Posey v. State

• Docket Number: Case No. D-2019-542
• Decision Date: 18 April 2024
• Citation: Posey v. State, 548 P.3d 1245 (Okla. Crim. App. 2024)
• Parties: Derek Don POSEY, Appellant v. The STATE of Oklahoma, Appellee
• Court: United States State Court of Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

548 P.3d 1245

2024 OK CR 10

Derek Don POSEY, Appellant

v.The STATE of Oklahoma, Appellee

Case No. D-2019-542

Court of Criminal Appeals of Oklahoma.

Filed: April 18, 2024

AN APPEAL FROM THE DISTRICT COURT OF CANADIAN COUNTY; THE HONORABLE BOB W. HUGHEY, ASSOCIATE DISTRICT JUDGE

APPEARANCES AT TRIAL

MITCHELL SOLOMON, SHEA SMITH, BENJAMIN C. BROWN, OKLAHOMA INDIGENT DEFENSE SYSTEM, 111 N. PETERS AVE., SUITE 100, NORMAN, OK 73069, ATTORNEYS FOR DEFENDANT

ERIKA SIMPSON, JOHN SALMON, AUSTIN MURREY, ASST. DISTRICT ATTORNEYS, CANADIAN CO. COURTHOUSE, 303 N. CHOCTAW, EL RENO, OK 73036, ATTORNEYS FOR STATE

APPEARANCES ON APPEAL

MICHAEL D. MOREHEAD, ALEX RICHARD, JAMIE D. PYBAS, OKLAHOMA INDIGENT DEFENSE SYSTEM, 111 N. PETERS AVE., SUITE 100, NORMAN, OK 73069, ATTORNEYS FOR APPELLANT

JOHN M. O’CONNOR, ATTORNEY GENERAL OF OKLAHOMA, JULIE PITTMAN, JOSHUA R. FANELLI, ASST. ATTORNEYS GENERAL, 313 N.E. 21ST STREET, OKLAHOMA CITY, OK 73105, ATTORNEYS FOR APPELLEE

OPINION

ROWLAND, PRESIDING JUDGE:

¶1AppellantDerek Don Posey appeals his Judgment and Sentence from the District Court of Canadian County, Case No. CF-2013-463, for his First Degree Murder con- victions and death sentences for the deaths of Amy Gibbins(Counts 1 and/or 2) and her son, Bryor Gibbins(Counts 3 and/or 4), in violation of 21 O.S.Supp.2012, § 701.7.¹Posey’s jury fixed punishment at death for both murder convictions after finding the same three aggravating circumstances as to each victim, namely: (1) that Posey knowingly created a great risk of death to more than one person;²(2) that the murders were especially heinous, atrocious, or cruel;³ and (3) that there existed a probability that Posey would commit criminal acts of violence that would constitute a continuing threat to society.⁴The Honorable Bob W. Hughey, Associate District Judge, presided over Posey’s jury trial and sentenced him to death for each murder pursuant to the jury’s verdicts, with all sentences to be served concurrently.⁵Posey raises eleven claims for review; however, no claim warrants relief.We affirm Posey’s Judgment and Sentence.

BACKGROUND

¶2Amy Gibbins and her young son, Bryor, were murdered in their Calumet, Oklahoma home around 4:00 a.m. on Father’s Day 2013.⁶Amy died from blunt force head trauma and Bryor died from smoke inhalation and thermal bums from the fire started by the killer to cover up the crime scene.⁷

¶3 Posey became the prime suspect early in the investigation after an employee at Amy’s bank notified law enforcement about a series of transactions on her debit card after her death.These transactions occurred at 4:35 a.m. and 4:37 a.m. at an ATM in nearby El Reno while Amy’s house was ablaze.The bank captured video from the ATM slowing Posey using Amy’s debit card.Posey tried to shield his face with a towel, but ultimately abandoned the towel to complete his transactions.Police recovered the towel and transaction slips in a field.Posey admitted using the debit card during a police interview, but his explanation for his possession of the debit card was refuted.⁸

¶4 An investigator showed the ATM photographs to Amy’s sister, Dera King, and she identified Posey.She said she knew him from a local club and family restaurant in Calumet.Investigators learned that Posey worked on an oil rig two miles south of Calumet and stayed in a company trailer outside of town.They also learned that he had previously been to the bar directly across the alley from Amy’s house and that he had prior encounters with her and her sister.

¶5 A witness, who lived across from the company trailer, testified she saw two males, one white and one black, arrive in a truck and go inside the company trailer on June 16 around 3:00 a.m. Fifteen to twenty minutes later, the white male got in the truck and headed toward El Reno.Some thirty minutes later, around 3:30 to 3:45 a.m., the black male exited the trailer, got in a different, darkcolored truck, and headed toward Calumet.She noticed he had his jeans tucked in his boots and was muttering to himself.This witness had seen Posey and his co-workers at the restaurant where she worked a couple of weeks before the murders.She claimed they were rowdy and said loud and inappropriate things about Amy’s sister, who was sitting at the cash register.Although all the workers joined in, Posey was the most vocal and made most of the derogatory statements, including that he knew Amy and her sister from the bar, and they were nothing but "little bitches.’’

