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IN THE COURT OF CRIMINAL APPEALS OF THE STATE OF OKLAHOMA GERALD L. TAYLOR, Appellant, NOT FOR PUBLICATION Case No. F-2018-477 V. THE STATE OF OKLAHOMA, FILED IN COURT OF CRIMINAL APPEALS Appellee. STATE OF OKLAHOMA SEP 26 2019 SUMMARY OPINION JOHN D. HADDEN CLERK ROWLAND, JUDGE: Appellant Gerald L. Taylor appeals his Judgment and Sentence from the District Court of Oklahoma County, Case No. CF-2016-6502, for Robbery with a Firearm, After Former Conviction of Two or More Felonies (Count 1), in violation of 21 O.S.2011, § 801 and Unlawful Possession of a Firearm by Convicted Felon, After Former Conviction of Two or More Felonies (Count 2), in violation of 21 O.S.Supp.2014, § 1283.¹ The Honorable Cindy H. Troung, District Judge, presided over Taylor’s jury trial and sentenced him, in accordance with the jury’s verdict, to twenty-five years 1 The jury found Taylor not guilty on Count 4 and the State charged his co- defendant solely on Count 3. imprisonment on Count 1 and ten years imprisonment on Count 2.2 Judge Troung ordered the sentences to be served consecutively and awarded Taylor credit for time served. Taylor raises the following issues: (1) whether the district court abused its discretion when it admitted his incriminating statements; (2) whether the district court erred when it refused the prosecution’s request to strike a potential juror for cause; (3) whether he received effective assistance of trial counsel; and (4) whether the accumulation of errors deprived him of a fair trial. We find relief is not required and affirm the Judgment and Sentence of the district court. 1. Taylor argues the district court erred in admitting his incriminating statements because of his unequivocal invocation of his Fifth Amendment right to remain silent. The district court denied Taylor’s motion to suppress after a Jackson U. Denno3 hearing, holding Taylor initially invoked his right to remain silent 2 Under 21 O.S.Supp.2015, § 13.1, Taylor must serve 85% of his sentence of imprisonment on Count 1 before he is eligible for parole consideration. 3 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). 2 but soon thereafter initiated further voluntary conversation that gave the investigating officer permission to continue questioning him. The district court found Taylor’s statements were made knowingly and voluntarily after being advised of his constitutional rights. Taylor objected to admission of his statements at trial, preserving the issue for review. We review the district court’s ruling for an abuse of discretion. Johnson V. State, 2012 OK CR 5, 9 15, 272 P.3d 720, 727. “An abuse of discretion is any unreasonable or arbitrary action taken without proper consideration of the facts and law pertaining to the matter at issue.” State V. Delso, 2013 OK CR 5, I 5, 298 P.3d 1192, 1194. Miranda warnings assure that an individual’s right to choose between speech and silence remains unfettered throughout the custodial interrogation process. Miranda U. Arizona, 384 U.S. 436, 469, 86 S.Ct. 1602, 1625, 16 L.Ed.2d 694 (1966). A suspect has the right to invoke his right to silence immediately or cut off questioning during interrogation, and if a suspect indicates that he or she wishes to remain silent, interrogation must cease. Michigan U. Mosley, 423 U.S. 96, 100-01, 96 S.Ct. 321, 325, 46 L.Ed.2d 313 3 (1975) (quoting Miranda, 384 U.S. at 473-74, 86 S.Ct. at 1627); Robinson U. State, 1986 OK CR 86, IT 5, 721 P.2d 419, 421. Before the police are under any duty to halt the interrogation, however, the suspect’s invocation of his Fifth Amendment right must be unambiguous and unequivocal. Berghuis U. Thompkins, 560 U.S. 370, 381-82, 130 S.Ct. 2250, 2259-60, 176 L.Ed.2d 1098 (2010). To invoke the right to cut off questioning, the suspect must articulate his or her desire with sufficient clarity such that a reasonable police officer under the circumstances would understand the statement as an invocation of the Miranda right to remain silent. See Davis U. