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Tryon v. State

Court of Criminal Appeals of Oklahoma

May 31, 2018

ISAIAH GLENNDELL TRYON, Appellant
v.
STATE OF OKLAHOMA, Appellee.

          AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY THE HONORABLE CINDY H. TRUONG, DISTRICT JUDGE.

          MELANIE FREEMAN-JOHNSON JAMES T. ROWAN LAURA SAMS ASSISTANT PUBLIC DEFENDERS COUNSEL FOR DEFENDANT

          SUZANNE LAVENUE MERYDITH EASTER ASSISTANT DISTRICT ATTORNEYS COUNSEL FOR STATE

          ANDREA DIGILIO MILLER ASSISTANT PUBLIC DEFENDER COUNSEL FOR APPELLANT

          E. SCOTT PRUITT OKLAHOMA ATTORNEY GENERAL JENNIFER J. DICKSON ASSISTANT ATTORNEY GENERAL COUNSEL FOR APPELLEE

          OPINION

          HUDSON, JUDGE.

         ¶1 Appellant, Isaiah Glenndell Tryon, was tried by jury in the District Court of Oklahoma County, Case No. CF-2012-1692, and convicted of Murder in the First Degree in violation of 21 O.S.2011, § 701.7 (A). In a separate capital sentencing phase, Appellant's jury found the existence of four statutory aggravating circumstances [1] and sentenced Appellant to death. The Honorable Cindy H. Truong, District Judge, presided over the trial and pronounced judgment and sentence accordingly. Appellant now appeals his conviction and death sentence. We affirm.

         BACKGROUND

         ¶2 On March 16, 2012, around 10:30 a.m., Appellant fatally stabbed Tia Bloomer inside the Metro Transit bus station in downtown Oklahoma City. Tia recently broke off her relationship with Appellant due in part to his inability to support their infant child. Appellant was terminally unemployed and drew as income a meager $628.00 a month in Social Security disability benefits. The couple too had a stormy relationship. The day before her death--March 15, 2012--Tia called Detective Jeffrey Padgett of the Oklahoma City Police Department (OCPD) Domestic Violence Unit to schedule a follow-up interview for an assault case in which she was the named victim. Tia previously denied to authorities that Appellant had assaulted her. Instead, she claimed another man had assaulted her.

         ¶3 During her phone conversation with Detective Padgett, Tia repeated this claim but agreed nonetheless to meet the next day. Later that night, Tia sent Appellant a text message stating the following:

It's okay bc im [sic] going to tell the truth tomorrow. I'm tired of holding lies for yhu [sic]. Isaiah Tryon is the guy who choked nd [sic] nearly killed me Saturday.

(State's Ex. 38).

         ¶4 The next day, Appellant accosted Tia inside the downtown bus station while she was talking on her cell phone. Surveillance video from inside the terminal showed Appellant speaking to Tia before stabbing her repeatedly with a knife. Immediately before this brutal attack, an eyewitness heard Tia yell for Appellant to leave her alone. Appellant then stabbed Tia in the neck with the knife, causing blood to gush out from her neck. The surveillance video shows Appellant grabbing the victim then stabbing her when she tried to leave the terminal building. Appellant stabbed the victim repeatedly after she fell to the floor. The victim said "help" as Appellant continued stabbing her repeatedly and blood gushed out of her wounds. During the attack, several bystanders unsuccessfully attempted to pull Appellant off the victim. At one point, a bystander can be seen on the surveillance video dragging Appellant across the floor while Appellant held on to Tia and continued stabbing her.

         ¶5 Appellant released his grip on the victim only after Kenneth Burke, a security guard, sprayed him in the face with pepper spray. The security guard then forced Appellant to the ground, handcuffed him and ordered the frantic crowd to move away both from Appellant and the bloody scene surrounding the victim's body. A bloody serrated knife with a bent blade was found resting a short distance away on the floor.

         ¶6 While waiting for police to arrive, Burke checked on the victim but found no signs of life. Paramedics soon arrived and decided to transport the victim to the hospital because they detected a faint pulse. Despite the efforts of emergency responders, Tia died from her injuries. The medical examiner autopsied the victim and found seven (7) stab wounds to her head, neck, back, torso and right hand. Several superficial cuts were also observed on the victim's face and the back of her neck. The medical examiner testified these cuts were consistent with having been made by a serrated blade. The cause of death was multiple stab wounds. In addition to these injuries, the medical examiner observed redness and heavy congestion in the victim's eyes. The medical examiner did not associate this congestion with the victim's stab wounds but testified it is sometimes found in cases of strangulation.

         ¶7 OCPD Lieutenant Brian Bennett was one of the first officers on the scene. He removed Appellant from the ground and escorted him out of the bus station. Because Appellant had a great deal of blood on his hands and clothing, Lt. Bennett asked whether Appellant needed medical treatment. Appellant replied that he did not. Appellant said he was not injured and all of the blood on him "was hers." Appellant was nonetheless transported to nearby St. Anthony's Hospital where he was treated for cuts to his hand. When asked by a doctor about these injuries, Appellant calmly responded that he had stabbed his girlfriend.

