Judge to make recommendation in 2016 murder case

Sep. 22—MUSKOGEE — A federal judge will make a report of findings and recommendations after hearing argument Thursday on a motion to suppress a McAlester man's statements made to investigators following his daughter's 2016 death.

Attorneys for Devin Sizemore, 27, argue Sizemore did not have the required competency needed to understand his rights under Miranda prior to agreeing to speak with investigators following his arrest.

Sizemore was indicted in May 2021 in the Eastern District of Oklahoma for murder in Indian Country, second degree murder in Indian Country, voluntary manslaughter in Indian Country, child abuse in Indian Country, and assault resulting in serious bodily injury in Indian Country.

He is accused of drowning his 21-month-old daughter, Emily, in a pond off of Krebs Lake Road on July 15, 2016, and assaulting then-Krebs Police Officer Jack Suter during his arrest after Sizemore allegedly attempted to drown the officer.

In their motion to suppress, Sizemore's attorney asks a federal judge to suppress any and all statements made by Sizemore claiming an agent from the Oklahoma State Bureau of Investigation violated his constitutional rights under the Fifth Amendment.

"Oklahoma State Bureau of Investigation Agent John Jones continued to interrogate Mr. Sizemore after he unambiguously invoked his rights to silence and counsel under Miranda v. Arizona," the motion states.

During testimony held Thursday before U.S. Magistrate Judge Jason Robertson, Jones testified that after Sizemore said "no" to speaking with him, he only asked Sizemore to clarify if that is what Sizemore wanted.

An audio recording of the interview was played in the courtroom that showed Jones asked Sizemore again if he would speak with him about what happened without an attorney present with Sizemore agreeing and signing a consent form.

The defense claims that Sizemore a "watered down version" of Miranda. Jones contends he read all of Miranda to Sizemore and only clarified on what Sizemore wanted to know after he asked "what do you mean."

During the interview, Sizemore said he took Emily from his mother's home because people were being "mean" to him for talking about God and ultimately spent a night in a barn because something had told him "to go to the barn."

Sizemore is then heard saying he baptized Emily "because of all the evil in the world" and that he estimated to have held her under the water for maybe 30 seconds and claimed that "something went wrong" but he was able to save Emily by performing CPR.

He then is heard saying that something told him to get a horse and when he returned to get his daughter he was "attacked" by police.

"God told me to forgive them," Sizemore said about the "attacking" police.

When asked by the defense if he believed Sizemore was okay to speak with him during the interrogation, Jones said he had no concerns prior to speaking with Sizemore.

"I was satisfied that he could visit with me after being medically cleared," Jones said. "He was able to respond to the questions and give his version.

Defense attorneys asked Jones about Sizemore's statements about God and other statements made not in relation to the investigation.

Jones responded that the responses were "abnormal" and "not typical."

"I wasn't sure if he was faking him out or not," Jones said. The investigator also testified that he told Sizemore's mother after the interrogation that he expected Sizemore's competency to be brought up due to his responses.

The defense also argued that Sizemore had considerable mental deficits that he did not have the mental ability to comprehend and waive his Miranda rights.

Dr. Matthew Clem, a Neuropsychologist, testified Thursday that Sizemore had a "neurocognitive disorder" due to multiple causes throughout his life — meaning Sizemore does not have the cognitive ability or the intelligence required to understand the Miranda rights as they were read to him.

Robertson will now issue a report of findings and recommendation that will be filed at a later date for U.S. District Judge Ronald White to take into consideration prior to making a ruling on the motion to suppress Sizemore's statements.

Contact Derrick James at djames@mcalesternews.com