Pittsburg County jurors deliberated for more than five hours Thursday before finding Devin Sizemore, 23, of Krebs, guilty of first-degree murder in the death of his daughter, Emily Sizemore.
Jurors set sentencing at life in prison without the possibility of parole on the murder conviction. They also found Devin Sizemore guilty of a second felony charge of assault and battery on a police officer and set sentencing on that conviction at the maximum penalty of five years in prison.
The jury began deliberations around 11:30 a.m. Thursday and announced they had reached a verdict at approximately 4:40 p.m. following a four-day trial at the Pittsburg County Courthouse in McAlester.
Associate District Judge Tim Mills told Sizemore his bond was exonerated and he remanded him to the custody of the Oklahoma Department of Corrections. Sizemore is expected to remain in custody at the Pittsburg County Sheriff's Office pending formal sentencing.
Law enforcement officers testified during the trial that they found 21-month-old Emily Sizemore floating face-down in a pond in rural Krebs during the early-morning darkness around 3:30 a.m. on July 15, 2016. Police had spent the day and most of the night searching for Devin and Emily Sizemore after Devin Sizemore's family members asked them to conduct a welfare check on the child.
McAlester Police Officer Colby Barnett testified that after he arrived at the rural location, he ran into the pond and grabbed the child from the water. Barnett then rushed her to shore where he and McAlester Police Officer Richard Bedford took turns administering compressions in frantic attempts to revive her, according to courtroom testimony.
As they administered the compressions, then-Krebs Police Officer Jack Suter was in the pond, struggling in the water with Devin Sizemore as he tried to place him under arrest, witnesses testified during the trial. Police testified that Devin Sizemore had fled and ran into the pond after they arrived at the property.
During the trial, several law enforcement officers had shed tears as they recounted their intense efforts to try and save the child's life that night.
Some of them were in the courtroom accompanied by family members and friends when the jury returned with the verdict Thursday afternoon, when more tears were shed.
Afterward, some of the officers who were at the scene expressed relief at the jury's verdict.
"It's finally over," Bedford said after leaving the courtroom.
"We're glad the people have spoken," said Barnett.
District 18 District Attorney Chuck Sullivan prosecuted the case, along with Assistant District Attorney Amanda Self.
Sullivan said Thursday evening that he appreciated the work of the jury, which he said took the case very seriously, as shown by how long they deliberated. He also said he appreciated the brave law enforcement officers who helped search for Emily, who were on the scene the night she was found and who came to court to testify.
In addition to members of the Krebs and McAlester police departments, personnel from the Pittsburg County Sheriff's Office and members of the Choctaw Nation Tribal Police were also involved.
Sizemore's defense team consisted of two McAlester attorneys, former assistant district attorney Mike Miller and former Pittsburg County Special District Judge Matt Sheets.
They told the News-Capital outside the courtroom that they plan on filing a formal notice of their intent to appeal. During the court proceedings, Sheets had made up to 14 separate motions for a mistrial, all of which were denied by Judge Mills.
Several members of Sizemore's family wept openly after hearing the verdict. Mark Sam, who identified himself as Sizemore's dad, said he felt a mistrial should have been declared in the case.
Jurors had already deliberated for several hours on Thursday before sending a note that they were deadlocked at 11-1. Jurors did not indicate at the time whether the 11-1 was for conviction or acquittal.
Mills sent word back to the jury to continue trying to reach a verdict. Jurors returned later with the unanimous verdict convicting Devin Sizemore of both felony charges.
During final arguments on Thursday, prosecution and defense attorneys summarized their cases before the jury began deliberations.
Self, the assistant prosecutor, scoffed at the defense claims that the child had accidentally got into the water on her own after her father baptized her and then left her near the pond while he went to get a horse from a nearby barn.
"This is about the death of a baby girl named Emily at the hands of her father," Self said. "This is not an accident. This is not collateral damage of mental illness."
She also blasted the defense's criticism of the officer's action that night. Jurors were able to view Barnett's body cam video as he jumped into the pond to retrieve the child from the water, where police began administering compressions in an effort to revive her.
"They jerked her out of the water and they were trying furiously to bring her back," Self said. "You saw the video. They are trying to will this baby back to life."
Jurors also heard an interview conducted by Oklahoma State Bureau of Investigation Agent John Jones, who talked to Devin Sizemore at the Pittsburg County Jail on the day he was arrested.
A voice identified as Sizemore's is heard saying he held Emily Sizemore underwater for 30 seconds to baptize her, then revived her and left her near the pond when he went to get a horse.
"He took her to the pond and he held her under the water for at least 30 seconds," Self said, as she stopped speaking and looked at her wristwatch as 30 seconds elapsed in the courtroom.
"That's 30 seconds," Self said. "Emily's a baby. She doesn't know how to hold her breath." With water going into the child's mouth, nose and lungs, she didn't know how to expel it, Self said.
Self also maintained that it's ridiculous to think someone would baptize a child at 3:30 a.m. "in the middle of nowhere."
Sullivan, who conducted the second half of the state's closing arguments, showed a photograph of a hole dug in the barn where Devin Sizemore had been staying with Emily. The son of the property owner testified he saw the hole the day before Emily Sizemore drowned.
Sullivan held a photo of the hole in front of the jury and characterized it as a grave that had been dug prior to the child's death.
Miller, who handled closing arguments for the defense, contended Devin Sizemore should never have been charged with first-degree murder.
"This is not a first-degree murder case," Miller said. "It's something else."
The defense maintained that Emily Sizmore must have accidentally got into the water on her own after her father left her nearby and went to get a horse.
During closing, Miller went over a number of the jury's instructions, including one regarding confessions.
"A confession alone does not constitute a conviction unless it is collaborated by other facts," he said. "No person can be convicted of murder in the first-degree unless it's established beyond a reasonable doubt."
The defense also argued that Devin Sizemore was defending himself against Suter as the two struggled in the pond. Suter had previously testified that Deven Sizemore had ignored orders to get out of the pond, forcing Suter to go in after him.
Suter had testified that Sizemore went underwater, then emerged close to him and then lunged at him. Suter said he struck Sizemore in the head with a flashlight when Sizemore lunged toward him. The two then fought across the pond and onto the shore, where other officers helped subdue Sizemore and get him handcuffed, according to testimony from law enforcement officers.
Miller contended that Sizemore had a right to defend himself against what the defense maintained was an unlawful arrest — a claim strongly refuted by Sullivan and Self during the trial.
A formal sentencing date on the two convictions had not been set by the time Mills dismissed court on Thursday. The judge is expected to set a sentencing date after conferring with the prosecution and defense attorneys in the case.
Contact James Beaty at email@example.com