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Bland v. State5/16/2000
ive defendant in prison. Short, 980 P.2d at 1104; Le v. State, 947 P.2d 535, 554 (Okl.Cr.1997), cert. denied, 524 U.S. 930, 118 S.Ct. 2329, 141 L.Ed.2d 702 (1998); Duckett v. State, 919 P.2d 7, 19, (Okl.Cr.1995), cert. denied., 519 U.S. 1131, 117 S.Ct. 991, 136 L.Ed.2d 872 (1997). However, under the evidence in this case, we cannot find the comments affected the sentence.
In subproposition XIF, Appellant argues the prosecution improperly demeaned and ridiculed him during first and second stage closing argument. We have reviewed the comments noted by Appellant and while we find that some of the comments certainly tested the bounds of proper argument in personal criticism of the Appellant, we do not find that Appellant was unduly prejudiced by the comments or that these comments affected the verdict or the sentence in this case. Tibbs v. State, 819 P.2d 1372, 1380 (Okl.Cr.1991).
In subproposition XIG Appellant also argues the prosecutor improperly argued facts not in evidence. These comments will be reviewed under the well established rule that a minor misstatement of fact will not warrant a reversal unless, after a review of the totality of the evidence, it appears the same could have affected the outcome of the trial. See Hartness v. State, 760 P.2d 193 (Okl.Cr.1988); Aldridge v. State, 674 P.2d 553 (Okl.Cr.1984).
Initially, Appellant directs us to a comment concerning eye glasses discovered near the victim's body. The prosecutor commented that the eye glasses belonged to the victim and their location near the body was evidence of a struggle. No witness identified the eye glasses as belonging to the victim. However, their close proximity to the body could raise a reasonable inference that they belonged to the victim. Any misstatement could not have affected the outcome of the trial.
Next, Appellant complains about the prosecutor stating that Connie Lord's testimony about Appellant having the victim's wallet was corroborated by Trooper Fisher. Reviewing the prosecutor's statements, we do not find the prosecutor ever stated that Trooper Fisher said he saw Appellant with the victim's wallet. The prosecutor reviewed what each witness had said about the wallet, and commented only that while in Chandler, the trooper saw Appellant with lots of money. The statements of the prosecutor were properly based on the evidence.
Appellant further argues that during second stage closing argument the prosecutor improperly argued that robbery was the motive for the killing. Appellant contends that since the jury had acquitted him of the felony murder charge, to continue to argue that Appellant committed the murder in order to rob the victim was a misstatement of the evidence and mislead the jury as to the inference it could draw. We find the prosecutor's comments were reasonable inferences based on the evidence. Further, as a conviction for either malice aforethought murder or felony murder makes a defendant death eligible, any error in the prosecutor's comments could not have mislead the jury as to the inferences or conclusions it could draw from the evidence.
Finally, in subproposition XIH, Appellant argues the absence of contemporaneous objections to some of the prosecutor's remarks does not constitute waiver of prejudice due to the combined effect of the erroneous arguments. "Allegations of prosecutorial misconduct do not warrant reversal of a conviction unless the cumulative effect was such to deprive the defendant of a fair trial." Duckett, 919 P.2d at 19. We have thoroughly reviewed all of the challenged comments in this case, and while some of the comments may have been improper, the cumulative effect of any inappropriate comments was not s
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