*1 quests testify JOHNSON, J., JOHNSON, regarding for witnesses to en C. A. J. and LEWIS, trapment mitigation, was not ineffect J.: concur.
ive.10 LUMPKIN, V.P.J. concur results. in Proposition 5 We find thatV McGee improperly against was not forced to defend page alleging prior
the second In offenses. 2001,
November the record indicates the agreed page
State to dismiss the second as
part plea agreement, of a pled and McGee However,
guilty
charges.
to the
he was then
part
prior
sentenced based in
on his
convic-
When the Court remanded the ease allow guilty plea, put McGee withdraw his No. F2004-582. everyone posture in the if plea same as Appeals Court of Criminal of Oklahoma. is, had not been entered.11 That McGee was again facing prospect once of trial on four 10, Jan. felony charges properly with a filed second page alleging prior three offenses. Out of an caution,
excess of the State chose to preliminary
extra hearing page on the second However,
after the case was remanded. procedural posture
had no effect on the
the case.12
DECISION Judgment and Sentence of the
District Court on III Count is AFFIRMED. Judgment and Sentence of the District
Court on Count IV is REVERSED and the
case is REMANDED with instructions to 3.15,
DISMISS. Pursuant Rules of to Rule
the Oklahoma Court Appeal, Criminal 22, Ch.18, App. Title the MANDATE delivery ORDERED issued
filing of this decision.
case,
10. Hooks v.
11. Couch v. again after the case was remanded. The (defendant withdrawing plea original "Trial Information” did not amend the placed position prior plea in same as he was page alleging prior Information and the second negotiations). offenses was still in effect. *2 District Court of Pot- Appeal
An from the County; John tawatomie the Honorable Gardner, Judge. Associate District Smotherman, Attor- Asst. District Richard Intern, Shawnee, Estes, Legal ney, Melissa OK, attorney at trial. for the State Hatfield, Attorneys Moody, Carlyle Chad OK, Law, City, attorneys for at trial. Danner, Cindy Appellate Brown peremptory challenges Defense and his constitu- Counsel, Norman, OK, attorney appellant tional to due of law. Marrero ¶¶ appeal. 11-12, 2001 OK CR 580, 582; Spunaugle v. Edmondson, Attorney W.A. Drew General ¶¶ 30-32, overruled on Draper, Of Preston Saul Assistant grounds by Long other *3 General, Attorney OK, City, attor- 105; Ross v. neys appeal. for State on OPINION ¶ Marrero, charged 5 In a defendant JOHNSON, Judge. C. degree jointly first murder tried with a Ryan Golden, 1 Appellant, was convicted charged co-defendant who was not with mur- by jury in County Pottawatomie District der and trial required the the defen- Court, 2003-199, Case No. CF of First De- peremptory challenges. dants to share five Murder, gree O.S.2001, in violation of There, we found reversible error and stated 701.1(A). Jury § trial was held on March “the denial of the full peremptory number of 11th, 2001, before the Honorable John 9th— Gardner, challenges by allowed state law amounted to Judge. jury Associate District The a structural error that affected the entire punishment imprisonment set at life without trial.” object- Id. We noted defense counsel possibility parole the of Judge Gardner ed at trial and said “under the facts of this Appellant sentenced in accordance with the case” the error could not be harmless. Id. jury’s April verdict on 2004. From the While we found the in error Marrero was Judgment imposed, and Sentence reversible, structural and our reference appeal. filed this the “facts of preservation the case” and to of ¶ 2 Recitation surrounding of the facts the suggests the error applied this Court in fact necessary crime is not because reversible harmless error and did not actual- error in jury occurred the manner of selec- ly treat the error as structural error. requires tion which this matter to be re- In Spunaugle, we found the denial of versed and remanded for a new trial. peremptory three challenges in a murder selection, 3 Prior to the trial court prosecution pervaded to be error “which (22) twenty-two announced it would call entire trial” and which was “not names and then the State and the Defendant analysis,” but also stated the (5) would each peremptory have five chal- error was not “waived” and noted facts (Tr. 18) lenges. The trial court stated prove prejudice. record sufficient to Spu
