Flores v. State

OF APPEALS OPINION VA- COURT rights may- parental of termination Before CATED; TRIAL COURT AFFIRMED consent, and con- clear effected without be IN IN PART AND REVERSED support failure to must vincing evidence of a PART; REMANDED. CAUSE Here, Madden lost his abili- presented.40 C.J., KAUGER, V.C.J., WILSON, ALMA through voluntary ty support J.R.M. HODGES, and LAVENDER and drug ac- illegal activities related act—his HARGRAVE, JJ., concur. employ- chose to leave his tivities. He also WATT, JJ., parts concur SIMMS months before he was re- ment a full two II, part dissent from III. portion of the non- quired to do so. For support period, supported a seven mem- he SUMMERS, J., part concurs The evidence is clear and ber household. part. dissents support failure to convincing of a wilful J.R.M. and due

Madden’s claims substantive proce

process violations associated with hearing conducted dures followed for the FLORES, Appellant, Jose § pursuant to 10 60.6 are uncon O.S.1991 adequate vincing. father received notice v. appear opportunity and an defend Oklahoma, Appellee. STATE finding that his con support issue. Our No. F-93-977. process rights to due were ade stitutional quately on the Oklahoma protected are based Appeals Court of Criminal of Oklahoma. fide, provides sepa bona Constitution which 27, 1995. June

rate, independent grounds adequate and upon holding.42 our Neverthe which we rest Merrell,

less, our in Merrell v. decision (Okla.1985) 35, makes it clear that

P.2d 38-39 governed by hearing issue right adoption in an

consent is the of consent Here, deprived

proceeding. the father was fundamental, constitutionally protected

of a parental

right43 when the tie was severed adoption proceeding.

without notice of the oppor was entitled to notice and an

Madden

tunity appear hearing. at the termination part is affirmed in and reversed in

The cause proceedings

part and remanded for consis

tent with this decision. 1352, also, 2, Co., Kramer, supra. Santosky 695 P.2d See note

Cate v. Archon Oil v. (Okla.1985); Co., supra. Socony v. Mobil Oil Bomford 713, (Okla.1968). Lack of notice 440 P.2d jurisdictional infirmity. Bailey constitutes a 60.6, 4, supra. § 41. see note Title O.S.1991 note, supra; see this Campbell, Cate v. Archon note, Hill, Oil, supra; 536 P.2d see Pointer v. 32, supra. see note Michigan Long, (Okla.1975). S.A.W., supra; 43. Matter see note ofJ.L.H., Guardianship see note Adoption 40.Matter S., H., supra; supra. see note see note Adoption Darren Todd Matter Chad Matter of H63 THE IT IS THEREFORE ORDER OF that this Petition for Rehear- THIS COURT ing is DENIED.

IT IS SO ORDERED. A. Charles Johnson

/s/ A. JOHNSON CHARLES Presiding Judge

Dissent Chapel Charles S. /s/ CHAPEL CHARLES S. Presiding Judge Vice Lumpkin Gary L. /s/ GARY L. LUMPKIN Judge

Dissent F. James Lane /s/ F. LANE JAMES Judge Reta M. Strubhar /s/ M. RETA STRUBHAR Judge Wallace, Tulsa, appellant for at trial Ron CHAPEL, Presiding Judge, specially Vice Alfred, County Paula Tulsa Public J. concurring: Office, Tulsa, appeal, appel- for Defenders on When the seeks to convict one of its State lant. deprive that citizen of citizens of a crime and trial, Smith, Tulsa, at Sarah for the State should, liberty, his or her life or State Loving, Atty. Gen. of least, and Susan Brimer very required to follow the law. Atty. Slayton, Quite applies and Diane L. Asst. appropriately, Oklahoma this Court Gen., appeal. to errors which City, for the State on “harmless error” doctrine Oklahoma miscarriage justice result in a nor

neither of a consti- constitute a substantial violation REHEARING ORDER DENYING Thus, statutory right. our law tutional or perfection by require does not the State February appellee, State On do, can, and fre- prosecuting a citizen. We Oklahoma, Rehearing a Petition for filed quently harmless those errors which do deem appellant’s styled case after the the above substantially an individual’s violate and remanded for conviction was reversed rights. January by 1995. new trial this Court if petition rehearing may be filed A case, issued in this Flores v. our 1) question (i) decisive of the case and some State,1 agreement were in unanimous we attorney duly submitted of record has giving infa- trial court erred in 2) or instruction, been overlooked guilty” mous express (ii) statute is in conflict with an decision the error was not harmless. controlling the attention disagreement decision which now finds itself mired Court of this was not called either application of the harmless error over the 3.14(B), argument. Rule brief or oral in this case. I find doctrine to the error Appeals, analyzed, was Rules the Court Criminal Flores to be clear. The error applied, O.S.Supp.1994, App. As the com- doctrine was Ch. the harmless error Rehearing unanimously concluded the error plaints raised in the Petition for the Court criteria, majority of not harmless. A the Court not fall within the above rehear- was do analysis and conclusion. stands ing is not warranted this case. (Okl.Cr.1995). P.2d 558 issues, eventually however, respond that in will to these minority, has concluded A cases, guilt sufficiently system brought into balance. proof will be back some errors, responses problems are no additional to these strong Hopefully, and there our harm- protec- error can be deemed and measured and instructional will be deliberate alarming. things good I this kind of in our less. find tive of those are it, any conclude that By following one can system. really is the defendant error is harmless system’s Many of our inconsistencies have overwhelming. proof is The guilty and the history always and over the course of existed guilt can and should be degree proof pride many great a source of to have been applicability of the harm- in the consideration Indeed, presumption citizens. of inno- analysis. But it should not be the less error cence, appeal, involved in this can the issue factor, that is where and fear determinative absurdity in be as an the face of viewed Simply minority lead us. because would us, overwhelming guilt. among in But who is does not mean the the defendant class, eighth grade an or ninth civics has not have to follow the law. does not State pride justice system it was felt our when justice system presently criminal is Our foreign systems compared to where a defen- it never has before. Modern tested as presump- dant entitled to such a be recording technology fo- and scientific

