# Opposition Brief — Bosse v. Oklahoma, 137 S. Ct. 1 (2016) (No. 15-9173)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2016

## Text

~ ORIGINAL jo=>
—.

IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 2015

SHAUN MICHAEL BOSSE,
Petitioner,
Vv.

THE STATE OF OKLAHOMA,

Respondent.

[ee SS es

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI

E. SCOTT PRUITT
ATTORNEY GENERAL OF OKLAHOMA

*THOMAS LEE TUCKER, OBA #20874
ASSISTANT ATTORNEY GENERAL

313 NE 21" Street
Oklahoma City, Oklahoma 73105
(405) 521-392)
(405) 522-4534 FAX
ATTORNEYS FOR RESPONDENT RECEIVED
JUN - 7 20%

| Supreme Count Us

June 2, 2016 *Counsel of Record

PAGE
EE Bccccescedeccisccencnccceusedéccncesvusescosoéonenee i
eT Ge SEED cncccccccrdodnncesececcécecvecccescecdoncecsudesees 1
PS GF CDOUNEEED cocccccqcncccccccccccescsecescvecsoscssonecoesees 2
a MEE TEEN eccccececcesccccesccoccesseousooucecsnses 8
OKLAHOMA LAW ALLOWING THE ADMISSION OF VICTIM IMPACT
STATEMENTS WHICH INCLUDE RECOMMENDATION OF SENTENCE
IS NOT CONTRARY TO THE UNITED STATES CONSTITUTION OR THIS
Ge GMD co bcccccecotsececccocnsccceceusceetceséoceseceoese 8
A. PN BED Sc ccccsosedccceredacesocecesécarinnecscessussess 9
B. Oklahoma Law Regarding Victim Impact Evidence ................... 10
Cc. Victim Impact Evidence in Petitioner’s Case ..............002-00ee00s 12
15

GENET covccccccrccscvecccescesccocceccceseceeosecooeccotéoccocecsees

Booth v. Maryland,
482 U.S. 496, 107 S. Ct. 2529, 96 L. Ed. 2d 440 (1987).

Burt v. Titlow,

PAGE

8, 9, 10, 11

16

_U.S._, 134. Ct. 10, 187 L. Ed. 2d 348 (2013)

California v. Ramos,
463 U.S. 992, 103 S. Ct. 3446, 77 L. Ed. 2d 1171 (1983)

DeRosa v. Oklahoma,
543 U.S. 1063, 125 S. Ct. 889, 160 L. Ed. 2d 793 (2005)

DeRosa v. Workman,
679 F.3d 1196 (10 Cir. 2012)

13

12

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

Romano v. Oklahoma,

il

512 US. 1, 114 S. Ct. 2004, 129 L. Ed. 2d 1 (1994)

Stone v. Powell,
428 U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976)

16

Weich v. Oklahoma,

13

528 U.S. 829, 120 S. Ct. 83, 145 L. Ed. 2d 70 (1999)
STATE CASES
Bosse v. State,

360 P.3d 1203 (Okla. Crim. App. 2015)

Conover v. State,

ll

933 P.2d 904 (Okla. Crim App. 1997)

Maione v. State,

Ml

168 P.3d 185 (Okla. Crim. App. 2007)

Miller v. State,

Bi

29 P.3d 1077 (Okla. Crim. App. 2001)

Murphy v. State,

47 P.3d 876 (Okla. Crim. App. 2002) 13
Salazar v. State,
973 P.2d 315 (Okla. Crim. App. 1998) 12
STATE STATUTES
Okla. Stat. tit. 21, § 142A (2011) 10
Okla. Stat. tit. 21, §§ 142A-1 (2011) 10
Okla. Stat. tit. 21, § 142A-1(8) (2011) 10
Okla. Stat. tit. 21, § 142A-8 (2011) 10
Okla. Stat. tit. 21, § 701.12 (2011) 2
Okla. Stat. tit. 21, § 701.13(C) 15
Okia. Stat. tit. 22, § 984 (1992) 10
Okla. Stat. tit. 22, § 984(1) (1992) il
Okla. Stat. tit. 22, § 984.1 (1992) 10
FEDERAL RULES
8,13

Rule 10, Rules of the Supreme Court of the United States

CAPITAL CASE
QUESTION PRESENTED

Whether the admission of victim impact statements which include a short, concise
statement recommending the jury impose the death sentence, as provided for under
Oklahoma statutory law, violates the Eighth Amendment of the United States Constitution,
despite the Oklahoma Court of Criminal Appeals’ requirement that such evidence be
evaluated for admissibility under the more prejudicial than probative standard and the
due process required by the Fourteenth Amendment?

