discussing the prosecutor’s referring to the defendant as a liar, comparing the defendant to a cornered rat, and characterizing him as “the worst of the worst”, and stating that “we do not condone such borderline argument”
How later courts described this case
- discussing the prosecutor’s referring to the defendant as a liar, comparing the defendant to a cornered rat, and characterizing him as “the worst of the worst”, and stating that “we do not condone such borderline argument”
Written by the judges who cited it.
The opinion
LUMPKIN, Vice-Presiding Judge:
concurs in results.
T1 I continue to view the issue of instructions on lesser included offenses as set out in my separate writing in Shrum v. State, 1999 OK CR 41 , 991 P.2d 1082 (Lumpkin, J.: Concur in Results). However, based on stare decisis, I concur in the results reached by the Court in this case. The State concedes that sufficient evidence was presented to support an instruction on second degree felony murder under Skrum. But, it must be noted the opinion misstates the criteria for the lesser included offense instruction as "some evidence" at page 11, rather than the standard of "sufficient evidence" as set out in Shrum. See also, Jackson v. State, 1998 OK CR 39 , 1 8-15, 964 P.2d 875, 900-902 (Lump-kin, J., concurring in results). This use of the term "some evidence" on page 11 is also inconsistent with the opinion's statement at page 7. The test is "whether the evidence is sufficient to justify the submission of instructions on a lesser included offense to the ju1,y'”
T 2 In addition, I continue to adhere to the analysis I set out in Lambert v. State, 1999 OK CR 17, 13 , 984 P.2d 221, 244-45 (Lump-kin, V.P.J., concurring in results) regarding the authority of the District Court to abrogate a conviction made final by this Court.