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Bland v. State5/16/2000
any and all mitigating evidence. See Hamilton v. State, 937 P.2d 1001, 1010-11 (Okl.Cr.1997), cert. denied, ___ U.S. ___, 118 S.Ct. 716, 136 L.Ed. 2d 657 (1998). We find no error.
Appellant also claims the prosecutor mislead the jury about its responsibilities with regard to the death sentence in violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). In Caldwell, the Supreme Court stated that the constitution prohibits imposition of a death penalty which rests on a "determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." 472 U.S. at 320-30, 105 S.Ct. at 2633-40. Here, the prosecutor never intimated in any way that the ultimate responsibility for determining the proper sentence rested anywhere other any the jury. See Bryson v. State, 876 P.2d 240, 252 (Okl.Cr.1994), cert. denied, 513 U.S. 1090, 115 S.Ct. 752, 130 L.Ed.2d 651 (1995).
Appellant next argues in subproposition XIC that the prosecution improperly argued the jury had a civic and moral duty to return a conviction of first degree murder and impose the death sentence. Only one of the six instances of alleged misconduct drew an objection. Reviewing the comments in their entirety and in context, we find no error. The prosecutor focused on the jury's duty to serve and render a verdict based upon the evidence. The comments did not suggest that the jury's only moral course was to impose the death penalty. See Hamilton, 937 P.2d at 1010. Further, we have previously found no error in the prosecutor's acknowledging to the jury the difficulty of their task and asking them seriously to consider the punishment options available. Cargle v. State, 909 P.2d 806, 824 (Okl.Cr.1995), cert. denied, 519 U.S. 831, 117 S.Ct. 100, 136 L.Ed.2d 54 (1996). The comments here are not equivalent to those in other cases which we have held to be improper and prejudicial as playing on societal alarm or as inflaming the passions or prejudices of the jury. See Jones v. State, 610 P.2d 818, 820 (Okl.Cr.1980). The comments focused on the duty of the jurors to serve and render a verdict based upon the evidence. It did not convey the message that they must find the Appellant guilty based on emotional reaction. Pickens v. State, 850 P.2d 328, 342-343 (Okl.Cr.1993), cert. denied, 510 U.S. 1100, 114 S.Ct. 942, 127 L.Ed.2d 232 (1994).
Appellant argues in subproposition XID that the prosecutor improperly evoked sympathy for the victim in both first and second stage closing arguments. It is improper for the prosecution to ask jurors to have sympathy for victims. Tobler v. State, 688 P.2d 350, 354 (Okl.Cr.1984). However, the prosecution, as well as the defense, has the right to discuss fully from their standpoint the evidence, and the inferences and deductions arising therefrom. Carol v. State, 756 P.2d 614, 617 (Okl.Cr.1988). The comments here were based on the evidence and not merely appeals for sympathy.
In subproposition XIE, Appellant contends the prosecution improperly requested the jury to compare his life in prison to the plight of the victim. During the second stage closing argument, the prosecutor stated:
Maybe the Defendant will be in prison, maybe he will be behind that concrete and those jail bars with his T.V. and his cable and good food. But one thing for sure - Windle Rains won't be here and his family won't be able to be with him, they won't be able to share holidays with him. And Doyle Rains won't get that final visit with him that he hoped for. (Tr.VII, 200).
Counsel is not to compare the plight of the victim and his or her survivors to the advantages of a l
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