Case No. 15-9173

IN THE SUPREME COURT OF THE UNITED STATES

SHAUN MICHAEL BOSSE
Petitioner,

-vs-

THE STATE OF OKLAHOMA
Respondent.

On Petition for Writ of Certiorari to the Oklahoma Court of Criminal Appeals

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI

Respondent respectfully urges this Court to deny the petition for writ of certiorari to review
the Opinion of the Oklahoma Court of Criminal Appeals entered October 16, 2015. See Bosse v.
State, 360 P.3d 1203 (Okla. Crim. App. 2015).

STATEMENT OF THE CASE

Petitioner is currently incarcerated pursuant to a Judgment and Sentence entered in the
District Court of McClain County, Case No. CF-2010-213, convicting him of three counts of first
degree murder and one count of first degree arson. Petitioner’s convictions are the result of a jury
trial in which he was found guilty beyond a reasonable doubt of murdering Katrina Griffin and her
two children, eight-year-old Christian Griffin, and six-year-old Chasity Hammer, in Ms. Griffin's
home, and then setting the home on fire. The jury found the existence of three aggravating
circumstances for each murder count, namely: (1) during the commission of each murder, the
defendant knowingly created a great risk of death to more than one person; (2) each murder was
especially heinous, atrocious or cruel; and (3) each murder was committed for the purpose of

avoiding or preventing a lawful arrest or prosecution. See Okla. Stat. tit. 21, § 701.12 (2011). At the
conclusion of Petitioner's trial, the jury recommended sentences of death for the murders, and thirty-
five years imprisonment for the arson. The trial court sentenced Petitioner accordingly on December
18, 2012.

From his convictions, Petitioner filed a direct appeal with the Oklahoma Court of Criminal
Appeals (OCCA). On October 16, 2015, the OCCA affirmed Petitioner’s convictions and sentences.
See Bosse v. State, 360 P.3d 1203, 1236 (Okla. Crim. App. 2015). Petitioner sought a rehearing in
the OCCA which was denied on December 1, 2015. See 12/01/2015 Order, OCCA Case No. D-
2012-1128 (unpublished). Petitioner’s application for post-conviction relief was denied by the
OCCA in an unpublished order on December 16, 2015. See Bosse v. State, OCCA Case No. PCD-
2013-360, slip op. (Okla. Crim. App. December 16, 2015) (unpublished).

STATEMENT OF THE FACTS’

Katrina Griffin lived with her two children, Christian Griffin and Chasity Hammer, in a
mobile home located on her father’s rural McClain County property near Dibble, Oklahoma (1 Tr.
30-34). For the most part, Katrina stayed home because she suffered seizures that prevented her
either from driving or working (1 Tr. 35-36, 49). In early July 2010, Katrina met Petitioner on the
internet and the two started dating (1 Tr. 38-41, 44; 2 Tr. 88-89, 121). Petitioner quickly became
part of Katrina’s world. On the evening of July 17, 2010, Petitioner hung out with Katrina, her
cousin Heather Molloy and Molloy’s boyfriend Henry Price, at Katrina’s trailer. They played video

games, drank beer and listened to music (2 Tr. 88-91,127-130).

' References to the Trial Transcripts will be designated as “(Vol. No.) Tr.” followed by the page
number. References to the Original Record will be designated as “O.R.” followed by the page
number.

On July 22, 2010, around 6:00 p.m., Petitioner arrived for a visit at Katrina’s trailer (1 Tr.
45-46). Ginger Griffin, Katrina’s step-mother, briefly entered Katrina’s trailer that night when she
dropped Chasity and Christian off after a visit next door to her home. Petitioner and Katrina were
sitting on the love seat in the living room, using the laptop (1 Tr. 47-48, 58-59). Later that evening,
Mrs. Griffin received a phone call from Christian asking if he had left any of his video games at her
house (1 Tr. 59). When Mrs. Griffin responded that Christian had not left any of his video games
behind but, instead, took them home, Katrina got on the line and asked the same question (1 Tr. 59),
At some point during this conversation, Katrina said she was getting another call from her biological
mother, Rebecca Allen, and needed to take it {1 Tr. 59; 2 Tr. 112).