video tion. methods, performed, appear properly rensic many legal system may our While have many guilt as to cases. to eliminate doubt solid, problems, prin- one immutable there is discovery principles application of to The ciple preserved protected, and which must be changes proceedings criminal and wholesale process. and that is due No matter how applicable legal profes- to the ethical rules be, person may guilty a he or she is entitled in confusion as to the role sion have resulted process. suggest to due To otherwise is to lawyers play in what has heretofore been an justice tyranny. sanction mob and We do no system.” weakening of “adversarial The system winking honor to our at serious judgment through concept finality of guilty, trial error. If a is he or defendant adoption permit- of liberal habeas rules every she should be convicted in case routinely go appeals ted to on for 15 to 17 in a trial state that is free serious error. years. developments, along with These tele- trials, exposed vising criminal have our entire Judge Lumpkin in his dissent sets forth dilemmas, population apparent absurdities to applicable harmless stat- Oklahoma system. our and inconsistencies within it, preferring ute but declines to follow justify taking possibly appeals can 15 stead the Federal Courts’ more liberal harm- What years? system explain Judge Lumpkin or 17 How can the less error doctrine. com- plains verdict when the whole nation has that this Court has somehow defaulted recording guilt? duty develop can seen a video conclusive as to a “standard” which should, lawyer argue acquittal applied be How can a defense these cases. We do, when the DNA evidence is conclusive? decline his invitation. The statute is We questions many see these others raised clear and there is no need for this Court to by “experts” daily by judicially legislating an almost the nation’s confuse the issue newspapers programs. and on televised news amendment to it. The harmless error stan- statutory questions applicable Traditional answers to these are dard errors is wheth- unsatisfactory. tiring, complex and The er or not the error “constitutes a substantial plain technology statutory right.”3 ... fact is that science and have violation of a We legal procedures. improve upon language by trying advanced faster than our cannot “substantial,” Thus, try quite that within word and to is true the criminal define the trying justice system examples apparent absurdi- would be as useless as to define the ties, majority A inexplicable phrase dilem- “reasonable doubt.” inconsistencies legislatures and courts this Court finds the error this case to be a mas abound. Our O.S.1991, § 2. 20 3001.1. id. statutory right. solely legal It sion violation of a from the evidence ad- substantial ” 7 therefore, duced.’ of innocence in- not, harmless. helps jury struction thus reiterates and require Clearly, statutes a trial Oklahoma rights understand accused’s constitutional case to instruct

judge in a state criminal (i) proven guilty beyond be inno- the defendant (ii) doubt, judged solely on the basis charged.4 This Court cent” of all crimes presented during of evidence trial.8 When unanimously agrees judge the trial administered, of innocence this case erred when he instructed shapes jury’s understanding guilty” to be “not that Flores was of a criminal defendant’s degree charge of the first murder filed rights, jury per- and thus affects how the are, however, currently against him. We duty forms its to render a verdict accor- the holding divided over whether rights. dance with those appellants applied must be to other who have Despite protector as role of constitu- appeal.5 majori- A raised this issue on direct however, rights, presumption tional a of inno- ty of this Court is convinced that Flores must cence instruction is not mandated applied to all other such cases.6 United Constitution.9 States The United Supreme The United States Court has rec- Supreme States concluded that presumption ognized that a of innocence juries capable applying are the constitu- (i) purposes: it struction serves two “re- tionally requisite “beyond a reasonable jury prosecutor that the has the mind[s] considering only doubt” standard and doubt, beyond proof burden of a reasonable evidence, they specifical- trial even if are not (ii) jury put ... ... ‘cautions the [and it] ly presumed a instructed that defendant away suspicion from their minds all the If innocent. the trial record reflects that a arrest, indictment, from arises criminal defendant was otherwise afforded (i) arraignment, rights proven guilty and to reach their conclu- his or her to be O.S.1991, (Defendant expedient § 4. See 22 dictates of the law to reach an result. guilt requires ac- ordering innocent —Reasonable doubt of We are not of these cases. dismissal O.S.1991, ("Whenever quittal); § 577.2 Okla- These cases will be reversed and remanded for (OUJI) Jury addition, are, Instructions contains homa Uniform hopefully, we new trials. send- case, applicable ... an instruction in a criminal ing message judge prosecu- to the trial and the jury ... and the court determines that should message judge very to the trial tion. Our subject, the OUJI instruc- be instructed simple: message follow the law. Our to the tions shall be used unless the court determines prosecution join is that it should with the defense law.”). accurately that it does state the See objecting clearly instruction. erroneous ("Presumption OUJI-CR 110 of Inno- also objecting, likely With both sides it is much less cence"). giving judge trial will insist on an erroneous instruction. order, Judge Lumpkin's 5. In his dissent to this presented, unquestion- of the issue while Whorton, 786, 790-91, Kentucky 7. v. 441 U.S. sincere, ably perception is flawed his that the 2090, (1979), quoting 60 L.Ed.2d 640 S.Ct. error in these cases can be deemed harmless if (3d Wigmore, p. § ed. 9 J. Evidence there are not other errors and there is over- whelming 1940) (Stewart, J., dissenting). Taylor See also v. guilt. presented proof of The issue 478, 484-86, Kentucky, guilty. 436 U.S. us is not whether or not the defendant is Rather, (1978) (recognizing the issue is whether or not the defendant 56 L.Ed.2d 468 1934— received a fair trial in accordance with Okla- "presumption that a of innocence” homa statutes. It is not the business of this understanding significantly aids the super-jury. Court to sit as a It is our business to prove guilt beyond prosecutor's a rea- burden to And, see that the trial courts follow the law. if doubt, provides and also one means of sonable law, duty they do not follow the it is our sworn explaining to the the accused’s constitution- unpopular reverse them however difficult or right judged solely upon the evidence al to be may be to do so. trial). adduced at 6. This Court is not unmindful of the difficulties 484-86, Taylor Kentucky, 436 U.S. at 8. See bring will to the District Court of our decision S.Ct. at 1934-35. County. large We are well aware a num- Tulsa ber of cases will have to be retried because of Whorton, Kentucky at sympathetic While we are to these this error. ignore very problems, at 2090. real we cannot the clear (ii) consciously unconsciously each to be had

beyond doubt trial, at solely by evidence adduced judged brought into the courtroom. fair under the be considered