         ¶8 After being released from the hospital, Appellant was transported to police headquarters. There, he was read the Miranda [2] warning by OCPD Detective Robert Benavides and agreed to talk. During his interview, Appellant admitted stabbing Tia repeatedly while inside the bus terminal. Appellant said he stabbed the victim six times with a kitchen knife he brought from home. Appellant explained that he and Tia recently broke up and that they had been fighting over his support of their infant son. When Appellant saw Tia at the bus station, he walked up and tried to talk with her about their problems. Tia refused and told Appellant to get away from her. That is when Appellant said he pulled out his knife and began stabbing her.

         ¶9 Appellant claimed he did not know Tia would be at the bus station that morning or that he would even see her that day. Appellant did know, however, that Tia had some business to take care of that day. Appellant admitted bringing the knife with him because if he saw Tia, he planned to stab her. Appellant said Tia was facing him when he grabbed her and started stabbing her in the neck. Appellant described how he continued stabbing Tia after she fell to the ground and how he kept hold of her arm. Appellant said he was sad and depressed when he stabbed Tia because he didn't want to be without her. Nor did he want anyone else to be with her. Appellant did not believe he could find someone else to be with. Appellant admitted that what he did to Tia "wasn't right." At one point during the interview, Appellant demanded protective custody because "people ain't gonna like that type of shit" and would try to kill him in the county jail.

         ¶10 During the interview, Appellant asked whether Tia was okay. Detective Benavides promised to let him know about Tia's condition as soon as he found out. When informed by Detective Benavides at the end of the interview that Tia did not survive her injuries and was dead, Appellant showed no emotion to this news.

         JURY SELECTION

         ¶11 In Proposition I, Appellant complains that the trial court violated due process by limiting the questions defense counsel was allowed to ask of the prospective jurors. Appellant says the trial court improperly restricted the questions he was allowed to ask the venire panel concerning their views on both the death penalty and mitigating evidence. This, Appellant says, limited his ability to ask questions which would provide the information needed to intelligently exercise his peremptory challenges.

         ¶12 The Supreme Court has recognized that a critical part of the constitutional right to an impartial jury is "an adequate voir dire to identify unqualified jurors." Morgan v. Illinois, 504 U.S. 719, 729, 112 S.Ct. 2222, 2230, 119 L.Ed.2d 492 (1992). "The purpose of voir dire examination is to discover whether there are grounds to challenge prospective jurors for cause and to permit the intelligent use of peremptory challenges." Harmon v. State, 2011 OK CR 6, ¶ 7, 248 P.3d 918, 927 (citation omitted). Rule 6 of the Rules of the District Courts, Title 12, O.S.2011, Ch.2, App., requires both the State and defense have a "reasonable opportunity to supplement" the trial court's examination of prospective jurors. Mayes v. State, 1994 OK CR 44, ¶ 15, 887 P.2d 1288, 1298.

         ¶13 Yet, this right is not unlimited. The manner and extent of examination of jurors is not "prescribed by any definite, unyielding rule, but instead rests in the sound discretion of the trial judge." Id. Towards that end, Rule 6 directs that "[c]ounsel shall scrupulously guard against injecting any argument in their voir dire examination and shall refrain from asking a juror how he would decide hypothetical questions involving law or facts." The trial court retains broad discretion in restricting questions "that are repetitive, irrelevant or regard legal issues upon which the trial court will instruct the jury." Harmon, 2011 OK CR 6, ¶ 7, 248 P.3d at 927. "There is no abuse of discretion as long as the voir dire examination affords the defendant a jury free of outside influence, bias or personal interest." Id. Where, as here, a defendant challenges the restrictions placed upon his voir dire examination, the question is whether the trial court's actions rendered his trial fundamentally unfair. Morgan, 504 U.S. at 730, 112 S.Ct. at 2230. [3]

         ¶14 Appellant challenges six separate instances in which the trial court restricted his examination of prospective jurors. In the first instance, defense counsel described for the prospective jurors a "hypothetical situation" in which a defendant is convicted of "intentional first degree murder of a person who committed malice aforethought murder, planned it, intended to do it, did it of an innocent person." Defense counsel then asked:

I want to know what each of your individual feelings are about the death penalty under that situation for a person who's guilty of malice aforethought murder.

(Tr. I 248).

         ¶15 The prosecutor immediately objected and, at a bench conference, argued defense counsel was impermissibly posing a hypothetical scenario to the jury by "running his facts of this case by them, and wanting to know are they predisposed to consider any of these three punishments." Defense counsel responded that Appellant had a constitutional right under Morgan v. Illinois, supra, to ask the challenged question. Defense counsel urged that he could only ascertain whether the prospective jurors would automatically vote for the death penalty if they first knew "what first degree murder is. It doesn't involve heat of passion, doesn't involve some of the other things." The trial court stated it would provide definitions and sustained the objection.

