PROSECUTORIAL MISCONDUCT
Baker, Jimmy Lee v. State, COCA Case No.
F-2009-528 (June 23, 2010)
(Due Process; Prosecutorial Misconduct) State failed to disclose the
victim’s pending drug charges, plea agreement, and prior felony conviction
contrary to Brady v. Maryland. Reasonable probability that had the
evidence been disclosed to the defense, the result of the trial would have been
different. Reversed and remanded for new trial.
Bratcher, Allen Eugene v. State, COCA Case No.
F-2009-794
(April 22, 2011)
(Prosecutorial Misconduct; Sentence, Excessive) Prosecutor’s statements
during his second closing were improper appeals for sympathy for the
victim...the remarks provided a foundation for the request6 of a 70 year
sentence, which COCA also deemed "excessive." Sentence modified to 30 years.
Caves, Peggy L. v. State, COCA Case No.
F-2006-301 (May 10, 2007)
(Prosecutorial Misconduct) Judgment affirmed, however fine modified due to
improper testimony regarding a related civil suit, and because of prosecutor’s
appeal to juror sympathy.
Chance, Lonnie Sie v. State, COCA Case No.
F-2010-1123 (September 23, 2011)
(Fines, Fees and Costs; Prosecutorial Misconduct; Sentencing, Excessive;
Evidence, Other Crimes) Error in the introduction of prior J&S and "pen pack"
with improper references to pardon and parole combined with prosecutor’s
argument was plain error requiring modification. Misdemeanor sentence modified
because it was not subject to enhancement. Remanded for restitution hearing to
determine actual loss.
Clayborne, Mark Anthony v. State, COCA Case No.
F-2011-509 (September 10, 2013)
(Prosecutorial Misconduct; Jury Instruction, Misleading/Confusing) Conviction
for preparing false evidence by attorney reversed.
Dickson, John Wesley v. State, COCA Case No. F-2001-1445
(November 5, 2002)
(Prosecutorial Misconduct) Possession of CDS AFC affirmed but sentence modified
from 40 years to 20 years. Prosecutor's improper argument stating his opinion of
the appropriate sentence improperly influenced the jury's sentencing decision.
Downey, Billy Mack v. State,
COCA Case No. F-2001-106
(Evidence-General; Prosecutorial Misconduct; Jury
Instructions-Misleading/Confusing.) Victim impact evidence inadmissible in the
guilt/innocence stage. Trial court erred in excluding evidence based on the Rule
of Sequestration. Newly discovered evidence was material and not cumulative.
State should not have been allowed to impeach a defense witness with a deferred
judgment. Trial court's "supplemental instructions" increased juror
confusion. Jury should have been instructed that co-defendants were accomplices
as a matter of law. Reversed and Remanded for a New Trial.
Eslick, Gina Diane v. State, COCA Case No.
C-2013-254 (November 18, 2013)
(Guilty Plea Decisions; Prosecutorial Misconduct) Error for attorney who
counseled plea also represented at Motion to Withdraw Plea hearing. Remanded for
new hearing.
Fairley, Ganey Marques v. State, COCA Case No.
F-2017-1215 (December 5, 2019)
(Prosecutorial Misconduct; Abuse of Discretion) Evidence of prior abuse
allegation presented to jury solely through prosecution’s cross-examination was
more prejudicial than probative. Remanded for resentencing.
Fajardo, Eduardo Rivera. v. State, COCA Case No.
F-2007-690 (July 24, 2008)
(Prosecutorial Misconduct; Sentence, Excessive) Prosecutorial misconduct and
erroneous combination of sentencing options required modification of sentence.
Fajardo, Jose v. State,
COCA Case No. F-2001-1506
(November 18, 2002)
(Prosecutorial Misconduct - "Special Advocate" ) Trial Court committed
reversible error and violated Appellant's right to due process when it allowed a
"special advocate" for the victim to participate in the trial. There
is no statutory authority for the appointment of special advocate in a lewd
molestation/indecent proposal case. Fundamental error when advocate cross
examined witnesses and took an active and adversarial role. Reversed and
remanded for new trial.
Fire, Brian Wheatley v. State, COCA Case No. F-2002-548 (August 6,
2003)
(Prosecutorial Misconduct; Evidence - Vouching) Social worker improperly
vouched for credibility of victim. Prosecutor repeatedly impeached Appellant
with his post-arrest silence. Reversed and remanded for new trial.
Fleming, David Lynn v. State, COCA Case No.
F-2012-1014 (February 11, 2014)
(Sentence, Excessive; Prosecutorial Misconduct) Sending unredacted judgments and
sentences to the jury was error. Sentence modified to 30 years.
