specially concurring:
While I concur in this decision, I do not agree that all the statements cited in the majority opinion are error. Also, insofar as no objections were entered to the statements now complained of, they must be of a fundamental nature to be considered on appeal. Some of those statements may constitute fundamental error. I must agree that the prosecutor did state his personal opinion concerning appellant’s guilt, which is clearly improper. And, the prosecutor’s personal remarks concerning what he might have done if his check appeared to be subject to return by the bank are clearly irrelevant. Further, it was improper for the prosecutor to discuss the failure of appellant’s mother and sister to make an appearance at appellant’s trial. In short, I believe the prosecutor became carried away in his argument and did get outside the record.
Again however, I do not agree that the use of the word “conned” was improper. Two witnesses testified that appellant conned them; consequently the comments were a proper discussion of evidence before the jury. Also, at least two witnesses testified that appellant represented himself to them as being an attorney. Nonetheless, the prosecutor’s long harrangue concerning the jury’s holding of appellant to the standards of an attorney was unnecessary. The prosecutor knew appellant was not an attorney. The prosecutor’s statement to the jury that appellant had been passing bad checks for the past ten years, because ten years earlier he suffered a conviction for a similar crime, was improper. As I read the record there was no evidence indicating other bad checks were passed during that ten year period. Appellant was being tried for the one offense. Other imagined offenses should not have been expressed in order to enhance the punishment.
Because of the improper closing argument which may have overly impressed the jury, I therefore concur that the sentence was excessive and should be modified.