finding preface to remarks prevented them from being considered improper expression of personal opinion
How later courts described this case
- finding preface to remarks prevented them from being considered improper expression of personal opinion
- reviewing the admission of rebuttal evidence for abuse of discretion
- outlining test used to determine if witness is an accomplice
- reviewing record as a whole for bias
Written by the judges who cited it.
The opinion
CHAPEL, Judge,
specially concurring:
I concur in this decision only by reason of stare decisis. I have previously written separately to note the problems resulting in not granting each defendant a full complement of peremptory challenges in a joint trial. Fowler v. State, 873 P.2d 1053 , 1055 n. 2 (Okl.Cr. 1994); Bryson v. State, 876 P.2d 240 (Okl.Cr. 1994) (Chapel, J., dissenting at 266); Plantz v. State, 876 P.2d 268 (Okl.Cr.1994) (Chapel, J., dissenting at 282). See also Ross v. Oklahoma, 487 U.S. 81, 89-91 , 108 S.Ct. 2273, 2279-80 , 101 L.Ed.2d 80 (1988); Neill v. State, 827 P.2d 884, 887 (Okl.Cr.1992).
In Neill, 827 P.2d at 884 , we held that co-defendants are each entitled to a full complement of challenges only if they assert inconsistent defenses that relate directly to guilt or innocence. When the inconsistency relates to culpability or punishment, defendants may be required to share peremptory challenges. The problem with this analysis is that there is absolutely nothing in the statute, 22 O.S.1991, § 655, which distinguishes between guilt or innocence, or culpability or punishment. Here, the majority notes the State asserts only that the defendants did not have inconsistent defenses during the first stage. That may be true, but the defendants’ defenses as to culpability in the second stage were inconsistent.
In this case, Carter was on trial for his life. The other defendant in this joint trial, Summers, was not at risk for the death penalty. The trial court ruled that the defendants would share the nine peremptories allowed by statute. Subsequently, a dispute arose among the defendants as to the exercise of their last remaining challenge and to solve the problem, the court allowed both the defense and the State one additional peremptory each. Thus, each defendant had five per-emptories, and the State had ten.
This procedure is fundamentally unfair in any case. In a case such as this, however, where one defendant is at risk for the death penalty and the other is not, it should be intolerable.