Fomby, Charles Clifton v. State, COCA Case No.
F-2005-855 (August 14, 2006)
(Evidence, Other Crimes; Sentencing; Prosecutorial Misconduct) Error in
modifying OUJI-CR 10-21 to include the amount of time defendant served on prior
convictions, together with prosecutorial misconduct, required modification of
sentences from 60 years on two counts, consecutive, to 30 years on each count,
concurrent.
Gibbs, Byron Keft v. State,
COCA Case No. F-2001-1061
(September 27, 2002)
(Prosecutorial Misconduct.) Plain error occurred when prosecutor over
zealously cross-examined Appellant regarding his veracity. Prosecutor also made
improper comments concerning the right to remain silent and confusing
misstatements regarding the burden of proof on Appellant's "defenses".
Sentence modified.
Gibbs, Franklin Lee, Jr. v. State, COCA Case No.
F-2004-649 (March 9, 2006)
(Jury Selection; Due Process; Prosecutorial Misconduct) Denial of statutory
peremptories is structural error, not subject to harmless error review. Also,
first degree murder cases cannot be enhanced under the habitual offender act.
Reversed and remanded for new trial.
Gibson, Frank Leroy v. State, COCA Case No.
F-2010-651 (December 13, 2011)
(Prosecutorial Misconduct) Trial court erred in informing jury of defense
counsel’s pending criminal case. Prosecutor erred in stating opinion of
defendant’s guilt and vouching for state’s witness. Life sentence modified to 25
years
Hawkins, Gavin Lee v. State,
COCA Case No. F-2001-264
(May 17, 2002)
(Prosecutorial Misconduct. Twenty year sentence for lewd molestation modified to
ten years by reason of an improper prosecutorial closing argument.)
Hoffman, Phill Davonne, Robert C. v. State, COCA Case No.
F-2009-1 (October 29, 2009)
(Evidence, Other Crimes; Prosecutorial Misconduct) State’s exhibit included
unredacted certified copy showing prior suspended sentence had been revoked in
full. Admission of the exhibit was plain error, compounded by prosecutor’s
inquiry on cross examination of Appellant. Also, prosecutor’s closing was
improper. Sentence modified to the minimum.
Holmes, Aaron M. v. State, COCA Case No.
F-2013-668 (August 26, 2014)
(Prosecutorial Misconduct; Sentence, Excessive) Plain error found when
prosecutor improperly instructs jurors about prior suspended sentences. Sentence
modified from life to thirty years.
Huff, Sheri Denise v. State,
COCA Case No. RE-2002-174
(November 6, 2002)
(Fines, Fees & Costs; Sentence - Excessive) Improper to add incarceration
fees at time of revocation; fees vacated. Sentences modified to run concurrently
instead of consecutively.
James, Kenneth Ray v. State, COCA Case No.
F-2003-1421 (August 11, 2006)
(Prosecutorial Misconduct) Argument indicating jurors had a civic duty to
find for the State was improper. No objection lodged, but sentence modified.
James, Vernon Leroy v. State, COCA Case No.
F-2008-1095
(October 20, 2009)
(Prosecutorial Misconduct) Prosecutorial Misconduct in argument and
admission of evidence required modification. Prosecutor engaged in argument in
opening statement; appealed to jury sympathy during closing argument; 18
photographs were unnecessarily cumulative. Sentence modified to 45 years.
Jenkins, Steven Eugene v. State, COCA Case No.
F-2014-396 (September 29, 2015)
(Prosecutorial Misconduct; Sentence, Excessive) Improper admission of evidence
and argument related to probation inflated sentence imposed. Modified from 30 to
20 years.
Joice, Brian Frederick v. State, COCA Case No.
RE-2018-1233 (March 5,
2020)
(Revocation / Acceleration Decisions; Abuse of Discretion; Due Process;
Ineffective Assistance of Counsel; Sentence, Excessive; Prosecutorial
Misconduct) Ineffective assistance for failure to object to revocation on
grounds of jurisdiction and excessive sentence. Original sentence exceeded
statutory maximum; revocation application was untimely; district court lacked
jurisdiction to revoke expired sentence; and the revocation of expired sentence
was invalid. Reversed with instructions to dismiss.
Kingery, Earnest Ray Jr. v. State, COCA Case No.
F-2006-1015 (November 27, 2007)
(Evidence, Other Crimes; Prosecutorial Misconduct) Defendant charged with
one rape, but State presented evidence of additional offense. The combined
weight of testimony and argument regarding the uncharged conduct resulted in
modified sentence.
Kessee, John Fitzgerald v. State, COCA Case No.
