*1 GRANT, Appellant, Darrell L. Oklahoma, Appellee.
STATE of
No. F-83-515. Appeals
Court of Criminal of Oklahoma.
July 1985. *2 Palmer, Deputy Appellate
Patti Public Defender, Norman, appellant. Gen., Atty. Turpén, Hugh Michael A. C. Gen., City, Manning, Atty. Oklahoma Asst. appellee. OPINION BUSSEY, Judge: Grant, appellant, Darrell L. was con- The Degree, Manslaughter in the First victed of County, in the District Court Garfield CRF-82-416, was sentenced to Case No. (45) he forty-five years’ imprisonment, and appeals. 11, 1982, Porter and
On October Gail walking to the Enid Miller were Debra School, They where worked. State car, happened to see the a ride and asked him for flagged him down they arrived at agreed. He Once to work. school, got of the car to Ms. Porter out returned, she buy cigarettes. When some appellant’s car. in the She no one was coming out of turned and saw the building gun with a the administrative proceeded to enter his hand. Ms. Porter lying Miller on building and saw Ms. he testified that the floor. Miller, kill he did not intend to Ms. but testimony shooting her. Further admitted that the believed established victim, girlfriend, had re- his former cently money from him. stolen Jordan, acting chief medical ex- Fred Oklahoma, per- aminer for the State of autopsy body Miller’s an on Ms. formed (6) it had six and testified that bullet it, large made in which were wounds Gary Sergeant Detective caliber bullets. Hart, Department, Enid photograph Police took because a of a dead body can- photographs of the crime scene which were not show the victim pursued before admitted into evidence. she was killed. We find that the comment improper
was not
because the fact that Ms.
I
pursued
Brown was
before she was killed
can
reasonably
be
by appellant’s
inferred
assignments
In one of his
*3
testimony that he shot her
car,
once in
appellant complains
court
the
that
the trial
by the testimony
(2)
of a
admitting
opera-
switchboard
abused its discretion in
two
tor, at the administration building,
photographs
the crime scene because
that she
of
saw the victim
flying
“come
in
they
allegedly
probative
not
the front
were
of a ma
door,”
by
and
the fact
any probative
that the victim
terial issue and
value
had
was
only one exit from the small
outweighed by
possibility
prejudice.
the
of
room where
(which
she was
case,
shot five more
In
the
times
was
photographs
the instant
are
depicted
photograph).
in the
overly gruesome,
very
not
there is'
little
observable,
grotesque
blood
there is no
Second,
the
objected to the
configuration, they are relevant to corrobo
.prosecutor handing
pistol
a
to a firearms
rating
testimony
witnesses,
the
of several
witness, in
of the jury, prior
having
view
to
they
tend to establish the
help
victim’s
it admitted into evidence.
by depicting
lessness
cramped quar
the
opinion
support
ters.
argument,
We are of the
that the trial
To
appel
his
the
ruling
court did not abuse its
in
lant cites two cases
inapplicable
discretion
which are
probative
that the
the
photographs
value of the
because
facts in those cases are in no
outweighed any possible
way
prejudice
cites,
to the
similar to the case at bar. He
appellant.
State,
State,
(Okl.Cr.1982)
Boutwell v.
Brewer v.
Smith v.
946
ruling
the court
appeal.
the
on
daughter.
we do not condone com-
Mc-
While
State,
(Okl.Cr.
sym-
the
v.
P.2d 1102
encouraging
to allow
Donald
ments
sentiment,
1972).
find no
prejudice
abuse of
to influence
We
discretion.
pathy,
instance,
Second,
record
decision,
discloses that
see for
Williams v.
its
(Okl.Cr.1983);
only
not
considered
State, disposi- punishment is to determined the be tive of this issue. case, facts and circumstances of each contends, in a also unless the sentence is so excessive that it separate assignment that the trial of court, the conscience of the will shocks we refusing requested court erred in in his State, modify a sentence. v. not Dilworth power the structions on the of to rec (Okl.Cr.1980); State, 256 Failes suspended ommend a deferred or sentence. (Okl.Cr.1979). light In P.2d 1080 of 589 support assignment He fails to this of er overwhelming appellant’s guilt, of evidence Moreover, supra. ror. Sandefur, See the punishment imposed fact that the and the judge required give in is not to such an range prescribed by within the was well See, State, struction. Neilson v. any and that the record is free of error law dismissed, appeal 615 cert. justify would modification or rever which den., 961, 454 71 U.S. 102 S.Ct. sal, opinion punish that we are of the the (1981). L.Ed.2d assignment 105 This of imposed ment is not excessive. This as error is also without merit. signment of error is without merit. reasons, judgment For the above the IV appealed AFFIRMED. from is sentence
In assignment his fourth er of ror, the argues that BRETT, J., concurs. court abused its refusing discretion in to suspend part of his P.J., sentence he PARKS, because specially concurs. maintains there is sound policy placing PARKS, Presiding Judge specially con- probation first offenders on and because curring: erroneously the trial court considered the First, Although I in the affirmance of deterrent factor. it concur is well settled judgment appel- and sentence of the that the determination of the grant whether to however, sentence, lant, must, deny suspended I address the issue of a in whole or part, alleged improper part conduct on the is addressed to the sound the discretion court, Maxwell, B. prosecutor, of the trial and absent an the William Assist- abuse of discretion, Attorney County. this Court will not ant District for Garfield disturb
947 precariously sary, unprofessional. His conduct was close to caus- intolerable and See State, supra. to Tobler v. ing compelled error. I feel reversible unique address these actions due to the However, in light of the overwhelming prosecutor’s position nature of the in our guilt evidence and the failure pre- to justice system. criminal many of serve review, comments for showing and the lack of a prejudice, misconduct, In the it is first instance of unnecessary to modify or reverse prosecutor this con- prevented by timely viction. Deason v. objection 576 from cir- P.2d 778 defense counsel (Okl.Cr.1978); Frazier v. cumventing Judge 607 the order of the District P.2d (Okl.Cr.1980); 709 Gay v. suppressing evidence that there were bul- P.2d (Okl.Cr.1977). lets in car. cross-examina- On appellant, tion of the in-
quired only type of not about the ammuni- weapon, many
tion loaded in the but how ap-
rounds were in the revolver. This
peared attempt to an to elicit be an answer
from the that would disclose the
source of the extra three rounds in the weapon being prior as loaded in the car to Dewayne SMITH, Appellant, Steve shooting death of D.M. Two further instances of misconduct oc- *5 Oklahoma, Appellee. STATE of during closing arguments. curred The de- object fense counsel did not to these com- No. F-83-510. ments, therefore, were reviewed Appeals Court of Criminal of Oklahoma. by this Court for only. fundamental error 23, July 1985. As this Court stated in Tobler v. 350, (Okl.Cr.1984), improper it is prosecution pleas
for the to make to the
jury sympathy for the victim and her year daughter.
eleven old It totally con- trary to the ABA Standards Criminal
Justice, 3-5.8(C) (1980), adopted by this §§ Dupree
Court
(Okl.Cr.1973), Ray which states:
(c) prosecutor argu- should not use
ments calculated passions to inflame the prejudices jury.
Furthermore, pursuant to the Oklahoma Responsibility,
Code Professional it is primary duty lawyer engaged of a justice
public prosecution to see
done, and not to convict. O.S., 1, Ch. (1981).
App. (Emphasis Cannon 5 add-
ed).
Finally, perilously came arguments
close to reversible error in his
concerning how the should handle the given
manslaughter instruction
judge. of this nature is Conduct unneces-