Ms. Allen spoke with Katrina several times that evening about the missing video games.
Katrina was upset because Christian’s video games were missing from the trailer. During the first
conversation, which occurred around 10:00 p.m., Katrina said Petitioner and the children were
present at the trailer with her. Katrina expressed her intent to try and find the missing video games
that night (2 Tr. 117-18). Katrina believed Henry Price was responsible for their theft and told her
mother that Petitioner was going to drive her to Heather Molloy’s home in search of the missing
video games (2 Tr. 124). Katrina left several text and phone messages for Molloy after 10:00 p.m.
that night. Molloy was asleep, however, and did not see these messages until the next morning (2
Tr. 92-93, 96). Malloy described Katrina’s messages as sounding “upset . . . because her son's video
games were missing” and that Katrina sounded “a little mad” (2 Tr. 96-97). In one message, Katrina
told Molloy “she knew where I lived and that they [were] going to come by.” (2 Tr. 97). In another,
Katrina wrote that she went to Molloy’s house and banged on the door (2 Tr. 98).

Unsuccessful in finding the missing video games, Katrina called the McClain County
Sheriff's Office to make a report. At 11:39 p.m., Deputy Kent Cunningham was dispatched to
Katrina’s mobile home. Deputy Cunningham arrived around 1 1:52 p.m. on July 22nd and found
Katrina, her two children and an adult white male at the trailer. Katrina explained to the deputy that
approximately fifteen (15) video games from her children’s collection went missing after Malloy and
Price visited her trailer the previous Saturday, July 17th (2 Tr. 100-105). Katrina spoke with her
mother for the last time by phone sometime between 12:30 and 1:00 a.m. (2 Tr. 117). She told Allen
that the deputy had just left, she was getting tired and was going to bed (2 Tr. 119). Katrina’s mother
believed everything had “calmed down” and Katrina told her mother she would see her tomorrow
(2 Tr. 119). Allen, who lived in Enid, Oklahoma, planned to drive to Dibble the next day and take
Chasity back to Enid for a short visit (2 Tr. 119-121).

Ginger Griffin left for work around 7:00 a.m., July 23, 2010 (1 Tr. 62). Mrs. Griffin looked
at Katrina’s trailer that morning as she drove past but saw nothing unusual (1 Tr. 63). Griffin did
not see Petitioner’s truck; nor did she notice any smoke (1 Tr. 63). Daryl Dobbs lived in the
Griffins’ rural neighborhood (1 Tr. 87-89). At 8:55 a.m., Dobbs left home (1 Tr. 90). While driving
out of the neighborhood, he saw smoke coming from the top of Katrina’s mobile home on the west
side of the trailer (1 Tr. 91-92). Dobbs backed up and drove towards Katrina’s trailer while honking
his horn in a furious attempt to get the attention of anyone nearby (1 Tr. 91-92). Dobbs called 911
and reported the fire (1 Tr. 94-95).

At 9:02 a.m., Walt Thompson, the Dibble police chief, responded to the fire based on
Dobbs’s 911 call (1 Tr. 125, 127). Chief Thompson arrived at the scene within minutes (1 Tr. 107,
132). Bill Scott and Mark Palmore, volunteer firemen from Dibble, soon arrived with the town’s

1,100-gallon fire engine (i Tr. 144-145, 177-178). lad in their self-contained breathing
apparatuses, the Dibble firemen made an immediate assault on the fire with water suppression at the
front door. They fought back smoke and flames coming from the living room and dining room areas
adjacent to the front door so they could enter (1 Tr. 178-180, 186). During their search, the smoke
inside was intense as the heat continued to rise; visibility “was next to nothing” as the Dibble
firemen searched and cleared the two bedrooms and one bathroom on the nu.th end of the trailer.
They eventually retreated outside when their oxygen tanks started to run low (1 Tr. 180-182).

Volunteer firemen from nearby Washington, Oklahoma, responding to a mutual aid request,
relieved Scott and Palmore and made their way inside through the front door, towards the south side
of the trailer, in search of victims (2 Tr. 12-19). Firemen Derek Cheek and Gary Bolster were
crouching very !ow to navigate through the thick, black smoke (2 Tr. 19). The Washington firemen
searched the living room, kitchen and utility room area but found only a few small flames which they
quickly extinguished (2 Tr. 19-21, 42-43). The door separating the master bedroom from the rest
of the trailer was closed and was warm to the touch. With no visible signs of flames, Cheek—-with
some effort—opened the door. Inside, they found the bodies of Katrina and Christian laying on the
floor (2 Tr. 21-25).