         ¶16 The trial court did not abuse its discretion in limiting defense counsel's voir dire in this manner. In the challenged passage, defense counsel was attempting to ascertain what sentences the prospective jurors would give based on a "hypothetical" scenario drawn from the facts of the case. This is impermissible under our decisions. See Robinson v. State, 2011 OK CR 15, ¶ 16, 255 P.3d 425, 432-33 ("An attorney should not use voir dire to test prospective jurors' willingness to accept a party's theory of the case, rather than the juror's impartiality[.]"); Black v. State, 2001 OK CR 5, ¶ 19, 21 P.3d 1047, 1058 ("When counsel attempted to ask questions dealing specifically with the facts of this case or to give hypotheticals based on the facts of this case, the trial court properly sustained the State's objections."); Bernay v. State, 1999 OK CR 37, ¶¶ 9-11, 989 P.2d 998, 1005-06 (no abuse of discretion where defense counsel was prohibited from attempting to rehabilitate six prospective jurors using "specific or hypothetical factual patterns under which the prospective juror might consider the death penalty appropriate."); Jackson v. State, 1998 OK CR 39, ¶ 12, 964 P.2d 875, 883 (no abuse of discretion where the trial court restricted voir dire questioning regarding legal issues upon which the trial court would instruct).

         ¶17 Appellant's citation to Morgan v. Illinois does not support his claim. Morgan held that due process of law mandates that a capital defendant must be allowed, upon request, to ask whether a prospective juror would automatically impose the death penalty upon conviction of the defendant no matter what the facts are. Morgan, 504 U.S. at 721, 735-36, 112 S.Ct. at 2233. The fact-intensive question posed by Appellant did not address this issue. There is a difference between 1) asking whether a prospective juror would automatically impose the death penalty, regardless of the facts of the case, upon the defendant's conviction for first degree murder; and 2) asking prospective jurors to prejudge the appropriate sentence in light of the supposed facts of the case. Defense counsel was engaged in the latter exercise which we have found impermissible. Lovell v. State, 1969 OK CR 177, ¶¶ 9-10, 455 P.2d 735, 738 (hypothetical questions designed "to have jurors indicate in advance what their decision will be under certain state of evidence or upon a certain state of facts" are improper) (citation omitted). Morgan does not require such questioning. [4]

         ¶18 The remaining defense questions disallowed by the trial court are of similar ilk. Asking prospective jurors what they would want to know about a person before sentencing them to death; whether jurors could realistically consider life with the possibility of parole where the murder victim was the defendant's girlfriend and mother of his baby; and whether jurors could imagine imposing life with the possibility of parole for a defendant who killed a loved one as opposed to a stranger are the types of questions we have previously ruled impermissible. Frederick v. State, 2017 OK CR 12, ¶¶ 22-28, 400 P.3d 786, 802-03 (no abuse of discretion where trial court disallowed defense questioning of prospective jurors about their ability to consider all three possible punishments in the event appellant was convicted of murdering his mother); Harmon, 2011 OK CR 6, ¶ 9 n.3, 248 P.3d at 927 n.3 (finding the trial court properly limited defense voir dire asking, inter alia, "which punishment [a juror] would favor if the State proved Harmon killed a convenience store clerk[, ]" "the kinds of circumstances that would warrant the death penalty[, ]" and "what the jurors thought were proper circumstances to consider in deciding punishment and what circumstances jurors thought deserved the death penalty."); Lovell, 1969 OK CR 177, ¶¶ 9-10, 455 P.2d at 738 (prosecutor's question whether any of the prospective jurors "would not send [the defendant] to the penitentiary if the evidence shows that he was guilty of driving while under the influence of liquor, after former conviction" was improper).

         ¶19 The limitations imposed upon the defense voir dire in this case were proper. Despite the restrictions, defense counsel was nonetheless allowed to question several jurors about whether they could consider a life sentence with the possibility of parole where the victim is a loved one and the mother of a child; whether they understood that first degree malice aforethought murder involves an intentional killing; their feelings on the death penalty for an intentional murder; and whether they could consider all three punishments for someone convicted of an intentional malice aforethought killing. Moreover, the record shows defense counsel was afforded an adequate voir dire which allowed Appellant to probe the jurors' attitudes toward the death penalty and potential mitigating circumstances in the case.

         ¶20 Under the total circumstances, the trial court did not abuse its discretion in limiting the defense voir dire. Appellant was provided an adequate voir dire to identify unqualified jurors and intelligently exercise his peremptory challenges. Appellant's trial was not rendered fundamentally unfair from the trial court's limitations on voir dire. Proposition I is denied.

