# McCarty v. State

> Court of Criminal Appeals of Oklahoma · December 30, 1988 · 765 P.2d 1215

URL: https://www.frixlaw.com/law-library/cases/9546795

## Case

- **Full name:** Curtis Edward McCARTY, Appellant, v. the STATE of Oklahoma, Appellee
- **Court:** Court of Criminal Appeals of Oklahoma
- **Decided:** December 30, 1988
- **Citations:** 765 P.2d 1215; 1988 WL 130552
- **Precedential status:** Published
- **Opinion:** Concurrence by Brett
- **Judges:** Parks, Brett, Bussey
- **Cited by:** 64 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9546795

## How later opinions describe it (automated extraction)

- finding that police chemist's opinion that defendant was physically present at time of murder amounted to impermissible expression of defendant's guilt and explaining that despite 12 O.S. § 2704 permitting expert opinion testimony on the ultimate issue, bolstering credibility …
- noting, inter alia, that Macy improperly expressed his personal opinion of the guilt of the accused; informed the jury it had a responsibility to convict on the basis of his own sense of justice; requested sympathy for the defendant’s victims; and expressed his personal opinio…
- reversing a conviction, remanding for a new trial, and stating that “[s]ueh argument was not based on evidence supporting any alleged aggravating circumstance, but was simply a statement of Mr. Macy’s personal opinion as to the appropriateness of the death penalty and, as such…
- reversing a conviction, remanding for a new trial, and stating that "[s]uch argument was not based on evidence supporting any alleged aggravating circumstance, but was simply a statement of Mr. Macy's personal opinion as to the appropriateness of the death penalty and, as such…

## Opinion text

BRETT, Presiding Judge
specially concurring.
I specially concur in this decision for the reason the testimony of Forensic Serologist Gilchrist gave concerning appellant’s presence at the scene of the crime was error. She was not there and she exceeded her professional role when she answered the prosecutor’s question, as discussed in Part I and Part II in the majority opinion. I am also disturbed by the manner in which the hair samples were provided appellant’s expert, John Wilson. Denial of due process is a constitutional deprivation and must not go unnoticed.
I agree also that the prosecutors went far afield in their arguments to the jury. Prosecutors should limit their arguments to the facts provided the jury and should not offer their own opinion concerning guilt of the accused.
In his dissent, Judge Bussey states that the opinion of Gilchrist, concerning appellant’s presence at the scene of the crime, falls within 12 O.S.1981, § 2702. That Section of the Statute provides the following:
Testimony by Experts
If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise.
In the subcommittee notes the following dissertation is found:
Most of the literature assumes that experts testify in the form of opinions. The assumption is logically unfounded. The rule accordingly recognizes that an expert on the stand may give a dissertation or exposition of scientific or other principles relevant to the case, leaving the trier of fact to apply them to the facts.
In that respect, I believe Gilchrist exceeded her professional bounds. The ultimate fact for the jury to determine was whether or not appellant was present at the scene of the crime and whether or not he committed the crime. If we continue to allow such personal opinion testimony to be espoused by experts, we may find a requirement imposed upon the courts to provide additional expert assistance to defendants at *1223 State expense to counter such testimony. See Munson v. State, 758 P.2d 324, 330 (Okl.Cr.1988), Part I, A.
Therefore, I specially concur in this decision.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9546795. Public record. Not legal advice.