Because of a problem with their hose, the Washington firemen retreated back outside in the
middle of their search of the master bedroom (2 Tr. 25-27). When the fire was finally extinguished
and firemen returned inside, they discovered a much different scene compared to their initial entry.
The bodies of Katrina and Christian had extensive burning and were covered in debris not present
when the Washington firemen first found them (2 Tr. 39-41, 43). Worse yet, the severely charred
body of Chasity Hammer was discovered inside what was left of the master bedroom closet, covered

in charred debris (2 Tr. 34; 4 Tr. 98-100; 6 Tr. 31, 34; State’s Exhibits 36-37). Additionally,
investigators discovered what appeared to be blood spatter from cast off and arterial blood spurts on
the lower bedroom walls near Christian’s body. Notably, Christian’s head was partially wrapped in
a blanket and he was clothed only in a pair of unbuttoned, unzipped jean shorts and underwear.
Christian had five (5) stab wounds to the neck and chest. A stab wound to his right forearm was
consistent with being a defensive wound. Blunt force trauma over Christian’s right eyebrow was
also evident (4 Tr. 113-115, 141-143, 148-155; 6 Tr. 13, 18-20; State’s Exhibits. 43, 45, 81, 87).
Katrina’s body—clothed in a t-shirt, shorts and underwear—was badly burned and had eight
(8) stab wounds to the neck and abdomen (4 Tr. 156; 5 Tr. 223). Blunt force trauma to the right side
of her head was also observed (5 Tr. 225). Katrina’s face was charred and the eyeglasses she
normally wore, and many times fell asleep in, were still attached to her burned hair (1 Tr. 57-58; 5
Tr. 223). Incised wounds on the palm of Katrina’s right hand were classified as defensive wounds
by the medical examiner (5 Tr. 229, 237-238). Katrina’s legs were found laying over Christian’s
legs and her body was covered in debris from the fire (4 Tr. 115-116; State’s Exhibit 47). Katrina’s
shirt was bunched up over head, her hands and arms were crossed and her body was stretched out
on its side (4 Tr. 116-117, 124; State’s Exhibit 48). This was consistent with Katrina's body having
been drug with her arms over her head (4 Tr. 117). In Katrina’s right hand was a knife (4 Tr. 118;
State’s Exhibit 49). This was unusual because Katrina was left-handed and the knife blade was
found facing her body (3 Tr. 94; 4 Tr. 118). The knife was completely backwards in her hand—the
opposite of how someone using a knife would hoid it (3 Tr. 95). Additionally, a knife with a broken-
off blade belonging to Christian was found underneath Katrina’s body (4 Tr. 121-122; State’s

Exhibit 52).

The medical examiner determined the cause of death for both Katrina and Christian was
multiple stab wounds (5 Tr. 247; 6 Tr. 30). Neither Katrina nor Christian had soot in their noses or
mouths, suggesting they were murdered prior to the home being set on fire (5 Tr. 223; 6 Tr. 13-14).
The medical examiner observed no stab wounds on Chasity’s remains but did observe blunt force
trauma to the right side of her head which resulted in a bruise (6 Tr. 31-32). Chasity’s legs were
charred to the muscle and bone was exposed (6 Tr. 33). Chasity’s cause of death was smoke
inhalation and thermal injury (6 Tr. 83). “[T)hat is, she burned to death.” Bosse, 360 P.3d at 1227.

Forensic testing of stains found on Petitioner’s tennis shoes, as well as a pair of blue jeans
rolled into a ball and placed inside the back of Petitioner’s bedroom closet, tested positive for blood
(2 Tr. 233-236; 4 Tr. 185-186, 189, 193-194; 7 Tr. 67-72). DNA testing of the bloodstain on
Petitioner’s jeans revealed the presence of both Chasity’s and Petitioner’s genetic profiles (7 Tr. 102-
107). DNA testing of Petitioner’s tennis shoes revealed the presence of Chasity’s and Katrina’s
genetic profiles (7 Tr. 108-110). Police discovered that Petitioner pawned numerous movies,
televisions and other electronic equipment belonging to Katrina Griffin at seven (7) different
Oklahoma City pawnshops the morning of July 23, 2010 (3 Tr. 57-63, 119-237, 267-75; 4 Tr. 31-64).
Several of the DVD movies Petitioner pawned (or, in some cases, attempted to pawn) had the
handwritten letters “KRG” which police discovered were handwritten initials placed by Katrina on
all the movies she owned (1 Tr. 53-54; 3 Tr. 57-63, 126, 160-161, 214-215). Several DVD movies
recovered from a stack found on top of Petitioner’s bed also had Katrina’s initials (4 Tr. 191-192;
State’s Exhibit 193). A television remote control found in Petitioner’s truck likewise matched one
of Katrina’s televisions that Petitioner had pawned (4 Tr. 206). Additional facts may be presented

below as they become relevant.

