy, Katrina called the sheriff's office to report the

theft. Bosse was present at Katrina's trailer when Deputy

Cunningham took Katrina's report. Price, contacted after the

murders, denied stealing the video games. The day after the

crime, Bosse had a PlayStation *1229 game console, Wii,

televisions, laptop computer, DVDs and video games from

Katrina's trailer. At the time of his arrest on the evening

of July 23, Bosse had pawned some of these items; others

were in his truck or apartment. Bosse attempted to conceal

his possession and disposal of ell these items from law

enforcement. In addition, mitigating evidence from Bosse's

family included testimony that for several years Bosse had

stolen money and property from close friends and family

members. Taking the evidence in the light most favorable

to the State, any rational trier of fact could find beyond a

reasonable doubt that Bosse committed all three murders to

avoid arrest or prosecution. Easilick, 2004 OK CR 21, 4 15,

90 P.3d at 559. This proposition is denied.

4 65 In Proposition XIII, Bosse claims that the aggravating

circumstances found by the jury failed to perform the

narrowing function required by the Eighth and Fourteenth

Amendments to the United States Constitution and Articie

tl, §§ 7, 9 and 20 of the Oklahoma Constitution. He argues

that none of the aggravating circumstances, as presented to

the jury through instructions, adequately serve the narrowing

function necessary for constitutional application of the

death penalty. We have repeatedly rejected these arguments.

Specifically, we have found that the aggravating circumstance

that the defendant created a great risk of death to more than

one person is constitutional. Wood v. State, 2007 OK CR

17, 1.26, 158 P.3d 467, 477, We have found the aggravating

circumstance that the murder was committed to avoid arrest

or prosecution is sufficiently narrow as to be constitutional.

Hanson v. State, 2009 OK CR 13, ¥ 48, 206 P.3d 1020,

1034. We have found the aggravating circumstance that the

murder was heinous, atrocious or cruel is narrow enough to

be constitutional. Smith, 2013 OK CR 14, ¥ 61, 306 P.3d at

577; Postelle, 2011 OK CR 30, 4 84, 267 P.3d at 144. As the

State notes, Bosse admits this but argues that the narrowing

limitations for each circumstance are insufficient because,

he alleges, they have been inconsistently applied. We have

does not become ‘overbroad’ based upon the manner it is

applied to particular cases.” Mitchell v. State, 2006 OK CR

20, 4 104, 136 P.3d 671, 711 (quoting DeRosa v. State, 2004

OK CR 19, 991, 89 P.3d 1124, 1155).

[34] $66 In this proposition Bosse also complains about two

instructions. He notes that there is no uniform jury instruction

for the aggravating circurnstance that the defendant created

a great risk of death to more than one person. Bosse neither

objected fo the absence of such an instruction, nor requested

such an instruction, and has waived al] but plain error.

Postelle, 2011 OK CR 30, | 86, 267 P.3d at 144-45. We

have held that no separate uniform instruction defining this

aggravating circumstance is necessary, finding that use of the

statutory language explaining this aggravating circumstance

sufficiently informs jurors what is necessary to support a

finding that it is present. Eizember v. State, 2007 OK CR 29,

71 137-139, 164 P.3d 208, 241. Bosse also complains the

uniform instruction on the aggravating circumstance that the

murders were heinous, atrocious or cruel fails to narrow the

sentencer’s discretion. Bosse objected to this instruction, and

his request for a different instruction on this circumstance

was denied by the triai court. As Bosse admits, this Court has

rejected this claim. Pastelle, 2011 OK CR 30, ¢ 84, 267 P.3d

at 144. This proposition is denied.

Claims Common to Both Stage: of Trial

Medical Examiner's Testimony

4 67 In Proposition I{1, Bosse argues that the entirety of the

medica! examiner's testimony was inadmissible, because the

medical examiner's office is not accredited and is therefore

unable to provide testimony pursuant to state law. He claims

that, without the medical examiner's testimony, there was

insufficient evidence to establish a cause of death. In addition,

the medical examiner's testimony was used to establish the

aggravating circumstance that the murders were heinous,

atrocious or crucl.

{35} 68 Dr. Inas Yacoub, a board-certified forensic

pathologist with the Medical Examiner's office, performed

the autopsies *1230 on all three victims and testified for

the State at trial. Dr. Yacoub described in detail the physical

condition of all three victims, stated their causes of death,

Bosse v. State, 360 P.3d 1203 (2015)

WISOKCRIG r

and concluded that each death was a homicide. Dr. Yacoub

testified that, duc to building and equipment deficiencies and

high case loads, the Medical Examiner's office has not been

accredited since 2009. Bosse claims that, because the Medica!

Examiner's office lacks accreditation, Dr. Yacoub's testimony

was inadmissible. Admission of evidence is within the trial

court's discretion. Neloms, 2012 OK CR 7, § 25, 274 P.3d at

167. An abuse of discretion is any unreasonable or arbitrary

action made without proper consideration of the relevant facts

and law, also described as a clearly erroneous conclusion and

judgment, clearly against the logic and effect of the facts.

