Flores v. State

CHAPEL, Vice Presiding Judge,

specially concurring:

When the State seeks to convict one of its citizens of a crime and deprive that citizen of his or her life or liberty, the State should, at the very least, be required to follow the law. Quite appropriately, this Court applies the “harmless error” doctrine to errors which neither result in a miscarriage of justice nor constitute a substantial violation of a constitutional or statutory right. Thus, our law does not require perfection by the State in prosecuting a citizen. We can, and do, frequently deem harmless those errors which do not substantially violate an individual’s rights.

In our opinion issued in this case, Flores v. State, 1 we were in unanimous agreement (i) that the trial court erred in giving its infamous “presumed not guilty” instruction, and (ii) that the error was not harmless. The Court now finds itself mired in disagreement over the application of the harmless error doctrine to the error in this case. I find Flores to be clear. The error was analyzed, the harmless error doctrine was applied, and the Court unanimously concluded the error was not harmless. A majority of the Court stands by that analysis and conclusion.

*1164 A minority, however, has concluded that in some cases, if proof of guilt is sufficiently strong and there are no additional errors, this instructional error can be deemed harmless. I find this kind of analysis alarming. By following it, one can conclude that any error is harmless if the defendant is really guilty and the proof is overwhelming. The degree of proof of guilt can and should be a consideration in the applicability of the harmless error analysis. But it should not be the determinative factor, and I fear that is where the minority would lead us. Simply because the defendant is guilty does not mean the State does not have to follow the law.

Our system of criminal justice is presently being tested as it never has before. Modern video recording technology and scientific forensic methods, properly performed, appear to eliminate doubt as to guilt in many cases. The application of discovery principles to criminal proceedings and wholesale changes in ethical rules applicable to the legal profession have resulted in confusion as to the role lawyers play in what has heretofore been an “adversarial system.” The weakening of the concept of finality of judgment through the adoption of liberal habeas rules has permitted appeals to routinely go on for 15 to 17 years. These developments, along with televising criminal trials, have exposed our entire population to apparent dilemmas, absurdities and inconsistencies within our system.

What can possibly justify appeals taking 15 or 17 years? How can the system explain a not guilty verdict when the whole nation has seen a video recording conclusive as to guilt? How can a defense lawyer argue for acquittal when the DNA evidence is conclusive? We see these questions and many others raised by “experts” almost daily in the nation’s newspapers and on televised news programs. Traditional answers to these questions are tiring, complex and unsatisfactory. The plain fact is that science and technology have advanced faster than our legal procedures. Thus, it is quite true that within the criminal justice system examples of apparent absurdities, inconsistencies and inexplicable dilemmas abound. Our legislatures and courts will respond to these issues, and eventually the system will be brought back into balance. Hopefully, our responses to these problems will be deliberate and measured and protective of those things that are good in our system.

Many of our system’s inconsistencies have always existed and over the course of history have been a source of great pride to many citizens. Indeed, the presumption of innocence, the issue involved in this appeal, can be viewed as an absurdity in the face of overwhelming guilt. But who among us, in an eighth or ninth grade civics class, has not felt pride in our justice system when it was compared to foreign systems where a defendant may not be entitled to such a presumption.

While our legal system may have many problems, there is one solid, immutable principle which must be preserved and protected, and that is due process. No matter how guilty a person may be, he or she is entitled to due process. To suggest otherwise is to sanction mob justice and tyranny. We do no honor to our system by winking at serious trial error. If a defendant is guilty, he or she should be convicted in every case by the state in a trial that is free of serious error.

Judge Lumpkin in his dissent sets forth the applicable Oklahoma harmless error statute 2 but declines to follow it, preferring instead the Federal Courts’ more liberal harmless error doctrine. Judge Lumpkin complains that this Court has somehow defaulted in its duty to develop a “standard” which can be applied to these cases. We should, and do, decline his invitation. The statute is clear and there is no need for this Court to confuse the issue by judicially legislating an amendment to it. The harmless error standard applicable to statutory errors is whether or not the error “constitutes a substantial violation of a ... statutory right.” 3 We cannot improve upon the language by trying to define the word “substantial,” and to try would be as useless as trying to define the phrase “reasonable doubt.” A majority of this Court finds the error in this case to be a *1165 substantial violation of a statutory right. It is not, therefore, harmless.

