overruling State v. Breger, 1987 OK CR 98, 737 P.2d 1219
How later courts described this case
- overruling State v. Breger, 1987 OK CR 98, 737 P.2d 1219
Written by the judges who cited it.
The opinion
LUMPKIN, Presiding Judge:
concur in part/dissent in part.
T1 I concur in the Court's decision to affirm the convictions in this case, however I cannot find a legal basis for modifying the sentences.
12 While I agree the prosecutor committed error in the seope of some of his questions and argument, I cannot find it created prejudice in the verdiet by the jury. In this case, the jury rendered a sentence recommendation just one year more than the minimum sentence allowed. It is hard to show prejudice in a 5-year sentence when the minimum sentence would be 4 years. In other words, whatever errant actions were committed by the prosecutor had zero impact on the jury. The decision to run the sentences consecutive was made by the trial judge and not the jury. It cannot be remotely argued that the prosecutor's comments had an impact on the trial judge.
'I 3 Instead of dealing with the facts of this case, it appears the Court is simply seeking to punish the prosecutor for past and present wrongs. I do not believe we should deprive the citizens of the State of Oklahoma of a valid judgment and sentence in this case due to mere displeasure with the actions of the prosecutor when there is no evidence those actions created prejudice. If an attorney's violation of ethical standards is such that discipline is required, then this Court should refer the matter to the Oklahoma Bar Asso-clation to determine what that discipline should be. I would affirm both the judgments and sentences.