would “offer challenges unlimited for cause” naugle, ¶ 32, 946 P.2d at grants but “the law both the state and the Marrero, Spunaugle, Like the lan (sic) preemptory defendant five changes ... guage of opinion suggests our that this Court any prospective juror to excuse rea- not, fact, did treat the error as structural. (Tr. 22) son whatsoever.” In his first claim ¶ 7 The State admits depriving a de- error, of argues Mr. Golden he must be complement fendant of his full peremptory of granted a new trial because he was not af- error, suggests but the error statutorily-prescribed forded the number of should be considered harmless because it was peremptory challenges in degree his first waived argues defendant. The State murder trial. agree. We counsel’s failure to waives review for ¶4 provides Title Section 655 that in plain all but argues and further prosecutions murder, degree for first a de- Golden did not make a sufficient record to fendant is entitled to peremptory chal- prove prejudice by claiming he was forced to lenges. statutory language is clear. keep objectionable jurors because of trial The trial court erred when it did not allow court’s error on peremptory challenges. Mr. Golden nine challenges. We agree with Mr. Golden that the trial court’s 8 This Court has reviewed two other deprived cases, him of his besides Spunaugle, Marrero challenges are a creature of statute alleged he was de- wherein defendant Constitution, statutorily complement required of it is for the full prived perempto prescribed peremptory State to determine the number cases, required the defen- ry challenges those the Court allowed and define their prove prejudice.1 Landrum v. dant to of their purpose and the manner exercise. P.2d such, chal “right” As his five trial court denied last only if lenges “impaired” is “denied” or his challenges after counsel does that which not receive state peremptory challenge. waived fourth omitted) Id., (citations provides.” law syllabus Phelps from The Court cited 89, 108 S.Ct. at to state: OK CR provides “[I]n 12 Oklahoma law all judg- It is not alone that reverses prosecution criminal cases the defen ments conviction crime *4 following per the dant are each entitled to injury, error is plus but burden prosecu ... In emptory challenges: First. establish fact appellant to the murder, jurors first nine degree tions for in his prejudiced that he substantial was O.S.2001, § 22 655. each.” Oklahoma has rights by of the the commission error. peremp number of therefore determined the ¶ Landrum, 486 tory challenges has defined allowed and their Landrum, In was 757. voir dire not tran- purpose and manner of their exercise. nothing appeal was scribed there Id., 89, 108 at 2279. 487 U.S. S.Ct. Golden for to review. The Court record this Court charged tried for the was with and crime of had failed to show error held Murder, and, Degree First under Oklahoma might he coupled injury and how have law, peremptory was nine chal entitled to Id., 18, 235, prejudiced. 1971 CR been only lenges. The he record reflects received P.2d at 486 five. In prosecution 9 a White v. murder right peremptory of chal- 13 While the 153, 905, 1986 OK CR lenge protected is not under the federal con- five trial allowed stitution, provided it is specifically challenges. Defense did peremptory counsel Depriva- safe-guarded statute. Oklahoma request not and did not additional right peremptory tion of the to exercise Landrum, challenges. Citing the Court said statutorily challenges, due which was under to appellant the burden was on “show law, process a due vio- Oklahoma constitutes he in his prejudiced was substantial is where the lation. This not a case defen- rights the commission of error” and full comple- claimed his dant he was denied found the was not sufficient to complaint peremptory challenges of because he ment Id., ¶ 4, 153, cause reversal. 1986 OK juror a to exercise to remove whom had one P.2d at 726 trial have removed for court should clarify opportunity 10 We take this case, In this was not afforded cause. Golden whether number the denial statutorily which he was four peremptory challenges degree in a first of all that entitled. Golden not receive did showing prejudice of requires murder case due him under law. See Hicks v. requires or reversal. In other automatic Oklahoma, 346, 2227, 343, 447 U.S. words, subject is it an error harmless (1980)(denial 2229, of peti- 175 65 L.Ed.2d analysis or is it structural error? jury statutory right tioner’s deter- 11 In Ross v. punishment a violation of mine constituted 2278, (1988), 2273, process). due Supreme rejected the notion ¶ 14 challenge A “constitutional does the loss of a consti- if automatically require reversal is right to not tutes a violation of the constitutional analysis. subject impartial harmless error Phil- jury. “Because being required chal- danls to share 1. This reviewed numerous Court has relating lenges. applicable to co-defen- under statute 1154 ¶ 67, (2005)(errors 38, 115, 1005,