         ¶21 In Proposition II, Appellant complains that Prospective Jurors K.T. and A.F. should have been removed for cause. K.T. sat as a juror. A.F., however, was removed with the fifth defense peremptory. We have held that:

In order to properly preserve for appellate review an objection to a denial of a challenge for cause, a defendant must demonstrate that he was forced over objection to keep an unacceptable juror. This requires a defendant to excuse the challenged juror with a peremptory challenge and make a record of which remaining jurors the defendant would have excused had he not used that peremptory challenge to cure the trial court's alleged erroneous denial of the for cause challenge.

Eizember v. State, 2007 OK CR 29, ¶ 36, 164 P.3d 208, 220 (internal citations omitted). Here, Appellant challenged the ability of both K.T. and A.F. to be impartial and renewed his challenges at the conclusion of voir dire. Appellant preserved his for-cause challenge to A.F. by using a peremptory challenge against him, requesting additional peremptory challenges and effectively identifying three other jurors he would have excused--R.G., P.S. or K.T.--with the peremptory challenge he used to remove A.F.

         ¶22 Appellant failed to preserve his for-cause challenge to K.T., however, by 1) failing to excuse her with an available peremptory challenge and 2) using peremptory challenges against other prospective jurors whom he failed to claim could not be impartial. Our review of the trial court's handling of Appellant's for-cause challenge to K.T. is thus waived for all but plain error. Id., 2007 OK CR 29, ¶ 48, 164 P.3d at 223.

         ¶23 The trial court used the struck juror method of jury selection in which thirty (30) prospective jurors were seated and systematically questioned by the court and parties. Judge Truong initiated the questioning of the prospective jurors then allowed counsel for both parties to question the prospective jurors. When prospective jurors were excused, they were replaced so that thirty prospective jurors remained on the panel.

         ¶24 At the conclusion of the State's questioning, the prosecutor passed the panel for cause. At the conclusion of the defense questioning, defense counsel announced he had no further questions of the venire panel but refused to pass the panel for cause. Instead, defense counsel made a lengthy record complaining about the trial court's limitations on his voir dire examination. This argument was based largely on the same issues raised by Appellant in Proposition I above. At the conclusion of this argument, defense counsel read for the court the names of twelve prospective jurors he said should be removed for cause in light of the trial court's restrictions on defense counsel's voir dire of the prospective jurors. Defense counsel stated that prospective jurors W.T., N.M., M.V., La.H., B.M., J.F., Ly.H., A.F., K.T., D.W., R.G. and P.S. should be removed for cause. Notably, with the exception of A.F. and K.T., Appellant did not challenge any of these prospective jurors for cause earlier in the voir dire.

         ¶25 The trial court denied Appellant's motion to strike these particular jurors. Defense counsel then requested nine extra peremptory challenges "because you are requiring us to use peremptory challenges to kick people that should have been kicked because they were excusable for cause." The trial court too denied this request. Both parties then exercised nine peremptory challenges each, leaving twelve jurors to hear the case. Defense counsel used peremptory challenges to remove prospective jurors W.T., N.M., M.V., La.H., A.F., B.M., J.F., Ly.H., D.W.--nine of the twelve prospective jurors defense counsel identified just moments earlier as ones who should be removed for cause based on the trial court's limitations on the defense voir dire. Ultimately, K.T., P.S. and R.G. survived the exercise of peremptory challenges by both parties and sat on the jury.

         ¶26 Appellant made a conscious decision not to remove K.T. with any of the eight peremptory challenges he used against prospective jurors who were, in effect, not properly challenged for cause. In Proposition I, we rejected Appellant's challenge to the trial court's limitations on the defense voir dire. Moreover, Appellant never challenged these eight prospective jurors on any other grounds. By failing to excuse K.T., who was challenged for cause well before the end of the voir dire on grounds unrelated to the trial court's restrictions on voir dire, Appellant has waived all but plain error relating to K.T.'s placement on the jury. Appellant may have had a difficult choice in determining whether to strike K.T. from the jury panel. But, as the Supreme Court has observed in this context, "[a] hard choice is not the same as no choice." United States v. Martinez-Salazar, 528 U.S. 304, 315, 120 S.Ct. 774, 781, 145 L.Ed.2d 792 (2000).

         ¶27 We now turn to the merits of Appellant's challenges to A.F. and K.T. Appellant says the trial court was required to remove prospective juror A.F. for cause. Appellant argues that A.F.'s answers during defense voir dire showed A.F. could not uphold the juror's oath due to his inability to consider all three sentencing options. Specifically, Appellant points to A.F.'s responses concerning his ability to consider the sentence of life imprisonment with the possibility of parole.

