State v. Issa

Cook, J.,

concurring. Like the majority, I find no plain error in admitting the appellant’s postarrest statements, notwithstanding the provisions of Article 36 of the Vienna Convention on Consular Relations. I arrive at this conclusion, however, by applying the plain-error analytic framework described in United States v. Olano (1993), 507 U.S. 725 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 . Applying an Olano analysis, I would find that the error Issa complains of in his first *73 proposition of law was not “plain,” and therefore cannot constitute reversible error. See State v. Hill (2001), 92 Ohio St.3d 191, 205 , 749 N.E.2d 274, 286-287 (Cook, J., concurring in judgment); State v. McKee (2001), 91 Ohio St.3d 292, 300-301 , 744 N.E.2d 737 , 744 (Cook, J., dissenting). At present, the question whether Article 36(l)(b) of the Vienna Convention creates individual rights that are enforceable in American courts remains open. See Breard v. Greene (1998), 523 U.S. 371, 376 , 118 S.Ct. 1352, 1355 , 140 L.Ed.2d 529, 538 (per curiam) (noting, without deciding, that the Vienna Convention “arguably” confers individual right to consular assistance following arrest); see, also, United States v. Page (C.A.6, 2000), 232 F.3d 536, 540 . I concur in the majority opinion in all other respects.

I also write separately to respond to the view, advocated by Justice Lundberg Stratton, that the failure to inform Issa of any rights he had to consular access under Article 36 of the Vienna Convention constitutes “structural error” warranting automatic reversal. Although Justice Lundberg Stratton voices the legitimate position that the states must follow international treaties made under authority of the United States, there is simply no legal basis upon which to conclude that the “structural error” doctrine should apply here.

Treaties of the United States are on the “same footing” with federal statutes under the United States Constitution. Whitney v. Robertson (1888), 124 U.S. 190, 194 , 8 S.Ct. 456, 458 , 31 L.Ed. 386, 388 . Thus, violation of a treaty is treated just like a violation of a federal statute. We do not necessarily treat a violation of either, however, as a violation of one’s constitutional rights. As the United States Court of Appeals for the Fourth Circuit observed:

“Although states may have an obligation under the Supremacy Clause [Article VI, United States Constitution] to comply with the provisions of the Vienna Convention, the Supremacy Clause does not convert violations of treaty provisions (regardless whether those provisions can be said to create individual rights) into violations of constitutional rights. Just as a state does not violate a constitutional right merely by violating a federal statute, it does not violate a constitutional right merely by violating a treaty.” (Emphasis sic.) Murphy v. Netherland (C.A.4, 1997), 116 F.3d 97, 100 .

Accordingly, because the failure to advise an accused of his or her rights under Article 36 of the Vienna Convention does not rise to the level of a constitutional error, suppression of an accused’s postarrest statements is not an appropriate remedy for a violation. United States v. Page, 232 F.3d at 540-541 ; United States v. Li (C.A.1,2000), 206 F.3d 56 , 61; United States v. Lombera-Camorlinga (C.A.9, 2000), 206 F.3d 882, 885-886 (en banc). We ordinarily do not suppress evidence as a remedy for a statutory violation absent a violation of an underlying *74 constitutional right. State v. Droste (1998), 83 Ohio St.3d 36, 40 , 697 N.E.2d 620, 623 ; see, also, United States v. Thompson (C.A.11, 1991), 936 F.2d 1249, 1251 .

