Reynolds v. State, F-2019-696

CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
Writing for the CourtROWLAND, PRESIDING JUDGE
Citation2022 OK CR 14
PartiesFRANK REYNOLDS, Appellant v. THE STATE OF OKLAHOMA, Appellee
Docket NumberF-2019-696
Decision Date04 August 2022

2022 OK CR 14

FRANK REYNOLDS, Appellant
v.

THE STATE OF OKLAHOMA, Appellee

No. F-2019-696

Court of Criminal Appeals of Oklahoma

August 4, 2022


AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY THE HONORABLE NATALIE MAI, DISTRICT JUDGE

APPEARANCES AT TRIAL

DANIEL WHITE KATIE BOURASSA ASST. PUBLIC DEFENDERS COUNSEL FOR DEFENDANT

DANIEL GRIDLEY SARAH VENTRIS ASST. DISTRICT ATTORNEYS COUNSEL FOR STATE

APPEARANCES ON APPEAL

KAITLIN MCCORSTIN ASST. PUBLIC DEFENDER COUNSEL FOR APPELLANT

MIKE HUNTER ATTORNEY GENERAL OF OKLAHOMA AMY STUART-BEAVER ASST. ATTORNEY GENERAL COUNSEL FOR APPELLEE

OPINION

ROWLAND, PRESIDING JUDGE

¶1 Appellant Frank Reynolds appeals his Judgment and Sentence from the District Court of Oklahoma County, Case No. CF-2018-1845, for Murder in the First Degree, in violation of 21 O.S.Supp.2012, § 701.7. The Honorable Natalie Mai, District Judge, presided over Reynolds's jury trial and sentenced him, in accordance with the jury's verdict, to life imprisonment without the possibility of parole. Reynolds raises six issues on appeal:

(1) whether the compelled disclosure of his home surveillance system password violated his Fifth Amendment right against self-incrimination
(2) whether the district court erred by denying his motion to dismiss based upon Oklahoma's Stand Your Ground law
(3) whether the district court abused its discretion in denying his request for an instruction on the Stand Your Ground defense;
(4) whether he was denied the right to present a defense by the denial of a jury instruction on the Stand Your Ground defense;
(5) whether the evidence was sufficient for conviction; and
(6) whether an accumulation of error deprived him of a fair trial.

¶2 We find relief is not required and affirm the Judgment and Sentence of the district court.

Facts

¶3 Reynolds fatally shot his daughter's boyfriend, Joseph Michael Groh, in Reynolds's Del City home on April 21, 2018. [1] Reynolds claimed the shooting was justified under a Stand Your Ground/self-defense theory. The incident was captured on Reynolds's digital video recorder (DVR) home surveillance system. Police discovered the existence of the surveillance system early on in the investigation and believed the system was recording during the shooting. Detectives asked Reynolds for the password, but he refused to disclose it and asked to speak with his attorney. Later, an investigator obtained a warrant to seize and search the device. The investigations commander presented the search warrant to Reynolds and told him the warrant required him to give police the password. Based upon the commander's representations, Reynolds disclosed the password. Police obtained the video footage of the shooting and it was played for the jury during the prosecution's case over Reynolds's objection. [2] Although it appeared the two had been bickering before the fatal shooting and witnesses testified that Reynolds had asked Groh to leave several times throughout the day, the footage showed that Groh did not make any physically threatening movements toward Reynolds immediately before the shooting.

1. The Compelled Disclosure of the Password

¶4 We must decide, as a matter of first impression, whether Reynolds's compelled disclosure of the password to his password-protected DVR home surveillance system violated the Self-Incrimination Clause of the Fifth Amendment to the United States Constitution or the corresponding provision against self-incrimination in the Oklahoma Constitution. [3] Reynolds moved to suppress his security system's video footage of the day's events and the fatal shooting incident based upon various violations of his constitutional rights, including his Fifth Amendment privilege against self-incrimination. The district court denied Reynolds's suppression motion relying upon the "foregone conclusion" doctrine. It concluded Reynolds's disclosure of the DVR password was "most likely testimonial in nature" within the context of the Fifth Amendment, but that the foregone conclusion doctrine applied because the prosecution had sufficiently shown the requirements of the doctrine, namely: (1) that the police knew about the DVR system's existence prior to the password's disclosure; (2) that Reynolds had sole possession and control of the system; and (3) that the evidence was authentic. For reasons discussed below, we hold that the compelled disclosure in this case did not violate Reynolds's constitutional rights based upon the Fifth Amendment's foregone conclusion doctrine. [4] Accordingly, we find that the district court did not abuse its discretion in denying Reynolds's motion to suppress and admitting the video at trial. See Bramlett v. State, 2018 OK CR 19, ¶ 10, 422 P.3d 788, 793 (reviewing rulings on motions to suppress for an abuse of discretion).