         ¶28 We have stated the following standard of review for resolving challenges of this type:

The proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment is "whether the juror's views would 'prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" [ Waiwright v. ] Witt, 469 U.S. [412], at 424, 105 S.Ct. [844], at 852, [83 L.Ed.2d 841 (1985)]. See also Gray v. Mississippi, 481 U.S. 648, 658, 107 S.Ct. 2045, 2051, 95 L.Ed.2d 622 (1987). Inherent in this determination is that the potential juror has been fully informed of the law and his or her responsibilities under the law and oath of a juror. This standard does not require a juror's bias be proved with unmistakable clarity; neither must the juror express an intention to vote against the death penalty automatically. Witt, 469 U.S. at 425, 105 S.Ct. at 852. "Deference must be paid to the trial judge who sees and hears the jurors". Id., 469 U.S. at 425, 105 S.Ct. at 853. See also Uttecht v. Brown, 551 U.S. 1, 127 S.Ct. 2218, 2224, 167 L.Ed.2d 1014 (2007) ("deference to the trial court is appropriate because it is in a position to assess the demeanor of the venire, and of the individuals who compose it, a factor of critical importance in assessing the attitude and qualifications of potential jurors.").
This Court has adhered to the principles set forth in Witt. See Glossip v. State, 2007 OK CR 12, ¶¶ 31-33, 157 P.3d 143, 150-51; Williams v. State, 2001 OK CR 9, ¶ 10, 22 P.3d 702, 709 (and cases cited therein). We have said the Witt standard only requires that each juror be willing to consider each of the three statutory punishments: the death penalty, life imprisonment without the possibility of parole, and life imprisonment (with the possibility of parole). Glossip, 2007 OK CR 12 at ¶ 31, 157 P.3d at 150. See also Williams, 2001 OK CR 9 at ¶ 10, 22 P.3d at 709-10. Further, all doubts regarding juror impartiality must be resolved in favor of the accused. Williams, 2001 OK CR 9 at ¶ 10, 22 P.3d at 709-10. This Court will look to the entirety of the juror's voir dire examination to determine if the trial court properly excused the juror for cause. Id. As the trial court personally observes the jurors and their responses, this Court will not disturb its decision absent an abuse of discretion. Id.

Eizember, 2007 OK CR 29, ¶¶ 41-42, 164 P.3d at 221-22.

         ¶29 We find prospective juror A.F.'s answers do not show that his views on the life with possibility of parole sentencing option would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. A.F. provided inconsistent responses concerning his ability to give meaningful consideration to the life imprisonment sentencing option where the victim was a loved one. When admonished by the trial court to set aside counsel's characterization of the victim's relationship with the defendant because the jury had not heard evidence relating to it, A.F. made clear that he could listen to all the evidence and give meaningful consideration to all three sentencing options. Even after the trial court's questioning, A.F.'s responses to defense counsel's questions revealed his ability to give fair and meaningful consideration to a life sentence--even though personally he did not see it as a desirable sentencing option for the murder of a loved one.

         ¶30 We give broad deference on appeal to the trial court's rulings on for-cause challenges precisely because of the situation presented here. "A trial court's 'finding may be upheld even in the absence of clear statements from the juror that he or she is impaired....'" White v. Wheeler, __U.S.__, 136 S.Ct. 456, 460, 193 L.Ed.2d 384 (2015) (quoting Uttecht, 551 U.S. at 7, 127 S.Ct. at 2223). That is because we are presented on appeal simply with the cold face of the record. The trial court, by contrast, was able to see and hear prospective juror A.F. Judge Truong was in a superior position to make the credibility determinations critical to determining A.F.'s qualifications to serve. The Supreme Court has made clear that "when there is ambiguity in the prospective juror's statements, 'the trial court, aided as it undoubtedly [is] by its assessment of [the venireman's] demeanor, [is] entitled to resolve it in favor of the State." Uttecht, 551 U.S. at 7, 127 S.Ct. at 2223 (quoting Witt, 469 U.S. at 434, 105 S.Ct. at 857); Accord White, 136 S.Ct. at 461. We afford that type of broad deference in the present case in denying relief for Appellant's challenge to prospective juror A.F.

         ¶31 We will reverse the lower court's ruling on a for-cause challenge where there is no support for it in the record. Uttecht, 551 U.S. at 20, 127 S.Ct. at 2230 ("The need to defer to the trial court's ability to perceive jurors' demeanor does not foreclose the possibility that a reviewing court may reverse the trial court's decision where the record discloses no basis for a finding of substantial impairment."). But where, as here, the record demonstrates a thorough vetting of the prospective juror's views and we are left simply with ambiguous responses, the trial court's ruling will be honored on appeal. We are not faced in the present case with a prospective juror who would automatically vote for, or against, any one of the three penalty options. Nor were A.F.'s responses such that he was substantially impaired in his ability to fairly consider and impose a life sentence--even if the victim was a loved one of the defendant.

         ¶32 Thus, we find the trial court did not abuse its discretion in denying Appellant's request to remove prospective juror A.F. from the venire panel. See Myers v. State, 2006 OK CR 12, ¶¶ 6-9, 133 P.3d 312, 320-21, overruled on other grounds, Davis v. State, 2018 OK CR 7, ¶ 26 n.3, __P.3d.__. The record does not show A.F.'s views on the life imprisonment sentencing option would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and oath. We deny relief for this aspect of Appellant's Proposition II claim.