Neloms, 2012 OK CR 7, 435, 274 P.3d at 170. Bosse did not

raise this claim at trial, or object to Dr. Yacoub's testimony on

these grounds and has waived all but plain error. Plain error

is an actual error, that is plain or obvious, and that affects

a defendant's substantia! rights, affecting the outcome of the

trial. Barnard v. State, 2012 OK CR 15, 4 13, 290 P.3d 759,

764.

q 69 The Forensic Laboratory Accreditation Act (Act) was

passed in 2002. 74 O.S.2011, §§ 150.36, 150.37. It provides

that, as of July 1, 2005, all forensic laboratories defined in

the Act and already operating by that date shal! be accredited

—formally recognized by an accrediting body as meeting

or exceeding applicable quality standards. 74 O.S.2011, $§

150.37(A)(2), (B). The Act further provides that “testimony,

results, reports, or evidence of forensics analysis produced

on behalf of the prosecution in a criminal trial shall be

done by an accredited forensic laboratory.” 74 O.S.2011, §

150.37(C). An accredited forensic laboratory is one “operated

by the state or any unit of municipal, county, city or

other local government that examines physical evidence in

criminal matters and provides opinion testimony in # court

of law.” 74 O.S.2011, § 150.37(A)(5). The Act specifically

excepts several types of testimony, results, reports, or

evidence: (a) breath testing for alcohol; (b) “field testing,

crime scene processing, crime scene evidence collection,

searches, examinations or enhancements of digital evidence,

and crime scene reconstruction”; (c) latent print examination

performed by an IAI certified latent print examiner; and

(d) evidence of marijuana identification using generally

accepted methods which have been approved by a properly

accredited forensic labo tory. 74 O.S.2011, § 150.37(C)

(3), (4), (5), (6). Bosse argues that the Medical Examiner's

office conducts examinations equivalent to forensic analysis,

produces results, prepares reports and provides testimony on

behalf of the prosecution in criminal trials. He argues that

the Medical Examiner's office is not within any exceptions to

the accreditation rule. Because the Medical Examiner's office

is not accredited, Bosse claims, Dr. Yacoub's testimony was

inadmissible.

4 70 The State argues that the Medical Examiner's office is not

subject to the accreditation requirement of the Act. The State

notes that other specific definitions included in the Act refer

to accrediting bodies concemed with laboratories, taboratory

operations, testing of biological samples, maintenance,

analysis and testing of forensic evidence, and testing

and calibration laboratories. 74 O.S.2011, § 150.37(A)

references to ISOMEC 17025 standards. These are defined

as the International Organization of Standards/International

Electrotechnical Commission standard 17025, published by

the Organization for Standardization ana the International

Electrotechnical Commission, specific to the maintenance

and testing of forensic evidence. 74 O.S.2011, § 150.37({A)

(3), (4). These references certainly indicate that the Act

is intended to apply to all laboratories which maintain

equipment and conduct toxicological, forensic and similar

types of analysis commonly done in a laboratory setting, and

which may be reviewed using [ISO/IEC 17025 standards. The

question is whether this language is exclusive. Dr. Yacoub

testified that the Medical Examiner's office accrediting body

is the National Association of Medical Examiners. The

parties ask this Court to decide whether the type of physical

examination and analysis of bodies, performed *1231 by

the Medical Examiner's office, and which could be accredited

by a nationally recognized accrediting entity, is also within

the scope of the Act.® The State argues that, because Bosse

failed to object on these grounds at trial, there is not a

sufficient record concerning the application of the ISO/IEC

17025 standards to forensic pathologists. Such a record is not

necessary for this Court's resolution of this claim.

4 71 Forensic pathologists with the Medical Examiner's

office investigate deaths by physically examining bodies,

performing autopsies, and issuing written reports with an

opinion on the cause and manner of death. Cuesta-Rodriguez

v. State, 2010 OK CR 23, | 34, 241 P.3d 214, 228. The

Medical Examiner should reasonably expect autopsy reports

to be used in a criminal prosecution. /d. Dr. Yacoub testified

that she examined the bodies, and sent blood samples from the

victims to the toxicology laboratory for analysis, because the

laboratory tests constituted an additional tool she could use to

reach her conclusions. The State argues that these duties do

not constitute “laboratory work” as contemplated by the Act.

Bosse v. State, 360 P.30 1203 (2015)

2015 OK CR 14

4 72 We find that whether the Medical Examiner's office

is subject to the accreditation provisions of the Act does

not determine whether testimony such as Dr. Yacoub's is

admissible. The duties and responsibilities of the Medica!

