Goulsby v. State

PARKS, Judge,

concurring in results:

At page 5 of the majority opinion, it is stated that “[ajlthough [the prosecutor] did address the veracity of the appellant ... [s]uch an argument is proper if supported by the evidence.” While I would agree that a prosecutor is entitled to argue contradictions and inconsistencies supported by the evidence, “[i]t is unprofessional conduct for the prosecutor to express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.” ABA Standards for Criminal Justice, The Prosecution Function, § 3-5.8(b). In addition, contrary to the view of the majority that “any” error is waived by the failure to object, a majority of this Court has stated that the failure to object to improper comments by the prosecutor waives all but “fundamental” error. See McLeod v. State, 725 P.2d 877, 881 (Okl.Cr.1986). See also Rogers v. State, 721 P.2d 820, 825 (Okl.Cr.1986) (Judge Bussey opinion stating that because appellant failed to object at trial to allegedly improper prosecutorial statements “she has waived her right to object on appeal, absent fundamental error.”) With regard to the alleged misstatements of evidence which Were not objected to, and for which the trial court failed to admonish the jury, the comments of the prosecutor appear to be reasonable inferences based upon confusing and contradictory testimony. I have found no error sufficient to warrant reversal or modification in this case, and I therefore concur in the result reached by the majority.