         ¶33 We likewise find no plain error from the trial court's refusal to remove prospective juror K.T. Under the plain error test, an appellant must show an actual error, that is plain or obvious, affecting his substantial rights. This Court will only correct plain error if the error seriously affects the fairness, integrity or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Jackson v. State, 2016 OK CR 5, ¶ 4, 371 P.3d 1120, 1121.

         ¶34 Appellant argues K.T. should have been removed for cause for actual bias. See 22 O.S.2011, § 659 (defining "actual bias" as "the existence of a state of mind on the part of the juror, in reference to the case, or to either party, which satisfies the court, in the exercise of sound discretion, that he cannot try the issue impartially, without prejudice to the substantial rights of the party challenging....").

         ¶35 The record shows K.T. initially provided inconsistent answers concerning her ability to set aside her previous experiences with domestic violence. As K.T. went further along in the questioning, however, it became evident that she could in fact set aside her personal experiences and render a fair and impartial verdict based solely on the evidence admitted in court. She made clear--particularly in her final responses to the court and defense counsel--that she could do this. The record shows too that, as the parties and court explained what the law required of her, K.T.'s initial concerns about her ability to be fair and impartial vanished. This is not atypical in capital voir dire and hardly a basis for removing a prospective juror for cause. Davis v. State, 2011 OK CR 29, ¶¶ 41-42, 268 P.3d 86, 105. "Any ambiguity or inconsistencies in her responses were subject to resolution by the trial court. Having benefit of observing [K.T.'s] demeanor throughout voir dire, the court found her responses credible and insufficient to excuse her for cause." Id., 2011 OK CR 29, ¶ 42, 268 P.3d at 105. Our review of the totality of K.T.'s voir dire supports the trial court's decision. The trial court therefore did not abuse its discretion in denying Appellant's for-cause challenge to K.T. Because there was no error, there is no plain error warranting relief based on this claim. Pullen v. State, 2016 OK CR 18, ¶ 8, 387 P.3d 922, 926.

         ¶36 Finally, because the trial court did not abuse its discretion in failing to remove prospective jurors A.F. and K.T., we need not address whether Appellant was entitled to additional peremptory challenges. Davis, 2011 OK CR 29, ¶ 43, 268 P.3d. at 105. Proposition II is denied.

         ALLEGED EVIDENTIARY ERROR

         ¶37 In Proposition III, Appellant challenges the admission of State's Exhibit 38, the text message sent from Tia Bloomer to Appellant the night before the killing, which stated:

It's okay bc im [sic] going to tell the truth tomorrow. I'm tired of holding lies for yhu [sic]. Isaiah Tryon is the guy who choked nd [sic] nearly killed me Saturday.

         (State's Ex. 38). Appellant argues this text message was testimonial and, thus, its admission violated his Sixth Amendment right to confrontation of witnesses. He also argues it was inadmissible hearsay under state evidence rules. The trial court admitted the text message, finding it was not offered to prove the truth of the matter asserted but, rather, was relevant simply because the text message was sent to Appellant and was probative on the issue of Appellant's motive to commit the murder the next morning.

         ¶38 We typically review a trial court's decision to admit evidence for an abuse of discretion. However, "the determination of whether admission of hearsay evidence violates the Confrontation Clause... is a question of law we review de novo." Hanson v. State, 2009 OK CR 13, ¶ 8, 206 P.3d 1020, 1025. We note too Appellant did not preserve his current Confrontation Clause challenge to the admission of State's Exhibit 38. Appellant raised numerous objections on state law grounds to this evidence at the pre-trial hearing. Appellant renewed these same objections at trial. At no point below did Appellant assert a claim that the admission of State's Exhibit 38 was a constitutional violation. Appellant has therefore waived review of his constitutional claim for all but plain error. Miller v. State, 2013 OK CR 11');">2013 OK CR 11, ¶ 104, 313 P.3d 934, 971.

         ¶39 Appellant fails to show plain error. The Sixth Amendment provides, in pertinent part, that "[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him[.]" U.S. Const. amend. VI. The Sixth Amendment's Confrontation Clause has been extended to the States through the Fourteenth Amendment for over fifty years. See Richardson v. Marsh, 481 U.S. 200, 206, 107 S.Ct. 1702, 1706-07, 95 L.Ed.2d 176 (1987) (citing Pointer v. Texas, 380 U.S. 400, 404, 406-07, 85 S.Ct. 1065, 1068, 1069-70, 13 L.Ed.2d 923 (1965)). In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court held that under the Sixth Amendment, testimonial out-of-court statements may be admitted against the accused in a criminal trial only 1) when the declarant is unavailable and 2) the defendant has had a previous opportunity to cross-examine the declarant. Id., 541 U.S. at 51, 68, 124 S.Ct. at 1364, 1374.

