# Simpson v. State

> Court of Criminal Appeals of Oklahoma · June 8, 1994 · 65 O.B.A.J. 2055

URL: https://www.frixlaw.com/law-library/cases/9587614

## Case

- **Full name:** James E. SIMPSON, Appellant, v. the STATE of Oklahoma, Appellee
- **Court:** Court of Criminal Appeals of Oklahoma
- **Decided:** June 8, 1994
- **Citations:** 65 O.B.A.J. 2055; 876 P.2d 690; 1994 OK CR 40; 1994 Okla. Crim. App. LEXIS 45; 1994 WL 249852
- **Precedential status:** Published
- **Opinion:** Dissent by Chapel
- **Judges:** Lumpkin, Chapel
- **Cited by:** 228 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9587614

## How later opinions describe it (automated extraction)

- applying the harmless error standard from Kotteakos v. United States, 328 U.S. 750, 765 (1946) to non-constitutional plain error
- discussing application of harmless error analysis to non-constitutional errors

## Opinion text

CHAPEL, Judge,
dissenting:
Constitutional and statutory criminal procedures serve an important and vital function, even in horribly tragic cases like the one before the Court today. Such constitutional and statutory safeguards protect the fairness of the judicial proceeding and ensure the reliability of its outcome. Without such safeguards we revert essentially to the tyranny of mob justice. Under our judicial system it is not supposed to be easy for the State to convict a citizen of a crime. Not only is the State obligated to simply prove that a defendant committed an offense, but also to prove beyond a reasonable doubt that the defendant is guilty. Moreover, and just as important, in convicting a citizen, the State, more than any other party to litigation, must be held accountable to follow our constitutional and statutory criminal rules and procedures.
In this case, Simpson argues his conviction ought to be reversed because the trial court failed to hold a hearing to determine the reliability of certain hearsay evidence. Failure to hold this hearing violates an Oklahoma statute, 12 O.S.1991, § 2803.1. Simpson did not object to this error at trial and asserts now, on appeal, the error is “fundamental” warranting reversal. See generally Spears v. State, 805 P.2d 681, 682 (Okl.Cr.1991).
In reviewing Simpson’s claim, the majority attempts to clarify the meaning of “fundamental error,” “plain error,” and “reversible error,” and also engages in a lengthy discussion on the topic of harmless error. While I applaud the majority’s effort to establish consistent terminology and to explain the methodology the Court should employ in analyzing trial errors, some of the conclusions and standards the majority sets forth are simply wrong. Moreover, I continue to be disturbed by the Court’s willingness to find harmless error when the error was in fact harmful. Because I find certain aspects of the majority’s analysis to be flawed and because I disagree with the ultimate finding that the *704 trial error in this case was not harmful, I dissent.
I.
In the interest of consistency and clarity, I agree the term “plain error” should be uniformly used to describe unobjected to errors affecting substantial rights. The United States Supreme Court can provide some guidance in the meaning of that term. In United States v. Olano, 507 U.S. -, 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993), the Court discussed the meaning of “plain error” under the Federal Rules of Criminal Procedure. Under the federal system, plain error applies to those errors to which counsel fails to object at trial. See Fed.R.Crim.Proc. 52(b). Unobjected to errors rise to the level of plain error when the error is clear from the record and it affects substantial rights. The Supreme Court stated that an error affecting substantial rights “means that the error must have been prejudicial: It must have affected the outcome of the proceedings.” Olano , 507 U.S. at -, 113 S.Ct. at 1778 . It is the defendant who bears the burden of showing prejudice with regard to plain error. Id.
Under the federal system plain error need not automatically result in reversal. Nonetheless, plain error should be corrected by federal appellate courts if the error “‘seriously affeet[s] the fairness, integrity or public reputation of the judicial proceedings.’ ” Olano , at -, 113 S.Ct. at 1779 . Federal courts should “no doubt correct a plain forfeited error that causes the conviction or sentencing of an actually innocent defendant ... but we have never held that a Rule 52(b) remedy is only warranted in cases of actual innocence.” Olano , at -, 113 S.Ct. at 1779 (citations omitted). “An error may seriously affect the fairness, integrity or public reputation of judicial proceedings, independent of defendant’s innocence.” Olano , at -, 113 S.Ct. at 1779 (citations omitted).
In contrast, an error to which counsel lodges a proper objection at trial is treated differently. When an appellant raises an error to which he objected at trial, the government bears the burden of persuading the Court that, under the harmless error doctrine, 1 the error did not prejudice the defendant. Olano , 507 U.S. at -, 113 S.Ct. at 1778 . One reason for the varying treatment of these different errors is that counsel should be encouraged to raise all objections at trial. By raising the objection at trial, the trial court is in a position to correct or prevent the error thus assuring a fair trial and a reliable result. Requiring an appellant to show on appeal that the unobjected to error affected substantial rights creates an incentive to make timely and proper objections at trial so as to avoid having to make the “substantial rights” showing on appeal.
