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Bosse v. State

Court of Criminal Appeals of Oklahoma

May 25, 2017








          SMITH, JUDGE

         ¶1 Shaun Michael Bosse was tried by jury and convicted of Counts I, II and III, First Degree Murder in violation of 21 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 of Counts I-III, the jury found that Bosse knowingly created a great risk of death to more than one person, that each 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 This Court affirmed Bosse's convictions and sentences. Bosse v. State, 2015 OK CR 14, 360 P.3d 1203 (2016). In Bosse v. Oklahoma, 580 U.S. __, 137 S.Ct. 1, 196 L.Ed.2d 1 (2016), the United States Supreme Court granted Bosse's petition for writ of certiorari, vacated the judgment, and remanded this case for further consideration in light of the strictures imposed on admission of victim impact evidence in Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). This Court ordered the parties to submit briefs on that issue. This Opinion reflects our consideration of those briefs, as well as the other appellate briefs filed in the case, and replaces our original Opinion.

         ¶3 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 possessions, including video games and movies. Katrina and 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 overnight 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.

         ¶4 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. 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.

         ¶5 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.

         ¶6 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 corner, 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 Katrina 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 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.

         ¶7 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.

         ¶8 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.

         ¶9 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 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.

         ¶10 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 a 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 underneath Katrina's body. The pocketknife belonged to Christian, and Katrina kept it in her bedroom.

         ¶11 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.

         ¶12 As investigators put out the fire and began working at the crime scene on the morning 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.

         ¶13 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.

         ¶14 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.

         ¶15 Investigators asked to search Bosse's truck. He refused, but let 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 seat areas. Bosse said the laptop belonged to a friend, but would not give a 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. OSBI 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 I-240 in 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 about 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 presumptively 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).

         ¶16 Bosse's billfold was in his truck. 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 still burning. The pawned items included televisions, a game console and VCR or DVD player, as well as several dozen movies and video games. Most of the games and DVDs were marked 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 truck 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

         ¶17 Bosse claims in Proposition I 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 away 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 a 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.

         ¶18 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 wall 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.

         ¶19 The trial court held a pretrial Daubert hearing on Lord's experiments and found them admissible. [1] 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., Ltd. v. Carmichael, 526 U.S. 137, 147-49, 119 S.Ct. 1167, 1174, 143 L.Ed.2d 238 (1999). Bosse claims this was error. We review a trial court's decision to admit or deny novel scientific evidence de novo. Taylor v. State, 1995 OK CR 10, ¶ 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, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 1174, 143 L.Ed.2d 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 all novel scientific evidence is both reliable and relevant." 1995 OK CR 10, ¶ 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 general acceptance in the relevant 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, ¶¶ 18-20, 889 P.2d at 330. Citing Daubert, we noted that the Daubert analysis is flexible, designed to accommodate many factors 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, ¶4, 303 P.3d 291, 294, r'hng denied 2013 OK CR 15');">2013 OK CR 15, 316 P.3d 931. Under Daubert's second prong, the testimony must be relevant, assist the trier 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 591-92, 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 was not relevant.

         ¶20 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, interior wood paneling, insulation and trim, ceiling insulation, 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 small hole in the front window near the door). Instruments measured the temperature, oxygen and carbon monoxide levels, and amount of energy felt 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 incapacitated in sixteen to fifty minutes after the fire began.

         ¶21 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 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. After 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 trailer, 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. After the third test Lord installed a tight trailer skirting.

         ¶22 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, a 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 glass windows were reinstalled. No windows broke, but the front window developed a small 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.

         ¶23 The experiments had some differences from the original fire. [2] 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 experiment was fiberglass-reinforced cement board, not rolled metal 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 was most similar to the actual fire conditions.

         ¶24 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 was relevant because there was a 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 discretion. Irby v. State, 197 P. 526, 530 (Okl.Cr. 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 law, 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, ¶ 35, 274 P.3d 161, 170. The question is whether the experiment is sufficiently similar 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, ¶ 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 barrel length than the gun used in the crime. However, the factual analysis for each case is necessarily different. The real question is whether, under the circumstances of this case, the trial court abused its discretion in admitting the evidence. Id. 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. 1981) (abuse of discretion to admit experiment results 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 experiment 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 (5th 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.

