Freeman v. State

*1333PARKS, Presiding Judge,

dissenting:

I must respectfully dissent for the reasons stated in my dissent to Freeman v. State, 721 P.2d 1327 (Okl.Cr.1985).

In addition, the prosecutor in this case went well beyond the bounds of proper conduct when he repeatedly stated that the appellant had lied on the witness stand. (Tr. 573-5). This Court has uniformly condemned such comments. Fulks v. State, 481 P.2d 769 (Okl.Cr.1971); Robertson v. State, 521 P.2d 1401 (Okl.Cr.1974); Dupree v. State, 514 P.2d 425 (Okl.Cr.1973); Cobbs v. State, 629 P.2d 368 (Okl.Cr.1981); and Capps v. State, 674 P.2d 554 (Okl.Cr. 1984).

In some of these cases, we upheld the convictions on the grounds that the defendant had failed to object and the remarks were either fair comments on the evidence or insufficient prejudice existed. Fulks, Robertson, Capps, Supra. However, other cases have been reversed despite the lack of sufficient objection. Dupree, Cobbs, Supra. For example, in Dupree, Judge Bussey quoted with approval the following language from Ray v. State, 510 P.2d 1395, 1401 (Okl.Cr.1973):

This argument was highly improper and should have been stopped by the trial judge and the jury advised to disregard it. Although counsel, in closing argument may comment upon the evidence in the case and logical inferences therefrom, he may not inject his personal opinions or beliefs, nor may he speculate as to future criminal proceedings, nor state that witnesses have committed perjury absent a judgment of perjury. See 50 A.L.R.2d 766.

In the face of such repeated condemnations, it is apparent that the prosecutor is either unfamiliar with the rules of this Court, or he is deliberately violating those rules in order to gain an unfair prosecutorial advantage. In either instance, I would apply this Court’s reasoning in Cobbs, wherein at page 369, we stated:

Although defense counsel failed to object to the numerous instances of prose-cutorial misconduct, we conclude that their combined effect was so prejudicial as to adversely affect the fundamental fairness and impartiality of the proceedings and mandate a new trial. See Reeves v. State, 601 P.2d 113 (Okl.Cr. 1979).

Accordingly, I would reverse and remand for new trials, with instructions to sever the charge of Injury to a Minor Child.