F-2004-989
(February 2, 2006) (Prosecutorial Misconduct; Sentence, Excessive) Plain
error for prosecutor discuss length of prior sentences in relationship to the
dates of convictions. Parole improperly considered during sentencing
deliberations. Sentence modified.
Langley, Marty Lee v. State, COCA Case No.
F-2012-639 (October 23, 2013)
(Prosecutorial Misconduct) Error in State’s failure to elect which alleged
incident upon which it was relying for conviction, thus depriving defendant of
right to unanimous verdict. Reversed and remanded for new trial.
Mahaffey, James Lyman v. State, COCA Case No.
F-2010-267 (July 19, 2011)
(Prosecutorial Misconduct; Sentence, Excessive) Prosecutor reading Bible
verses that had been referenced, but not read into evidence, was plain error and
prejudicial. Prosecutor’s explanation of what a "life" sentence meant misstated
the meaning of the 85%. Sentences modified to run concurrently.
Mardis, Eric Josiah v. State, COCA Case No.
F-2014-942 (February 4, 2016)
(Prosecutorial Misconduct; Sentence, Excessive) Sentences for 5 counts of lewd
mol reduced from 100 years to 50 years per count (still consecutive). Jury was
improperly allowed to view client’s juvenile mental health record as it had
"little if any probative value."
McFarland, Todd Wayne v. State, COCA Case No.
F-2006-17 (November 14, 2007)
(Prosecutorial Misconduct; Jury Instructions, Misleading/Confusing) Sentence
modified to vacate fine due to improper prosecutorial argument and erroneous
instruction which indicated a fine was mandatory.
McNeil, Delbert Earl Jr. v. State, COCA Case No.
F-2004-197 (June 8, 2005)
(Prosecutorial Misconduct; Evidence, Other Crimes) Evidentiary harpoons and
“grossly improper” testimony given by the officer were not cured by admonition
of the trial court. The error appears to have determined the verdict. Reversed
and remanded for new trial.
Nahwooksy, Jonathan Bear Robe v. State, COCA Case No.
F-2012-236 (December 5,
2013)
(Prosecutorial Misconduct; Sentencing, Excessive) Prosecutor appealed to
sympathy for victim and portrayed investigating officer and herself as
"champions of the victim and of justice." Sentence modified.
Noble, Terriss Donahue v. State, COCA Case No.
F-2004-1065 (August 12, 2005)
(Evidence, Vouching; Prosecutorial Misconduct) Welfare worker improperly
testified that victim was truthful; trial court erred in denying requested
instruction on impeachment; prosecutor improperly referred to defendant as a
“monster.” Cumulative effect of errors required reversal. Reversed and remanded
for new trial.
Nye, James Newton v. State, COCA Case No.
F-2005-41 (May 22, 2006)
(Sentence, Excessive; Prosecutorial Misconduct) Modification required because
sentence was excessive and because of prosecutorial misconduct - namecalling,
arguing issues of parole, arguing "guilt by association", and improper
bolstering. Sentence modified from 60 years to 20 years.
O’Neal, Johnny Sanders IV v. State, COCA Case No.
F-2012-226 (October 15, 2013)
(Prosecutorial Misconduct) Sentence modified upon finding of plain error for
injection of parole/probation into sentencing decision.
Orcutt, Daniel Kelly v. State, COCA Case No. F-2001-1529
(June 19, 2003)
(Jury Deliberations; Prosecutorial Misconduct) Reversible error occurred in
allowing jury to separate during deliberations over objection. Also,
prosecutor's statements on defendant's failure to testify were error. Reversed
and remanded for new trial.
Owen, Timmy Eugene v. State, COCA Case No.
F-2006-598
(April 13, 2007)
(Sentence, Excessive; Prosecutorial Misconduct) State improperly questioned
defendant about specific allegations regarding offenses for which he was
imprisoned when he escaped. Sentences reversed and remanded.
Paddock, Joe Lynn v. State, COCA Case No.
F-2003-336 (June 21, 2004)
(Prosecutorial Misconduct) Prosecutor made repeated references concerning right
to remain silent and personal attacks that had no relevance except to influence
the jury. Sentences on Counts I and II modified from 50 to 25 years.
Phillips, Jimmy Allen v. State, COCA Case No.
F-2004-576 (June 8, 2005)
(Prosecutorial Misconduct) Defendant denied a fair trial because of improper
remarks made by the prosecutor during closing argument. Some form of relief
warranted as incentive against such improper argument. Sentences modified to run
concurrently.
Pollard, Omar Sharrod v. State, COCA Case No.