the trial jurors presume that a criminal To ask pre- even Constitution United States remains innocent until the State defendant instruction was not sumption innocence acknowledges proves guilty, him both or her administered. inclination to believe that one who has their issue, however, involves much The case arrested, charged and bound over for been simple judge’s trial omission more than a law, com- trial must have violated the presumption of innocence instruction —an suppress mands them to inclination. violates Oklahoma statutes but error which judge’s presumption guilty The trial of not Here, not the United States Constitution. much less of Flores’s instruction demanded an instruction on judge trial administered jurors jury. requiring than that the Rather of not —an images from their minds all of Flores chase spirit the letter and which violates both shackled, blameworthy, culpable, pre- statutes as well as United Oklahoma ju- sumed not instruction allowed the as a Constitution. Just States shaped would have of innocence instruction rors to retain their biases and asked jury’s understanding the and influenced both legal they the to its burden to that hold State rights and role constitutional its of Flores’s prove guilty beyond him a reasonable doubt. rights, the instruc- honoring those so did judge appreciates the The trial himself guilty. of not Un- tion on the “pre- phrases difference between the fortunately, guilty of not radical the improve serve to the instruction did not “presumed guilty,” sumed innocent” and not understanding jury’s of Flores’s constitution- by following quote the from as evidenced Instead, presumption of not rights. al another case which he also chose to admin- effectively guilty diluted Flores’s instruction latter, containing in- ister an instruction proven guilty rights to be be- terminology: correct only by yond doubt and Again many, many I I trial, as have stated times causing developed possibly evidence jury seriously duty to take less to give do not an instruction that is by them. abide OUJI; so, doing give to a reason for not instruction, they that in the believe OUJI jury in How could the this case have re- presumed that the defendant is state be by judge’s the trial mained unaffected innocent. There is a difference between struction that Flores was guilty. person innocent and not A any per- than innocent? Most rather can be found not and still not be country qualified son to sit on a in this is charged.10 innocent of the crime phrase familiar with the that a criminal de- proven until fendant is innocent Hopper’s support majority’s Judge words guilty.” judge simply If trial had failed phrase “presumed that conclusion jurors presume to tell the Flores was guilty” reasonably synonymous is not with innocent, they chances are still would have phrase “presumed innocent.”11 Those obligation considered it their to do so. How- danger provide example words also an ever, judge specifically trial when the power allowing positions individuals in phrase, negatively the well-known altered personal rather to follow their own beliefs jurors may questioned have their own com- they understanding of it which than the law. mon sense State, (Tulsa Judge County a "distinction without a difference” as Smith v. District 10. CF-93-4510) F-94-430, fact, Lumpkin No. Tr. 212. would have us believe. Supreme Court another context United States recognized implicitly "not that terms Judge Hopper's clearly also demon- words interchangeable. phrases guilty” than and "innocent” are not strate that there is more to the two pre- An instruction not of of laws and government “a Ours proved,_”16 is included sumption of innocence express- phrase, which This historic men.”12 (Crimi- Jury Instructions Oklahoma Uniform our Declara- who framed aim of those es the juries must be administered nal),17 Re- founded the Independence and tion of citizenry criminal The Oklahoma trials.18 positive rejection in terms “was the public, a trial court has also declared when fiat, by govern- fiat of whether rule that a should be instructed determines gov- Under a private mental or power.”13 appropriate and an uniform on a men, “power of laws and not ernment exists, the uniform instruction law; according must be exercised court deter- [trial] “shall be used unless the courts, as well as including the government, accurately that it does not state the mines limita- must move within its governed, Hopper’s Judge conscious decision law.”19 arbitrary power lo- is no “[T]here tions.” supplant of this with his the laws State individuals; body any cated in individual justice government own brand of constitutes authority guided and limit- ... all in are but whim, pro- very antithesis of due “the have, people provisions those which ed cess.” law, organic declared shall through the trial, wanting if a law is found “[E]ven scope all control exer- the measure should be demon- it is better that its defects cised over them.”15 and removed than law strated Oklahoma, speaking citizens of by judicial fiat. aborted Such should be legislature, have declared through the State judicial power responsi- deflects assertion of in a criminal action is in a democratic bility defendant from those on whom “[a] ultimately If contrary society it rests —the until the presumed to be innocent people.”21 J., 385, (Rutledge, day at 741 dis- 14. Id. at 67 S.Ct. down on the same in trio of cases handed A senting.). petitions habeas 1986 made clear that successive may precluded normally from review which are if a fundamental mis be considered nonetheless 79, 84, Godard, 22 Cotting 183 U.S. S.Ct. 15. v. carriage justice result. See of would otherwise 30, 32, (1901). L.Ed. 92 46 527, 2661, Murray, 106 S.Ct. v. 477 U.S. Smith Carrier, (1986); Murray 477 v. 91 L.Ed.2d 434 O.S.1991, § 16. 22 836. (1986); 478, 2639, 91 L.Ed.2d 397 U.S. 106 S.Ct. Wilson, 436, S.Ct. v. All U.S. 106 Kuhlman 110. 17. OUJI-CR 2616, (1986). ensure both To 91 miscarriage justice ex of that the fundamental infrequent that ception would remain State, 168, 500, 145 P. 11 Okl.Cr. 18. Jenkins v. deserving, truly provide to those would relief (1914). 501 petition explicitly exception tied the to the - Delo, Schlup See v. er's actual innocence. O.S.1991, added). (emphasis § It 577.2 19. 12 851, U.S.-,-, 864, 130 L.Ed.2d 115 S.Ct. Hopper Judge not that does should be noted (1995). selecting By "innocent” the terms 808 “presumption decision to administer defend his guihy,” “actually innocent” rather than "not "pre- guilty” than a instruction rather of not that to obtain made clear its intention the Court relief, sumption of innocent” instruction petitioner must show a successive habeas accurately state grounds latter does not that the factually they morally innocent that are Rather, person- he seems to harbor the law. they are incarcerated and the crime for which guilty” "presumed better de- that not al belief they law. just are not under the that should view the manner in which scribes strongly words im Court's careful choice of awaiting trial. defendant criminal plies the terms innocent and its awareness that things. vastly different can mean 250, 183, California, 91 402 U.S. 20. McGautha v. (1971) (Bren- 1454, 1488, 28 L.Ed.2d 711 S.Ct. Adams, "Novanglus Papers," no. 7.— John nan, J., grounds, dissenting), on other 408 vacated Adams, ed. Charles Francis The Works John (1972). 2873, 765 33 L.Ed.2d 92 S.Ct. Adams, (1851). p. vol. 106 v. American Labor 21. American Federation Amer- States v. United Mine Workers 13. United Co., 538, 553, 308-09, 677, 703, 335 U.S. 69 ica, Sash and Door 330 U.S. J., (1949) (Frankfurter, J., (1947) (Frankfurter, L.Ed. 222 concurring L.Ed. 884 concurring). judgment). overwhelmingly guilty, wish to alter our accused is the dissent citizens of this State juries in statutory requirement that criminal attempts to drain Flores of much of its vitali pre- that defendants are conclusion, trials be instructed ty. The dissents’ untenable guilty, they are proven innocent until sumed the error can be harmless when the evidence legisla- pursue goals their at the State free to guilt strong, specious arises from a meantime, judges trial are tive level. In the Due Clause denial of the role of the Process people have by the rules which the bound guarantee in protecting the invaluable afford enacted. Judge ed of innocence.2 Dismissing “harmless” the instructional Lumpkin Judge agreed Johnson both would under- committed in this case the erroneous instruction this case tenets of our democratic mine two crucial proof. lessened the burden of See Flores v. conviction must be society: that a criminal State, (Lumpkin, 896 P.2d at 564 J. concur supported by evidence which establishes trial result). However, ring they now somehow doubt; and, guilt beyond reason that such an error can be harmless if and not government is one of laws our guilt overwhelming. the evidence This unwilling my I am to cast vote men. surely cannot be. If the instruction in this prin- whose support of a diluted Constitution proof, case lessens burden of an identical ciples pleasure at the wax or wane another case must also have given individual who at a time be en- regardless of the same effect the evidence of trusted with their enforcement. therefore guilt. And when an instructional error con majority's support decision to reverse misdescription sists of a of the burden of conviction, Flores’s and concur its denial of proof, jury’s findings. it vitiates all of the Rehearing. the State’s Petition Louisiana, U.S.-,- Sullivan -, 2078, 1082-83, 124 L.Ed.2d