         ¶40 "Statements not offered to prove the truth of the matter asserted are generally admissible." Primeaux v. State, 2004 OK CR 16, ¶ 39, 88 P.3d 893, 902. Further, the Supreme Court has held that the Confrontation Clause does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. Crawford, 541 U.S. at 59-60 n.9, 124 S.Ct. at 1369 n.9 (citing Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985)); Andrew v. State, 2007 OK CR 23, ¶ 31, 164 P.3d 176, 189.

         ¶41 In the present case, assuming arguendo the text message was offered to prove the truth of the matter asserted, Appellant's Sixth Amendment claim fails because the victim's text message to Appellant was nontestimonial. Davis v. Washington, 547 U.S. 813, 821, 126 S.Ct. 2266, 2273, 165 L.Ed.2d 224 (2006) (only testimonial statements "cause the declarant to be a 'witness' within the meaning of the Confrontation Clause"); See also Michigan v. Bryant, 562 U.S. 344, 354, 131 S.Ct. 1143, 1153, 179 L.Ed.2d 93 (2011) (noting that Crawford limited the Confrontation Clause's reach to testimonial statements); Whorton v. Bockting, 549 U.S. 406, 420, 127 S.Ct. 1173, 1183, 167 L.Ed.2d 1 (2007) (the Confrontation Clause has no application to out-of-court nontestimonial statements under Crawford).

         ¶42 The victim's text message to Appellant was not made in the context of a police interview. Nor was it made in response to police questioning. See Crawford, 541 U.S. at 51, 68, 124 S.Ct. at 1364, 1374. It is an informal three-sentence message, riddled with spelling errors, which on its face appears to be a threat to Appellant. There is no evidence suggesting the message was written so that it could be used later as evidence in a formal court proceeding, let alone that the primary purpose of the message was to create an out-of-court substitute for trial testimony. See Ohio v. Clark, __U.S.__, 135 S.Ct. 2173, 2181, 192 L.Ed.2d 306 (2015). Rather, the content and circumstances in which the text message was sent shows it was simply an informal message sent by the victim through her cell phone to Appellant's cell phone the night before her murder and was never disclosed to third parties. Under the total circumstances, State's Exhibit 38 was unquestionably nontestimonial and, thus, not subject to the Confrontation Clause. See Clark, 135 S.Ct. at 2180, 2182 (the informality of the situation in which the statement was made is a relevant factor in determining whether it was testimonial or nontestimonial); ("Statements made to someone who is not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testimonial than statements given to law enforcement officers."). The statements at issue resemble (if not typify) the casual remark to an acquaintance Crawford said was not testimonial, Crawford, 541 U.S. at 51, 124 S.Ct. at 1364, as well as the "[s]tatements to friends and neighbors about abuse and intimidation" the Court likewise held in Giles v. California 554 U.S. 353, 376, 128 S.Ct. 2678, 2692-93, 171 L.Ed.2d 488 (2008) were not subject to the Confrontation Clause. Thus, there is no constitutional error arising from the admission of State's Exhibit 38 and, thus, no plain error. Frederick, 2017 OK CR 12, ¶ 14, 400 P.3d at 800 ("Finding no error, we find no plain error.").

         ¶43 There remains the matter of the specific basis for admissibility of the text message under state evidence rules again assuming arguendo it was hearsay. Bryant, 562 U.S. at 358-59, 131 S.Ct. at 1155 ("when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony... the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause."). This issue caused considerable confusion below. Appellant maintains on appeal that State's Exhibit 38 was inadmissible hearsay.

         ¶44 In making this determination, it is helpful to realize that the text message itself is actually composed of three separate sentences. The first two sentences ("It's okay bc im [sic] going to tell the truth tomorrow. I'm tired of holding lies for yhu [sic].") were unquestionably admissible hearsay under the state of mind exception to indicate the declarant's intent toward future conduct and as a direct statement of her state of mind. 12 O.S.2011, § 2803 (3) ("A statement of the declarant's then existing state of mind... such as intent, plan, motive, design, mental feeling..." is not excluded by the hearsay rule). See Frederick v. State, 2001 OK CR 34, ¶ 98, 37 P.3d 908, 935; Davis v. State, 1983 OK CR 57, ¶ 48, 665 P.2d 1186, 1198.

         ¶45 The third and final sentence of the text message ("Isaiah Tryon is the guy who choked nd [sic] nearly killed me Saturday") was also arguably admissible under the state of mind exception. 12 O.S.2011, § 2803 (3). We have held in domestic homicide cases that "[a] victim's hearsay statements describing threats and beatings are admissible to show the victim's state of mind and indicate fear of a defendant... evidence of prior threats, assaults, and battery on a victim is proper to show the victim's state of mind[.]" Hooper v. State, 1997 OK CR 64, ¶ 28, 947 P.2d 1090, 1102. True, Section 2803(3) expressly disallows the admission of "a statement of memory or belief to prove the fact remembered or believed[.]" Consistent with this provision, our cases have expressly distinguished between admissible evidence of prior threats, assaults, and battery on a victim showing the victim's state of mind from "a specific description of a defendant's actions" such as grabbing a gun or pulling the phone out of the wall which we have deemed inadmissible. Hooper, 1997 OK CR 64, ¶ 28, 947 P.2d at 1102. Cf. Andrew v. State, 2007 OK CR 23, ¶ 30, 164 P.3d at 189 (victim's recorded antecedent declaration to Prudential Insurance representatives of his belief that his wife and her lover tried to kill him by cutting the brake lines to his car was admissible under the state of mind exception to show victim's fear and to provide motive); Lamb v. State, 1988 OK CR 296, ¶¶ 7-8, 767 P.2d 887, 890 (testimony by witnesses that murder victim told them that the defendant, her husband, had previously committed battery on her, had threatened her and that she was afraid of him admissible under state of mind exception).