lips v. 989 P.2d Mont. 1013 1017, 1036; Arizona v. 499 see in the are structural selection 1246, errors; 111 U.S. S.Ct. 113 presumptively structural errors are v. Md.App. L.Ed.2d 302 Arizona Fulmi- prejudicial); v. 161 Walker nante, discussing pro general (2005), rule granted, 868 A.2d cert. Chapman (2005)(“If California, nounced in Md. A.2d struc 824, 17 that a committed, L.Ed.2d 705 prejudice pre tural error is automatically error does sumed.”); constitutional not Langley, State v. 896 So.2d reversal, require Court said: (La.Ct.App.2004)(judge who was absent connecting proceedings thread these failed common eases from to maintain applying Chapman proper [those cases courtroom decorum caused structural /harmless analysis] requiring each involved “trial errors reversal without McFerron, during error” —error which prejudice); occurred U.S. 163 F.3d (6th presentation jury, Cir.1998)(denial the case to the to exercise may quantitatively which therefore be as- peremptory challenges is structural and sessed in the context other evidence analysis); harmless error presented (1st in order Serino, to determine whether Cir.1998)(finding 163 F.3d beyond its admission harmless a rea- reversing violation Batson structural and sonable doubt. applying without *5 proof prejudice); of added). v. U.S. Gonzalez-Huer (emphasis 499 U.S. at (10th ta, 727, Cir.2005)(“if, 403 F.3d as a 734 307-308, 111 at S.Ct. 1264. Harmless error matter, categorical capable - a court is of find analysis applied be should to an error which ing prejudice upon the error caused presentation occurs the of case to the the reviewing record, the then that er jury can class of against and which be measured structural”). is not rors other to evidence determine whether af- fected the of a factual determination defen- paid 17 lip While this to service guilt dant’s or innocence. Id. concept of the structural error in Marrero errors, Spunaugle discussing defy improp- 15 Structural which and the standards, peremptory challenges harmless error er of capital are those defects denial cases, in the trial which fully itself affect framework it did not of consider the breadth Id., proceeds. in which the trial 499 it applied U.S. at such defects a because either 310, 111 at analysis implied 1265. Structural errors or proof harmless error a of recognize that the violation prejudice requirement. of some constitu As the cases cited rights may require demonstrate, tional country without reversal above from across the regard to particular subject the evidence case. structural not errors are to harmless analysis, require Structural errors are affect a those which error do not of end, beginning trial from to prejudice, such as the and such an is not measured defendant, against absence of counsel for a biased “other evidence” tri- admitted at judge, Marrero, the unlawful exclusion Spunaugle, of of al. To the extent members White, jury, race grand defendant’s from a and Landrum are with inconsistent trial, right self-representation to Opinion, they hereby and the this overruled. right Id., public to a trial. 499 at 309- purpose of voir in a dire 310, 111 1265. S.Ct. at criminal to proceeding is determine whether
1116A “structural not grounds challenge error is there are prospective to analysis to prejudice. jurors permit based on State intelligent v. and to exercise D'Antonio, Conn. peremptory challenges. 877 A.2d 737 of Dodd v. (2005)(Katz, J., dissenting). 31, ¶ 24, “When struc analysis tural error is peremptory challenges undertaken and such The use of in voir dire exists, an proceeding principle securing vitiated.” is the of method a defen Id.; Cruz, see also State 122 P.3d right by dant’s fundamental to a fair trial (Utah 2005)(“a structural pre impartial jury. See Moore 1995 OK Lamere, prejudice”); sumes State v. Jury impar 327 CR jus AND REMANDED FORA NEW TRIAL tiality very integrity of our goes to the Opinion. right impartial to an consistent this Pursuant to system, tice 3.15, Rules the Oklahoma Court concept our of a fair Rule jury is so essential to of Ch.18, Appeal, Criminal App. cannot be considered trial that its violation Title Herrman, harmless error. State the MANDATE is ORDERED issued delivery filing Not all of this Mont. decision. jury occurring during selection are errors structural; impairment the denial CHAPEL, P.J., A. JOHNSON is, however, to
right LEWIS, JJ.: concur. defy
one of those errors LUMPKIN, V.P.J.: dissents. analysis. case, the In this trial court LUMPKIN, Vice-Presiding Judge: by denying Mr. Gold
caused structural error
Dissenting.
array
chal
complete
en
¶ 1 I dissent
the Court’s decision to
lenges to which was entitled
Oklahoma
he
suddenly
that it is “structural er-
mandate
object,
law.
counsel did
While defense
when a defendant is denied the
ror”
“com-
duty
trial
had an affirmative
array
plete
right to challenge
inform the
of his
law”
which he was
entitled
O.S.2001, 651,
jurors,
§
its
failure
beyond
possibility
being
of ever
thus
inform
so
considered harmless under the facts of the
encompassed
right and all that it
constitutes
case—even when defense counsel makes no
clear, structural error.
