Published: September 02, 2007 02:54 pm      

Malone won’t face death penalty

OKLAHOMA CITY — OKLAHOMA CITY (AP) — The Oklahoma Court of Criminal Appeals on Friday threw out the death sentence handed a man convicted of killing Oklahoma Highway Patrol trooper Nikky Green in 2003.

The appeals court let stand the conviction of Ricky Ray Malone, a former Duncan firefighter, but said a Comanche County court must retry the second phase of the trial, which led to the death sentence.

The opinion said closing statements made by Comanche County District Attorney Robert Schulte were “egregiously improper and unfairly prejudicial.”

Among other things, the court held it was “improper to so directly and profusely appeal to sympathy for the family member victims” and to invoke “the powerlessness, the indignities and the depersonalization” the American trial system imposes on victims and their families.

“It was improper for the prosecutor to so blatantly suggest that Malone’s jurors should sentence him to death because the family members’ victims were counting on them to do so,” the opinion said.

Schulte was not in his office Friday afternoon and a spokeswoman said he could not be reached for comment.

District Judge Mark Smith handed down the death sentence to Malone, who was convicted of first-degree murder in the killing, which occurred the day after Christmas.

Green was shot twice in the back of the head after a struggle on a Cotton County road.

Malone testified he was operating a mobile methamphetamine lab in a car when Green approached the vehicle.

Green lost his gun in a struggle and was shot with his own weapon. Portions of the crime were captured on Green’s dashboard-mounted video camera.

Malone said he was in drug-induced haze and thought he was fighting a robber. He claimed voices in his head told him to shoot Green.

Schulte made an impassioned plea for the death verdict and even “begged” for the ultimate penalty, the court said.

“What kind of a person can put a high velocity weapon to a man’s head while he’s praying and pull the trigger?” Schulte said. “A lot people can’t put a stray dog down that way — this man put a human being down that way.

“Anything less than the death penalty would be a travesty.”