Examiner's office, and of its forensic pathologists, are set

forth separately in Title 63. The Medical Examiner is

required to investigate the cause and manner of violent

deaths. 63 O.S.2011, §§ 938, 941. This includes a physical

examination of the body of the deceased, collection of

physical specimens from the body, review of medical records,

evidence, photographs of the scene of death, and objects or

writings near the body. 63 O.S.201 1, §§ 941, 944. For every

investigation, investigators and the Medical Examiner must

prepare written reports, including an autopsy report, which

must be furnished to investigating agencies. 63 O.S.2011,

§§ 942, 945. The Medical Examiner is specifically required

to keep a full record of the investigation, including any

autopsy report, and to submit records to the appropriate

district attorney, and may be required to testify regarding the

records or report. 63 O.S.2011, § 949. While Title 63 contains

no requirement that the Medical Examiner's office itself must

be accredited, each individual medical examiner appointed

by the Medical Examiner must be board certified to practice

forensic pathology in Oklahoma. 63 O.S.2011, § 937.

36) (37) (38) (39) (40)

statutory provisions, our paramount concern is to give effect

to the Legislature's intention. Leftwich v. State, 2015 OK CR

5, 7 15, 350 P.3d 149, 155; State v. Iven, 2014 OK CR 8, 4

13, 335 P.3d 264, 268. We consider the plain and ordinary

language of a@ statute, other statutes involving the same or

similar subjects, and “the natural or absurd consequences of

any particular interpretation.” /ven, 2014 OK CR 8, § 13,

335 P.3d at 268. We try to reconcile the language of general

statutes with more specific statutory provisions, to give effect

to cach. Leftwich, 2015 OK CP 5, 4 15, 350 P.3d at 155.

Specific statutory language controls over genera! language.

State v. Crowley, 2009 OK CR 22, 4 4, 215 P.3d 99, 100.

As the State notes, the Legislature recently amended several

sections of Title 63 concerning the Medical Examiner's office.

2014 Okla. Sess. Laws 293. The record before us does not

indicate the Legislature was aware, at the time, that the

Medical Examiner's office has been unaccredited since 2009.

However, it has been established that the Legislature was

actually aware of *1232 this fact,’ and yet amended the

statutes relating to the duties of that office without reference

to any effect that lack of accreditation may have on its

duties. From this, we conclude that the Legislature intended

the Medical Examiner's office to function as is set forth in

and required by the provisions of Title 63, independently of

any accreditation issues. We conclude that, as long as the

requirements of Title 63 are met in each case, accreditation

of the Medical Examiner's office goes to the weight of

the evidence, not its admissibility. If, as here, jurors are

presented with evidence that the Medical Examiner's office

was unaccredited at the time of the autopsies, jurors may give

that information whatever weight they feel appropriate.

7 74 Dr. Yacoub’s testimony was properly admitted.

Furthermore, although this is not required for admissibility,

jurors were made awere, through testimony, of the

accreditation issues, and could consider them in weighing Dr.

Yacoub’s evidence. The trial court did not abuse its discretion

in admitting this evidence. Because there was no error, there

was no plain error. This proposition is denied.

Prosecutorial Misconduct

41} (42) [43]

the prosecution engaged in deliberate misconduct during both

stages of trial, depriving him of his rights to a fair triel and

reliable sentencing hearing in violation of the Eighth and

Fourteenth Amendments to the United States Constitution

and Article Il, sections 7, 9 and 20 of the Oklahoms

4 73 When interpretinig°"stitution. Both parties have wide latitude in closing

argument (o argue the evidence and reasonable inferences

from it. Coddington, 2011 OK CR 17, 4 72, 254 P.3d at 712.

We will not grant relief for improper argument unless, viewed

in the context of the whole trial, the statements rendered

the wiel fundamentally unfair, so that the jury's verdicts are

unreliable. Miller v. State, 2013 OK CR 11, 4.116, 313 P.3d

934, 974. We review a trial court's decisions conceming

argument for abuse of discretion. (/nderwood v. State, 2011

OK CR 12,975, 252 P.3d 221, 250. Bosse objected to some

statements, we review the others for plain error. /d. at 4122,

313 P.3d at 976. Plain error is an actual error, that is plain

or obviot and that affects a defendant's substantial rights,

affecting the outcome of the trial. Barnard, 2012 OK CR 15,

7 13, 290 P.3d at 764.

[44] 4 76 Bosse complains of three separate errors in

first stage closing argument. First, he argues the prosecutor

improperly commented on his lack of remorse for the crimes.

Detective Huff testified that, during his interview, Bosse had

an unusual reaction when asked if he was sad about the

victims’ deaths. The trial court overruled Bosse’s objection

but noted that the topic was close to an improper discussion

of remorse, and the prosecutor moved on to another line of

questioning. In closing, the prosecutor argued that Bosse’s

4 75 In Proposition X, Basse claims that

Bosse v. State, 360 P.3d 1203 (2015)

2015 OK CR 14

initial reaction—ae long, calm silence—was not normal. The

prosecutor later asked what Bosse could have meant by his

eventual reply, “I'm more in awe.” In second closing, the

prosecutor argued that there was “some kind of emotional!

connection” missing from this statement, anc one would

expect, if Bosse had not committed the crime, that he would

be “a little bit upset” by the deaths. Bosse did not object to

these comments and has waived al! but plain error as to them.

