Stover v. State, F-79-568
Citation | 617 P.2d 898 |
Decision Date | 19 September 1980 |
Docket Number | No. F-79-568,F-79-568 |
Parties | Stephen "Steve" Eric STOVER, Appellant, v. The STATE of Oklahoma, Appellee. |
Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
On appeal from a conviction for Robbery With Firearms, After Former Conviction of a Felony, in Grady County District Court, Case No. CRF-78-134, wherein punishment was set at twenty (20) years' imprisonment, the appellant, Steven "Steve" Eric Stover, hereinafter referred to as the defendant, urges several assignments of error, only one of which is determinative of this appeal. He argues that the prosecutor improperly commented on the defendant's right to remain silent, in violation of 22 O.S.1971, § 701. 1
During voir dire examination, 2 the prosecutor commented on the interest and bias the defendant would have in the outcome of the trial if he were to testify in his defense, which improperly called the jury panel's attention to the defendant's right to remain silent. The defendant raised a timely objection thereto and moved for a mistrial. 3
Although selection of a jury contemplates wide latitude by the State as well as by the defendant, "it is error for the prosecutor to comment-either directly or indirectly-at any stage of the jury trial -upon the defendant's right to remain silent." Hanf v. State, Okl.Cr., 560 P.2d 207, 211 (1977). (Emphasis original, footnotes omitted.) And, defense counsel must preserve the error by timely objecting to the comment and moving for mistrial, the only remedy available, since an admonishment to the jury would only compound the error. Runnels v. State, Okl.Cr., 562 P.2d 932 (1977).
The State attempts to justify the prosecutor's statements as invited error and argues that defense counsel opened the door when he questioned jurors regarding the State's burden to prove its case. 4
We do not agree that the general statements of the defense counsel invited the prosecutor to specifically call attention to the defendant's right to remain silent, nor to elaborate on the interest the defendant had in the outcome of the trial. Permitting the prosecutor to outline for the jury the consideration to be given the defendant if he chose to testify and to consider the defendant's bias, interest, credibility and the weight to be given his testimony was in direct violation of Section 701 and this Court's pronouncement in Hanf v. State, supra.
Since the defendant made timely objection and timely moved for mistrial, his motion for new trial should have been sustained.
For the above and foregoing reasons, we are of the opinion that the judgment and sentence should be and hereby is REVERSED and REMANDED for new trial.
1 Title 22 O.S.1971, § 701, reads:
"In the trial of all indictments, informations, complaints and other proceedings against persons charged with the commission of a crime, offense or misdemeanor before any court or committing magistrate in this State, the person charged shall at his own request, but not otherwise, be a competent witness, and his failure to make such request shall not create any presumption against him nor be mentioned on the trial; if commented upon by counsel it shall be ground for a new trial."
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Robison v. State
...upon the defendant's right to remain silent. Hanf v. State, 560 P.2d 207 (Okl.Cr.1977). When a similar situation arose in Stover v. State, 617 P.2d 898 (Okl.Cr.1980), this Court reversed the conviction. The reversal was predicated on the prosecutor's comments followed by defense counsel's t......