Clearly, Oklahoma statutes require a trial judge in a state criminal case to instruct the jury that the defendant is “presumed innocent” of all crimes charged. 4 This Court unanimously agrees that the trial judge in this case erred when he instructed the jury that Flores was presumed to be “not guilty” of the first degree murder charge filed against him. We are, however, currently divided over whether the Flores holding must be applied to other appellants who have raised this issue on direct appeal. 5 A majority of this Court is convinced that Flores must be applied to all other such cases. 6

The United States Supreme Court has recognized that a presumption of innocence instruction serves two purposes: (i) it “remind[s] the jury that the prosecutor has the burden of proof beyond a reasonable doubt, ... [and (ii) it] ... ‘cautions the jury to put away from their minds all the suspicion that arises from the arrest, the indictment, and the arraignment, and to reach their conclusion solely from the legal evidence adduced.’ ” 7 The presumption of innocence instruction thus reiterates and helps the jury understand an accused’s constitutional rights to (i) be proven guilty beyond a reasonable doubt, and (ii) be judged solely on the basis of evidence presented during trial. 8 When administered, the presumption of innocence instruction shapes the jury’s understanding of a criminal defendant’s constitutional rights, and thus affects how the jury performs its duty to render a verdict in accordance with those rights.

Despite its role as protector of constitutional rights, however, a presumption of innocence instruction is not mandated by the United States Constitution. 9 The United States Supreme Court has concluded that juries are capable of applying the constitutionally requisite “beyond a reasonable doubt” standard and considering only the trial evidence, even if they are not specifically instructed that a defendant is presumed innocent. If the trial record reflects that a criminal defendant was otherwise afforded his or her rights (i) to be proven guilty *1166 beyond a reasonable doubt and (ii) to be judged solely by evidence adduced at trial, the trial may be considered fair under the United States Constitution even if a presumption of innocence instruction was not administered.

The case at issue, however, involves much more than a trial judge’s simple omission of the presumption of innocence instruction — an error which violates Oklahoma statutes but not the United States Constitution. Here, the trial judge administered an instruction on the presumption of not guilty — an error which violates both the letter and spirit of Oklahoma statutes as well as the United States Constitution. Just as a presumption of innocence instruction would have shaped and influenced both the jury’s understanding of Flores’s constitutional rights and its role in honoring those rights, so did the instruction on the presumption of not guilty. Unfortunately, the presumption of not guilty instruction did not serve to improve the jury’s understanding of Flores’s constitutional rights. Instead, the presumption of not guilty instruction effectively diluted Flores’s constitutional rights to be proven guilty beyond a reasonable doubt and only by the evidence developed at trial, possibly causing the jury to take less seriously its duty to abide by them.

How could the jury in this case have remained unaffected by the trial judge’s instruction that Flores was presumed not guilty rather than innocent? Most any person qualified to sit on a jury in this country is familiar with the phrase that a criminal defendant is “presumed innocent until proven guilty.” If the trial judge had simply failed to tell the jurors to presume Flores was innocent, chances are they still would have considered it their obligation to do so. However, when the trial judge specifically and negatively altered the well-known phrase, the jurors may have questioned their own common sense understanding of it which they had each consciously or unconsciously brought into the courtroom.

To ask jurors to presume that a criminal defendant remains innocent until the State proves him or her guilty, both acknowledges their inclination to believe that one who has been arrested, charged and bound over for trial must have violated the law, and commands them to suppress that inclination. The trial judge’s presumption of not guilty instruction demanded much less of Flores’s jury. Rather than requiring that the jurors chase from their minds all images of Flores as shackled, blameworthy, culpable, the presumed not guilty instruction allowed the jurors to retain their biases and asked only that they hold the State to its legal burden to prove him guilty beyond a reasonable doubt.