It is evident from the
attempt
preserve
complain
the error or
that the trial court was not aware of
record
jury.
readily apparent
about the
It is
there
applicable
law. “The
a trial
understanding
what
is a lack of
as to
consti-
impartial
hall
a fair and
before
ju-
tutes
“structural” error under current
justice,
system of
mark of the American
*6
misuse of
risprudence and what
that
guaranteed by
the Federal
both
and Okla
by
ripple
can
effect on
term
create
its
future
Const,
homa constitutions. See
amend.
involving
failure to follow
cases
a
White,
VI,
art.II,
§§
20.”
Okl. Const.
provisions.
¶
(Parks,
153, 1,
DECISION was not indication that said counsel com- no ¶ jurors who ultimate- Judgment imposed pletely satisfied with the Sentence case, qualifica- Court, ly on the insofar as their County District sat Pottawatomie Case Nevertheless, 2003-199, hereby ability be fair.1 REVERSED tions No. CF jury pool initially complained by happenstance had one 1. While defense counsel that 1156 requirement straight concurring
the Court now abolishes to received votes and prejudice that a demonstrate positions took Spunaugle conflicting on the juries unfair, ipso are finds such but saying beyond issue at was the error facto hand — providing convincing without ever reason analysis, reviewing then but doing for so. (and it!). prejudice for finding the record I Spunaugle, Judge dissented from as did ¶4 C. rightly acknowledges The Court Johnson, opinion. today’s who authors previously required we have prior prejudice touching upon all cases ¶ error, True, depri- 6 this awas serious See, in question. e.g., v. the issue Marrero important statutory right grant- vation of an State, 12, 13, OK CR 29 2001 P.3d 582 such, ed under As Oklahoma law. the Court (despite misusing er the term “structural analysis upon should focus more of its wheth- ror,” appears to applied the Court have Appellant deprived er of due question); harmless to the issue Indeed, guaranteed by our Constitution. State, 47, 32, Spunaugle v. 946 here, clearly constitutional occurred as grounds, P.2d on other overruled Appellant’s statutory right State, Long v. 2003 OK 105 CR P.3d impaired” by was “denied or not (the prove prejudice sufficient “facts receiving provides, that which state law record, in the contained counsel made 81, 86, Ross v. 108 S.Ct. record of those venireman he would remove (1988). 2273, 2277, 101 L.Ed.2d 80 if he the correct of peremptory had number was not one challenge, denied challenges.”); see also v. White but four!2 153, 4, (“the OK CR may 7 But constitutional errors be found [the defendant] burden is to establish harmless if can be the court declare a prejudiced the fact he his sub rights error”); beyond belief it was stantial harmless a reason the commission of Chapman California, able Landrum doubt. (“defendant 824, 828, 17 P.2d has failed U.S. L.Ed.2d 705 coupled injury, yet, to show and how today And the Court’s decision might prejudiced thereby”). he have been sidesteps principle relying well-known This list does even include the substantial language controversial from Arizona v. similarly number of times we ruled 279, 307-08, involving sharing peremp cases the issue of (1991).3 There, tory challenges. e.g., See Court attempted separate Lafevers 1362, 1367. “trial errors” from “structural errors”. But *7 Fulminante’s effort to and for all once cate departure 5 The Court rationalizes its gorize distinguish and between these two by providing from established Oklahoma law types proven largely of errors has unsuccess quote paraphrase concerning one line or ful, many including as Courts the U.S. Su jurisdictions error” other “structural from Connecticut, Montana, preme struggled apply Court since it like and Louisiana argued and chastising paying and itself some commentators have that “lip ser- concept “analytically vice” to that in was Spu- Marrero and Fulminante flawed from curious, however, naugle. McCord, This is for Marre- the outset.” The “Trial”/“Structur- minority, any defense sharply counsel did was Fulminante so contentious and Also, particular juror for cause. counsel made part divided it is difficult to determine which concerning any “unacceptable juror,” no record opinion majority opinion. is the Part I of requests and there were no made for additional four-part opinion Justice White's received six peremptory challenges. votes, (from parts quoted while II which the taken) today’s language opinion in and IV so, being 2. That I don't believe would Meanwhile, only part received five votes. II of very go preju- have