F-2012-732 (February 26, 2014)
(Sentence, Excessive; Prosecutorial Misconduct; Evidence, Other Crimes)
Inclusion of numerous transactional prior felonies and information regarding the
suspended sentences on those cases. Sentence modified from 40 years to 25 years.
Robbins, David Wayne v. State, COCA Case No.
F-2004-907 (August 5, 2005)
(Prosecutorial Misconduct) Prosecutor’s sentencing stage closing arguments made
unmistakable references to the pardon and parole system to Appellant’s
prejudice. Sentence modified.
Robertson, Steven Wayne v. State,
COCA Case No.
F-2001-313 (March 13, 2002)
(Prosecutorial Misconduct, Excessive Sentence; Persistent improper comments by
prosecutor require modification of sentence.)
Romo, Johnnie Edward v. State,
COCA Case No. O-98-461
(April 13, 1999)
(Revocation) State did not exercise due diligence in prosecuting application
to revoke. State allowed Appellant's suspended sentences to expire before
actually obtaining his presence in open court, even though his whereabouts were
readily apparent. Reversed and remanded with instructions to dismiss.
Sanders, Marc v. State,
COCA Case No. F-1998-784, (Sept.
21, 1999)
(Prosecutorial Misconduct, Closing Argument)
Sinclair, Luke v. State, COCA Case No.
F-2004-146
(June 8, 2006) (Prosecutorial Misconduct; Sentence,
Excessive; Jury Instructions, Other) Jury improperly influence by Prosecution’s
inflammatory argument. Jury should have been informed of 85% rule. Reversed and
remanded for resentencing.
Scyffore, Eddie v. State,
COCA Case No. F-1997-1268, (July
7, 1999)
(Prosecutorial Misconduct, Closing Argument, reference to parole)
Smith, Joseph Lander v. State, COCA Case No.
F-2009-535 (July 2, 2010)
(Prosecutorial Misconduct; Evidence, Other Crimes; Sentence, Excessive)
Failure to redact information re: defendant’s prior suspended sentence and
State’s use of this information in closing required modification. Sentence
modified.
State v. Moyers, Larrie & Theresa, COCA Case No.
S-2006-117 (August 29, 2006)
(Prosecutorial Misconduct) State appeal. Trial court dismissed new charges
filed after judicial modification of sentence reached through plea bargain in
the same case. Court found no abuse of discretion in trial court’s ruling that
the filing of new charges was retaliatory, and affirmed.
Thompson, Gregory Scott v. State, COCA Case No.
F-2006-68 (May 22, 2007)
(Prosecutorial Misconduct; Sentence, Excessive) Murder I sentence modified
from LWOP to Life because trial court erred in bifurcating Murder I trial and
allowing State to present prior convictions. Also, jury should have been
instructed on 85% rule.
Van Dusen, Jason v. State, COCA Case No.
F-2003-1316
(October 13, 2004)
(Prosecutorial Misconduct; Sentence, Excessive) Prosecutor improperly injected
the possibility of parole into second stage closing argument. Sentences modified
from 75 years to 30 years.
Watson, Walter Dewitt v. State, COCA Case No.
F-2007-638 (August 17, 2009)
(Double Jeopardy/Double Punishment; Prosecutorial Misconduct; Fines, Fees
and Costs) Separate convictions for trafficking different kinds of CDS (meth and
cocaine), and separate convictions for possession of a sawed off shotgun and
possessing the shotgun and other firearms during the commission of a felony each
constitute multiple punishments for single offenses. One trafficking count and
one count possession of firearm reversed. State’s misstatement of evidence in
closing argument required modification of sentence. Fines vacated because
imposed by the judge and not the jury.
Wiggins, James Lee v. State, COCA Case No.
F-2003-1145 (September 10, 2004)
(Prosecutorial Misconduct) Sentence modified because of improper comments
regarding actual time served on prior convictions.
Whitmore, Marion v. State, COCA Case No.
F-2004-1283 (July 7, 2006)
(Prosecutorial Misconduct; Sentence, Excessive) Prosecutor drew improper
inferences from defendant’s failure to serve full sentences on prior
convictions. Sentence modified.
Wright, Larry Eugene v. State, COCA Case No.
F-2005-5577
(December 5, 2006)
(Prosecutorial Misconduct) One of four counts dismissed because prosecutor
argued prior convictions as propensity for guilt. Second prosecutor improperly
shifted burden of proof by arguing that to acquit, the jury had to believe
everything the defendant said.
Young, Hugo v. State,
COCA Case No. RE-2000-251, (Feb. 2,
2001)
(Revocation, excessive sentence, abuse of discretion)
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