Although the Federal Rules of Criminal Procedure obviously do not apply to state criminal cases, the United States Supreme Court’s discussion of the plain error rule provides a useful analogy. With regard to our state rules, I agree with the majority that a plain error is an error to which counsel failed to object at trial and which affects substantial rights. In my opinion, appellant bears the burden of establishing that the unobjected to error is an error affecting a substantial right, i.e. that he was prejudiced by the error. I also agree that once an error is deemed to be plain, reversal is not warranted if the state can show that the error was harmless. Although this formulation differs somewhat from the federal rules, I feel that, on its face, it provides sufficient safeguards to ensure that an appellant’s rights are protected. 2
However, the majority does not simply stop there. In sections III A., Ill B., IV, and V of the majority opinion, the majority imposes upon appellant the additional burden to show injury even where the error was properly preserved or found to be plain error *705 before reversing. Supra, at 696-698, 700, 701-702. I strongly disagree with the notion that an appellant has the burden to show injury in such a case. When an appellant raises an error to which he objected at trial but which was not cured by the trial court or when an appellant raises an error which rises to the level of plain error, the only issue before this Court is whether appellant was harmed by that error and if any party has a “burden” it is the state’s burden to show the error is harmless. Indeed, in a plain error case the appellant will have already once shown injury or prejudice; if not, the error would not be plain. Creating an additional ill-developed “injury” hoop through which appellant must jump serves no purpose and does not answer the critical question before this Court: was the error harmful.
The concept of harmless error is well-established and particularly helpful in resolving meaningless errors which occur in most trials but which do not affect the fairness or outcome of the proceedings. Under this doctrine, not every constitutional error occurring at trial warrants reversal of appellant’s conviction. Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967). Constitutional error need not result in reversal of a conviction if “the beneficiary of a constitutional error ... prove[s] beyond a reasonable doubt that the error complained of did not contribute to the verdict.” Id. 386 U.S. at 24 , 87 S.Ct. at 828 . See Fahy v. Connecticut, 375 U.S. 85 , 84 S.Ct. 229 , 11 L.Ed.2d 171 (1963); James v. State, 818 P.2d 918, 921-922 (Okl.Cr.1991). The burden thus is on the State — the beneficiary of the error — to prove beyond a reasonable doubt that the error is harmless.
Of course, not all constitutional violations are subject to harmless error analysis. For example, violations of the right to trial counsel, the right to an impartial judge, the prohibition against double jeopardy, the right to a representative jury and grand jury, and the right to a reasonable doubt instruction, are not subject to the harmless error rule. C.H. Whitebread & C. Slobogin, Criminal Procedure at 778-779 (3d ed. 1993). Thus, certain errors, whether there was an objection lodged at trial or not, would not be subject to harmless error analysis and would always constitute reversible error.
The Oklahoma legislature has established the harmless error rule to be applied in Oklahoma cases. Section 3001.1 of Title 20 provides:
No judgment shall be set aside or new trial granted by any appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury or for error in any matter of pleading or procedure, unless it is the opinion of the reviewing court that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.
I view section 3001.1 as essentially codifying Chapman . Under 20 O.S.1991, § 3001.1, if the error “resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right,” the error is not harmless and it is reversible.
Section 3001.1 applies to both constitutional and statutory violations. 3 Despite the plain language of § 3001.1, the majority creates a new standard and applies a less stringent standard of review to violations of Oklahoma statutory rules. The majority follows several federal court decisions which apply a “substantial influence” or “grave doubt” standard for reviewing the non-constitutional errors. While that approach might be appropriate in the federal courts, it is not the rule in Oklahoma. Section 3001.1 states that reversal is the appropriate remedy if “it is the ■ opinion of the reviewing court that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.” (emphasis added) Apparently the Oklahoma legislature viewed the rules of criminal procedure and evidence that it pro *706 mulgated to be of paramount importance and as worthy of protection as constitutional rules of procedure. There is no justification for the majority’s new rule and, indeed, this new rule is inconsistent with the express will of the people of the State of Oklahoma as expressed in 20 O.S.1991, § 3001.1.
II.
