Golden v. State

¶1Dissenting.

¶2¶ 1 I dissent to the Court’s decision to suddenly mandate that it is “structural error” when a defendant is denied the “complete array of peremptory challenges to which he was entitled by Oklahoma law” and thus beyond the possibility of ever being considered harmless under the facts of the case — even when defense counsel makes no attempt to preserve the error or complain about the jury. It is readily apparent there is a lack of understanding as to what constitutes a “structural” error under current jurisprudence and what the misuse of that term can create by its ripple effect on future cases involving a failure to follow statutory provisions.

¶3¶2 One can easily foresee a situation, somewhere down the appellate road, when a similar situation occurs at trial and defense counsel, although perfectly content with the jury, decides as a matter of strategy not to object to the erroneous denial of all peremptory challenges provided by our statutes. For in so doing, the defense earns a free trial. Even if the State proves its case beyond a reasonable doubt, the defense has a sure-bang winner on appeal.

¶4¶ 3 I disagree with attempts to anticipator-ily “fix” situations in the appellate arena that were never in dispute at the district court level. Here, the defendant was represented by competent counsel, and the record gives no indication that said counsel was not completely satisfied with the jurors who ultimately sat on the case, insofar as their qualifications and ability to be fair.1 Nevertheless, *1156the Court now abolishes the requirement that a defendant demonstrate prejudice and finds such juries are ipso facto unfair, but without ever providing a convincing reason for doing so.

¶5¶4 The Court rightly acknowledges that we have previously required a showing of prejudice in all prior cases touching upon the issue in question. See, e.g., Marrero v. State, 2001 OK CR 12, ¶ 13, 29 P.3d 580, 582 (despite misusing the term “structural error,” the Court appears to have applied harmless error to the issue in question); Spunaugle v. State, 1997 OK CR 47, ¶ 32, 946 P.2d 246, 252, overruled on other grounds, Long v. State, 2003 OK CR 14, 74 P.3d 105 (the “facts sufficient to prove prejudice are contained in the record, for counsel made a record of those venireman he would remove if he had the correct number of peremptory challenges.”); see also White v. State, 1986 OK CR 153, ¶ 4, 726 P.2d 905, 907 (“the burden is upon [the defendant] to establish the fact that he was prejudiced in his substantial rights by the commission of error”); and Landrum v. State, 1971 OK CR 235, ¶ 18, 486 P.2d 757, 759 (“defendant has failed to show error coupled with injury, and how he might have been prejudiced thereby”). This list does not even include the substantial number of times we have ruled similarly in cases involving the issue of sharing peremptory challenges. See e.g., Lafevers v. State, 1991 OK CR 97, 819 P.2d 1362, 1367.

¶6¶ 5 The Court rationalizes its departure from established Oklahoma law by providing a one line quote or paraphrase concerning “structural error” from other jurisdictions like Connecticut, Montana, and Louisiana and by chastising itself for paying “lip service” to that concept in Marreroand Spu-naugle. This is curious, however, for Marre-to received straight concurring votes and Spunaugletook conflicting positions on the issue at hand — saying the error was beyond harmless error analysis, but then reviewing the record for prejudice (and finding it!). I dissented from Spunaugle, as did Judge C. Johnson, who authors today’s opinion.

¶7¶ 6 True, this was a serious error, a deprivation of an important statutory right granted under Oklahoma law. As such, the Court should focus more of its analysis upon whether Appellant was deprived of due process guaranteed by our Constitution. Indeed, constitutional error clearly occurred here, as Appellant’s statutory right to peremptory challenges was “denied or impaired” by not receiving that which state law provides, Ross v. Oklahoma, 487 U.S. 81, 86, 108 S.Ct. 2273, 2277, 101 L.Ed.2d 80 (1988). Appellant was not denied one peremptory challenge, but four!2