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 2355, 129 L.Ed.: 2d 362 (1994). When the suspect unambiguously invokes his right to counsel, police may not resume interrogation of the suspect until the suspect reinitiates further communication, exchanges, or conversations with the police or his attorney is physically present at the interrogation session. Minnick U. Mississippi, 498 U.S. 146, 156, 111 S.Ct. 486, 492, 112 L.Ed.2d 489 (1990); Edwards U. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981). When, as is the case here, it is 4 the right to silence which is invoked, police may attempt to reinitiate questioning sometime after the invocation as long as they scrupulously honor the suspect’s wish to remain silent. Mosley, 423 U.S. at 103, 96 S.Ct. at 326. The Mosley Court, noting that a momentary lapse of time before police attempt to reinitiate questioning is insufficient, held that the passage of two hours, among other factors, was sufficient to allow police to reinitiate questioning. Mosley, 423 U.S. at 102-05, 96 S.Ct. at 326-27. The record shows only a momentary lapse between Taylor’s statement “I don’t have nothing to say now” and the investigator’s comment on Taylor’s earlier answer that he was twenty-four years old. The district court found Taylor’s statement to be an unambiguous invocation of the right to silence. Whether that ruling was correct and whether the investigator scrupulously honored that invocation is not essential to the resolution of this claim. The district court went on to find that Taylor voluntarily reinitiated the interrogation almost immediately after invoking his right to silence, and we find her ruling sound under the reasoning in Long U. State, 1994 OK CR 60, I 9-17, 883 P.2d 167, 171-72. 5 Based on this record, we find the district court did not abuse its discretion in finding that Taylor waived his right to remain silent by reinitiating conversation with the investigator. The district court considered the evidence and arguments of the parties and focused its analysis on Taylor’s comments reinitiating the exchange after his statement that he had nothing to say. The district court heard the testimony, reviewed the audiotape, and considered the context of Taylor’s situation. Finding no error, we uphold the district court’s ruling denying Taylor’s suppression motion. This claim is denied. 2. Taylor claims the district court erred by denying the prosecutor’s for cause challenge to remove a panelist whom he contends could not speak English well enough to understand the evidence. 12 O.S.2011, § 572; 22 O.S.2011, § 592.4 Defense counsel objected to the panelist’s removal. The district court questioned the panelist to further assess her language proficiency and denied the prosecution’s challenge for cause. The panelist ultimately served on 4 Section 572 of Title 12 provides that a panelist may be challenged for cause in a civil trial “for want of competent knowledge of the English language.” Section 592 of Title 22 extends the for cause challenges identified in Section 572 to criminal trials. 6 Taylor’s jury. Because Taylor did not preserve the issue by objection, review is for plain error only. Engles U. State, 2015 OK CR 17, I 11, 366 P.3d 311, 315. The burden is on Taylor to demonstrate that an error, plain or obvious under current law, adversely affected his substantial rights. Smith v. State, 2018 OK CR 4, I 8, 419 P.3d 257, 260. Only if he does SO will this Court entertain correcting the error provided the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings or represented a miscarriage of justice. Id. To the extent that defense counsel objected to the prosecution’s for cause challenge to remove the panelist, error, if any, stemming from the panelist’s service on the jury is waived as invited error. See Bramlett U. State, 2018 OK CR 19, 34, 422 P.3d 788, 799 (holding error invited by defense counsel cannot serve as basis for reversal because defendant may not profit from error he invited). Moreover, the record does not establish the panelist’s 5 To preserve an objection to the denial of a challenge for cause, the accused must demonstrate he or she was forced over objection to keep an unacceptable juror. The accused must excuse the challenged panelist with a peremptory challenge and make a record of which remaining panelists he or she would have excused had the peremptory challenge not been used to cure the alleged erroneous denial of the for cause challenge. Tryon v. State, 2018 OK CR 20, I 21, 423 P.3d 617, 629. Taylor waived his final peremptory challenge. 