These are not comments on Bosse's lack of remorse. Rather,

they are reasonable inferences from the evidence of Bosse's

reaction to news of the victims’ deaths.

4 77 Bosse next complains that the prosecutor impermissibly

defined reasonable doubt by arguing that it was not “beyond

all doubt”. Bosse did not object to this statement and we

review for plain error. There is none. We have heid that it is

not error to use this phrase in discussing reasonable doubt.

Myers v. State, 2006 OK CR 12, 957, 133 P.3d 312, 329.

145} (46)

shifted the burden of proof to the defense. Discussing Bosse's

alibi, the prosecutor argued that, even taking into account the

testimony of Detective Huff and Bosse's mother, Bosse had

shown nothing other than *1233 his own statements (to prove

his whereabouts during the time the crime could have been

committed. In closing, defense counsel had argued that Lord's

experiments were contrived and conducted in such a way

as to fit the State's timeline. The prosecutor argued in reply

that defense counsel had not shown that law enforcement

and Lord ever agreed to “fix” the timeline to fit Bosse’s

guilt, but that Bosse wanted jurors to infer this in order to

help manufacture his defense. Bosse's objections to these

comments were overruled. These statements were not error.

Where the defense has not offered evidence on an issue, the

prosecutor may argue that the evidence is uncontroverted.

Myers, 2006 OK CR 12, § 61, 133 P.3d at 329; Fite v.

State, 1993 OK CR 58, 4 21, 873 P.2d 293, 297. Neither of

these comments shifted the burden of proof to Bosse. Bosse

claims the prosecutor erred in commenting that he could have

independently tested the DNA evidence. Bosse’s objection

wes overruled. This comment was not error, as the State may

note that a defendant had access to, and did not test, evidence.

Myers, 2006 OK CR 12, 961, 133 P.3d at 329. The prosecutor

then noted the State had the burden of proof, but argued

that the defense should not argue about test results when

Bosse had the chance to test the evidence himself. Bosse's

objection was sustained and the jury was admonished, but his

request for a mistrial was denied Given that the prosecutor

prefaced the comment by stating the correct burden of proof,

(47] 78 Bosse argues that the prosecutor [49]

no mistrial was necessary, and the trial court's action cured

any error. Johnson v. State, 2013 OK CR 12, ¢ 16, 308 P.3d

1053, 1057.

[48] 79 Bosse argues the prosecutors made four improper

arguments during second stage closing argument. He first

claims that the prosecutor improperly commented on his

courtroom demeanor. In support of the charge that Bosse

would present a continuing threat to society, the prosecutor

argued that one indicator of continuing threat was a lack

of remorse, and noted that Bosse did not flinch when

the photographs of the victims were displayed. Bosse's

objection wes sustained and jurors admonished to disregard

any comment on Bosse’s demeanor. This cured any error.

Johnson, 2013 OK CR 12, § 16, 308 P.3d at 1057. The record

does not support Bosse’s argument otherwise, particularly as

jurors did not find that Bosse would present a continuing

threat to society.

(50) [Sij ¥ 80 Bosse next complains that the

prosecutor expressed a personal opinion regarding the

appropriate sentence. The prosecutor first argued that Bosse

had eared the death penalty. The trial court overruled Bosse's

objection, but admonished the prosecutor to confine her

argument ‘o her recollection of the evidence. The prosecutor

rephrased her comment to say that the evidence showed

Bosse had earned the death penalty, and discussed that

evidence. While initially poorly phrased, the record shows

thet this comment wes not @ personal opinion. Later in

closing, the State argued that the person who could commit

these crimes against, particularly, children, deserved the

ultimate punishment. Bosse's objection to personal opinion

was overruled. The record shows this was not an expression

of personal opinion, but based on the evidence presented.

During second closing, the State argued that the death penalty

was reserved for the worst of the worst, who was sitting

in front of the jury. Bosse’s objection was overruled. The

State argued Bosse should not get the benefit of slaughtering

three people at one time. Although Bosse's objection was

sustained, the trial court refused his request to admonish the

jury. Finally, the prosecutor argued he believed death was the

verdict best reflecting justice for Bosse’s actions. Remarks

about the appropriateness of the death penalty are not error

where, rather than being phrased personally. they appeal to

juror’s understanding of justice. Hogan, 2006 OK CR 19,490,

139 P.3d at 935~—36. it is not error to argue that justice requires

imposition of the death penalty under the facts and law of @

particuler case. /d. A request to impose the death penalty, or

an argument that the death penalty is proper in « particular

Bosse v. State, 360 P.3d 1203 (2015) ;

2015 OK CR 14

case, or that a defendant deserves a death sentence, are not

necessarily, without more, expressions of personal opinion.

Pavatt v. State, 2007 OK CR 19, 4 63, 159 P.3d 272, 291.

*1234 [52] = [53]

improperly encouraged jurors to sympathize with the victims.

