Shepard v. State

• Docket Number: Case No. D-2020-8
• Decision Date: 21 September 2023
• Citation: 538 P.3d 518
• Parties: Byron James SHEPARD, Appellant v. STATE of Oklahoma, Appellee
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

538 P.3d 518

Byron James SHEPARD, Appellant

v.STATE of Oklahoma, Appellee

Case No. D-2020-8

Court of Criminal Appeals of Oklahoma.

Filed September 21, 2023

APPEARANCES AT TRIAL

SHEA SMITH, RAVEN SEALY, OKLAHOMA INDIGENT, DEFENSE SYSTEM, CAPITAL TRIAL DIVISION, P.O. BOX 926, NORMAN, OK 73070, COUNSEL FOR DEFENDANT

GREG MASHBURN, DISTRICT ATTORNEY, TRAVIS WHITE, PATRICIA HIGH, ASST. DISTRICT ATTORNEYS, CLEVELAND COUNTY, 201 SOUTH JONES, SUITE 300, NORMAN, OK 73069, COUNSEL FOR THE STATE

APPEARANCES ON APPEAL

JACQUELINE H. CHAFFIN, OKLAHOMA INDIGENT, DEFENSE SYSTEM, HOMICIDE DIRECT APPEALS DIVISION, P.O. BOX 926, NORMAN, OK 73070, COUNSEL FOR APPELLANT

JOHN M. O'CONNOR, ATTORNEY GENERAL OF OKLAHOMA, TESSA L. HENRY, JENNIFER L. CRABB, ASST. ATTORNEYS GENERAL, 313 N.E. 21ST STREET, OKLAHOMA CITY, OK 73105, COUNSEL FOR APPELLEE

OPINION

HUDSON, VICE PRESIDING JUDGE:

¶1Appellant, Byron James Shepard, was tried by jury in the District Court of Pottawatomie County, Case No. CF-2017-176, and convicted of Count 1: Murder in the First Degree, in violation of 21 O.S.Supp.2012, § 701.7(A); Count 2: Knowingly Concealing Stolen Property, in violation of 21 O.S.Supp.2016, § 1713; and Count 3: Possession of Controlled Dangerous Substance (Methamphetamine), in violation of 63 O.S.Supp.2016, § 2-402.

¶2 In a separate sentencing phase, the jury found the existence of four statutory aggravating circumstances.The jury found: 1) the defendant, prior to the murder, was convicted of a felony involving the use or threat of violence to the person; 2) the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution; 3) the victim of the murder was a peace officer or guard of an institution under the control of the Department of Corrections, and such person was killed in performance of official duty; and 4) at the present time there exists a probability that the defendant will commit criminal acts of violence that would constitute a continuing threat to society.¹

¶3 Based on these aggravators, the jury sentenced Appellant to death on Count 1.On Count 2, the jury sentenced Appellant to five years imprisonment plus a $500.00 fine.On Count 3, the jury imposed a sentence of ten years imprisonment plus a $5,000.00 fine.

¶4 The Honorable John G. Canavan, Jr., District Judge, presided at trial and pronounced judgment and sentence in accordance with the jury's verdicts.Judge Canavan ordered the sentences for Counts 2 and 3 to run consecutively each to the other but concurrently with Count 1.Shepard now appeals.

BACKGROUND

¶5 On March 26, 2017, at approximately 11:30 p.m., Tecumseh police officer Justin Terney was fatally shot by Appellant during a traffic stop of a car driven by Brooklyn Williams.The dashcam video from Officer Terney's patrol car was introduced into evidence at Appellant's trial as State's Exhibit 3.This video captured the sights and sounds of the encounter that night between Appellant and Officer Terney.

¶6 The dashcam video shows that Officer Terney first made contact with Williams who was unable to produce a driver's license.When Officer Terney asked Appellant, who was sitting in the front passenger seat, for identification, Appellant said his driver's license was suspended and was confiscated after an arrest several months earlier.Officer Terney requested the name and date of birth for both Williams and Appellant.Williams disclosed her true information.Appellant, by contrast, told the officer his name was "James Bishop" and then provided a false date of birth.²Williams said nothing in response to Appellant's lies.

¶7 Before returning to his patrol car, Officer Terney informed Williams that he had stopped her for a defective tag light.Officer Terney said he would return in a moment and then walked back to his patrol unit where he radioed in the information for both subjects.The dispatcher responded that she had a return on Williams's information and that her driver's license was flagged as suspended.The dispatcher got no return on the name and date of birth provided by Appellant.