Justice Lundberg Stratton does not contend that suppression is the appropriate remedy for violation of any rights Issa may have had under Article 36 of the Vienna Convention. Rather, she argues that “the failure to inform the defendant of his rights under the Vienna Convention constitutes structural error” warranting reversal. But this conclusion cannot possibly be correct under the existing doctrine of structural error. “Structural” errors are a category of fundamental constitutional errors that “are so intrinsically harmful as to require automatic reversal * * * without regard to their effect on the outcome.” Neder v. United States (1999), 527 U.S. 1, 7 , 119 S.Ct. 1827, 1833 , 144 L.Ed.2d 35, 46 . 7 Thus, a “structural error” necessarily involves the deprivation of a constitutional right. See Brecht v. Abrahamson (1993), 507 U.S. 619, 629-630 , 113 S.Ct. 1710, 1717 , 123 L.Ed.2d 353, 367 (describing structural errors as a category of constitutional error defying harmless-error analysis); Arizona v. Fulminante (1991), 499 U.S. 279, 310 , 111 S.Ct. 1246, 1265 , 113 L.Ed.2d 302, 331 (describing structural errors as “constitutional deprivations * * * affecting the framework within which the trial proceeds, rather than simply an error in the trial process”); Sullivan v. Louisiana (1993), 508 U.S. 275, 282 , 113 S.Ct. 2078, 2083 , 124 L.Ed.2d 182, 191 (Rehnquist, C.J., concurring) (noting that Fulminante “divided the class of constitutional violations that may occur during the course of a criminal proceeding” into “trial error[s],” which are amenable to harmless-error analysis and “structural defects,” which are not). Without some error affecting a criminal defendant’s constitutional rights, however, the structural-error doctrine is simply not implicated. And because a violation of the Vienna Convention is not a constitutional error, see Murphy, 116 F.3d at 100 , it therefore cannot be deemed “structural error.” Accord Garcia v. State (Nev.2001), 17 P.3d 994, 997 .

Moreover, it is worth noting that the United States Supreme Court has already undermined the notion that a violation of Article 36 of the Vienna Convention can be deemed structural error. In Breard v. Greene, the Supreme Court addressed Article 36 of the Vienna Convention in the context of a federal habeas corpus action. The defendant in Breard , a citizen of Paraguay who was convicted of capital murder in a Virginia court, filed a motion for habeas relief in which he argued, for the first time, that arresting authorities never informed him of his right to contact the Paraguayan Consulate. Breard, 523 U.S. at 373 , 118 S.Ct. at *75 1354 , 140 L.Ed.2d at 536 . The Supreme Court held that Breard had procedurally defaulted his Vienna Convention claim by failing to raise it in state court. Id., 523 U.S. at 375 , 118 S.Ct. at 1354 , 140 L.Ed.2d at 537 . The court rejected as “plainly incorrect” the claim that the Vienna Convention was “the ‘supreme law of the land’ and thus trump[ed] the procedural default doctrine.” Id. Significantly, the court also noted that, even if Breard had properly raised his Vienna Convention claim in state court, “it is extremely doubtful that the violation should result in the overturning of a final judgment of conviction without some showing that the violation had an effect on the trial.” (Emphasis added.) Id., 523 U.S. at 377 , 118 S.Ct. at 1355 , 140 L.Ed.2d at 538 , citing Fulminante, 499 U.S. 279 , 111 S.Ct. 1246 , 113 L.Ed.2d 302 . By noting that Breard would be unlikely to demonstrate prejudice, the Supreme Court implicitly rejected the notion that a proven violation of Article 36 of the Vienna Convention amounts to structural error; by definition, a structural error obviates any requirement of demonstrating prejudice. See Neder, 527 U.S. at 7 , 119 S.Ct. at 1833 , 144 L.Ed.2d at 45-46 ; see, also, Lambright v. Stewart (C.A.9, 1999), 191 F.3d 1181, 1191-1192 (structural error does not require showing of prejudice, even on federal habeas corpus review).

For these reasons, I see no constitutional barrier to this court utilizing a plain-error analysis in disposing of Issa’s arguments concerning Article 36 of the Vienna Convention.

. The United States Supreme Court has recognized only a very limited category of errors as “structural.” These include the complete denial of counsel, a biased trial judge, racial discrimination in jury selection, denial of the right to self-representation at trial, denial of a public trial, and a defective reasonable-doubt instruction. Neder v. United States, 527 U.S. at 8 , 119 S.Ct. at 1833 , 144 L.Ed.2d at 46 (collecting cases).