The prosecutor described what the victims might have been

thinking and feeling es the crimes were committed. The

record shows the prosecutor was gesturing and becoming

emotional during the speech. The trial court overruled Bosse's

objection. During second closing, the prosecutor described

the attack in detail, without explicitly asking jurors to imagine

themselves ii that situation. The record shows that during

this argument the prosecutor lay on the floor “hollering,

gesturing wildly with his arms in a way that mimics someone

making a knife attack.” Bosse's objection was overruled. This

claim actually presents two issues—the appropriateness of

the argument itself and the prosecutor's actions in making the

argument. We have held a prosecutor may ask jurors to put

themselves in a victim's place while describing the victim's

experience, as long as the argument is based on the evidence.

Browning v. State, 2006 OK CR 8, 4 37, 134 P.3d 816,

839; Malicoat v. State, 2000 OK CR 1, 4 31, 992 P.2d 383,

401; Hooper v. State, 1997 OK CR 64, F¥ 52-53, 947 P.2d

1090, 1110. The argument here was not improper. Turning to

the second issuc, we have distinguished emotional, physica!

argument which is directed specifically at the defendant (and

thus improper) from theatrics which are property directed

to the jury, and which illustrate otherwise-proper argument.

Underwood, 2011 OK CR 12, 4 75, 252 P.3d at 250. This is

the case here. The trial court did not abuse its discretion in

overruling Bosse's objections to this argument. /d.

[54] 82 Bosse claims the State argued that life without

parole did not amount to punishment. The record does not

support this claim. The prosecutor urged jurors not to let

Bosse manipulate them into recommending a sentence less

than death. Bosse did not object. The argument was based

on evidence that Bosse's family and friends said he was

manipulative, and was not error. The prosecutor argued that

life without parole amounted to “no extra consequences”,

and that the way in which the victims were killed deserved

extra consequences. As we discuss above, Bosse's objection

was Sustained when the prosecutor argued that Bosse should

not get the benefit of slaughtering three people at once,

but his request to admonish the jury was overruled. Bosse

did sot object when the prosecutor repeated the statement,

argued Bosse should not get the same punishment for three

as he would for one, and asked twice for extra consequences.

7 81 Bosse claims that prosecutors

Bosse relies on an Illinois case in which the prosecutor

argued that, based on Illinois law, the defendant would

automatically receive life without parole for two victims,

so anything less than death would give the defendant five

free murders. The Illinois Supreme Court found this was

inflammatory, inaccurate as a statement of law, and not

supported by the evidence. People v. Kuntu, 196 I.2d 105,

256 Ill.Dec. 500, 752 N.E.2d 380, 403 (2001). This case is

distinguishable. Bosse’s jurors were not faced with automatic

imposition of any penalty, and had taken an oath to consider

all three punishment options available in Oklahoma. The

State's argument was neither a misstatement of law nor of

the facts. The prosecutor's request for extra consequences

was based on the evidence. The trial court did not abuse its

discretion in overruling Bosse's objections. Underwood, 2011

OK CR 12, § 75, 252 P.3d at 250.

{ 83 No prosecutorial misconduct prejudiced Bosse, and this

ition is denied

Ineffective Assistance of Counsel

155} [56] [57]

XIV that trial counsel were ineffective in violation of the

Sixth Amendment to the United States Constitution and

Article Il, § 20 of the Oklahoma Constitution. Bosse claims

trial counsel was ineffective for failing to object to Dr.

Yacoub's testimony, and for failure to object to improper

comments in the State's closing argument. Bosse must

show that counsel's performance was deficient, and that the

deficient performance was prejudicial. Miller, 2013 OK CR

11, ¥ 145, 313 P.3d at 982; Wiggins v. Smith, 539 U.S.

$10, 521, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003);

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,

2064, 80 L.Ed.2d 674 (1984). Counsel's acts or omissions

must have been so serious that Bosse was deprived of a

fair trial with reliable results. Harrington v. *1235 Richter,

562 U.S. 86, 104, 131 S.Ct 770, 787-88, 178 L.Ed2d

624 (2011). Trial counsel's performance is measured by

an objective standard of reasonableness under prevailing

professional norms. Coddington, 2011 OK CR 17, 4 78,

254 P.3d at 713-14; Rompilla v. Beard, 545 U.S. 374, 380,

125 S.Ct. 2456, 2462, 162 L.Ed.2d 360 (2005). Bosse must

demonstrate a reasonable probability that, absent counsel's

deficient performance, the outcome of the trial would have

been different and the jury would have concluded the balance

of aggravating circumstances and mitigating evidence did not

support the death penalty. Coddington, 2011 OK CR 17, §

78, 254 P.3d at 713.14; Miller, 2013 OK CR Ii, ¥ 145,

313 P.3d at 982; A reasonable probability is one sufficient to

{58} 84 Bosse claims in Proposition

Bosse v. State, 360 P.3d 1203 (2015)

2015 OK CR 14

undermine confidence in the outcome. Fisher v. State, 2009

OK CR 12, 47, 206 P.3d 607, 609. We give great deference to

counse!'s decisions, considering them according to counsel's

perspective at the time. Rompilia, 545 U.S. at 380-81, 125

S.Ct. at 2462; Wiggins, 539 U.S. at 523, 123 S.Ct. at 2536.