         ¶46 We need not reach this issue however because assuming arguendo error, admission of the third sentence in the text message was nonetheless harmless. The properly-admitted portion of the text message, combined with the domestic violence evidence introduced by the State during the trial's first stage, constituted strong evidence identifying Appellant as the perpetrator of this previous attack and showing motive for the killing. Moreover, the videotape of the killing itself represented overwhelming evidence demonstrating Appellant's responsibility for the victim's death and that the murder was committed with malice aforethought. Under the total circumstances, any imaginable error from admission of the third sentence in the text message was harmless and did not contribute to the verdict or sentence given the strong evidence against Appellant. Proposition III is denied. 20 O.S.2011, § 3001.1.

         ¶47 In Proposition IV, Appellant complains that the trial court prevented him from presenting a defense by disallowing questions to defense witnesses Rico Wilson and Eric Wilson as to whether Appellant made any threats towards the victim in the days leading up to the murder or had otherwise mentioned receiving the text message discussed in Proposition III. Rico Wilson is Appellant's brother. Rico testified that he saw Appellant standing in front of his mother's apartment around 9:30 or 10:00 p.m. the night before the murder and that Appellant appeared to be high on drugs at the time. Rico testified too that Appellant was "probably" drinking then because Appellant had been drinking earlier in the day. Rico saw Appellant several times previously during the week leading up to the murder. Rico saw Appellant snorting cocaine and using PCP earlier in the week.

         ¶48 Eric Wilson is Appellant's cousin. Eric testified he was with Appellant and Rico on March 13--14, 2012, and when they were not looking for employment, he and Appellant were drinking and getting high on drugs. Appellant stayed at Eric's apartment the evening of March 14 through the morning of March 15. Eric testified that he and Appellant began using drugs early in the morning on March 15 and Appellant continued drinking and using drugs throughout the afternoon and evening hours of March 15. According to Eric, Appellant left around 3:00 or 4:00 a.m. on March 16--just hours before the murder.

         ¶49 Prior to this testimony, defense counsel stated her intent during an in camera hearing to ask Rico and Eric on direct whether Appellant expressed any desire to harm the victim or otherwise expressed concern about getting a text message from her. Defense counsel argued that, with this testimony, she wanted to elicit that Appellant did not make or express any threats towards the victim during the five day period Rico and Eric reported being with Appellant. This was to be part of defense counsel's strategy to counter the State's motive evidence relating to the text message. The prosecutor objected on grounds that any such testimony would be inadmissible self-serving hearsay. The trial court sustained the prosecutor's objection and ruled she would not allow this type of testimony. Rico and Eric testified the next day.

         ¶50 Now on appeal, Appellant claims the trial court violated his rights to a fundamentally fair trial and to present a defense with this ruling. Appellant argues the State "was allowed to take an isolated text message and build an entire case around it[ ]" whereas the defense was prohibited from challenging that evidence.

         ¶51 We review the district court's evidentiary rulings for abuse of discretion. Cuesta-Rodriguez v. State, 2010 OK CR 23, ¶ 14, 241 P.3d 214, 224. Notably, Appellant did not raise the trial court's earlier ruling when either witness testified the next day at trial. Nor did Appellant make an offer of proof to the judge concerning what testimony he wanted to present. "After a motion in limine is sustained, the party seeking to introduce the evidence must make an offer of proof at trial. This affords the trial court an opportunity to make a final ruling on the evidence." Id., 2010 OK CR 23, ¶ 86, 241 P.3d at 240 (internal citations omitted). Failure to follow this procedure on a motion in limine waives review on appeal of all but plain error. Id.

         ¶52 Appellant fails to show plain error. The rules of evidence may not be used to arbitrarily impinge on the defendant's right to present competent evidence in his defense. Pavatt v. State, 2007 OK CR 19, ¶ 42, 159 P.3d 272, 286 (citing Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973)). However, "[w]hether Appellant was denied the right to present a defense ultimately turns on whether the evidence at his disposal was admissible." Id., 2007 OK CR 19, ¶ 45, 159 P.3d at 287.

         ¶53 Assuming arguendo the trial court abused its discretion in disallowing this particular evidence, Appellant ...


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