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Bland v. State5/16/2000
ury they were to consider all three offenses. Further, the jury was told that all of the rules of law by which they were to weigh the evidence and determine the facts at issue were contained in the written instructions. (O.R. 351, Instruction No. 1). The language used by the trial court in setting out the offenses for the jury's consideration clearly set forth the differing intent requirements of the two offenses, i.e., a murder conviction required proof of a deliberate intent to kill while manslaughter should be found if the killing was done without a design to effect death. The instructions given to the jury did not preclude their consideration of the offense of first degree manslaughter. Appellant has failed to show that the jury did not follow their written instructions. See Jones v. State, 764 P.2d 914, 917 (Okl.Cr.1988) (the presumption is that jurors are true to their oaths and conscientiously follow the trial court's instructions). Any comments to the contrary by the prosecutor were not so egregious as to have denied Appellant a fair trial or to have affected the outcome of the trial.
B.
In his eleventh assignment of error, Appellant alleges that various instances of prosecutorial misconduct, both first and second stage, deprived him of a fair trial. We will address the claims in the order that Appellant has raised them in his appellate brief. We begin our review by reiterating the well established rule that error alone is insufficient to require reversal. Appellant must show not only that error occurred but that the resulting prejudice from the error was such that reversal is warranted. Smallwood, 907 P.2d at 228; Crawford v. State, 840 P.2d 627, 634 (Okl.Cr.1992); Harrall v. State, 674 P.2d 581, 583 (Okl.Cr.1984). Further, we note that many of the instances of alleged misconduct did not receive contemporaneous objections. Therefore, unless specifically noted otherwise, we review for plain error only.
Appellant initially contends in subproposition XIA that the prosecutor improperly stated that he was lying or that he was a liar. It is well established that it is improper to call a witness or a defendant a "liar" or to say that he or she is "lying." Smallwood, 907 P.2d at 229. Nevertheless, it is permissible to comment on the veracity of a witness when such is supported by the evidence. Id. Here, such comments were proper in light of Appellant's own testimony that statements he had made to his mother and the police were not truthful. We find no error here.
In subproposition XIB, Appellant contends the prosecution demeaned his mitigating evidence, arguing it was not worthy of consideration. He further argues the prosecution misstated the law by arguing that Appellant's mitigation evidence actually proved the aggravating circumstances. Appellant relies on Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) and Penry v. Lynaugh, 492 U.S. 302, 319, 109 S.Ct. 2934, 2947, 106 L.Ed.2d 256 (1989) wherein the Supreme Court stated that persuading the sentencer to ignore mitigating evidence is error. Of the seven comments Appellant has challenged, only one was met with an objection.
This Court has held a prosecutor has the right to discuss evidence during the second stage in arguing for an appropriate punishment. Mayes v. State, 887 P.2d 1288, 1322 (Okl.Cr.1994), cert. denied, 115 S.Ct. 1260, 131 L.Ed.2d 140 (1995). We have also held that evidence used in mitigation can also be used in aggravation. Medlock v. State, 887 P.2d 1333, 1349 (Okl.Cr1994), cert. denied, 516 U.S. 918, 116 S.Ct. 310, 133 L.Ed.2d 213 (1995). Here, the jury was appropriately instructed as to the mitigating evidence and was not in any way precluded from considering
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