We presume counsel's conduct is professional, and his actions

may be considered the product of a reasonabie trial strategy.

Coddington, 2011 OK CR 17, 478, 254 P.3d at 713-14. Bosse

must show he was prejudiced by counsel's acts or omissions.

Williams v. Taylor, 529 U.S. 362, 394, 120 S.Ct. 1495, 1513~

14, 146 L.Ed.2d 389 (2000); Strickland, 466 U.S. at 693, 104

S.Ct at 2067. Where a defendant fails to show prejudice,

we will dispose of a claim of ineffective assistance on that

ground. Marshall v. State, 2010 OK CR 8,461, 232 P.3d 467,

481.

[S59] ¥ 85 Bosse can show no prejudice from counsel's

omissions. We found in Proposition |! that whether the

Medical Examiner's office is accredited goes to the weight of

the testimony rather than its admissibility. As Dr. Yacoub's

testimony was admissible, Bosse was not prejudiced from

trial counsel's failure to object to its admissibility on grounds

of lack of accreditation. In Proposition X, we found that none

of the State's comments in closing argument, to which trial

counsel did not object, were error. Trial counsel! cannot be

ineffective for failing to object to these comments. As there

is no prejudice from counsel's omissions, we will not find

counsel ineffective. This proposition is denied.

Accumulation of Error

[60] 486 In Proposition XV, Bosse claims the accumulation

of errors deprived him of a fair trial and sentencing. He

argues that individual trial errors, taken together, require

relief. We found only one error in the preceding propositions.

We determined in Proposition V!l that two photographs

of Chasity's burned body should not have been admitied.

However, we found admission of those photographs was

harmless beyond a reasonable doubt. Where a single error has

been addressed, there is no cumulative error. Bel! v. Siate,

2007 OK CR 43, ¥ 14, 172 P.3d 622, 627. Bosse's trial was

fairly conducted. Brumfield v. State, 2007 OK CR 10, 4 37,

155 P.3d 826, 840. This proposition is denied.

Mandatory Sentence Review

{61} 987 We must determine (a) whether Bosse’s sentences

of death were imposed under the influence of passion,

prejudice or any other arbitrary factor, and (b) whether the

evidence supports the trial court's findings of the aggravating

circumstances, 21 O.S.2011, § 701.13(C). in Propositions XI

and XI! we found the evidence was sufficient to support the

aggravating circumstances that the murders were heinous,

atrocious or cruel, and that they were committed in order to

avoid arrest and prosecution for another crime. The evidence

also established that Bosse's actions created a great risk of

death to more than one person. We find the evidence supports

the trial court's findings that the aggravating circumstances

were present.

162] [63] 4 88 Im determining whether the sentences of

death were imposed under the influence of passion, prejudice

or any other arbitrary factor, we do not independently reweigh

the evidence supporting the aggravating circumstances

against that presented in mitigation. This Court “does not act

as an independent factfinder or substitute our judgment for

that of the trier of fact.” Malone v. Siate, 2013 OK CR 1, 479,

293 P.3d 198, 219. Rather, we review the evidence “only to

the extent necessary to determine *1236 whether there was

sufficient evidence from which a rational sentencer could find

that the balance of aggravating and mitigating circumstances

warranted a death sentence.” Ma/one, 2013 OK CR 1, ¢ 82,

293 P.3d at 220 (quoting Fisher v. State, 1987 OK CR 85,4

25, 736 P.2d 1003, 1011).

7 89 In mitigation, Bosse presented evidence that he had no

violent, that his ability to appreciate the criminality of his

conduct was greatly impaired by drugs and alcohol; that he

used drugs since his senior year in high school and regularly

used pills and methamphetamine; that because his father

abandoned him and did not maintain a close relationship,

he was deprived of the opportunity to have a proper male

role model; that Bosse’s father neglected him and his brother;

that in childhood he suffered head injuries that may have

negatively contributed to his mental health; that his brother

bullied and teased him; that his family, friends and celimates

described him as generous and helpful; that he was thirty

years old at the time of trial; that he would benefit from

the structure of prison life, that family members said Bosse

was helpful, cooperative and a contribution to their lives;

that his friends and family were shocked by the crime,

because they believed it wes out of character with his shy,

quiet, nonaggressive personality, and that Bosse did not

lose his temper, that he physically assisted his mother and

grendparents with chores; that he gladly helped friends and

family when requested; that his friends and family maintained

Bosse v. State, 360 P.3d 1203 (2015)

2015 OK CR 14

relationships with Bosse while he was incarcerated; that

his employers described him as a hard worker and self-

starter who got along with co-workers; that his mother and

grandmother maintained a close relationship with him in jail

through daily telephone conversations and weekly visitation;

that he had a good relationship with his nephew, playing with

him and attending sporting events; that his father's alternative

bisexual lifestyle was detrimental to Bosse's upbringing; that

his mother struggled to provide for her children; that his

mother suffered from depression and struggled to maintain

a clean and proper home during his childhood; and that his

family and friends loved him and wished for him to live.