STRUBHAR, specially Judge, concurring: (1993). reviewing This leaves a trepidation It is with some that I write to engage pure speculation court to as to denying rehearing opin- this Order since the what a reasonable would have done. clearly January ion of sets forth Louisiana, at-, Sullivan the views of this the dissents’ remarks 2082-83, S.Ct. at 124 L.Ed.2d at 190. The notwithstanding. I am saddened the dis- Supreme attempted principle Court has said such an error is sents’ evisceration of a system. so fundamental to our It is dis- structural and is not to harmless heartening Judge Lumpkin chooses to error review. Id. “folkway” principle term as which serves wholly in dissents’ votes this case are justice sys- as the foundation of our criminal analy- "with inconsistent their harmless error presumption tem. To discount the of inno- overwhelmingly sis. The facts show that Mr. cence is to succumb to the current in trend brutally savagely strangled Flores and Sheila society principles our to shirk and devalue prior Ann Brown and to her death caused short-sighted and short-term results. injury opening. severe and violent to her anal presumption If the of innocence is not savage After this murder Mr. Flores ruth- system sacred our then what is to become lessly gagged bound Brown and tossed challenge very of us. This Court took this body dumpster. her into a trash inYet seriously when it rendered its decision 24, 1995, January Judges Knowing matter. its decision could affect Lumpkin and Johnson found the convictions, many otherwise valid and cause instruction necessitated reversal families, great pain for victim’s this writer they because the error was harmful. It is agonized over the decision to find such an Yet, fully explain change who may need more their never be harmless. in the preserving judicial position3; integrity requires name of convictions which the it. State, (1995). 1. Flores v. 896 P.2d an 558 used when instruction is omitted considering specific question pre- rather than acknowledging 2. While a distinction between sented. omitting presumption an instruction on the administering Judge Dissenting Opinion innocence and an incorrect 3.See Johnson's struction, states, Judge apologize my Lumpkin employs the erroneous which he "I must col-

1169 protects innocence the inno now that the dissent Truly, it is unfortunate with those cent. The shortcuts we take original to retreat from the need finds only harm to be can whom we believe of several rever- the wake Flores decision and, ultimately, wrongfully accused those in this plain error found sals based ourselves. sworn of this Court has Each member case. apply it with- uphold the law and oath to always my that one of It has been belief opinion, retention elec- regard public out important pro- roles is to this Court’s most of cases affected. the number tions and against govern- vide a formidable bulwark of the constitutional and mental violation of inno system In our statutory safeguards securing in free so- our the ac protection to gives concrete cence every ciety legitimate expectations of imposing from and forbids the State cused dignity, person to innate human and a fair it can demonstrate be punishment unless regrettable of that trial. It is a abdication public at a trial with yond a reasonable doubt saddening denigration sys- of our role and a safeguards attendant constitutional of this Court would con- tem when members pro engaged particular individual capricious judicial arbitrary done con- society’s “Our be criminal conduct. scribed branding an individual as a criminal duct centuries, lief, that all are over the reinforced compliance with constitutional and without proved them to until the state has innocent fair statutory procedures which ensure the companion principle that guilty, like the be impartial of criminal cul- ascertainment beyond a proved be reasonable guilt must surely pability. position The dissents’ must doubt, concept of ordered ‘implicit in the be a short-lived aberration. Connecticut, 302 U.S. liberty,’ Palko v. today Throughout the world there are (1937), 149, 152, 82 L.Ed. 288 men, women, imprisoned indefi- and children beyond legislative contra is established may nitely, awaiting trials which never come Process Clause. See Es in the Due vention nothing than a mock- or which more Williams, 501, 503, 96 S.Ct. v. 425 U.S. telle ery governments believe them because their (1976); 1691, 1692-1693, 48 “dangerous.” Our Constitution and to be Winship, 397 U.S. S.Ct. re presumption of principle attendant (1970). 1072-1073, also 25 L.Ed.2d 368 See innocence, began long construction whose 478, 483, Kentucky, Taylor v. 436 U.S. from the evils of ago, can shelter us forever (1978); 1930, 1933-1934, L.Ed.2d 468 S.Ct. history power. Over our our such unchecked Whorton, 786, 790, Kentucky 441 U.S. efforts, slowly, through our principles have (1979) 2088, 2090, 60 L.Ed.2d durable, expansive, and grown more more Salerno, J., (Stewart, dissenting).” Yet, just. principles pro- cannot alone more 2095, 2110, courage, and the self- us if lack the tect we (1987) (Marshall, J., and Bren L.Ed.2d restraint, Today, the protect ourselves. nan, J., dissenting). to an ominous exercise applies dissent itself history say that summary fair to truly position “It is a a Theirs is in demolition. frequently safeguards liberty have authority, the go forth without which will involving not forged respect. in controversies trial court’s been come back without presump- v. Rabi very people.” altering United States the nice erroneous 430, 436, nowitz, of not to a tion of innocence (1950) (Frankfurter, J., As Mark plain dissent to error. amounts L.Ed. said, presumption of inno difference between ing). Honoring “[t]he the Twain once really large mat- right a and sometimes we the almost word can be difficult cence lightning the society pay the difference between must substantial ter —‘tis citizens of free Honoring oath lightning.”4 bug to and the of our commitment costs as a result social office, in taking I concur upon I this in swore espouse. But the end the values we error_" (em- Flores, [my] I did not find harmless my my leagues ... reason for [for vote] my position added). although phasis there was concurrence error, unambiguous, I which is clear was Authorship in 4. The Art applied harmless error test but would have difficulty great for that this will cause a deal of denying the State’s Petition this Order Rehearing. many trials in the District additional County. agree Judge I with Court of Tulsa

