Opinion
No. D–2012–1128.
10-16-2015
Shaun Michael BOSSE, Appellant, v. The STATE of Oklahoma, Appellee.
Gary Henry, Chief Capital Counsel, Mary Bruehl, Bobby Lewis, Capital Counsel, Okla. Indigent Defense System, Norman, OK, counsel for defendant at trial. Greg Mashburn, District Attorney, Susan Caswell, Lori Puckett, Assistant District Attorneys, Office of District Attorney, Norman, OK, counsel for State at trial. Michael D. Morehead, Appellate Defense Counsel, Jamie D. Pybas, Division Chief, Homicide Direct Appeals Div., Okla. Indigent Defense System, Norman, OK, counsel for appellant on appeal. E. Scott Pruitt, Attorney General of Oklahoma, Thomas L. Tucker, Assistant Attorney General, Oklahoma City, OK, counsel for appellee on appeal.
Gary Henry, Chief Capital Counsel, Mary Bruehl, Bobby Lewis, Capital Counsel, Okla. Indigent Defense System, Norman, OK, counsel for defendant at trial.
Greg Mashburn, District Attorney, Susan Caswell, Lori Puckett, Assistant District Attorneys, Office of District Attorney, Norman, OK, counsel for State at trial.
Michael D. Morehead, Appellate Defense Counsel, Jamie D. Pybas, Division Chief, Homicide Direct Appeals Div., Okla. Indigent Defense System, Norman, OK, counsel for appellant on appeal.
E. Scott Pruitt, Attorney General of Oklahoma, Thomas L. Tucker, Assistant Attorney General, Oklahoma City, OK, counsel for appellee on appeal.
OPINION
SMITH, Presiding Judge.
¶ 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 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.
¶ 3 On the evening of July 22, 2010, while Bosse was visiting, Katrina realized some of Christian's video games were missing. Katrina asked Ginger whether Christian had left any games there, and Ginger said he'd taken them home. Katrina talked to her mother, Rebecca Allen, several times that night, beginning at about 10:00 p.m. Katrina said Bosse was with her and the children. Katrina told Allen that she thought Price had taken the games. Katrina tried several times to call and text Molloy without success. Katrina told Allen that Bosse was driving her to Molloy's house, and one text message to Molloy said that Katrina had come over and banged on the door. Eventually Katrina called the McClain County Sheriff's Office. About 11:50 p.m., Deputy Cunningham arrived to take a missing property report. Katrina, the children, and Bosse were there. Katrina told Cunningham that about fifteen video games were missing, and she thought they had been gone since Molloy and Price visited the previous Saturday. Sometime between 12:30 a.m. and 1:00 a.m., Katrina phoned Allen, saying the deputy had left and she was going to bed.
¶ 4 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.
¶ 5 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.
¶ 6 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.
¶ 7 Chasity's body, severely charred, was in the closet of the master bedroom, underneath a pile of debris. A chair had been put under the outside knob of the closet door, preventing it from being opened from the inside. Chasity was burned from the waist down—her legs were charred to the muscle and bone was exposed. She had a laceration to her right cheek and blunt force trauma on the right side of her skull. The autopsy showed soot in her stomach and lungs.
¶ 8 Significant blood spatter was on the walls near Christian's body. His head was partially wrapped in a blanket. He wore underwear and unbuttoned, unzipped jean shorts. He had been stabbed five times in the neck and chest; there was a defensive stab wound on his right forearm, and he had blunt force trauma over his right eyebrow.
¶ 9 Katrina was clothed in a T-shirt, shorts and underwear; her shirt was pulled up over her torso and her hands crossed as if she had been dragged. When found after the fire, her legs were laying over Christian's, and her body was covered in debris. Her body had been partially burned, and there was some indication that it might have been covered with 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.
¶ 10 The cause of death for both Katrina and Christian was multiple stab wounds. Neither victim had soot in their noses or mouths, suggesting they were dead before the fire. The cause of death for Chasity was smoke inhalation and thermal injury.
¶ 11 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.
¶ 12 At about 2:30 p.m., McClain County Sheriff's Detective Dan Huff called and asked Bosse to come to the Sheriff's office. At about 4:00 p.m. Bosse met for about an hour with Huff and David Tompkins, and OSBI Agent Bob Horn. Officers saw Bosse had red abrasions on his knuckles. There was blood on his tennis shoes and a long scratch on his arm. Bosse admitted he was at Katrina's house the previous evening. He talked about the missing games, and said he went with Katrina and the children to Molloy's house about 10:00 p.m. Bosse said he was there when Deputy Cunningham took Katrina's report. He said Katrina wanted him to stay, but he left about 12:30 a.m. on July 23rd, reaching his apartment at 1:30 or 2:00 a.m., and was in bed by 3:00 a.m.
¶ 13 Bosse told investigators that he and Katrina had been dating a few weeks and were not serious. He admitted he spent the night with her a week earlier when the children were gone. He said he'd spent some time there and had been in every room of the trailer. Bosse said Katrina texted him that morning, but he could not retrieve it from his phone. Justine Lyman dated Bosse from early July 2010, until Bosse changed his Facebook status to “in a relationship” with Katrina. At midnight on July 23, Lyman sent Bosse a Facebook message complaining about Katrina. Bosse responded at 7:44 a.m., saying Katrina was a crazy bitch, nothing was going on, and he was dropping Katrina from his friends list. He told Lyman she could check with Katrina to confirm this. Bosse communicated with Lyman and a woman named Sarah by text throughout that day.
¶ 14 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).
¶ 15 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
¶ 16 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.
¶ 17 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.
¶ 18 The trial court held a pretrial Daubert hearing on Lord's experiments and found them admissible. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592–93, 113 S.Ct. 2786, 2796, 125 L.Ed.2d 469 (1993); Kumho Tire Co., 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, 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.
¶ 19 Lord viewed the scene, taking photographs and measurements, and reviewed the Medical Examiner's reports and crime scene photographs. He bought a mobile home of the same make and year as Katrina's, disassembled it, and shipped it to Ammendale. Lord used materials from the trailer to make five experimental replications of the relevant inside and outside parts of the Griffin trailer, using his measurements of the crime scene. He used parts of the metal siding, studs, 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.
¶ 20 Lord conducted five burns. The first three tests were not representative of the actual trailer fire. For the first test, glass windows were installed. One quickly broke and let in air. The fire grew quickly and was burning within eight to ten minutes, and there was no time for carbon monoxide buildup in the closet area. Lord removed the windows, replacing them with caulked drywall. The issue was how much air was available to the fire, so rather than continuing to replace windows in subsequent tests, Lord replicated the sealed-window conditions of 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.
¶ 21 The fourth and fifth tests more closely replicated the conditions of the actual fire. The experimental trailer for the fourth test had windows sealed with drywall, 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.
Exercise of the Fourth Amendment right to refuse consent to search
¶ 25 In Proposition II, Bosse argues that the prosecution's substantive use of his exercise of his Fourth Amendment right to refuse to consent to a warrantless search of his 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, , 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.