Pryor v. State.

• Decision Date: 23 June 2011
• Docket Number: No. F–2009–248.,F–2009–248.
• Citation: 254 P.3d 721,2011 OK CR 18
• Parties: PRYORv.STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

254 P.3d 721

2011 OK CR 18

PRYOR

v.STATE.

No. F–2009–248.

Court of Criminal Appeals of Oklahoma.

June 23, 2011.

An Appeal From The District Court Of Tulsa County; The Honorable Tom C. Gillert, District Judge.Clark O. Brewster, Robert R. Nigh, Jr., Brewster & Deangelis, Tulsa, OK, attorneys for defendant at trial.Scott R. Gengras, Lee F. Berlin, Assistant District Attorneys, Tulsa, OK, attorneys for State at trial.Clark O. Brewster, Robert R. Nigh, Jr., Darla S. Sedgwick, Brewster & Deangelis, Tulsa, OK, attorneys for appellant on appeal.W.A. Drew Edmondson, Oklahoma Attorney General, Jennifer Blakeney Welch, Assistant Attorney General, Oklahoma City, OK, attorneys for appellee on appeal.

SUMMARY OPINION

A. JOHNSON, Presiding Judge.

¶ 1 Appellant Susan Rollans Pryor was tried by jury in the District Court of Tulsa Count, Case No. CF–2008–691, and found guilty of First Degree Manslaughter in violation of 21 O.S.2001, § 711(2).¹ The jury recommended fifteen years imprisonment and the Honorable Tom C. Gillert, who presided at trial, sentenced Pryor accordingly. From this Judgment and Sentence, Pryor appeals.

¶ 2 Pryor's claim in her first proposition-that she was denied a fair trial because of prosecutorial misconduct-requires discussion and relief. Because we find reversal is required on that claim, we do not address her remaining claims.

¶ 3 Pryor shot and killed her friend and house-guest, Timothy Lannom who was staying with her in her Tulsa home during an ice storm in December 2007. The State originally charged Pryor with First Degree Murder and, in the alternative, First Degree Manslaughter. Prior to jury selection, however, the State was permitted, over defense objection, to dismiss the alternative count of First Degree Manslaughter. Pryor moved for a directed verdict at the conclusion of the evidence based on a lack of proof of malice aforethought. The District Court agreed and instructed the jury, under 22 O.S.2001, § 850, that it was the court's advice that the evidence did not support a conviction for first degree murder. The court, however, left the ultimate decision up to the jury² and submitted instructions on first degree murder, heat-of-passion manslaughter, and self-defense.³

¶ 4 It is a rare case in the jurisprudence of this Court that a prosecutor's misconduct during closing argument is found to be so egregiously detrimental to a defendant's right to a fair trial as to require reversal. This is such a case.

¶ 5 In his opening salvo during first closing argument, the prosecutor told jurors:

Now, as Mr. Gengras and I last night were upstairs talking about this case, going between sometimes anger, sometimes dismay, I was angry, he was dismayed, the question was is this some type of bizarro world where nothing makes sense, up is down, the rules of right and wrong don't apply, the rules of fairness? No, no. It's the confines of this courtroom.

(Tr. Vol. 4 at 510). In this argument, by expressing his own anger and sarcastically ridiculing the defense team as having turned the courtroom into a “bizarro world” where “nothing makes sense” and the “rules of right and wrong” and “fairness” “don't apply,” counsel was injecting his own beliefs and emotions into the proceeding and inviting jurors to do likewise. This belittling of the defense and blatant appeal to emotions exceeds the bounds of fair comment on the evidence and strays into the prohibited realm of argument intended to arouse the passions and prejudices of the jury. This was improper argument. See Ward v. State, 1981 OK CR 102, ¶ 3, 633 P.2d 757, 758 (“[a]rguments beyond the scope of the evidence can only be intended to arouse the passions and prejudices of the jurors and are improper”); ABA Standards for Criminal Justice: Prosecution and Defense Function § 3–5.8(c) and (d) (3rd ed. 1993) (“The prosecutor should not make arguments calculated to appeal to the prejudices of the jury ... The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence”). ⁴

¶ 6 Next, the prosecutor argued to the jury:

You've looked at the evidence, weighed the evidence, seen the credibility, if you believe her story, walk her, acquit her, send her home. That's your job. Not mine, not the defendant's, not the ladies and gentlemen in the gallery. Yours. If you think that what she did on December 18, 2007 is okay, walk her. If you've been drinking the Kool Aid, you'll probably walk her.