JOHNSON, Presiding Judge, dissenting: Chapel that this Court has not created the to the Court’s decision I also dissent error, prob- this Court has not created the Rehearing in the above- deny the Petition lem, problem was created a District outset, apologize I styled At the must cause. Judge use who did not follow the law and my concurrence my colleagues relative required to do. OUJI instructions as State, Flores v. original in case herein. (1995). My apology is based 896 P.2d 558 again I error doc- would use harmless case. I did concur upon my reading of the in all of eases and would look at trine these as it related Jose with the decision case to see whether or not the cases each many Judges only. discussions After by using such doctrine. could be affirmed I in on this I find that was error Lawyers great legal differ- understand wording opinion. I interpreting the innocent” ence between terms wrong my interpretation of “whether was guilty”. I and “not While feel this from a beyond error a reason- the error is harmless standpoint, jurors legal I am not sure that goes foundation of the able doubt or to the significant understand the difference be- constituting a violation of a case substantial Many layman tween the two terms. would right.” statutory Flores v. constitutional or technicality. legal consider this to be a even State, My reading of at 560. initial 896 P.2d upon assumption, I Based would find my for the concur- opinion reason the harmless error doctrine could be although my position that there rence was applied to all of these cases and that error, unambiguous, I clear and was which is does not viola- error constitute substantial applied test but would have a harmless error Flores, and, Therefore, statutory I not find harmless error right. did tion of a it is not therefore, I voted to Now find concur. require so fundamental as it would reversal majority type would reverse all Flores O.S.1991, § of all of these cases. 20 3001.1. cases due to the fact that it is a substantial statutory right and the harm- violation of a LUMPKIN, Judge, dissenting: apply. less error doctrine would not There- fore, I dissent. strongly I must dissent to the Court’s deci- long dissenting opinion I will not write a deny Rehearing sion to the Petition for generally due to fact I concur qualification, this case. I Without have the by Judge Lumpkin and find it dissent written greatest respect professional for the knowl- analysis to be an historical of not excellent edge, experience my and abilities of col- appellate the function an court but However, leagues ap- on this Court. it now also an excellent of the “harmless pears plain language is not specifically agree error with doctrine”. being applied regarding application of a Judge Lumpkin Su- that the United States analysis. harmless The Court now preme finding Court has not made a that the determined, effect, give the failure to presumption of innocence instruction is of presumption of innocence instruction is not magnitude nor a constitutional application of harmless error Whorton, requirement. Kentucky statutory because violates a substantial 2088, 60 L.Ed.2d 640 right. legal This decision is made without (1979). setting or forth the criteria for de- Judge Chapel’s specially I agree also with termining statutory when a violation is “sub- concurring opinion wherein he makes refer- ap- stantial”. Because that decision fails to to all of unanimous in ence the Court ply regarding application the rule of the law position original its that there is error pending of harmless error to cases before judge instructed on case when urge I the Court to withdraw its guilty” “not rather than inno- may agree Judge Chapel original opinion cent”. I further so that it be redrafted with have occurred are other errors true decision of Court what is the to state analysis. The to harmless-error matter.1 in this gov- many constitutional rules thrust of the case itself and I the Flores Before examine criminal is to erning the conduct of trials it, compelled I feel presented the issues lead to fair and ensure that those trials comprise both principles which review reviewing judgments. Where a correct for this dissent. law and the basis developed at court can find that the record Legisla- dictated begin with the law as guilt beyond a reasonable trial establishes every appellate court this and other ture to doubt, the interest fairness has been It reads: in the state. af- judgment and the should be satisfied or trial judgment be set aside new No shall firmed. any appellate court of this state granted by Clark, 570, 577, 578-79, 478 U.S. Rose criminal, ease, ground any civil or on (1986) (citing De S.Ct. of the or for error of misdirection Arsdall, 673, 681, 106 laware v. Van un- pleading procedure, or any matter of (1986)). 1431, 1436, 89 L.Ed.2d 674 S.Ct. reviewing Court it is the of the less extent, provi- large To a a harmless error complained probably that the error justice, as we have forces the courts to miscarriage or sion such in a resulted authority republic recognize granted to a of a con- a substantial violation constitutes only through people the consent of the statutory right. comes or stitutional given governed. That consent is based to be O.S.1991, legislative dictate § The 3001.1. system in its upon respect for the and faith statehood in effect since has not been pragmatic application. That appropriate and Legislature does not like to see because upon based rational and respect is earned basis; without a valid convictions reversed of law. applications of rule reasonable but, princi- it reflects a deliberate also that, long a philosophy so as defendant pled Hamilton discussed the role Alexander trial, a fair he is in a criminal trial receives judiciary department proposed in the on an error which not entitled to reversal No. 78. This is republic in The Federalist the outcome possibly have affected could writing quoted most often for the state- Or, trial. as the United States Su- of his judiciary, from the nature of ment “the phrased it: preme functions, dangerous always be the least will constitution; rights recognizes political doctrine to the The harmless-error annoy capacity purpose of be least principle that the central because will However, also ques- injure Hamilton to decide the factual criminal trial is them.” innocence, in the inter- guilt or the role of the Courts of the defendant’s addressed tion Nobles, he legislative enactments when pretation United States L.Ed.2d 141] wrote: [95

(1975), respect for the promotes public weight say, of no It can be focusing the under- process by repugnancy, criminal pretence courts on trial rather than on lying fairness of the to the pleasure may substitute their own imma- virtually presence of legislature. inevitable intentions of the Traynor, The Riddle of Cf. R. happen terial error. in the ease of might as well This (‘Reversal (1970) statutes; might Error 50 contradictory Harmless or it two error, judg- any its effect on the regardless adjudication upon every happen well ment, litigants to abuse the encourages courts must declare single The statute. public to judicial process and bestirs the law; they should the sense of the it’). ridicule instead disposed to exercise WILL

JUDGMENT, consequence would plea- of their equally be the substitution had counsel Accordingly, if the defendant body. legislative that of the adjudicator, sure to impartial and was tried observation, any thing, would proved if it any strong presumption that there is interpretation to provide very a different separate writings to a an effort The number of 1. opinion, original conclu- plain Rehearing, words in Denying general Petition for Order opinion. sively proves to reissue the labeling, the need coupled extremes of broad with the 1172 ought judges right there to be no is not an articulated under