The trial judge himself appreciates the radical difference between the phrases “presumed innocent” and “presumed not guilty,” as evidenced by the following quote from another case in which he also chose to administer an instruction containing the latter, incorrect terminology:

Again as I have stated many, many times I do not give an instruction that is in the OUJI; to give a reason for not doing so, I believe that in the OUJI instruction, they state that the defendant is presumed to be innocent. There is a difference between being innocent and not guilty. A person can be found not guilty and still not be innocent of the crime charged. 10

Judge Hopper’s words support the majority’s conclusion that the phrase “presumed not guilty” is not reasonably synonymous with the phrase “presumed innocent.” 11 Those words also provide an example of the danger in allowing individuals in positions of power to follow their own personal beliefs rather than the law.

*1167 Ours is “a government of laws and not of men.” 12 This historic phrase, which expresses the aim of those who framed our Declaration of Independence and founded the Republic, “was the rejection in positive terms of rule by fiat, whether by the fiat of governmental or private power.” 13 Under a government of laws and not of men, “power must be exercised according to law; and government, including the courts, as well as the governed, must move within its limitations.” 14 “[T]here is no arbitrary power located in any individual or body of individuals; but ... all in authority are guided and limited by those provisions which the people have, through the organic law, declared shall be the measure and scope of all control exercised over them.” 15

The citizens of Oklahoma, speaking through the State legislature, have declared that “[a] defendant in a criminal action is presumed to be innocent until the contrary is proved,_” 16 An instruction on the presumption of innocence is included in the Oklahoma Uniform Jury Instructions (Criminal), 17 and must be administered to juries in criminal trials. 18 The Oklahoma citizenry has also declared that when a trial court determines that a jury should be instructed on a subject and an appropriate uniform instruction exists, the uniform instruction “shall be used unless the [trial] court determines that it does not accurately state the law.” 19 Judge Hopper’s conscious decision to supplant the laws of this State with his own brand of justice constitutes government by whim, “the very antithesis of due process.” 20

“[E]ven if a law is found wanting on trial, it is better that its defects should be demonstrated and removed than that the law should be aborted by judicial fiat. Such an assertion of judicial power deflects responsibility from those on whom in a democratic society it ultimately rests — the people.” 21 If *1168 the citizens of this State wish to alter our statutory requirement that juries in criminal trials be instructed that defendants are presumed innocent until proven guilty, they are free to pursue their goals at the State legislative level. In the meantime, trial judges are bound by the rules which the people have enacted.

Dismissing as “harmless” the instructional error committed in this case would undermine two crucial tenets of our democratic society: that a criminal conviction must be supported by trial evidence which establishes guilt beyond a reasonable doubt; and, that our government is one of laws and not of men. I am unwilling to cast my vote in support of a diluted Constitution whose principles wax or wane at the pleasure of the individual who at a given time may be entrusted with their enforcement. I therefore support the majority's decision to reverse Flores’s conviction, and concur in its denial of the State’s Petition for Rehearing.

. 896 P.2d 558 (Okl.Cr.1995).

. 20 O.S.1991, § 3001.1.

. id.

. See 22 O.S.1991, § 836 (Defendant presumed innocent — Reasonable doubt of guilt requires acquittal); 12 O.S.1991, § 577.2 ("Whenever Oklahoma Uniform Jury Instructions (OUJI) contains an instruction applicable in a ... criminal case, ... and the court determines that the jury should be instructed on the subject, the OUJI instructions shall be used unless the court determines that it does not accurately state the law.”). See also OUJI-CR 110 ("Presumption of Innocence").

. In his dissent to this order, Judge Lumpkin's analysis of the issue presented, while unquestionably sincere, is flawed by his perception that the error in these cases can be deemed harmless if there are not other errors and there is overwhelming proof of guilt. The issue presented to us is not whether or not the defendant is guilty. Rather, the issue is whether or not the defendant received a fair trial in accordance with Oklahoma statutes. It is not the business of this Court to sit as a super-jury. It is our business to see that the trial courts follow the law. And, if they do not follow the law, it is our sworn duty to reverse them however difficult or unpopular it may be to do so.

