Mann v. State

PARKS, Judge,

dissenting:

The instant case is the last in a series of three cases involving the murder of Charles Keene on January 23, 1983. Appellant, Wayne Thompson, Bobby Glass and Richard Jones, were each tried separately, convicted of first degree murder, and sentenced to death. Glass died in prison. This Court affirmed the judgment and sentence against Thompson. Thompson v. State, 724 P.2d 780 (Okla.Crim.App.1986). Jones’ conviction was reversed and remanded for a new trial based on three errors: (1) improper admission of photographs, (2) improper admission of hearsay, and (3) prose-cutorial misconduct. Jones v. State, 738 P.2d 525 (Okla.Crim.App.1987). In Jones , a majority of this Court concluded that the record evidence against Jones was not strong enough to overcome the errors. Id. at 531 . Although the record evidence against appellant is arguably somewhat stronger than the record evidence was against Jones, it clearly does not rise to the level of overwhelming evidence found in Thompson, supra, at 783 , and I cannot say that the evidence of guilt was such as to overcome the errors present in this case.

The majority concedes at page four (4) that the trial court erred in admitting State Exhibits Nos. 10 and 11, consisting of gruesome photographs with little or no probative value, during the guilt-innocence stage. Accord Jones, supra, at 528 ; Thompson, supra, at 782-83 . Concerning the admission of McCarthy’s testimony concerning hearsay statements made by appellant and Glass after the death of the victim, it should be noted that appellant’s trial occurred prior to our decision in Laske v. State, 694 P.2d 536, 538-39 (Okla.Crim.App.1985), and consequently the procedures enunciated in Laske were not followed in this case. Further, I cannot say that the trial judge’s statement that “I do find that [a prima facie case of conspiracy] has been made” is sufficient to meet the foundational requirements of 12 O.S.1981, § 2801(4)(b)(5), and the procedures enunciated in Laske . A close review of the statements made by the prosecutors during first stage closing argument reveals that they improperly requested sympathy for the victim, engaged in derogatory name calling of the appellant, and improperly attacked defense counsel.

With regard to second stage closing argument, the majority concedes at page twelve (12) that “the prosecutors came very close to causing an abortion of an otherwise fair trial with their insistence in ignoring the standards for what is proper closing argument.” I believe that the actions and comments of Prosecutors Larry Baresel and Tony Burns during second stage closing argument did not merely come close, but did deprive appellant of a fair trial during the second stage. Prosecutor Baresel dry fired the murder weapon, and commented that’s “the last sound [Charles Keene] hears.” Such comment was clearly improper, unprofessional, designed solely for its unfair prejudicial impact on the jury, and cannot be tolerated. See Ford v. State, 719 P.2d 457, 460 (Okla.Crim.App.1986). Cf. Brewer v. State, 650 *1163 P.2d 54, 57 (Okla.Crim.App.1982) (prosecutor’s stabbing photograph of victim constituted misconduct). Prosecutor Burns requested sympathy for the victim on several occasions, made comments relating to societal alarm, and stated that the appellant had “fabricate^] ... a defense ... through his little brother.”

In light of the foregoing, it appears that the appellant may have been sentenced to death while the jury was “under the influence of passion, prejudice, or any other arbitrary factor.” 21 O.S.Supp.1985, § 701.13(C)(1). As was so aptly stated by Judge Bussey in Brewer v. State, 650 P.2d 54, 57 (Okla.Crim.App.1982):

Unfortunately, the appellant’s right to a fair trial was the victim of an overzealous prosecutor. The record is replete with error committed during both stages of the trial, which when considered in a cumulative fashion, necessitates that the conviction be reversed and remanded for a new trial.

Based on all of the foregoing, I dissent to the affirmance of the appellant’s judgment and sentence.