prove that Rather, body. the Federal it is in- that Constitution. distinct from the maxim Roman ferred from from law that upon appellate especially It incumbent is “it a was better to let the crime of appropriate perspec- courts to maintain person go unpunished than to condemn application role in the tive of the Court’s 454, Id. at at innocent.” 156 U.S. 15 S.Ct. legislative enactments. The 403, 39 L.Ed. at 491. concept government of “a laws and not It from maxim that equally appellate the Court applied men” must be quote inferred the attributed to it in Personal distaste for courts and trial courts. Coffin principle that “[t]he there is a single action of a individual the course of innocence favor of the bending a of a trial not cause the should law, accused is the undoubted axiomatic and of law. rule elementary, and its enforcement lies (apparent) holding of this Because foundation of the administration of our crimi- in all that reversal is necessitated Therefore, readily nal apparent law.” it is instructions, improper instances these principle upon is not based a strict con- law, only does not follow but also is right, stitutional but is inferred from the fraught potential with the for ridiculous and folkways developed or mores3 which have results, I abusive must dissent. application over time in our of law. State, recognized in As the Flores v. Court Acknowledging genesis its does not detract (Okl.Cr.1995), presump- P.2d “[t]he 896 668 importance concept from its as a within our proven guilty right until a tion of innocence legal system; only points it out we must view statute,” guaranteed by citing to Miller v. only through specific it articulation of the State, 374, (1910); P. 22 3 Okl.Cr. Legislature. Oklahoma O.S.1991, recognized § 836.2 The Court then contemporary analysis A more of the Cof presumption-of-innocence a instruction is not State, Culpepper decision is set out in fin required by either United States Consti- 103, (1910), 111 P. Okl.Cr. where the tution or the Oklahoma Constitution. Appeals Oklahoma Court of Criminal ana accurately recognized The Court has lyzed relating pre the issue to an incorrect regardless of the assumed mandate for the sumption-of-innoeence jury instruction. The requirement pre- of an instruction on the Court focused on what has since become an sumption-of-innoeence, guarantee is not requirement, enunciation of a constitutional provided through right a constitutional but ie., correctly that a must be instructed by statutory enactment in the state Okla- regarding proof beyond the burden of a rea away homa. This fact does not take the aura applying sonable doubt. the burden of legal concept; only places of the the con- proof analysis, the Court stated “we decline cept appropriate perspective pur- Territory, to follow the cases of Horn v. poses appellate review of error which 52, 846, Okl. 56 P. v. United Coffin statutory arise failure to instruct on the States, 394, 156 U.S. 39 L.Ed. presumption. respect, in this and we hold that there analysis concept The historical is set given.” was no error the instruction Id. States, out v. United History proven 111 P. at 686. this view Coffin (1895), Louisiana, 39 L.Ed. 481 where the correct. See Sullivan v. 508 U.S. -, (1993). Supreme recognized United States attempts Dictionary It does not matter how much one 3. Websters Third New International Constitution, wrap flag statute in the it is (unabridged) "folkway” defines as "a mode of statutory right subject still to the rules thinking, feeling, acting people or common to a applicable to harmless error review. We are group”; or to social and "mores” as "the fixed appellate judges bound our oaths and role as folkways particular group customs is, interpret it as it and not how we wish it morally binding upon are all members of the my original were. This is consistent with vote to group necessary preserva- to its welfare and sought provide the Flores where I words, tion”. In other the unarticulated moral objective application criteria for the of harmless fabric which secures future for a civilized which had been omitted from the society. opinion. Court’s

H73 give analysis applicable to the failure to presump- was Therefore, give a the failure to This presumption-of-innocenee in- instruction. giving an instruction or tion-of-innocence merely an instruction offers is “because such instruction presumption-of-innocence correct safeguard beyond provided analysis. an additional error to harmless is still constitutionally by required instruction by strengthened Justice This view on reasonable doubt.” White, Part III of the in his dissent to who Fulminante, Kentucky proof can be found v. Further holding in Arizona v. majority Whorton, 279, 290-91, where the Court stated: (1991), Taylor wrote: a con- 113 L.Ed.2d this Court reversed While resulting from a trial which the susceptible viction held to harmless- have [W]e give requested in- judge had refused to failure to instruct innocence, innocence, on the Ken- struction jury omitted) (citation Whorton, not there fashion a new rule while the Court did tucky v. requiring that such an analyze of constitutional law impossible to in terms of finding it given every criminal ease. instruction be failure to instruct a harmless error the standard, Rather, focused on the doubt Court’s jury on the reasonable give as it related failure to the instruction Virginia, [443 Jackson (cita- (1979)] trial consid- to the overall S.Ct. fairness of added) omitted). (emphasis entirety, cannot be rec- ered in its These eases tions labeling ‘trial error’ by observed, the former example, onciled that the The Court not, (ci- for both concern ‘Spartan’ and the latter judge’s instructions were trial proceedings. stage in the trial omitted), same prosecutor exact im- tations Rather, cases can be reconciled these properly to the indictment and referred right considering nature of the at propri- made remarks of dubious otherwise upon the and the effect of an error (citation issue omitted), and that the evi- ety, weak, presump- juryA instruction on the trial. against defendant was dence constitutionally tion of innocence is omitted). (citation combination of ‘[T]he pro- every satisfy due required in case to instructions, possible skeletal merely cess, such an instruction because from the references to harmful inferences beyond that safeguard offers an additional indictment, repeated sugges- and the constitutionally required by the provided petitioner’s status as a defendant tions that doubt. See instruction on reasonable guilt gen- his created tended establish Whorton, (citations omitted); Taylor v. jury convict danger that would uine omitted). (citations While it Kentucky, petitioner on the basis of those extraneous analyze harmless the possible to considerations, than on the evidence rather presumption of innocence of a omission omitted) (citations introduced at trial.’ required when the reasonable- instruction that the these circumstances It was under im- given, has been it is doubt instruction of the trial the failure Court held jury of possible to assess the effect on the presump- on the court to instruct in- of the more fundamental the omission the defendant due tion of innocence denied doubt. addi- struction on reasonable Indeed, the Court’s hold- process of law. tion, doubt omission of a reasonable facts: “We ing expressly limited to the was error,’ struction, though a ‘trial distorts the case the trial that on the facts of this hold very of the trial because ere- structure request- give petitioner’s court’s refusal convict the the risk that the will ates presumption of inno- ed instruction state has not met its defendant even the right of his resulted a violation cence required proof. burden Due Pro- guaranteed a fair trial as 291, 111 at 1255.4 Id. 499 U.S. Amend- of the Fourteenth cess Clause omitted) (citations (emphasis add- Therefore, ment.’ the dissenters Arizona even ed). holding, and explicitly limited This acknowledged harmless error Fulminante case, Court found an incorrect My doubt further discussion of the reasonable instruction, in Sulli- defining beyond later examined the Court doubt cannot be Louisiana, U.S.-, van v. analysis. subject to harmless error (1993) follows In that 124 L.Ed.2d 182 infra. facts, predicate cir- from it still must discussion of the malice the Court’s detailed trial, beyond a of the defendant’s belie find the existence of those facts cumstances (citations omitted) any to create a rule that an reasonable doubt.’ intention closely of innocence And when the latter facts ‘are so struction constitutionally required every presumed case. related to the ultimate fact to is 788-789, 2089-90, jury at that no rational could find those facts at 99 S.Ct. fact, finding without also that ultimate 60 L.Ed.2d at 643. making findings functionally equiv- those is Thereafter, guidelines set out the the Court finding required alent to the element to be applying harmless error to the to be used (citations omitted). presumed.’ A review- give presumption of failure to a innocence ing may court thus be able to conclude instruction. presumption played significant the no role with a more recent deci This is contrasted guilt beyond finding in the of a reasonable dealing give sion with the failure to a correct Evatt, doubt. Yates [v. “beyond defining a reasonable (1991)] (cita- 1884, 114 Louisiana, Sullivan 508 U.S. doubt.” omitted). tion But the essential connection (1993), -, 124 L.Ed.2d 182 ‘beyond-a-reasonable-doubt’ to a factual give determined the failure to the Court finding cannot be made where the instruc- “beyond correct a reasonable doubt” instruc misdescription tional of a error consists of court, appellate than tion allows an rather proof, the of burden which vitiates all the jury, requisite finding to reach added) jury’s findings, (emphasis A re- guilt. give a The failure to correct instruc viewing engage pure court can required tion in that case reversal because speculation view of what a reasonable —its there had not been a determination jury would have done. And when it does jury guilt; therefore is no of the “there that, wrong entity judge[s] ‘the the defen- object, speak, upon so to which harmless (citations omitted). guilty.’ dant scrutiny operate.”5 error can 508 U.S. at Rehnquist Chief Justice wrote a concur- -, 124 L.Ed.2d at 190. ring opinion analysis, and added the based on opinion The then states: Fulminante, Arizona v. and further stated: possibility Insofar as the of harmless-error ‘strong presumption’ any there is a concerned, jury-instruction review catego- error will fall into the first of these quite error in this case is different from (citations omitted). ries. Rose v. Clark jury-instruction erecting error of Thus, it is the rare case in which a consti- presumption regarding an element of the tutional violation will not be mandatory presumption A offense. —for analysis. See Fulminante harmless-error example, person that a (citations omitted). ordinary consequences intends his voluntary strong presumption any acts—violates the Fourteenth The error will Amendment, categories because relieve the fall into the first of these refers to errors”, proving category State of its burden of all elements of “trial which the offense, (citations omitted). But, Court, in Arizona v. Fulminante said “may jury presume quantitatively ‘[w]hen a is instructed to ... be assessed the context starting place It is here the must focus on the differ- was. This is an error that can be here, object, goal, ence between the of a reviewing long corrected so trial — court: as the guilt beyond finding a reasonable doubt— was, jury "goal" knew where the the constitu- starting point and the from which that trial be- guarantee guilty beyond tional found gins here, "presumed whether a defendant is — preserved; reasonable doubt has been and a re- "presumed guilty.” gist innocent” or viewing presented court can review the evidence that, by giving the Sullivan an incor- using appropriate starting point to determine is, rect what instruction on "reasonable doubt” enough present whether evidence was to reach was; jury "goal” did not know where the it, goal. While not identical to this is sub- reviewing goal when a court declares where the stantially equivalent conducting a review of been, jury very should have it takes from the evidence, sufficiency something guarantee provided by the consti- Therefore, virtually every day. Court does Sulli- prose- tution: to let the decide whether the firmly supports application van of harmless "goal” beyond cution reached its Here, application error review and in cases in which doubt. This is not what occurred here. incorrectly given. the Court told the where the instruction was

