Cleary v. State

LUMPKIN, Judge,

concurring in results:

I concur in the decision to affirm the judgment and sentence in this case. However, I write separately to address 2 issues — the statement that this Court has recognized personal expression of guilt by the prosecutor is an error of constitutional magnitude and the standard of review for plain error.

Under certain situations, a personal expression of guilt by the prosecutor, when considered in context of the entire trial, could rise to the level of a violation of due process. However such a comment is not by its very nature an ipso facto violation of due process. In Tart v. State, 634 P.2d 750 (Okl.Cr.1981), relied upon in the opinion, this Court held that a prosecutor is to refrain from giving his personal opinion as to the defendant’s guilt. Id. at 751 . To fail to do so is unprofessional conduct violative of the Code of Professional Responsibility. Oklahoma Code of Professional Responsibility, 5 O.S.1981, Ch. 1, App.3, and The ABA Standards for Criminal Justice, The Prosecution Function, Section 3-5.8(b)(1980). Id. at 751 . The United States Supreme Court has also stated that the prosecutor, like defense counsel, must refrain from interjecting personal beliefs into the presentation of his case. United States v. Young, 470 U.S. 1, 18 , 105 S.Ct. 1038, 1047-48 , 84 L.Ed.2d 1, 14 (1985) citing to ABA Model Code of Professional Responsibility. However, neither this Court nor the Supreme Court have stated that a personal expression of guilt is an error of constitutional magnitude.

A comment by a prosecutor could possibly be so unduly prejudicial that it renders the trial fundamentally unfair, thus implicating the Due Process Clause of the Fourteenth Amendment, see Payne v. Tennessee, 501 U.S. 808, 825 , 111 S.Ct. 2597, 2608 , 115 L.Ed.2d 720 (1991), stating that “[aJLthough [victim impact evidence] does not violate the Eighth Amendment, evidence may be introduced that is so unduly prejudicial that it renders the trial fundamentally unfair, thus implicating the Due Process Clause of the Fourteenth Amendment”. That determination must be made based on the facts of each case on an individual basis.

In Tart , this Court recognized that the prosecutor’s personal opinions of the defendant’s guilt violated the rules of the Oklahoma Code of Professional Responsibility and The ABA Standards for Criminal Justice, The Prosecution Function. Comparing the improper comments against the weight of the evidence, which was not overwhelming, the Court found the jury could have given great weight to the prosecutor’s statement and therefore reversal of Tart’s conviction was required. This Court did not address the constitutionality of the error.

In the present case, the comment in question was not met with a contemporaneous objection. All but plain error is waived by the failure to lodge a contemporaneous objection, therefore we first determine whether this error is reviewable. Error which impinges on the fundamental fairness of trial, which was not raised previously, is plain error. United States v. Young, 470 U.S. at 15 , 105 S.Ct. at 1046-1047 , 84 L.Ed.2d at 12 . See also Simpson v. State, 876 P.2d 690, 695 (Okl.Cr.1994). In Young , the Supreme Court held that a prosecutor’s personal expression of guilt in closing argument, not met with a contemporaneous objection, may constitute error but not plain error if the comment is invited. 470 U.S. at 19 , 105 S.Ct. at 1047 . The Supreme Court further stated the plain error exception is to be “used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.” Id. 470 U.S. at 15 , 105 S.Ct. at 1046 citing Unit *755 ed States v. Frady, 456 U.S. 152, 163, n. 14 , 102 S.Ct. 1584, 1592, n. 14 , 71 L.Ed.2d 816 (1982). Based upon a review of the facts in this case, any error which may have been committed cannot be determined to be plain error. The comment in question was not so prejudicial as to violate the Due Process Clause as it did not result in a miscarriage of justice or constitute a substantial violation of a constitutional right. The error has been waived and should not be reviewed.

Even if the error had not been waived, to properly apply the rule of law in this case, the Court could not review under the standard of “harmless beyond a reasonable doubt” which is reserved only for constitutional errors, but would only determine if the error had a “substantial influence” on the outcome, or leaves this Court in “grave doubt” as to whether it had such an effect. Simpson, 876 P.2d at 702 . Under that correct standard of review, if the Court determined the error had not been waived, it would still find the prosecutor’s comment harmless as the error reveals no “grave doubts” this failure had a “substantial influence” on the outcome of the trial.

I am authorized to state that Judge JOHNSON joins in this separate opinion.