¶8 Officer Terney returned to the passenger side of the white Buick and asked Appellant to step out of the car.With both men standing outside the car, Officer Terney asked Appellant to again provide his name.Appellant responded that his name was "James Bishop, Jr."Officer Terney radioed the dispatcher to ask her to check the same name only this time adding "Jr."At one point, the officer requested Appellant to remove his hands from his pockets.Appellant complied and indicated that he was only holding a lighter.The dispatcher asked for Appellant's middle name.Appellant responded "Bunyon."Officer Terney laughed, said "Bunyon?Whatever" then gave the name to the dispatcher.Officer Terney said that he thought Appellant was lying to him and asked whether that was the case.Appellant denied lying and responded that was his name.When asked whether the license was issued in Oklahoma, Appellant responded that his license was from Ohio.

¶9 After reporting this information to the dispatcher, Officer Terney stated again that he thought Appellant was lying about his identity.The two men spoke casually while the dispatcher ran the information.At one point, Appellant asked whether Williams would be getting a ticket.Officer Terney responded she would be receiving a ticket at the least.Appellant told Officer Terney he was arrested in Columbus, Ohio, and had only been living in Oklahoma two months.When the dispatcher responded over the radio that the only man with the name given was born in 1939, Appellant claimed that was his father.He also offered they should "check again."Officer Terney responded that he needed something with Appellant's name on it for identification.

¶10 As these events unfolded, Lieutenant Michael Mallinson of the Tecumseh Police Department was on patrol a few miles away with new officer trainee Alana Colan.Lt. Mallinson monitored the radio traffic for the stop and responded to Officer Terney's location to provide backup.Lt. Mallinson was concerned the male subject in Officer Terney's traffic stop was providing false information.When Lt. Mallinson and Officer Colan arrived on the scene, Williams was still seated in the driver's seat of the white Buick and Appellant was standing outside the passenger side of the car with his hands on the rolled down passenger window.Officer Terney was standing a few feet away from Appellant.

¶11 The dashcam video next shows Appellant leaning down to the passenger window and asking Williams whether she had anything in the car with his name on it.As if to foreshadow his next move, Appellant raised his head twice while talking to Williams and looked across the road in the direction of the tree line.Shortly after Lt. Mallinson's patrol unit came to a full stop behind Officer Terney's vehicle, and after Officer Terney again asked whether Appellant was lying to him about his identity, Appellant took off running across the road, into the tree line and underbrush separating the roadway from an adjacent field.

¶12 Officer Terney gave chase while yelling at Appellant to stop and warning that Appellant was about to be tased.Officer Terney's flashlight can be seen on the video, in the tree line just off the side of the road, as he deployed his taser and warned that he would tase Appellant again.When Officer Terney's flashlight moves out of camera range, the sounds of the dashcam's audio reveal what happened next.A distinctive metallic clicking sound resembling a gun being racked precedes the sound of Officer Terney yelling at Appellant to get on the ground.Seconds later, multiple gunshots were fired and sustained screams from both men can be heard on the recording.Officer Terney reported over the radio that he had "been hit" in the leg and had "been shot".

¶13 Lt. Mallinson got caught in the top rung of a barbed wire fence separating the field from the road and he had to pull himself off the fence.Free of the wire, Lt. Mallinson made his way through the dense underbrush.Before he could exit the tree line, however, the gunfire erupted.Lt. Mallinson called out to Officer Terney and located him in the darkness, lying on the ground with his head resting on a round hay bale in the middle of the large, open field.Appellant was on the ground, roughly four feet away by Lt. Mallinson's recollection, screaming and moaning in pain.Appellant's body was positioned facing Officer Terney.

¶14 Lt. Mallinson can be heard on the dashcam video ordering Appellant repeatedly to show his hands.When Lt. Mallinson asked Officer Terney whether Appellant had a gun, Terney confirmed that Appellant had a gun and had shot him in the leg.A Springfield XD 9mm semiautomatic pistol was on the ground just a few feet from Appellant.This gun was the one used by Appellant to kill Officer Terney.DNA analysis of swabbings taken from the backstrap, grip and trigger of the 9mm pistol confirmed the presence of male-specific YSTR DNA that matched Appellant's known DNA profile, meaning that Appellant and all of his male blood relatives could not be excluded as a potential source of this DNA.

¶15 Lt. Mallinson kicked away the gun and held Appellant at gunpoint while backup officers from surrounding agencies responded to the scene.Officer Terney's Glock 22, .40 caliber semiautomatic pistol was recovered nearby.A short time later, Officer Terney said "Mike, I'm fixing to pass out man."Lt. Mallinson told Terney to "stay with me, brother."

¶16 Lt. Mallinson asked Officer Terney whether he got any shots off.Terney responded "Yeah, I shot him."Lt. Mallinson can also be heard on the video yelling more directions at Appellant to show his hands and stay down.Appellant continued to holler and complain that he"can't breathe".Officer Terney, who by this point was nonresponsive and becoming paler by the minute, had suffered a gunshot wound to the right lower abdomen and to the right thigh.Appellant too was...