H75 permissible. amena- Such was not cured presented,” and are of other evidence analysis. any specifically, This Court ble harmless-error other instructions in deter- regularly applies federal caselaw appropriate proof burden of instruction. application of mining scope, method and added) the (emphasis at 562 896 P.2d analysis. provi- the harmless error While correctly brought problem has now The been O.S.1991, § express the 20 3001.1 sions of Flores, of that in to the attention the Court apply a harm- legislative intent for courts to properly as to the was instructed the analysis, it not the less does obviate error doubt) (beyond proof burden of adopted have from the fed- methodology we must meet the State for defendant be conducting analysis. eral in courts guilty of the in found crime of Murder the repeatedly held a defen This Court has Degree. original The First Court’s trial, perfect to a fair not a dant entitled is distinguish general failed instructions State, 946 one. Plotner v. 762 P.2d See 1 2 with contained Instruction State, (Okl.Cr.1988); Lahey v. 742 P.2d specific of crime instruction elements (Old.Cr.1987); State, 610 P.2d Jones v. contained in Instruction No. 3. Those in- (OM.Cr.1980); State, and De Wolf structions read as follows: 256 P.2d 200-01 Okla.Crim. (1953). vigilant must be ever to ensure We INSTRUCTION NO. proceedings of all wherein fairness You are instructed that the burden of person pe for of prosecuted is the violation proof upon in this case is State to nal of our law. The factors which provisions evidence, by beyond a establish reasonable application for of have been enunciated doubt, allegations all the con- material to errors do occur dur harmless error which tained in the Information and unless the ing upon trial the course of a are founded duty respect, you has met it’s in this State fairness. The States Su principle of United guilty, cannot find the defendant but must princi preme recognized not this acquit him. ple Kentucky applied v. Whorton but also formulating it to utilize criteria INSTRUCTION NO. determining whether the is harmless. error defendant You are instructed that is I review the submit this Court should also light totality presumed guilty ease “in of to be not of the crime including all the instruc charged against him in Information circumstances — counsel, arguments jury, the tions to the guilt his is evidence unless established weight of was over whether the the evidence pre- beyond a doubt and that reasonable whelming, de and other relevant factors —to sumption of not continues with whether the defendant received termine allega- every material the defendant unless constitutionally fair trial.” Id. proven evi- tion of Information at 2090. beyond a reasonable doubt. dence correctly points Rehearing The Petition NO. 3 INSTRUCTION was a out No. 3 in this case Instruction proof. burden of correct instruction person You are instructed that no apparently This fact which over- is a was Degree of Murder in the First convicted the Court by each of the members of looked beyond a proven rea- unless State has As the during the initial review the case. of the doubt each element crime. sonable original opinion stated: These elements are: innocence commands human; death of a 1. The from jury to start their deliberations unlawful; 2. The death was premise there an absence of exists by the defen- The death was caused guilt of not while the dant; of suffi- conveys there exists an absence caused with malice 4. The death was proof guilt. While the distinction cient aforethought. subtle, imper- to an we find amounts allega- “material agree the use terms lessening proof of the burden of missible in the instead of degree that is contained Information” expanding the of doubt tions applied give the terms “each element the crime” not be to failure to an instruc- juror 1 and 2 is error. A cannot presumption-of-innocence, Instructions tion on or even legally determine what is material or not and the incorrect instruction of material what he or she deems is an ele- guilty.8 proven ment of the crime that must be be- then, summary, give the failure to However, yond a reasonable doubt. Instruc- instruction, presumption of innocence or even provided tion No. 3 the correct burden of incorrect statement proof instruction for the crime this case as guilty,” preclude does not a harmless error required by specific OUJI-CR 427. The if, case, as in this a correct instruc- general struction controls over the instruc- regarding tion proof the burden of of each tions. beyond element of the crime only The instructional error which not was given. doubt was The instructional error of giving “pre- corrected had to do with the presumed an incorrect instruction of not guilty” “presumed sumed not versus the in- any is no different from other instruc- nocent” I instruction.6 While continue to evidentiary tional may or error which be agree concept that the of inno- committed at trial. Each error is a “trial part cent” is an inherent of the fabric of our subject error” which is to harmless error honesty, jurisprudence, concept in all the analysis. “strong presumption” There is a standpoint proof from the of burden of and subject the analy- error is to harmless error impacting gnat’s the trial is no more than a Appellant presented sis. nothing in juror.7 average hair difference to the There- showing why his brief presumption this fore, Supreme under the Court decisions I should not be honored here. Since that is— review, have to been able it is almost a starting point or should be—the for this anal- applies distinction without a difference as it ysis, presumption, the combined with the Court, ability any to the of this to herein, analysis made convinces me harm- analysis. conduct a harmless error Based on analysis less error should be conducted. issue, weight of the caselaw on this I legal making analysis, way have been unable to discern a in basis for we no position that harmless denigrate significance error can- concept allegations” 6. The "material instruction is indeed a conviction can never stand if the instructions error, provided appellate easily require but an court can do not it to deter- find each proper element of the crime under mine standard whether this instruction was harmless. If Rose, proof, they longer good of authority”); ... after are no question allegations had a as to which in Clark, 570, 577, v. Rose 478 U.S. the information were "material” and which were 3101, 3105-06, (1986) 106 S.Ct. 92 L.Ed.2d not; prosecution proved allegations but the all in (instruction on unconstitutional information, not, whether "material” or dealing with intent to harmless error question there can be no harmless, such an error must be Johnson, 73, analysis); Connecticut v. 460 U.S. any (requiring proof as 83-84, 969, 975-76, 103 S.Ct. 74 L.Ed.2d 823 allegations) additional enured to the benefit of (1983) (“We that, (plurality) agree with the State However, noted, the defendant. as this instruc- light Chapman, in for the broad these cases cannot be read tional error was corrected in Instruction No. 3. proposition that instructional error may of constitutional dimensions never be harm- (6th example, Dictionary 7. For Black's Law however, say, any less. This not to that form Ed.1990) guilt; defines "innocent” as "Free from analyzed of instructional error should be for acting good knowledge in faith and without question harmlessness. The here is whether a circumstances, incriminatory or of defects or ob- charge might reasonably have been inter- jections. Guilty.” dictionary See Not de- preted require a conclusive Also, Guilty” fines "Not as the form of may the issue of intent be considered harm- jury acquits verdict in criminal cases where the less.”); Evans, 605, 613-614, Hopper v. 456 U.S. defendant; i.e., guilty.'" finds him 'not 2049, 2054, (1982) 102 S.Ct. 72 L.Ed.2d 367 18, (citing Chapman California, [v. 386 U.S. Illinois, 497, Cf., e.g., Pope v. 481 U.S. 503 n. [(1967)] finding S.Ct. 17 L.Ed.2d 705] and (1987) 95 L.Ed.2d 439 prejudice give no from trial court’s failure to (unconstitutional concerning obsceni instruction); Hamling lesser included offense ty) ("By leaving open possibility petition States, 87, 107-08, United 418 U.S. preserved despite ers' convictions can be 2902-03, (1974) (obscenity 41 L.Ed.2d 590 error, instructional we do no more than we did prosecution; dealing intervening in with law Clark, [v. Rose change appellate between conviction and deci- 3101, 3105-06, (1986)]. sion, required only To the Court held reversal where instructions, prior probability extent that cases to Rose indicate that there is a now in-

