Newbury v. State

PARKS, Judge,

specially concurring:

I concur in the results of this case; however, I feel it necessary to note my dismay at the attempts by the prosecutor in this case to evoke sympathy and societal alarm from the jury. Prosecutors should be wary of remarks that are intended only to inflame the passion and prejudice of the jury. They should refrain from remarks that are obviously contrary to the established Code of Professional Ethics and Case Law dealing with mitigating facts and propounding unfounded questions to a witness. Were it not for the strong circumstantial evidence in this case, the remarks might have caused prejudicial error.

I concur in the Chief Justice’s admonishment to the state to explore alternative forms of proof before introducing live photographs of the victims. In not condoning live photographs, I am expressing a concern for the vast prejudicial impact the photographs could have on a jury. [See Smith v. State, 650 P.2d 904, 910 (Okl.Cr.1982) in footnote 10.]