(Tr. Vol. 4 at 523–24). This comment, based on the implied argument that jurors would be foolish to find Pryor not guilty (i.e., knowingly drinking poisoned Kool–Aid) ⁵, is an emotional appeal that is akin to one we found improper in Duckett v. State, 1995 OK CR 61, ¶ 43, 919 P.2d 7, 19, where the prosecutor told the jury, “The evidence says he's guilty. Don't you be a party to letting a cold-blooded killer loose.” In Duckett, the prosecutor implored jurors to return a guilty verdict on an emotional basis (i.e., you will share the blame for allowing a cold-blooded killer to be set free if you acquit) and in this instance the prosecutor was likewise urging a guilty verdict on an emotional basis (i.e., you will be foolish if you acquit). As an exhortation to convict based on emotion rather than the evidence, the comment was improper. See ABA Standards for Criminal Justice: Prosecution and Defense Function § 3–5.8(c) and (d) (3rd ed. 1993).

¶ 7 A different prosecutor opened the State's final closing with a reference to testimony by two police officers who spoke to Pryor at the homicide scene. Both officers mentioned that Pryor told them that she knew the Chief of Police and the head of the detective section of the Tulsa Police Department. Beyond these brief statements, however, there was no evidence suggesting that Pryor ever attempted to improperly influence the police investigation, or that she or her attorneys attempted to improperly influence the course of the prosecution or trial. Nevertheless, despite this lack of evidence, the prosecutor repeatedly suggested to the jury that Pryor attempted to use her influence with people in high places to “manipulate” the course of the prosecution and trial. Hammering on the theme of manipulation again and again, the prosecutor asked at least seven times during the course of closing argument:

Do you think that the efforts to manipulate stopped on December 18th of 2007 or do you think that they continue in this courtroom?

(Tr. Vol. 4 at 546, 547, 548–49, 550, 552, 553, 556). Defense counsel objected once to these statements, but the objection was overruled.⁶

¶ 8 In one instance, while pursuing this manipulation theme, the prosecutor sarcastically referred to the judge's evidentiary rulings that allowed some of Pryor's biographical information into evidence and suggested that those rulings were the result of improper influence exerted by Pryor or her attorneys. He also suggested that Pryor's expert's testimony was the result of improper collusion. Specifically, the prosecutor argued:

Isn't it interesting to note that in her biography, for whatever reason it was relevant, and in her resume, for whatever reason that was found to be relevant in this case, that she is a real estate agent, not a board certified doctor of internal medicine. Yet the defense brought up that when she [Pryor] called 9–1–1, she told them that he [the victim] went crazy from Prednisone. Golly, how convenient that their expert witness made the same diagnosis that a real estate agent made on the phone to 9–1–1 and that she told Officer Miller in the police car. Isn't that convenient that as a real estate agent she was also able to make this absolutely extraordinary diagnosis, statistically improbable that this would ever happen and yet they were both able to arrive at that conclusion?

Do you think the efforts to manipulate ended that day or do you think they continued into this courtroom?

(Tr. Vol. 4 at 553). In this instance, while the prosecutor appears to be arguing the evidence, the backhanded criticism of the judge's evidentiary rulings embodied in these comments, as well as the suggestion that those rulings may have been the result of some manipulation by Pryor, and the further suggestion that Pryor's expert was merely parroting what Pryor or her attorneys told him to say, are all arguments for inferences that go well beyond any evidence produced at trial. By weaving this thread of innuendo into his argument, the prosecutor was appealing to jurors' emotions and prejudices. This is improper argument. See Green v. State, 1980 OK CR 34, ¶ 9, 611 P.2d 262, 265 (holding that right of liberal argument “does not permit the prosecutor to bolster his argument by implications which are unsupported by competent evidence offered at trial”); Fry v. State, 1950 OK CR 65, 91 Okla.Crim. 326, 218 P.2d 643, 652 (holding that while counsel are entitled to great latitude and wide freedom in closing argument, such latitude “does not authorize the use of prejudicial statements calculated to inflame the passions of the jury”); ABA Standards for Criminal Justice: Prosecution and Defense Function § 3–5.8(c) and (d) (3rd ed. 1993).

¶ 9 Again, at another point during final closing, while actually arguing the evidence for first degree murder, the prosecutor ridiculed the judge's instruction to the jury that, in his opinion, the evidence was insufficient for first degree murder. Specifically, the prosecutor told jurors:

And they tell you we haven't proven our case. Really? The judge is advising you that a reasonable jury could not find her guilty based on this evidence? Isn't that just breathtaking?

(Tr. Vol. 4 at 555). He then continued:

Do you think the efforts to manipulate ended December 18th or do you think they continued in this courtroom? And this Court is advising you that you can't find her guilty based on this evidence. Isn't that just breathtaking?

(Tr. Vol. 4 at 556). Simply arguing the evidence for first degree...