H77 Alberts, in Roth and which juris- our Court decisions within presumption-of-innoeence not merely it is elevat- prudence. sought obscenity, We ensure constitu- define position actually it beyond that which ed tionally pornography, limited to hard-core jurisprudential frame- occupies within the today “I attempt said shall not further ease, particular In this work. define the kinds of material I understand to the dictates of not instruction violated description with that shorthand embraced error, coupled when statute. That a state [obscenity]; perhaps I could never suc- closing prosecutorial misconduct with the doing so. I know it intelligibly ceed But argument, dictates a reversal remand it, picture when see motion However, in in this case. a case new trial (emphasis is not volved this case that.” error and where does have other which added) Today adopt this Court seems Kentucky factors enunciated Whar- it” methodology “I know I see it when applied the error ton can be determine is a violation determining what “substantial harmless, apply this Court should was _ statutory right.” We should appropriate rule of law exercise jurisprudence to address type utilize this scope appellate review. important such an fiber of Okla- fabric (1) Flores, unequivocally I read states As statutory perimeters homa law. Without give presumption-of-innoeence failure to guide legal construction established to presumed giving and the of the not struction practitioners and future members of guilty instruction is not a constitutional er- to it the issue forever waive leaves (2) ror, one of state statute violation is har- prior the wind like Oklahoma wheat to and not of state or federal constitutional responsibility fulfill our vest. We do not (3) error is magnitude, and that the jurisdic- appellate court “exclusive with majority If analysis.9 harmless error to going giving is to hold the cases” for of Okla- of this Court now tion criminal the State instruction is not provide analysis homa do not when we analysis subject to due to the harmless error body required create a of law to which to a substantial statu- determination violates applied future. It stare can be in the decisis O.S.1991, 3001.1, § right tory under 20 judges impossible future know what appropriate action to take is to submit saw if not tell them. we we do original opinion and re- withdraw practition- doing are a disservice to the We clearly. Merely position to state write it judiciary of the of this ers members utilize the rubric of “it violates substan- state we do not withdraw the defining statutory right” tial the le- without state, majority supporting allow the with determining applied gal criteria subject to authority, the error statute the violation of a state is “sub- when bench, analysis to harmless error ensure disregards or not our role and re- stantial” effect, appellate fully as an court. nature sponsibility public understand the bar it will ascribe to the the Court determines and basis of the Court’s decision. out his concur- view Justice Stewart set Ohio, ring opinion Jacobellis L.Ed.2d (1964) (Stewart, where, J., concurring) after stating Supreme he viewed the United States correct, constituting viola- materially tion case a substantial "would affected the de- of the have statutory right, [ci- or tion of jury.”) liberations of tations]. to indicate This seem a harmless would Flores, where this

9. See P.2d 558 ("The applied. See Id. is to be also Court said: impact in the instant actual correctly jurors sets forth the Because OUJI-CR-903 judgment is difficult case determine."); O.S.1991, P.J., (Lumpkin, and 12 of innocence concur- Id. at 563 result) (discussing requires ring er- § trial courts to administer the whether harmless 577.2 instructions, “harmless we find it was error to in the case should be uniform ror standard beyond doubt” whether the re- We now from OUJI-CR-903. must deviate "grave did viewing the error doubts” the error is harmless be- court determine whether trial). goes not have a “substantial influence" yond to the founda- a reasonable doubt or

Case Details

Case Name: Flores v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Jun 27, 1995

Citation: 899 P.2d 1162

Docket Number: F-93-977

Court Abbreviation: Okla. Crim. App.