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).
¶ 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 jury
¶ 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:
(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
¶ 6 Next, the prosecutor argued to the jury:
(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)
¶ 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.
(Tr. Vol. 4 at 546, 547, 548-49, 550, 552, 553, 556). Defense counsel objected once to these statements, but the objection was overruled.
¶ 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:
(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).
(Tr. Vol. 4 at 555). He then continued:
(Tr. Vol. 4 at 556). Simply arguing the evidence for first degree murder, despite the judge's admonition to the jury that in his opinion the evidence was insufficient, would have been proper in this instance. It was improper, however, for the prosecutor to impugn the integrity of the court by suggesting, without evidence, as he did here, that the judge's opinion of the evidence was the result of some behind-the-scenes manipulation by Pryor. This suggestion of manipulation or deception could only have been intended to inflame jurors against Pryor. This was improper argument. See Fry, 1950 OK CR 65, 91 Okla.Crim. 326, 218 P.2d at 652; ABA Standards for Criminal Justice: Prosecution and Defense Function § 3-5.8(c) and (d) (3rd ed. 1993).
¶ 10 Finally, nearing the end of his closing argument, the prosecutor appealed to the jury for sympathy for himself and his co-prosecutor in language that strongly suggested that the fix was in against them by some unnamed powerful persons. Specifically, the prosecutor told jurors:
(Tr. Vol. 4 at 560-61) (emphasis added). The not-so-subtle thrust of this argument was that some unnamed "powerful people" were expecting the prosecutors to throw the case (i.e., take a dive), but the underdog prosecutors were bravely resisting. The argument then urges jurors to side with the prosecutors and return a guilty verdict as pushback against the influence of the unnamed powerful outsiders. The problem with this argument is that it is not based on facts in evidence. That is, there is no evidence in the record that anyone asked prosecutors to throw the case (i.e., take a dive) or that any "powerful people" had somehow intervened in the trial to influence or manipulate its outcome. As an argument based on an extraordinary claim of corruption of the trial process, a claim lacking any evidentiary basis, and having no relevance to Pryor's guilt or innocence of the charged crimes, this argument can only be seen as an attempt by prosecutors to inflame the passions and emotions of jurors against Pryor in an effort to obtain a guilty verdict. This argument was highly improper. See Fulks v. State, 1971 OK CR 69, ¶ 19, 481 P.2d 769, 771 ("[t]he desire for success should never induce [a prosecutor] to endeavor to obtain a verdict by argument based on anything except the
¶ 11 Despite finding these multiple instances of improper argument, we do not automatically reverse. Allegations of prosecutorial misconduct warrant reversal only if "the cumulative effect was such [as] to deprive the defendant of a fair trial." Warner v. State, 2006 OK CR 40, ¶ 197, 144 P.3d 838, 891; see also Hogan v. State, 2006 OK CR 19, ¶¶ 87-88, 139 P.3d 907, 935 ("[w]e evaluate the alleged misconduct within the context of the entire trial, considering not only the propriety of the prosecutor's actions, but also the strength of the evidence against the defendant and the corresponding arguments of defense counsel").
¶ 12 in this instance, the record shows that many of the prosecutor's remarks were not met with contemporaneous objection by defense counsel, but some were. Despite this, a trial court has a duty to ensure that final argument is kept within proper bounds. McCarty v. State, 1988 OK CR 271, ¶ 16, 765 P.2d 1215, 1221.
¶ 13 The evidence against Pryor was sufficient to support a first degree manslaughter conviction, but it was by no means overwhelming. Given the nature and quantity of improper argument advanced in this case, both objected-to and not, it is difficult to conclude that the prosecutor's repeated inflammatory appeals to jurors' emotions and prejudices, belittling of the defense, and arguing facts not in evidence, had no effect on the jury's assessment of the evidence and findings of guilt. The totality of improper argument in this case deprived Pryor of a fair trial and therefore requires relief. We reverse and remand this matter for a new trial.
¶ 14 The Judgment and Sentence of the District Court is
LEWIS, V.P.J., LUMPKIN and C. JOHNSON, JJ., Concur.
SMITH, J., Recuse.
http://www.americanbar.org/publications/ criminal_justice_section_archive/crimjust_standards_pfunc_toc.html and http://www.americanbar.org/content/dam/aba/ publications/criminal_justice_standards/ prosecution_defense_function.authcheckdam.pdf.
Wikipedia, Drinking the Kool-Aid, http://en. wikipedia.org/w/index.php?title=Drinking_the_Kool-Aid&oldid=427669802 (May 20, 2011, 11:45 CDT).
[W]hen the prosecutor made the following argument later in closing argument, "The only conflicts are between the defense attorney and the evidence. That's it. Don't be manipulated . . . don't be gullible," she was no longer focusing on the evidence, but instead on he-perception of the integrity and character of defense counsel. "Gullible," an adjective, means "easily duped." Merriam-Webster's Online Dictionary, www. merriam-webster.com. In effect, the prosecutor, instead of focusing on the evidence, argued to the jury that defense counsel was trying to manipulate the jury and that if they agreed with his argument then they were being easily duped. Claims of manipulation and deception by opposing counsel have no place in a closing argument. Resorting to personal attacks on defense counsel is an improper trial tactic which can poison the mind of the jury. Further, improper prosecutorial remarks can constitute reversible error when such remarks may have prejudiced the jury into finding the defendant guilty. Although defense counsel raised objections to these comments which the court overruled, it is worthy of note that it is never acceptable for one attorney to effectively impugn the integrity or credibility of opposing counsel before the jury; even in the absence of a contemporaneous objection, such comments about opposing counsel made during closing argument are fundamentally erroneous. (Internal case citations omitted).