¶6 Amy’s sister described an incident where she and Amy were at the bar near Amy’s house and Posey and a friend introduced themselves.Posey called himself the "Black Cowboy" and wore his pants tucked inside his cowboy boots.When Amy set her drink down, Posey picked it up and took a drink, irritating Amy.He sent Amy’s sister a Facebook message a few days later that read "ha ha late night drunk text lol."On another occasion at the bar, Posey told Amy’s sister, "y’all think you’re hot shit" and "you and your sister think you’re the baddest bitches in town."

¶7 A criminalist with the Oklahoma State Bureau of Investigation’s biology unit conducted DNA testing on the vaginal and anal swabs taken from Amy’s body during autopsy.⁹She first performed traditional DNA analysis on the vaginal swab and obtained both an epithelial and sperm fraction with the same female profile, both of which matched Amy.¹⁰A comparison with Posey, Amy’s current boyfriend, her ex-boyfriend, and her ex-husband yielded no matches as all were excluded.The criminalist then performed Y-STR DNA testing on the vaginal swab which identifies only male DNA and compared the same men’s profiles.¹¹Posey’s DNA profile matched the Y-STR profile from both the epithelial and sperm fractions at all sixteen points analyzed while all the other men were excluded.Because Y-STR testing is male specific, the results would include not only Posey, but also all his male blood relatives.The database used in Y-STR analysis calculated this profile would appear in African American men 1 in 4,301 times.

¶8 Posey denied any physical relationship with Amy in his police interview and denied ever going to her home.He maintained his innocence at trial and presented evidence of an alternate suspect as the likely perpetrator, namely Amy’s former boyfriend, Brady Almaguer.He further challenged the adequacy of the criminal investigation.Other facts will be discussed in relation to the claims raised for review.

1.DOUBLE JEOPARDY

¶9The State charged Posey with four counts related to the murders of Amy and her son, alleging alternative theories for each victim.Count 1 alleged Posey murdered Amy with malice aforethought while Count 2 alleged he murdered her during the commission of forcible rape.Count 3 alleged Posey murdered Bryor during the commission of arson while Count 4 alleged he murdered the child during the commission of murdering the child’s mother.The district court instructed on the elements of each of the four counts.It further instructed, over objection, that when a crime is charged in the alternative with more than one "underlying factual theory," the jury need not be unanimous concerning the underlying theory but only as to the finding of guilt.¹²The district court submitted one general verdict form for Counts 1 and 2 and one for Counts 3 and 4.Each of the two verdict forms gave the jury the option only to find Posey guilty or not guilty without any delineation of the theory which served as the basis for the verdict.¹³Hence, the record does not reveal the underlying basis of Posey’s murder convictions for either Amy or her son.

[1]¶10 Posey argues his convictions on alternative Counts 1 and 2 for Amy’s death and Count 4 for Bryor’s death violate the prohibition against double jeopardy and the felony murder merger doctrine.SeeJones v. State, 1995 OK CR 34, ¶ 61, 899 P.2d 635, 650("Under the doctrine of merger, the State is prohibited from prosecuting a person for felony murder and the predicate felony.’’)He maintains his murder conviction for Amy’s death in Counts 1 and/or 2 is the predicate felony for the felony murder charged in Count 4, i.e., that Bryor’s death occurred during the commission of the murder of his mother.He maintains Counts 1 and/or 2 must be dismissed because they merge into Count 4.SeeLambert v. State,1999 OK CR 17, ¶ 14, 984 P.2d 221, 229(per curiam)(holding proper resolution of double punishment problem is to vacate the convictions and sentences for the underlying felonies).We disagree.

[2, 3]¶11We begin by observing that Posey raised no double jeopardy objection at trial.Our review therefore is for plain error only.SeeFrazier v. State,2020 OK CR 7, ¶ 8, 470 P.3d 296, 302.Plain error review "provides a very limited avenue of appellate review."Barnett v. State,2012 OK CR 2, ¶ 3, 271 P.3d 80, 82.To obtain relief, Posey must show that a plain, obvious error affected his substantial rights, and we must find that without correction, the error would seriously affect the fairness, integrity, or public reputation of the judicial proceedings or constitute a miscarriage of justice.Frazier,2020 OK CR 7, ¶ 8, 470 P.3d at 302.

[4, 5]¶12 It is well settled that the Double Jeopardy Clause prohibits "multiple punishments for the same offense."Mack v. State,2008 OK CR 23, ¶ 4, 188 P.3d 1284, 1287;see alsoU.S. Const. amends V, XIV;Okla. Const. art. II, § 21.¹⁴And, we have stated that the Double Jeopardy Clause protects a defendant from being convicted of both felony murder and the underlying felony.SeeJones,1995 OK CR 34, ¶ 61, 899 P.2d at 650(stating State is prohibited from prosecuting a person for felony murder and the predicate felony);Perry v. State,1988 OK CR 252, ¶ 22, 764 P.2d 892, 898("It is abundantly clear that a defendant cannot be convicted of both felony-murder and the underlying felony.").This rule, however, presumes one victim is the subject of both the murder and predicate...