         ¶25 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 tries 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. Irby, 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, ¶ 23, 889 P.2d at 332. This proposition is denied.

         Exercise of the Fourth Amendment right to refuse consent to search

         ¶26 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 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 II, §§ 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 let 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. OSBI 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 about admission of any of this evidence.

         ¶27 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. [3] 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, was error. Bosse did not object to the remarks in argument, waiving all but plain error for those claims.

         ¶28 The Fourth Amendment guarantees the right to be free from unreasonable search and seizure. U.S. Const., Amend. 14. 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. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043-44, 36 L.Ed.2d 854 (1973). There is no binding law on whether a prosecutor violates a defendant's constitutional 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, including 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, ¶¶ 10-11, 133 P.3d 892, 894-95.

         ¶29 Admission of evidence is within the trial court's discretion. Neloms, 2012 OK CR 7, ¶ 25, 274 P.3d at 167. Bosse argues that the trial 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 Amendments. 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 a 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 a warrant. Camara, 387 U.S. at 540, 87 S.Ct. at 1736-37. Discussing when an encounter with police constitutes a seizure under the Fourth Amendment, the Court noted that a 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).

         ¶30 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 self-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.

         ¶31 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 trial, is not evidence of guilt." United States v. Clariot, 655 F.3d 550, 555 (6th Cir. 2011). The Third Circuit explicitly extended the reasoning of Griffin to the Fourth Amendment context, finding "little, if any, valid distinction between the privilege against self-incrimination and the privilege against unreasonable searches and seizures which is relevant to the propriety 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, 581 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.

         ¶32 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 a 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 a 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).

         ¶33 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 control, 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 each case was harmless beyond a reasonable doubt. United States v. Runyan, 290 F.3d 223, 249-50 (5th 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 as evidence of guilt. Runyan, 290 F.3d at 249.

         ¶34 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 guilt. People v. Pollard, 307 P.3d 1124, 1130-31 (Colo. Ct. App. 2013).

         ¶35 Early discussions of this issue are found in cases from Alaska, California, and New Mexico. In Padgett v. State, the Alaska Supreme Court stated, "Padgett had a right under the Fourth Amendment to the Federal Constitution, and article I, 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." Padgett v. State, 590 P.2d 432, 434 (Alaska 1979). The Supreme Court of New Mexico, noting that a defendant "has a right to refuse to consent to a warrantless 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 a crime).

         ¶36 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, 507 S.E.2d 482, 483-84 (Ga.Ct.App. 1998). The Idaho Supreme Court applied Griffin's reasoning to a defendant's exercise of the Fourth Amendment right to refuse consent to search, finding that a prosecutor cannot use the exercise of that right to show consciousness of guilt; in that case, the error was harmless beyond a reasonable doubt. State v. Christiansen, 163 P.3d 1175, 1182-83 (Idaho 2007). See also State v. Wright, 283 P.3d 795, 806 (Idaho Ct. 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, 924 A.2d 1129, 1158-59 (Md. 2007). In that case, the trial court had sustained the defendant's objection to evidence that he had refused consent to search his car, 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. Id 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. Commonwealth., 230 S.W.3d 572, 584 (Ky. 2007). See also Deno v. Commonwealth., 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).

         ¶37 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, ¶¶ 21-25, 790 N.W.2d 526, 533-34. The Nevada Supreme Court, noting that many courts had already held the State may not infer guilt from a 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, 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, 349 N.W.2d 162, 163-64 (Ct. App.Mich. 2010) (quoting Bargas v. State, 489 P.2d 130, 132 (Alaska 1971)). The Arizona Court of 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, 267 P.3d 1203, 1208-09 (Ariz.Ct.App. 2012); see also State v. Wilson, 914 P.2d 1346, 1350-51 (Ariz.Ct.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.)

         ¶38 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 federal 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.

         ¶39 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 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 ...

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