7 English proficiency was SO poor that the district court erroneously denied the prosecution’s for cause challenge. For these reasons, this claim is denied. 3. Taylor contends he is entitled to relief because of ineffective assistance of trial counsel. He faults defense counsel for objecting to the State’s for cause challenge to remove the juror who could not speak English well enough to understand the evidence and/ or for not removing the juror with a peremptory challenge. He maintains these actions led to a violation of his constitutional right to a unanimous verdict from a twelve-person jury. This Court reviews claims of ineffective assistance of counsel to determine: (1) whether counsel’s performance was constitutionally deficient; and (2) whether counsel’s performance prejudiced the defense SO as to deprive the defendant of a fair trial with reliable results. Strickland U. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Malone U. State, 2013 OK CR 1, II 14, 293 P.3d 198, 206. We begin our analysis with the strong presumption that defense counsel’s conduct “fell within the 8 wide range of reasonable professional assistance.” Malone, 2013 OK CR 1, 15, 293 P.3d at 206. To overcome this presumption, Taylor must show that defense counsel’s representation was unreasonable under prevailing professional norms and that the challenged action could not be considered sound trial strategy. Id. Taylor must also affirmatively prove prejudice resulting from his attorney’s actions. Strickland, 466 U.S. at 693, 104 S.Ct. at 2067; Head U. State, 2006 OK CR 44, I 23, 146 P.3d 1141, 1148. To accomplish this, he must show that there is a reasonable probability that, but for counsel’s unprofessional error, the result of the proceeding would have been different. Head, 2006 OK CR 44, IT 23, 146 P.3d at 1148. This Court need not determine whether counsel’s performance was deficient if there is no showing of harm. See Malone, 2013 OK CR 1, 16, 293 P.3d at 207. The evidence establishing Taylor’s guilt was convincing and scarcely challenged. Taylor’s ineffective assistance of counsel claim is without merit because he cannot show that, but for counsel’s actions during jury selection, the result of his trial would have been different. This claim is denied. 9 4. Taylor claims that even if no individual error in his case merits reversal, the cumulative effect of the errors committed requires a new trial or sentence modification. The record shows there were no errors, either individually or when considered together, that deprived Taylor of a fair trial. See Baird U. State, 2017 OK CR 16, 9 42, 400 P.3d 875, 886; Martinez v. State, 2016 OK CR 3, I 85, 371 P.3d 1100, 1119. This claim is denied. DECISION The Judgment and Sentence of the district court is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2019), the MANDATE is ORDERED issued upon delivery and filing of this decision. AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, THE HONORABLE CINDY H. TROUNG, DISTRICT JUDGE APPEARANCES AT TRIAL APPEARANCES ON APPEAL JAMES W. BERRY SARAH MACNIVEN ATTORNEY AT LAW APPELLATE DEFENSE P.O. BOX 21803 COUNSEL OKLAHOMA CITY, OK 73156 P.O. BOX 926 COUNSEL FOR DEFENDANT NORMAN, OK 73070 COUNSEL FOR APPELLANT 10 LORI MCCONNELL MIKE HUNTER RYAN STEPHENSON ATTORNEY GENERAL ASST. DISTRICT ATTORNEYS OF OKLAHOMA 320 ROBERT S. KERR AVE., TESSA L. HENRY SUITE 505 ASSISTANT ATTORNEY OKLAHOMA CITY, OK 73102 GENERAL COUNSEL FOR STATE 313 N.E. 21ST STREET OKLAHOMA CITY, OK 73105 COUNSEL FOR APPELLEE OPINION BY: ROWLAND, J. LEWIS, P.J.: Concur KUEHN, V.P.J.: Concur LUMPKIN, J.: Concur in Results HUDSON, J.: Concur 11

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