 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Bland v. State5/16/2000
o egregious as to deprive Appellant of a fair trial. Accordingly, this assignment of error is denied.
C.
In his twelfth assignment of error, Appellant contends the prosecution improperly shifted the responsibility of imposing the death sentence from the jury onto Appellant and others in violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985). This is a continuation of the argument raised above, with Appellant directing us to two additional comments which he claims relieved the jury of its responsibility to evaluate the propriety of the death sentence in Appellant's case. Reviewing these comments for plain error only as no contemporaneous objections were raised, we find nothing in the comments which mislead the jury in an attempt to insulate them from their decision or which sought to give the jury a view of its role in the capital sentencing proceeding that was "fundamentally incompatible with the Eighth Amendment's heightened 'need for reliability in the determination that death is the appropriate punishment' " in this particular case. Bryson, 876 P.2d at 252 quoting Caldwell, 472 U.S. at 340, 105 S.Ct. at 2645, 86 L.Ed.2d at 246. See also Walker v. State, 887 P.2d 301, 322 (Okl.Cr.1994), cert. denied, 516 U.S. 859, 116 S.Ct. 166, 133 L.Ed.2d 108 (1995). Further, in light of the explicit instructions given to the jury during second stage concerning their consideration of the sentencing options, nothing in the prosecutor's argument can be said to have diverted the jury from its "awesome responsibility." Pickens, 850 P.2d at 343 quoting Caldwell, 472 U.S. at 330, 105 S.Ct. at 2640. Accordingly, this assignment of error is denied.
D.
In his thirteenth assignment of error, Appellant contends the prosecutor improperly commented on his post-arrest silence and the trial court erred in failing to grant a mistrial. We are directed to the prosecutor's cross-examination of Appellant and first stage closing argument. The record shows no objections were raised during the State's cross-examination of Appellant therefore we review only for plain error.
On direct examination, Appellant admitted he tried to cover up the fact that he had killed the victim and that he had lied about the incident for a period of time. On cross-examination, the prosecutor asked Appellant why he did not come forward with the truth prior to being arrested. Appellant cannot now complain about the prosecutor's examination as any error was invited by Appellant opening up the topic of his pre-arrest silence on direct examination. See Teafatiller v. State, 739 P.2d 1009, 1010-11 (Okl.Cr.1987).
During first stage closing argument, the prosecutor commented on Appellant's post-arrest silence by stating in part "then how do you explain his silence once Agent Briggs arrested him?" Defense counsel objected and requested a mistrial. The trial court sustained the objection and admonished the prosecutor to refrain from commenting on the defendant's post-arrest silence. The motion for a mistrial was overruled and the jury was admonished to disregard the comments of the prosecutor "in regard to the defendant's silence or non-silence prior to his beginning to make the voluntary statement to Agent Goss." Further, the prosecutor was admonished to cover up those sections of a chart prepared by the State which reflected Appellant's post-arrest silence.
Generally, the prosecution may not comment on the defendant's post-arrest silence. Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91 (1976); Parks v. State, 765 P.2d 790, 793 (Okl.Cr.1988). However, error may be harmless where there is overwhelming evidence of guilt and the de
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Oklahoma DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|