Abbott v. State

BRETT, Judge,

specially concurs.

I concur that this conviction should be affirmed. I offer two comments. First, the defense of entrapment was clearly not established. Therefore, the instruction was not required. And, even though the closing arguments of the prosecutor did not cause an excessive punishment, he treaded upon very thin ice. The prosecutor’s closing argument was primarily directed toward punishment. While it was not as flagrant as that reflected in Tart v. State, 634 P.2d 750 (Okl.Cr.1981), had appellant been given the maximum punishment modification would probably be warranted because of the closing argument. In the instant case however, the punishment was not excessive and it becomes apparent that the jury was not overly influenced by the nature of the closing argument. Prosecutors should be reminded that the initial question concerns the innocence or guilt of the accused. The extent of punishment should be argued, in a one stage trial, after argument concerning the guilt of the accused is completed. See, Tart, supra.