REASONS FOR DENYING THE WRIT
Petitioner believes the OCCA has incorrectly interpreted this Court’s holding in Payne v.

Tennessee, 501 U.S. 808, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991), in which this Court held that
“the Eighth Amendment erects no per se bar” to the admission of victim impact evidence admitted
at trial. Payne, 501 U.S. at 827, 111 S. Ct. at 2609. This Court in Payne overruled its previous
holding in Booth v. Maryland, 482 U.S. 496, 107 S. Ct. 2529, 96 L. Ed. 2d 440 (1987), in which this
Court held that this admission of victim impact evidence violated the Eighth Amendment. Booth,
482 U.S. at 509, 107 S. Ct. at 2536. While the OCCA’s interpretation of Payne is in conflict with
the United States Court of Appeals for the Tenth Circuit, the OCCA’s opinion demonstrates that
Oklahoma law properly safeguards Petitioner's Constitutional rights within the limits of Payne in
the admission and review of victim impact evidence admitted at trial. Thus, the OCCA has not
“decided an important federal question in a way that conflicts with relevant decisions of this Court.”
Rule 10, Rules of the Supreme Court of the United States. This Court should not grant certiorari to
review this particular case.

OKLAHOMA LAW ALLOWING THE ADMISSION OF

VICTIM IMPACT STATEMENTS WHICH INCLUDE

RECOMMENDATION OF SENTENCE IS NOT CONTRARY

TO THE UNITED STATES CONSTITUTION OR THIS

COURT’S CASE LAW.’

Petitioner claims Oklahoma’s admission of victim impact evidence concerning a

recommendation of sentence is contrary to this Court’s holdings in Payne and Booth. Specifically,

Petitioner claims that Payne left Booth 's Eighth Amendment prohibition against opinions concerning

? Contrary to Petitioner’s assertions, this case does not involve victim characterizations of the crime
or victim characterizations of the Petitioner. See 10 Tr. 197-223. Accordingly, this is not an
appropriate case to determine those issues.

sentence recommendations untouched. Petitioner claims the OCCA’s interpretation of Payne-that
this Court overruled Booth in its entirety, or alternatively, this Court left open the question of the
admissibility of opinion evidence concerning sentence recommendations-is in conflict with the
United State’s Court of Appeals for the Tenth Circuit and other state courts. However, as will be
shown below, this Court should not grant certiorari in this case.

A. Payne v. Tennessee.

In 1991, this Court explicitly overruled prior precedent in determining that “if the State
chooses to permit the admission of victim impact evidence and prosecutorial argument on that
subject, the Eighth Amendment erects no per se bar.” Payne, 501 U.S. at 827, 111 S. Ct. at 2609.
In reaching this conclusion, this Court reasoned that, “[u]nder our constitutional system, the primary
responsibility for defining crimes against state law, fixing punishments for the commission of these
crimes, and establishing procedures for criminal trials rests with the States.” Payne, 501 U.S. at 824,
111 S. Ct. at 2607. While recognizing that the Eighth Amendment imposed special limitations on
this process, this Court noted that “beyond these limitations the Court has deferred to the State’s
choice of substantive factors relevant to the penalty determination.” Payne, 501 U.S. at 824, 111 S.
Ct. at 2608 (citing California v. Ramos, 463 U.S. 992, 1001, 103 S. Ct. 3446, 3453, 77 L. Ed. 2d
1171 (1983)) (brackets and ellipsis omitted).

This Court removed victim impact evidence out from under Eighth Amendment scrutiny
noting that “victim impact evidence serves entirely legitimate purposes,” in 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. Finally, this Court held that “[i]n the event

that evidence is introduced that is so unduly prejudicial that it renders the trial fundamentally unfair,
the Due Process Clause of the Fourteenth Amendment provides a mechanism for relief.” Jd. Thus,
Payne made it clear that the states were again free to establish procedures for the introduction of
victim impact evidence, subject to the criminal defendant’s right to due process of law.