¶5 The Fifth Amendment privilege against self-incrimination is limited to compelled communications that are both testimonial and incriminating. Fisher v. United States, 425 U.S. 391, 408 (1976). The privilege does not shield a person from the "compelled production of every sort of incriminating evidence." Fisher, 425 U.S. at 408. See also Billy v. State, 1979 OK CR 121, ¶ 8, 602 P.2d 237, 239 (observing Fifth Amendment applies to testimonial evidence not physical evidence). It may, however, apply to the forced disclosure of documents or an item when the very act of production testifies to the existence, possession, or authenticity of the record or item produced. See Schmerber v. California, 384 U.S. 757, 761 (1966) (stating "the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature...."). In other words, when the very act of disclosing or turning over the evidence to authorities shows guilty knowledge or links the defendant with the incriminating evidence in a way the authorities did not already have, this act of production will be protected by the privilege even when the contents of the document or evidence may not be protected by the Fifth Amendment.

¶6 Conversely, even acts of production which are potentially testimonial may not be privileged when the existence of the information sought to be produced is a "foregone conclusion." In Fisher, the Supreme Court found that compelling a taxpayer to turn over records created by his accountant did not implicate the Fifth Amendment because the existence and ownership of the records was a foregone conclusion. "The existence and location of the papers are a foregone conclusion and the taxpayer adds little or nothing to the sum total of the Government's information by conceding that he in fact has the papers." Fisher, 425 U.S. at 411. "The question is not of testimony but of surrender." Id. (quoting In re Harris, 221 U.S. 274, 279 (1911)).

¶7 Various courts have applied this foregone conclusion doctrine in recent years in cases where criminal defendants are forced to disclose the password to a computer or other digital device. See, e.g., State v. Andrews, 234 A.3d 1254 (N.J. 2020), cert. denied, 141 S.Ct. 2623 (2021). In Andrews, the New Jersey Supreme Court traced the evolution of the foregone conclusion doctrine in deciding a case involving a similar issue, namely whether a court order requiring a criminal defendant to disclose the passcodes to his passcode-protected cellular phones violated the Fifth Amendment and New Jersey's protections against self-incrimination. Id. at 1259. Noting that the United States Supreme Court had considered the application of the foregone conclusion doctrine only in the context of document production, Id. at 1269, the Andrews court canvassed cases from lower courts in other jurisdictions which had "grappled" with applying the doctrine to cases involving the compelled production of passcodes and passwords, concluding that courts had reached "divergent results." Id. The divergent results stemmed primarily from whether the particular court found that the password or code was the object of the foregone conclusion or whether the court found the actual contents or files on the device were the object of the foregone conclusion.

¶8 For example, in Eunjoo Seo v. State, 148 N.E.3d 952 (Ind. 2020), the Supreme Court of Indiana considered the application of the foregone conclusion doctrine to disclosure of a passcode on a smart phone and found it did not apply. The Court held that prosecutors must show that existence of the incriminating evidence is the act of production which must be a foregone conclusion. "Even if we assume the State has shown that Seo knows the password to her smartphone, the State has failed to demonstrate that any particular files on the device exist or that she possessed those files." Id. at 958. Other courts have taken the contrary view. See State v. Stahl, 206 So.3d 124, 136 (Fla. Dist. Ct. App. 2016) ("To know whether providing the passcode implies testimony that is a foregone conclusion, the relevant question is whether the State has established that it knows with reasonable particularity that the passcode exists, is within the accused's possession or control, and is authentic.") (emphasis in original); United States v. Hubbell, 530 U.S. 27, 40, (2000) ("The 'compelled testimony' that is relevant in this case is not to be found in the contents of the documents produced in response to the subpoena. It is, rather, the testimony inherent in the act of producing those documents.").

¶9 In this case, both parties agree that the foregone conclusion doctrine should control, but they disagree on how it should be applied. Reynolds contends that the State must show that the existence of the incriminating video footage on the device was a foregone conclusion, which is the approach taken in the Eunjoo Seo line of cases. The State counters that the question is whether the existence of a password, within the...

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