to far in order establish Rhenquist's three-part opinion Chief Justice re- dice, had in fact if he been dissatisfied with the ceived votes. five jurors truly being prejudiced. chosen and was least, very up per- But at the he should use all emptory challenges given provide the district opportunity correct some its mistake. Erroneous, preme has an error to be Dichotomy: Not Court found al” Error (1996); Harmless, “structural,” subject see U.Kan.L.Rev. and thus to automatic Calderon, 241, 250-53, also, cases”, reversal, Kan. “very State v. in class of limited Indeed, one member six, 877-79. of those cases approximately none Supreme has written that the Court peremptory challenges. See Neder involved jurisprudence is “con- Court’s harmless U.S., trial er- illogical” and that fused and (1999).4 Fulminante in ror/structural opinion the trial court finds that distinctions.” See has in “fictional resulted by being igno- this structural error “caused” ¶ 1, Flores can applicable rant law. But same result). J., concurring in (Chapel, (1) counsel, be was either said of defense who my I this same issue 8 touched that the defendant was entitled unaware dissent to Flores (2) was peremptory challenges, deliber- ¶ 13, 1162, 1172, by quoting from was to four ately aware that he entitled more dissenting portion of White’s Justice pleased with but was Fulminante, as opinion in follows: (3) judge had jury, or aware that the trial by label- cases cannot be reconciled These likely result committed an error that would former, latter ing ‘trial error’ and the in reversal. not, stage concern exact same for both Rather, proceedings. these the trial pin 11 who do we the blame on? So considering only by cases can be reconciled my duty to opinion, it is defense counsel’s right the nature of the at issue occurring during errors the course upon the trial. effect of an error objection In the an the trial. absence of at prejudice, I any or demonstrative words, 1255. In we should not draw other , presume that counsel knew would defense line and all cases that fall under the sand law, jury seated was but believed the subject to the definition of “trial error” are By focusing right question'— fair.5 analysis, while all others la- than broad here a one—rather Rather, look not. we must to the bels, no evidence that the error im- we see question assess its overall effect on pacted integrity fairness or of this trial. trial. really here no different 12 The error ¶ 9 truth of the is that matter any ruling other on evidence than erroneous recognized has that “most occurring during As such procedure trial. can be Ful constitutional errors harmless.” harm- was “trial error” minante, U.S. at at 1263. fact that analysis. Due to the less error Indeed, “if the defendant had counsel provided nothing to show the Appellant has impartial adjudicator, there was tried jurors did actually were seated and who who strong presumption [con other unacceptable, prejudi- a verdict were render may errors that have occurred stitutional] *8 been any way, or that would have cial analysis.” to harmless-error pro- peremptories if additional were Clark, excused 570, 579, Rose v. vided, prejudice in the record. I cannot find L.Ed.2d 460 More over, decided, Thus, statutory right violation of the Fulminante the Su- since made, Indeed, paint that argument a comer on 4. could be based itself into the issue an Supreme jurisprudence, recognize ultimately dry, Court U.S. we will never I standing here, no raise a constitution- get has regardless we of how due issue purely al claim on the number of there. Ohio, received, for Powers v. L.Ed.2d 411 If, however, 5. ineffec- the record demonstrated juror's right it was the Court stated unacceptable assistance of counsel or that tive being adjudicated serve in the exercise seated, juror would be been then reversal had challenges. previously While of these I have required. pointed painted has out that harmless, this case was judgment Court’s ease law on the issue of mental retar and sentence should be affirmed. cases, in capital dation read its en
tirety is
confusing
neither
nor in conflict.
Lambert v.
2003 OK CR
71 P.3d
and Salazar v.
Court of Appeals Criminal of Oklahoma. JOHNSON, A. ARLENE JOHNSON and Jan. LEWIS, JJ., DAVID B. concur LUMPKIN, P.J., GARY L. Vice concurs ORDER RESPONDING TO STATE’S results. MOTION FOR CLARIFICATION 1 On December this Court re- post-conviction manded this case
trial Murphy’s mental retardation claim.
Murphy January On the State filed a
Motion for opinion. Clarification of that This