B. Oklahoma Law Regarding Victim Impact Evidence.

One year after the Payne decision, the Oklahoma Legislature specifically provided for the
admission of victim impact evidence in sentencing considerations. See Okla. Stat. tit. 22, §§ 984,
984.1 (1992).’ Currently, the Oklahoma Victim's Rights Act (Okla. Stat. tit. 21, § 142A (2011) et
seq.) provides that members of the immediate family of each victim “may present a written victim
impact statement,” which shall be allowed to “be read into the record.” Okla. Stat. tit. 21, § 142A-8
(2011). The Act defines a victim impact statement as:

“Victim impact statements” means information about the financial,

emotional, psychological, and physical effects of a violent crime on

each victim and members of their immediate family, or person

designated by the victim or by family members of the victim and

crime, the manner in which the crime was perpetrated, and the

opinion of the victim of a recommended sentence.
Okia. Stat. tit. 21, § 142A-1(8) (2011). Petitioner is challenging the admission of a victim’s opinion
of a recommended sentence‘ as violating the Eighth Amendment pursuant to Booth, 482 U.S. at 509,
107 S. Ct. at 2536. However, “[t}he Eighth Amendment does not establish a federal code of

3 These statutes have since been modified and renumbered as Okla. Stat. tit. 21, §§ 142A-1, 142A-8
(2011). See 1997 Okla. Sess. Laws Ch. 357, § 2; 2010 Okla. Sess. Laws Ch. 135, §§ 3, 14, 19.

* Petitioner also challenges victim characterizations of the circumstances surrounding the crime.
However, no such characterization was given at Petitioner’s trial. See 10 Tr. 197-223.

10

evidence to supersede state evidentiary rules in capital sentencing proceedings.” Romano v.
Oldahoma, 512 U.S. 1, 12, 114 8. Ct. 2004, 2011, 129 L. Ed. 2d I (1994).
The OCCA has taken the position that Payne overruled Booth and its prohibition of victim
impact evidence. Conover v. State, 933 P.2d 904, 920 (Okla. Crim App. 1997) (“Payne also
implicitly overruled that portion of Booth regarding characterizations of the defendant and opinions
of the sentence. Therefore, contrary to Appellant's argument, Payne and not Booth, is the controlling
case on this issue.”) (internal citations omitted). More importantly, the OCCA also acknowledges
the possible prejudicial impact of this type of evidence.
Opinion evidence by victim impact witnesses that the defendant
deserves death is admissible but will be viewed by this Court with a
heightened degree of scrutiny. By enacting (Okla. Stat. tit. 22,)
§ 984(1), the Legislature has in effect declared such evidence both
relevant and admissible. Jd. However, that does not end the
discussion. As with any evidence sought to be admitted, the district
court must decide whether its probative value is substantially
outweighed by its prejudicial effect. Even relevant evidence may be
excluded if its probative value is substantially outweighed by the
danger of unfair prejudice.

Conover, 933 P.2d at 921 (internal citations omitted). Further, the OCCA also limits the evidence

“to a simple statement of the recommended sentence without amplification.” /d.

The protections required in Payne are present in Oklahoma case law. See Malone v. State,
168 P.3d 185, 204-215 (Okla. Crim. App. 2007) (finding clear plain error in victim widow’s lengthy
statement recommending death, and remanding for re-sentencing); Miller v. State, 29 P.3d 1077,
1086 (Okla. Crim. App. 2001) (finding counsel ineffective for failing to object to amplified victim
impact evidence which contributed to error requiring defendant’s conviction and sentence to be

reversed and remanded for a new trial); Washington v. State, 989 P.2d 960, 977-980 (Okla. Crim.

App. 1999) (finding improper recommendation of death contributed to error requiring modification
of sentence from death to life without parole); Salazar v. State, 973 P.2d 315, 325 (Okla. Crim. App.
1998) (finding mother’s recommendation of death was over amplified, but harmless in light of the
overwhelming aggravating circumstances).

C. Victim Impact Evidence in Petitioner’s Case.

Petitioner first raised this issue prior to trial by filing a motion to prohibit the family members
providing victim impact evidence from including a punishment recommendation (O.R. 772-783).
The motion was argued prior to the penalty phase of Petitioner’s trial (10 Tr. 9-13). The prosecution
informed the trial court that its intent was to ask the victims if they had a recommendation of
punishment to illicit the one-word response of “death.” (10 Tr. 10). The trial court overruled
Petitioner’s motion (10 Tr. 12). During the penalty phase, after reading their victim impact
statements, 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 each responded with the one-word answer
of “death” to the prosecution’s inquiry of what their punishment recommendation was (10 Tr. 202,
212, 223).

