Robinson v. State

2011 OK CR 15, 255 P.3d 425, 2011 Okla. Crim. App. LEXIS 16, 2011 WL 1546453
CourtCourt of Criminal Appeals of Oklahoma
DecidedApril 21, 2011
DocketF-2009-1168
StatusPublished
Cited by67 cases

This text of 2011 OK CR 15 (Robinson v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Robinson v. State, 2011 OK CR 15, 255 P.3d 425, 2011 Okla. Crim. App. LEXIS 16, 2011 WL 1546453 (Okla. Ct. App. 2011).

Opinions

OPINION

SMITH, Judge.

11 Kevin Wayne Robinson was tried by jury and convicted of Murder in the First Degree in violation of 21 0.$.2001, § 701.7, in the District Court of Tulsa County, Case No. CF-2008-2277. In accordance with the jury's recommendation the Honorable Kurt Glassco sentenced Robinson to life imprisonment. Robinson must serve 85% of his sentence before he is eligible for consideration for parole. From this judgment and sentence, Appellant appeals, raising four propositions of error.

T2 Robinson argues in Proposition I that his case must be reversed because he was not afforded nine peremptory challenges. Every defendant in a first degree murder case is entitled by statute to nine peremptory challenges. 22 0.8.2001, § 655. The trial court must afford a first degree murder defendant nine peremptory challenges. The failure to do so is a violation of the right to due process. Golden v. State, 2006 OK CR 2, ¶ 4, 127 P.3d 1150, 1152, This Court held in Golden that this error is structural, affecting the entire trial, and not subject to harmless error review. Golden, 2006 OK CR 2, ¶ 18, 127 P.3d at 1155. This Court's decision in Golden is clear and unambiguous: failure to afford a defendant nine peremptory chal[428]*428lenges in a trial for first degree murder is structural error. Were this Court to follow the plain language of Golden, this case must be reversed and remanded.

13 However, it is time to reexamine our decision in Golden. Peremptory challenges are granted by state statute, not the Oklahoma or federal constitutions. 22 § 655. The erroneous denial of peremptory challenges is a constitutional error because it deprives a defendant of due process, not because the denial itself violates a constitutional provision. Ross v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 2278, 101 L.Ed.2d 80 (1988); Hicks v. Oklahoma, 447 U.S. 343, 346, 100 S.Ct. 2227, 2229, 65 L.Ed.2d 175 (1980). It is in this context that we examine the question of structural versus trial error. Most constitutional errors are subject to harmless error analysis. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). Trial errors may be assessed along with the evidence presented, to determine whether the error prejudiced the defendant. Arizona v. Fulminante, 499 U.S. 279, 307-08, 111 S.Ct. 1246, 1264, 113 L.Ed.2d 302 (1991). Strue-tural errors, by contrast, affect the conduct of the entire trial and cannot be separated from it for purposes of analysis. Fulminante, 499 U.S. at 309-10, 111 S.Ct. at 1265. They "undermine the fairness of a criminal proceeding as a whole." U.S. v. Dominguez Benitez, 542 U.S. 74, 81, 124 S.Ct. 2333, 2339, 159 L.Ed.2d 157 (2004). We explained in Golden that, "Structural errors are those which affect a trial from beginning to end, such as the absence of counsel for a defendant, a biased judge, the unlawful exclusion of members of the defendant's race from a grand jury, the right to self-representation at trial, and the right to a public trial." (Golden, 2006 OK CR 2, ¶ 15, 127 P.3d at 1154.

T4 There is a strong presumption that errors which occur during trial are subject to harmless error analysis, as long as a defendant is represented by counsel and is tried by an impartial judge. Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999); Rose v. Clark, 478 U.S. 570, 579, 106 S.Ct. 3101, 3106, 92 L.Ed.2d 460 (1986). The United States Supreme Court has restricted use of structural error, with its requirement of automatic reversal, to "a limited class of cases." Johnson v. United States, 520 U.S. 461, 468-69, 117 S.Ct. 1544, 1549-50, 137 L.Ed.2d 718 (1997). These errors appear to have in common the violation of a right granted by the Constitution, rather than a violation of due process by failure to afford a right granted by state statute. Among these are a faulty jury instruction on reasonable doubt, Sullivan v. Louisiana, 508 U.S. 275, 282, 113 S.Ct. 2078, 2083, 124 L.Ed.2d 182 (1993); intentional racial discrimination in selection of grand jurors, Vasquez v. Hillery, 474 U.S. 254, 263-64, 106 S.Ct. 617, 623, 88 L.Ed.2d 598 (1986); denial of the right to a public trial, Waller v. Georgia, 467 U.S. 39, 49, 104 S.Ct. 2210, 2217, 81 L.Ed.2d 31 (1984); denial of the right to self-representation, McKaskle v. Wiggins, 465 U.S. 168, 177 n. 8, 104 S.Ct. 944, 950 n. 8, 79 L.Ed.2d 122 (1984); improper exelusion of qualified capital jurors, Davis v. Georgia, 429 U.S. 122, 123, 97 S.Ct. 399, 400, 50 L.Ed.2d 339 (1976) (per curiam); exposure to improper publicity which wholly denies the defendant an impartial jury, Sheppard v. Maxwell, 384 U.S. 333, 351-352, 86 S.Ct. 1507, 1516, 16 L.Ed.2d 600 (1966); failure to afford a defendant the right to counsel, Gideon v. Wainwright, 372 U.S. 335, 345, 83 S.Ct. 792, 797, 9 L.Ed.2d 799 (1963); and the lack of an impartial trial judge, Tumey v. Ohio, 273 U.S. 510, 535, 47 S.Ct. 437, 445, 71 L.Ed. 749 (1927).

¶ 5 The Supreme Court has addressed the issue of whether denial of peremptory challenges is or is not structural error in a series of cases. In Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 835, 13 L.Ed.2d 759 (1965), the Court discussed the history of the peremptory challenge and noted that denial or impairment of the right was reversible without a showing of prejudice. The Court returned to that discussion in U.S. v. Martinez-Salazar, 528 U.S. 304, 317 n. 4, 120 S.Ct. 774, 782 n. 4, 145 L.Ed.2d 792 (2000). The defendant claimed that, under Swain, he was not required to show prejudice from the alleged impairment of his right to peremptory challenges. As the Court found his right to peremptory challenges was not impaired, [429]*429it declined to address the issue. However, the Court specifically rejected this interpretation of Swain, noting that the sentence was both dicta and founded on cases which were decided before the adoption of harmless-error review. Id.

T6 Finally, the Supreme Court recently held that state law, not federal law, determines the consequences when a peremptory challenge is erroneously denied. Rivera v. Illinois, 556 U.S. 148, 129 S.Ct. 1446, 1450, 173 L.Ed.2d 320 (2009). In Rivera, the Illinois Supreme Court had applied state law in concluding that denial of the right to peremptory challenges was not structural error. That court found that the error in Rivera's case was harmless beyond a reasonable doubt. The Supreme Court granted certio-rari to resolve the apparent conflict among jurisdictions as to whether the error was structural or subject to harmless error analysis.

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Cite This Page — Counsel Stack

Bluebook (online)
2011 OK CR 15, 255 P.3d 425, 2011 Okla. Crim. App. LEXIS 16, 2011 WL 1546453, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robinson-v-state-oklacrimapp-2011.