"The long standing rule in this jurisdiction is that trial judges should not define the term.”
How later courts described this case
- "The long standing rule in this jurisdiction is that trial judges should not define the term.”
- Parks, P.J., specially concurring
Written by the judges who cited it.
The opinion
PARKS, Presiding Judge
specially concurring:
Although I concur in the affirmance of the judgment and sentence of the appellant, I must, however, address the issue of the alleged improper conduct on the part of the prosecutor, William B. Maxwell, Assistant District Attorney for Garfield County. *947 His conduct was precariously close to causing reversible error. I feel compelled to address these actions due to the unique nature of the prosecutor’s position in our criminal justice system.
In the first instance of misconduct, the prosecutor was prevented by the timely objection of the defense counsel from circumventing the order of the District Judge suppressing evidence that there were bullets in appellant’s car. On cross-examination of the appellant, the prosecutor inquired not only about the type of ammunition loaded in the weapon, but how many rounds were in the revolver. This appeared to be an attempt to elicit an answer from the appellant that would disclose the source of the extra three rounds in the weapon as being loaded in the car prior to the shooting death of D.M.
Two further instances of misconduct occurred during closing arguments. The defense counsel did not object to these comments, and therefore, they were reviewed by this Court for fundamental error only.
As this Court stated in Tobler v. State, 688 P.2d 350 , (Okl.Cr.1984), it is improper for the prosecution to make pleas to the jury for sympathy for the victim and her eleven year old daughter. It is totally contrary to the ABA Standards for Criminal Justice, §§ 3-5.8(C) (1980), adopted by this Court in Dupree v. State, 514 P.2d 425 (Okl.Cr.1973), and Ray v. State, 510 P.2d 1395 (Okl.Cr.1973), which states:
(c) The prosecutor should not use arguments calculated to inflame the passions or prejudices of the jury.
Furthermore, pursuant to the Oklahoma Code of Professional Responsibility, it is the primary duty of a lawyer engaged in public prosecution to see that justice is done, and not to convict. 5 O.S., Ch. 1, App. 3, Cannon 5 (1981). (Emphasis added).
Finally, the prosecutor came perilously close to reversible error in his arguments concerning how the jury should handle the manslaughter instruction given by the trial judge. Conduct of this nature is unnecessary, intolerable and unprofessional. See Tobler v. State, supra.
However, in light of the overwhelming evidence of guilt and the failure to preserve many of the comments for review, and the lack of a showing of prejudice, it is unnecessary to modify or reverse this conviction. Deason v. State, 576 P.2d 778 (Okl.Cr.1978); Frazier v. State, 607 P.2d 709 (Okl.Cr.1980); Gay v. State, 558 P.2d 1187 (Okl.Cr.1977).