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Stanley v. State8/11/1988
on the lesser included offense of First Degree Misdemeanor-Manslaughter. Appellant relies on Dawson v. State, 647 P.2d 447, 449 (Okla. Crim. App. 1982), in which we found "homicide is manslaughter in the first degree when perpetrated without design to effect death by a person while engaged in the commission of a misdemeanor." Appellant argues the underlying misdemeanor in this case is assault and battery.
The trial court fully instructed the jury on First Degree Heat of Passion Manslaughter. Appellant failed to request, orally or in writing, an instruction on misdemeanor-manslaughter. Wauqua v. State, 694 P.2d 532, 534 (Okla. Crim. App. 1985). Nor does appellant support his bald assertion that this homicide arose from commission of a misdemeanor, other than to offer evidence of remorse. " here there is no evidence to support a lower degree of the crime charged or included offense, it is not only unnecessary to instruct thereon, but the court has no right to ask a jury to consider the issue." Irvin v. State, 617 P.2d 588, 596 (Okla. Crim. App. 1980). We find no record evidence to support appellant's argument that this homicide occurred during commission of a misdemeanor. This assignment of error is without merit.
For his final assignment of error, appellant asserts he was deprived of a fair trial because the prosecutor, in closing argument, expressed his personal opinion about appellant's defense of intoxication. Although several of the prosecutor's comments during closing argument were improper, we cannot say, in light of the entire record, that the comments were so prejudicial as to adversely affect the fundamental fairness and impartiality of the proceedings; therefore, reversal or modification is not required. Hope v. State, 732 P.2d 905, 907 (Okla. Crim. App. 1987). Appellant is entitled to a fair trial, not a perfect one. Jones v. State, 610 P.2d 818, 820 (Okla. Crim. App. 1980). Appellant received a fair trial. This assignment of error is without merit.
In light of the above, appellant's judgment and sentence should be, and hereby is, AFFIRMED.
BRETT, P.J., and BUSSEY, J., concur.
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