Green v. State
Decision Date | 13 May 1980 |
Docket Number | No. F-78-523,F-78-523 |
Citation | 611 P.2d 262 |
Parties | George GREEN, Appellant, v. The STATE of Oklahoma, Appellee. |
Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
The 52-year-old appellant was convicted of Rape in the First Degree in the District Court of Kay County, Case No. CRF-77-234. Punishment was set at fifty (50) years' imprisonment.
The incident giving rise to this appeal occurred on Thanksgiving Day, November 25, 1977. The prosecutrix was living with her two small children while her husband was working out of state. The appellant, a former co-employee of her husband, lived in a garage apartment behind the residence of the prosecutrix. About 4:30 p. m. he went to her house where they talked and watched television.
The prosecutrix testified that the appellant, who had been drinking, made advances toward her during the course of the evening. She testified this was offensive to her, but she nevertheless allowed the appellant to remain in her company. About 11:30 p. m. after the children were put in bed, the appellant demanded sex with the prosecutrix. When she resisted, she was hit several times, her sweater ripped, and her bra and jeans torn. Fearing further harm, the prosecutrix did not scream for help and, in fact, she pulled her jeans and pants down when told to do so by the appellant. After being raped twice, the prosecutrix dressed herself and her children and walked to the police station.
The first question for consideration is whether the District Attorney's comments in closing argument erroneously made reference to the appellant's failure to testify. The applicable statute, 22 O.S.1971, § 701, 1 provides that a defendant's failure to testify shall not be mentioned at trial, but if commented upon by counsel is a ground for a new trial. The prosecutor's statements complained of in this appeal are:
Later, discussing the discrepancy in the testimony as to when the prosecutrix left her house and walked to the police station, the prosecutor told the jury the "time specifically is within the grasp of the defendant, if he wanted you to know exactly when she went to the police station, but he didn't want to tell you that."
It is well settled in Oklahoma that it is permissible for a prosecutor to say that the evidence presented by the State is uncontradicted and unrefuted, Coots v. State, Okl.Cr., 560 P.2d 592 (1977); Bennett v. State, Okl.Cr., 546 P.2d 659, cert. denied, 426 U.S. 940, 96 S.Ct. 2658, 49 L.Ed.2d 392 (1976). Comment on reasonable inferences drawn from the failure of the defense to contradict the State's evidence is also allowed, McDonald v. State, Okl.Cr., 553 P.2d 171 (1976). However, it is error for the prosecutor to comment, either directly or indirectly at any stage of the trial, upon a defendant's failure to take the stand. Runnels v. State, Okl.Cr., 562 P.2d 932 (1977).
We have carefully reviewed the closing arguments of both parties. We think the statement by the prosecutor that he had not heard any defense may be considered analogous to a comment that the evidence was uncontradicted and was, therefore, permissible. When the challenged remarks are read in context, they appear to be a comment on the defense counsel's closing argument rather than on the appellant's failure to take the stand.
On the other hand, the statement that the appellant was able but unwilling to tell the jury when the prosecutrix went to the police station is unquestionably not within the scope of permissible comment. However, we fail to see how this statement was prejudicial because the defense counsel had remarked earlier in his closing argument, "I assure you that it was on my advice and my assistance that Mr. Green did not testify today."
The appellant next alleges that the prosecutor's remarks during closing argument pertaining to the failure of the prosecutrix to make an outcry assumed facts not in evidence and were so inflammatory as to deny the appellant a fair trial. The complained of argument, to which defense counsel objected at trial, is as follows:
(Emphasis added)
This Court agrees with the State that it is the general rule that the right of argument contemplates a liberal freedom of speech and that the range of argumentation is wide. Hence, both sides may discuss fully from their standpoints the evidence and inferences and deductions arising therefrom. Deason v. State, Okl.Cr., 576 P.2d 778 (1978), and Battle v. State, Okl.Cr., 478 P.2d 1005 (1970). However, that right does not permit the prosecutor to bolster his argument by implications which are unsupported by competent evidence offered at trial. Bryant v. State, Okl.Cr., 585 P.2d 377 (1978).
We find the closing argument in the instant case was outside the record and was prejudicial. There is no evidence that the appellant threatened to kill or harm the prosecutrix if she screamed. Nor does the record reflect that the appellant intended to injure or hold hostage the victim's two and three-year-old children. It was highly impermissible for the prosecutor to go outside the record for the purpose of appealing to the passions and prejudices of the jury, Polk v. State, Okl.Cr., 561 P.2d 558 (1977). Still, in light of the evidence, the improper remarks cannot be said to have determined the verdict.
Refusal to give the appellant's requested instructions numbers 1, 2, 3, 5 and 6 is the...
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