¶8¶ 7 But constitutional errors may be found to be harmless if the court can declare a belief that it was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). And yet, the Court’s decision today sidesteps this well-known principle by relying on controversial language from Arizona v. Fulminante, 499 U.S. 279, 307-08, 111 S.Ct. 1246, 1264, 113 L.Ed.2d 302 (1991).3 There, the Supreme Court attempted to separate “trial errors” from “structural errors”. But Fulminante’s effort to once and for all categorize and distinguish between these two types of errors has proven largely unsuccessful, as many Courts including the U.S. Supreme Court have since struggled to apply it and some commentators have argued that Fulminantewas “analytically flawed from the outset.” McCord, The “Trial”/“Structur*1157al” Error Dichotomy: Erroneous, and Not Harmless, 45 U.Kan.L.Rev. 1401 (1996); see also, State v. Calderon, 270 Kan. 241, 250-53, 13 P.3d 871, 877-79. Indeed, one member of the Court has written that the Supreme Court’s harmless error jurisprudence is “confused and illogical” and that the trial error/structural error analysis in Fulminantehas resulted in “fictional distinctions.” See Flores v. State, 1999 OK CR 52, ¶ 1, 994 P.2d 782, 787 (Chapel, J., concurring in result).

¶9¶ 8 I touched upon this same issue in my dissent to Flores v. State, 1995 OK CR 31, ¶ 13, 899 P.2d 1162, 1172, by quoting from the dissenting portion of Justice White’s opinion in Fulminante, as follows:

These cases cannot be reconciled by labeling the former, ‘trial error’ and the latter not, for both concern the exact same stage in the trial proceedings. Rather, these cases can be reconciled only by considering the nature of the right at issue and the effect of an error upon the trial.

¶10Fulminante, 499 U.S. at 291, 111 S.Ct. at 1255. In other words, we should not draw a line in the sand and all cases that fall under the definition of “trial error” are subject to harmless error analysis, while all others are not. Rather, we must look to the right in question and assess its overall effect on the trial.

¶11¶ 9 The truth of the matter is that the Supreme Court has recognized that “most constitutional errors can be harmless.” Fulminante, 499 U.S. at 306, 111 S.Ct. at 1263. Indeed, “if the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other [constitutional] errors that may have occurred are subject to harmless-error analysis.” Rose v. Clark, 478 U.S. 570, 579, 106 S.Ct. 3101, 3106, 92 L.Ed.2d 460 (1986). Moreover, since Fulminantewas decided, the Supreme Court has only found an error to be “structural,” and thus subject to automatic reversal, in a “very limited class of cases”, approximately six, and none of those cases involved peremptory challenges. See Neder v. U.S., 527 U.S. 1, 8, 119 S.Ct. 1827, 1833, 144 L.Ed.2d 35 (1999).4

¶12¶ 10 The opinion finds that the trial court “caused” this structural error by being ignorant of the applicable law. But the same can be said of defense counsel, who was either (1) unaware that the defendant was entitled to nine peremptory challenges, (2) was deliberately aware that he was entitled to four more peremptory challenges but was pleased with the jury, or (3) aware that the trial judge had committed an error that would likely result in reversal.

¶13¶ 11 So who do we pin the blame on? In my opinion, it is defense counsel’s duty to object to errors occurring during the course of the trial. In the absence of an objection or any demonstrative showing of prejudice, I , would presume that defense counsel knew the law, but believed the jury seated was fair.5 By focusing on the right in question'— here a statutory one — rather than broad labels, we see no evidence that the error impacted the fairness or integrity of this trial.

¶14¶ 12 The error here was really no different than any other erroneous ruling on evidence or procedure occurring during trial. As such it was “trial error” that was subject to harmless error analysis. Due to the fact that Appellant has provided nothing to show the jurors who were actually seated and who did render a verdict were unacceptable, prejudicial in any way, or that any would have been excused if additional peremptories were provided, I cannot find prejudice in the record. Thus, the violation of the statutory right in *1158this case was harmless, and the judgment and sentence should be affirmed.