Stover v. State
This text of 1980 OK CR 81 (Stover v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
OPINION
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 [900]*900the 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-ai 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 rem-edy 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 con[901]*901sider 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.
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Cite This Page — Counsel Stack
1980 OK CR 81, 617 P.2d 898, 1980 Okla. Crim. App. LEXIS 198, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stover-v-state-oklacrimapp-1980.