Petitioner again raised this claim on direct appeal to the OCCA. The OCCA held:

[Petitioner] 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, e.g., DeRosa v. Workman, 679 F.3d 1196, 1240 (10°
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.

Bosse, 360 P.3d at 1226. The OCCA, after reviewing all of the victim impact evidence, including
sentence recommendations, held “[tJhe trial court did not abuse its discretion in admitting the
evidence.” Bosse, 360 P.3d at 1227. The OCCA’s disagreement with the Tenth Circuit is not
improper, nor does it conflict with relevant decisions of this Court. Rule 10, Rules of the Supreme
Court of the United States.

Petitioner argues that the OCCA’s reliance in Murphy v. State, 47 P.3d 876 (Okla. Crim.
App. 2002) on its belief that this Court had denied certiorari in Turrentine v. Oklahoma, 525 U.S.
1057, 119 S. Ct. 624, 142 L. Ed. 2d 562 (1998) on this very issue was incorrect.’ However, more
to the point, the OCCA decided the ultimate issue concerning the victim impact evidence by
applying the standard in Payne, holding that, “the victim impact evidence was not ‘so unduly
prejudicial that it render(ed) the trial fundamentally unfair.” Payne, 501 U.S. at 825, 111 S. Ct. at
2608.” Murphy, 47 P.3d at 886.

Regardless of the OCCA’s mention that it denied certiorari on a similar issue, it properly
addressed the issue consistent with this Court’s decision in Payne. Thus, the OCCA’s interpretation
was not in conflict with relevant decisions of this Court. Rule 10, Rules of the Supreme Court of the
United States. Nor was its denial of relief in this case. Moreover, fatal to Petitioner’s argument is
that it is based on the OCCA’s decisions in other cases, rather than challenge the substantive holding

in the present case.

5 Petitioner notes that this issue was not even before this Court in Turrentine. The State agrees that
this issue was not raised to this Court by Kenneth Turrentine until his fourth petition for certiorari,
which was denied by this Court (Turrentine v. Mullin, 545 U.S. 1106, 125 S. Ct. 2544, 162 L. Ed.
2d 278 (2005)) three years after the OCCA decided Murphy. However, this Court has denied
certiorari on this exact issue at least one time prior to Murphy (Welch v. Oklahoma, 528 US. 829,
120 S. Ct. 83, 145 L. Ed. 2d 70 (1999) and at least one time since (DeRosa v. Oklahoma, 543 U.S.
1063, 125 S. Ct. 889, 160 L. Ed. 2d 793 (2005).

13

In this case, the victims’ brief one-word plea for the death penalty should be contrasted with
the parade of fifteen (15) family members, friends, and other acquaintances that testified that
Petitioner should be spared the death penalty and that they otherwise wished to see Petitioner live.‘
Much of this Court’s reasoning in Payne centered around the potential for unfairness that exists
when a defendant is given an almost unlimited right to present mitigating evidence without a
corresponding right for the state to present evidence of the value of the victim’s life. Payne, 501
U.S. at 822, 825-827. Accordingly, even if Petitioner is correct that Payne does not allow for
sentencing recommendations by a victim’s family, the harm from the recommendation in this case
must be offset by the more extensive and elaborate pleas made by Petitioner’s family and friends.

Respondent submits that this case is not a good case for determining whether an opinion
about a punishment recommendation violates the Eighth Amendment. The facts of this case show
Petitioner committed a horrific crime. Bosse, 360 P.3d at 1227-1228. The jury found the existence
of three aggravating circumstances, and that those aggravating circumstances outweighed the rather
non-compelling mitigation evidence. Further, the prosecution elicited only a one-word sentence
recommendation, without amplification. It cannot be said that without this open court
recommendation of death, the jury would not have sentenced Petitioner as such. The jury was aware
the prosecution was seeking the death penalty in this case, surely the jury was already aware of the
victim’s recommendation.

® Pastor Travis Hopper, 11 Tr. 74; Cousin Ricky Darnell, 11 Tr. 96; Baseball Coach Tony Hancock,
11 Tr. 109; Cousin Trisha McAlpine, 11 Tr. 119; Aunt Valerie Barnett, 11 Tr. 125; Great Uncle
Johnny Pendley, 11 Tr. 129; Baseball Coach Daryl Mitchell, 11 Tr. 135; Best Friend Chad Mitchell,
11 Tr. 164; Father Jack Bosse, 11 Tr. 197; Cousin Joey Darnell, 11 Tr. 215; Uncle Jimmy Darnell,
11 Tr. 233; Aunt Ruth Williams, 12 Tr. 23; Brother Matthew Bosse, 12 Tr. 38, 49; Mother Verna
Bosse, 12 Tr. 104-106; Grandma Ruby Darnell, 12 Tr. 148-149.