I now turn to the precise question before this Court: whether in Simpson’s case the failure to hold a hearing in compliance with 12 O.S.1991, § 2803.1 constitutes plain and reversible error. At Simpson’s trial, two witnesses, a school counselor and a DHS worker, testified about the child-victim’s out-of-court statements. Our statute, 12 O.S.1991, § 2803.1, clearly requires the trial court to hold a hearing to determine the reliability of such out-of-court statements. No such hearing was held.
Since trial counsel failed to object to the hearsay testimony, the error in failing to hold the hearing must rise to the level of plain error in order for this Court to review that error. Spears v. State, 805 P.2d 681, 682 (Okl.Cr.1991); Jones v. State, 781 P.2d 326, 330 (Okl.Cr.1989). Clearly, failure to hold the hearing violated Oklahoma law and is error. Moreover, this error affects Simpson’s substantial right to test the reliability of out-of-court statements made by the child-victim. I agree with the majority that this error constitutes plain error.
The majority concludes, however, that this plain error does not warrant reversal of Simpson’s conviction. I cannot agree. This Court has previously held non-compliance with the notice provision of 12 O.S.1991, § 2803.1 is not only plain error but also reversible error. Spears, supra at 683 (failure to give statutorily required notice warrants reversal). It is my belief that noncompliance with the state’s requirement that a hearing on the reliability of out-of-court statements also constitutes harmful, reversible error. I find the failure to hold the statutorily required hearing harmed Simpson and this Court is obligated to reverse appellant’s conviction.
First, I must point out that the majority mistakenly characterizes the violation of § 2803.1 as merely a statutory violation and not a constitutional violation. Relying on its incorrect assessment of § 2803.1 the majority employs a lesser standard of review in evaluating the harmfulness of the plain error at issue in this case. However, contrary to the majority’s assertions, § 2803.1 addresses the reliability of out-of-court statements by a child witness and ensures that those statements bear sufficient indicia of reliability of its inherent trustworthiness so that the admission of the statements is proper under the Sixth Amendment. See generally Idaho v. Wright, 497 U.S. 805 , 110 S.Ct. 3139 , 111 L.Ed.2d 638 (1990); U.S. Const.Amend. VI. Thus, even under the majority’s differing standards of review for constitutional and non-constitutional error — which as I stated earlier is a departure from well-established Oklahoma law and is contrary to 20 O.S.1991, § 3001.1 — the harmless error standard should be applied in this ease.
In my judgment the testimony of the counselor and the DHS worker clearly contributed to Simpson’s conviction and undermined the reliability and fundamental fairness of the trial. This testimony was submitted absent any indication it was reliable. I cannot conclude such error did not prejudice Simpson. I am not persuaded by the majority’s assertion that, because the hearsay statements were consistent with the child-victim’s own in-court testimony, those hearsay statements are therefore reliable. Section 2083.1 contemplates that the child will testify at trial or that the child be unavailable. Thus, the legislature concluded that the hearing was necessary even though the child was testifying at trial. The consistency in the testimony does not obviate the error or the prejudice that inured to Simpson. See Kennedy v. State, 839 P.2d 667 (Okl.Cr.1992) (error in not holding § 2803.1 hearing not harmless error).
Notwithstanding the fact that Simpson is probably guilty, it is incumbent upon this Court to acknowledge the prejudice he suffered by failure to hold the required hearing. The hearing required by 12 O.S.1991, § 2803.1(A) is a statutory right which goes to *707 the foundation of child abuse cases and the ability of the defendant to confront child witnesses. It is intended to screen from the jury unreliable testimony which could severely prejudice a defendant and deny a constitutional right essential to the defense — that is the right of confrontation. U.S. Const. Amend. VI. The failure to hold this hearing deprived Simpson of his fundamental right to a fair trial and requires reversal.
For the foregoing reasons, I would reverse and remand for a new trial the convictions in Counts I, II and III. I would affirm the conviction in Count IV.
. See Chapman v. California, 386 U.S. 18, 23 , 87 S.Ct. 824, 828 , 17 L.Ed.2d 705 (1967); Fed. R.Crim.Proc. 52(a). See also 20 O.S.1991, § 3001.
. I further find that the majority's decision to overturn Spears v. State, 805 P.2d 681, 682 (Okl.Cr.1991), to the extent that is inconsistent with the majority’s decision, is misguided. Spears dealt with the notice provision of § 2803.1. This case deals with the hearing provision of § 2803.1.
. This Court has applied the harmless error analysis in evaluating statutory violations. See e.g. Gautt v. State, 551 P.2d 1150 (Okl.Cr.1976) (failure to follow statutory rule on corroboration of accomplice testimony subject to harmless error analysis); Lime v. State, 508 P.2d 710 (Okl.Cr.1973) (failure to comply with statutory rule on admonishing jury subject to harmless error analysis).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9587614. Public record. Not legal advice.