Stouffer v. State

PARKS, Judge, specially

concurring:

Although I concur in the affirmance of the judgment and sentence, I write separately to discuss the issue of prosecutorial misconduct during closing argument. At several points, the prosecutor improperly expressed his opinion as to the truth or falsity of appellant’s testimony:

You have had to lie a lot in this case, haven’t you? (Tr. 831) ... They said there’s two sides to every story. That’s right. You heard Bud Stouffer’s. It’s so preposterous it’s beyond belief by anybody. (Tr. 934)

Such argument is clearly improper and constitutes a violation of Section 3-5.8(b) of the ABA Standards for Criminal Justice, The Prosecution Function (1980). See Lewis v. State, 569 P.2d 486, 488-89 (Okl.Cr.1977). The prosecutor also erred when he gave his opinion that he had proved the appellant’s guilt to the satisfaction of the jury, and that the appellant “lost the presumption of innocence when [he] got up here and told you what he did to him.” *1364Such remark was improper because it expressed the prosecutor’s opinion that the appellant was guilty, and because it “is not proper for the prosecutor to decide to whom the presumption applies.” Robinson v. State, 574 P.2d 1069, 1072 (Okl.Cr.1978). The failure to make timely specific objections to each of the comments waived all but fundamental error. McLeod v. State, 725 P.2d 877, 881 (Okl.Cr.1986). The trial court properly instructed the jury on the presumption of innocence. In light of the strong evidence of guilt against the appellant, and the failure to properly preserve each of the comments for review, I cannot say that the foregoing remarks undermined confidence in the jury’s verdict so as to require a reversal or modification.

Finally, I have compared the sentence imposed herein to previous cases which this Court has either affirmed or modified, and find the sentence to be proper. See Fisher v. State, 736 P.2d 1003, 1015 (Okl.Cr.1987), and cases cited therein. See also James v. State, 736 P.2d 541 (Okl.Cr.1987).