14

Finally, Petitioner’s right to due process is further protected by the OCCA’s mandatory
sentence review in capital cases. Oklahoma law commands the OCCA to determine, “(1) Whether
the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary
factor; and (2) Whether the evidence supports the jury’s or judge’s finding of a statutory aggravating
circumstance . . . .” Okla. Stat. tit. 21, § 701.13(C). When “determining whether the sentences of
death were imposed under the influence of passion, prejudice or any other arbitrary factor... . [WJe
review . . . to determine whether there was sufficient evidence from which a rational sentencer could
find that the balance of aggravating and mitigating circumstances warranted a death sentence.”
Bosse, 360 P.3d at 1235-1236 (internal citations and quotations omitted).

The OCCA concluded, “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.
No improperly admitted evidence or argument affected the jury’s determination of sentence. The
sentences of death are factually substantiated and appropriate.” Bosse, 360 P.3d at 1236.
Accordingly, the victim’s recommendations did not deny Petitioner his right to due process. The
proceedings as a whole show that the punishment stage of Petitioner’s trial was not fundamentally
unfair.

CONCLUSION

Petitioner’s claim that the Oklahoma Victim’s Rights Act and OCCA’s interpretation of
Payne is in conflict with the United States Court of Appeals for the Tenth Circuit is un-compelling.
While the Tenth Circuit disagrees with Oklahoma law, that disagreement is not such the “important
federal question” required to grant certiorari. “[T]bere is no intrinsic reason why the fact that a man
is a federal judge should make him more competent, or conscientious, or learned . . . than his

15

neighbor in the state courthouse.” Burt v. Titlow, U.S. _, 134 S. Ct. 10, 15, 187 L. Ed. 2d 348
(2013) (quoting Stone v. Powell, 428 U.S. 465, 494 n.35, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976)
{internal quotation marks omitted). Rather, it is ultimately a disagreement over Oklahoma
procedural rules and the rules of evidence, with no Constitutional undertones. “[{I)f the State chooses
to permit the admission of victim impact evidence and prosecutorial argument on that subject, the
Eighth Amendment erects no per se bar.” Payne, 501 U.S. at 827, 111 S. Ct. at 2609.

Accordingly, for the reasons stated above, Respondent respectfully requests this Court deny
the petition for writ of certiorari.

Respectfully submitted,

E. SCOTT PRUITT
ATTORNEY GENERAL OF OKLAHOMA

em

THOMAS LEE TUCKER, OBA # 20874*
ASSISTANT ATTORNEY GENERAL
313 NE 21st Street

Oklahoma City, Oklahoma 73105

(405) 521-3921 FAX (405) 521-6246
ATTORNEYS FOR RESPONDENT

*Counsel of record

16

ORIGINAL [write

No. 15-9173

IN THE SUPREME COURT OF THE UNITED STATES

SHAUN MICHAEL BOSSE,
Petitioner,

vs.

THE STATE OF OKLAHOMA,
Respondent.

CERTIFICATE OF SERVICE

I, Thomas Lee Tucker, a member of the Bar of this Court, hereby certifies that a copy of the
foregoing was mailed by first-class, postage prepaid mail, to the counsel for Petitioner:

Michael D. Morehead* James D. Pybas
Appellate Defense Counsel/Division Chief

Appellate Defense Counsel
Oklahoma Bar Assoc. No. 18114 Oklahoma Bar Assoc. No. 13000
Oklahoma Indigent Defense System Oklahoma Indigent Defense System
Homicide Direct Appeals Division Homicide Direct Appeais Division
P.O. Box 926 P.O. Box 926
Norman, OK 73070 Norman, OK 73070
405/801-2666 405/801-2666
405/801-2600 (Fax) 405/801-2690 (Fax)
Email: Michael.Morehead@oids.ok.gov Email: Jamie.Pybas@oids.ok.g0ov
*Counsel of Record oS

- F Co"

THOMAS LEE TUCKER

ASSISTANT ATTORNEY GENERAL

Dated: June 2, 2016

RECEIVED
JUN ~ 7 20%

| CERES BG a

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0686%3A3. Public record. Not legal advice.