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Bland v. State5/16/2000
in the first paragraph. Reading the instruction in its entirety, it is clear the State had the burden of proving the defendant had a history of criminal conduct that would likely continue in the future and that such conduct would constitute a continuing threat to society. Accordingly, we reject Appellant's challenge to Instruction No. 4-74, OUJI-CR (2d). This assignment of error is therefore denied. 980 P.2d. at 1103-04. The same analysis applies in Appellant's case.
In response to the second portion of Appellant's argument, in Nguyen v. Reynolds, 131 F.3d 1340, 1354 (10th Cir.1997) the Tenth Circuit said:
The fact that Oklahoma chooses to grant a sentencing jury wide discretion to make a predictive judgment about a defendant's probable future conduct does not render the sentencing scheme in general, or the continuing threat factor in particular, unconstitutional. Although this predictive judgment is not susceptible of "mathematical precision," we do not believe it is so vague as to create an unacceptable risk of randomness. To the contrary, we believe the question of whether a defendant is likely to commit future acts of violence has a "common-sense meaning" that criminal juries are fully capable of understanding.
We agree with this conclusion and do not find it necessary to engage in Appellant's exercise of analyzing the terms of the statute within the "statistical rules of probability". Neither the rules of mathematics nor statistics apply in a criminal trial. We find the jury instruction, set out in the language of the statute, is a correct statement of the law and properly channels the jury's discretion. Accordingly, we reject Appellant's challenges to OUJI-CR (2d) 4-74, and this assignment of error is denied.
B.
In his seventeenth assignment of error, Appellant notes that the Judgment and Sentence reflects that he was convicted of both malice aforethought murder and felony murder. Appellant asserts that as the jury found him guilty of malice aforethought murder, the reference to felony murder was a scrivener's error which should be corrected. The State does not dispute this claim. A review of the record supports Appellant's contentions. Therefore, the trial court is ordered to correct the judgment and sentence to reflect the jury's verdict by striking the reference to a conviction for felony murder.
CLAIMS OF PROSECUTORIAL MISCONDUCT
A.
In his seventh proposition of error, Appellant argues the prosecutor's comments during closing argument prevented the jury from fully considering his affirmative defense of first degree manslaughter. Appellant concedes the jury instructions regarding consideration of first degree murder and first degree heat of passion manslaughter were proper under McCormick v. State, 845 P.2d 896 (Okl.Cr.1993). However, he argues the prosecutor's comments to the effect that the jury could not consider the offense of first degree manslaughter until it had found reasonable doubt for the offense of first degree murder were improper. We review the prosecutor's comments for plain error only as no contemporaneous objection was raised at trial. It is a well established rule of this Court that defense counsel must object, in a timely manner, to objectionable statements. Failure to do so waives all but plain error. Smallwood v. State, 907 P.2d 217, 229 (Okl.Cr.1995); Simpson v. State, 876 P.2d 690, 693 (Okl.Cr.1994).
Having reviewed the prosecutor's comments, we find any misstatements could not have affected the outcome of the trial. The jury was properly instructed as to the manner in which the offenses were to be considered. Specifically, Instruction No. 36 informed the j
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