4 90 After thoroughly reviewing the entire trial proceedings,

we find the death penalty was not imposed under the

influence of passion, prejudice or any other arbitrary factor.

21 O.S.2011, § 701.13(C). No improperly admitted evidence

or argument affected the jury's determination of sentence. The

sentences of death are factually substantiated and appropriate.

21 O.S.2011, § 701.13(F).

DECISION

7 91 The Judgments and Sentences of the District Court of

McClain County are AFFIRMED. Pursuant to Rule 3.15,

Rules of the Oklahoma Court of Criminal Appeals, Title 22,

Ch.18, App. (2015), the MANDATE is ORDERED issued

upon the delivery and filing of this decision.

LUMPKIN, V.P.J. and HUDSON, J.: concurring in part/

dissenting in part.

JOHNSON and LEWIS, JJ.: specially concurring.

LUMPKIN, V.PJ., Concurring in Part/Dissenting in Part.

4 1 1 concur in affirming Appellant's convictions and

sentences, however, | cannot acquiesce in the analysis of

Proposition Two. As a State court of last resort, we must

independently construe Federal Constitutional issues based

on existing precedent from the United States Supreme Court

and not speculate on what that Court may do or not do in the

future.

4 2 Appeilant neither invoked his Fifth Amendment right

to silence nor fully invoked his Fourth Amendment right

to refuse consent to search in the present case. Instead, he

voluntarily spoke with the officers, indicated that he would

fully cooperate with the investigation, refused to permit the

officers to conduct a full search of his truck but did agree to

8 limited search as well as the photographing of the contents

of the vehicie. The investigators photographed several iterns

which were marked with Katrina Griffin's initials. When

the officers searched Appellant's truck pursuant to a search

warrant *1237 a few hours later, most of the items were

gone. At trial, the State introduced Appeilant's voluntary

Statement indicating that he would cooperate with the

investigators, the photographs of the truck's contents, his

refusal to consent to a full search of the truck, and the results

of the iater search. In closing argument, the prosecutor argued

that Appellant's refusal to consent to the search pointed to his

guilt.

7 3 Appellant, now, challenges both the State's admission of

the evidence concerning his refusal to consent to a full search

of his vehicle and the prosecutor's comments conceming that

evidence in closing argument. Because Appellant failed to

timely challenge the prosecutor's comments at trial, this Court

reviews his claim for plain error under the test set forth in

Simpson v. State, 1994 OK CR 40, 876 P.2d 690. Malone v.

State, 2013 OK CR 1, 940, 293 P.3d 198, 211; Hogan v. State,

2006 OK CR 19, 4 38, 139 P.3d 907, 923. '

44 Neither the United States Supreme Court nor this Court

has previously determined whether evidence of a criminal

defendant's refusal to consent to a search is constitutionally

prohibited. Strict application of Fifth Amendment precedent

results in the conclusion that the evidence was admissible.

1 5 The United States Supreme Court distinguishes silence

which occurs following the receipt of warnings pursuant

to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16

L.Ed2d 694 (1966), from silence prior to receipt of such

warnings. In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49

L.Ed.2d 91 (1976), the Supreme Court determined that due

process prohibited prosecutors from using a criminal suspect's

silence, at the time of arrest and after receiving his Miranda

warnings, for impeachment purposes at trial. /d., 426 U.S.

at 619, 96 S.Ct. at 2245. This result was compelled by the

Miranda decision. id, 426 U.S. at 617, 96 S.Ct at 2244,

In Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65

L.Ed.2d 86 (1980), the Supreme Court determined that this

rule did not apply to e suspect's pre-arrest silence prior to

receipt of Miranda warning’s implicit promise that any silence

will not be used against him. /d., 447 U.S. at 240, 100 S.Ct.

at 2130.

Bosse v. State, 360 P.3d 1203 (2015)

2015 OK CR 14

¥ 6 The prosecution may use evidence of a suspect's

statement to the police as well as pre-arrest silence. Hogan

v. State, 1994 OK CR 41, § 20, 877 P.2d 1157, 1161.

“Volunteered statements of any kind are not barred by the

Fifth Amendment.” Miranda, 384 U.S. at 478, 86 S.Ct. at

1630. in Salinas v. Texas, -— U.S. ——, 133 S.Ct. 2174,

186 L_Ed.2d 376 (2013), the Supreme Court determined that

the prosecution's use of a criminal suspect's noncustodial

silence did not violate the Fifth Amendment because the

suspect had not expressly invoked the privilege against self-

incrimination. /d., 133 S.Ct. at 2178-79 (plurality opinion).

In Salinas, the suspect had voluntarily gone to the police

station and answered the police officer's questions but balked

and fell silent when the officer asked whether his shotgun

would match the shells recovered at the murder scene. /d.,

133 S.Ct. at 2177-78. The Supreme Court determined that the

suspect's silence did not constitute the invocation of the Fifth

Amendment privilege. /d., 133 S.Ct. at 2178-79.

q 7 Im the present case, Appellant was not in custody but

voluntarily traveled to the Sheriffs office and answered

the investigator's questions. He did not receive a Miranda

werning and never expressly invoked his privilege against

self-incrimination. Therefore, the prosecution's use of

Appellant's statements to the investigators did not violate the

Fifth Amendment.

178 Recognizing this fact, Appellant secks to have this Court

apply the reasoning from Griffin v. California, 380 U.S. 609,

85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), to the circumstances

of his case. He asserts that the *1238 prosecution's use of

his refusal to consent to a full search of his truck wes identical

to the “penalty” that the Supreme Court identified in Griffin.

(Brf. 24—25).

1 9 Appellant cites the Tenth Circuit Court of Appeals’

decision in United States v. Dozal, 173 F.3d 787 (10th

Cir.1999), as persuasive on this point. | agree. In Dozal, the

Tenth Circuit concluded that “asking a jury to draw adverse

inferences from” the failure to consent to a search “may

be impermissible if the testimony is not admitted as a fair

response to a claim by the defendant or for some other proper

purpose.” /d., 173 F.3d at 794 (citing United States v. McNait,

931 F.2d 251, 258 (4th Cir.1991)).

4 10 Dozal is consistent with the United States Supreme

Court's interpretation as to what constitutes a penalty for the

exercise of a constitutional right. It is without question, that

an individual may not be criminally prosecuted for the mere

refusal to consent to a warrantless search. Florida v. Bostick,

501 U.S. 429, 437, 111 S.Ct. 2382, 2387, 115 L.Ed.2d 389

(1991); Camara v. Municipal Court of City and County of

San Francisco, 387 U.S. 523, 540, 87 S.Ct. 1727, 1736-37,

18 L.Ed.2d 930 (1967). However, evidence of the assertion

of a constitutional right does not constitute a penalty in

all instances. In Griffin, the United States Supreme Court

recognized that the Fifth Amendment prohibits comment by

the prosecution on the accused's refusal to testify or jury

instructions by the court that such silence is evidence of guilt.

fd., 380 U.S. at 615, 85 S.Ct. at 1233. The Supreme Court

reasoned:

For comment on the refusal to testify

is a remnant of the ‘inquisitorial

system of criminal justice,’ Murphy v.

Waterfront Comm., 378 U.S. 52, 55,

84 S.Ct. 1594, 1596, 12 L.Ed.2d 678

[(1964)), which the Fifth Amendment

outlaws. It is a penalty imposed by

courts for exercising a constitutional

privilege. It cuts down on the privilege

by making its assertion costly. It

is said, however, that the inference

of guilt for failure to testify as to

facts peculiarly within the accused's

knowledge is in any event natural

and irresistible, and that comment

on the failure does not magnify that

inference into a penalty for asserting

@ constitutional privilege. People v.

Modesto, 62 Cal.2d 436, 452-453, 42

Cal.Rptr. 417, 426-427, 398 P.2d 753,

762-763 [(1965)]. What the jury may

infer, given no help from the court,

is one thing. What it may infer when

the court solemnizes the silence of the

accused into evidence against him is

quite another.

id, 380 US. at 614-15, 85 S.Ct. at 1232-33. In United

States v. Robinson, 485 U.S. 25, 108 S.Ct 864, 99

L.Ed.2d 23 (1988), the Supreme Court refused to expand

Griffin to include a prosecutor's fair response to argument

of the defendant, but, instead, explicitly limited Griffin

to precluding prosecutorial comments which treat the

defendant's silence as substantive evidence of guilt. /d., 485

U.S. at 32, 34, 108 S.Ct. at 869-70 (“There may be some

“cost” to the defendant in having remained silent in each

Bosse v. State, 360 P.3d 1203 (2015)

2015 OK CR 14

situation....""). Therefore, prosecutorial comments concerning

a criminal defendant's refusal to consent to a search which

solemnize the refusal into substantive evidence of guilt are

prohibited but evidence conceming the refusal itself may be

permissible if the testimony is admitted as a fair response to

a claim by the defendant or for some other proper purpose.

4 11 Applying this analysis to the present case results in the

conclusion that the trial court did not abuse its discretion when

it admitted the officers’ testimony about Appellant's refusal

to consent to a full search of his vehicle. Ne/oms v. State,

2012 OK CR 7, 435, 274 P.3d 161, 170. Because Appellant's

refusal to consent to a full search of his truck was central to

the chain of events and helped explain the officers' subsequent

actions, the challenged evidence was properly admissible. See

Stouffer v. State, 2006 OK CR 46, ¥ 76, 147 P.3d 245, 265

(finding evidence introduced to show basis for further police

action admissible); Warner v. Stat

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