. This Court is not unmindful of the difficulties our decision will bring to the District Court of Tulsa County. We are well aware a large number of cases will have to be retried because of this error. While we are sympathetic to these very real problems, we cannot ignore the clear dictates of the law to reach an expedient result. We are not ordering dismissal of these cases. These cases will be reversed and remanded for new trials. In addition, we are, hopefully, sending a message to the trial judge and the prosecution. Our message to the trial judge is very simple: follow the law. Our message to the prosecution is that it should join with the defense in objecting to a clearly erroneous instruction. With both sides objecting, it is much less likely a trial judge will insist on giving an erroneous instruction.

. Kentucky v. Whorton, 441 U.S. 786, 790-91 , 99 S.Ct. 2088, 2090 , 60 L.Ed.2d 640 (1979), quoting 9 J. Wigmore, Evidence § 2511, p. 407 (3d ed. 1940) (Stewart, J., dissenting). See also Taylor v. Kentucky, 436 U.S. 478, 484-86 , 98 S.Ct. 1930 , 1934 — 35, 56 L.Ed.2d 468 (1978) (recognizing that a "presumption of innocence” instruction significantly aids the jury in understanding the prosecutor's burden to prove guilt beyond a reasonable doubt, and also provides one means of explaining to the jury the accused’s constitutional right to be judged solely upon the evidence adduced at trial).

. See Taylor v. Kentucky, 436 U.S. at 484-86 , 98 S.Ct. at 1934-35 .

. Kentucky v. Whorton, 441 U.S. at 789 , 99 S.Ct. at 2090 .

. Smith v. State, (Tulsa County District Court, CF-93-4510) No. F-94-430, Tr. 212.

. Judge Hopper's words also clearly demonstrate that there is more to the two phrases than a "distinction without a difference” as Judge Lumpkin would have us believe. In fact, the United States Supreme Court in another context has implicitly recognized that the terms "not guilty” and "innocent” are not interchangeable. *1167 A trio of cases handed down on the same day in 1986 made clear that successive habeas petitions which are normally precluded from review may nonetheless be considered if a fundamental miscarriage of justice would otherwise result. See Smith v. Murray, 477 U.S. 527 , 106 S.Ct. 2661 , 91 L.Ed.2d 434 (1986); Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639 , 91 L.Ed.2d 397 (1986); Kuhlman v. Wilson, All U.S. 436, 106 S.Ct. 2616 , 91 L.Ed.2d 364 (1986). To ensure both that the fundamental miscarriage of justice exception would remain infrequent and that it would provide relief to those truly deserving, the Court explicitly tied the exception to the petitioner's actual innocence. See Schlup v. Delo, - U.S.-,-, 115 S.Ct. 851, 864 , 130 L.Ed.2d 808 (1995). By selecting the terms "innocent” and “actually innocent” rather than "not guihy,” the Court made clear its intention that to obtain relief, a successive habeas petitioner must show that they are morally and factually innocent of the crime for which they are incarcerated and not just that they are not guilty under the law. The Court's careful choice of words strongly implies its awareness that the terms innocent and not guilty can mean vastly different things.

. John Adams, "Novanglus Papers," no. 7.— The Works of John Adams, ed. Charles Francis Adams, vol. 4, p. 106 (1851).

. United States v. United Mine Workers of America, 330 U.S. 258, 308-09 , 67 S.Ct. 677, 703 , 91 L.Ed. 884 (1947) (Frankfurter, J., concurring in the judgment).

. Id. at 385 , 67 S.Ct. at 741 (Rutledge, J., dissenting.).

. Cotting v. Godard, 183 U.S. 79, 84 , 22 S.Ct. 30, 32 , 46 L.Ed. 92 (1901).

. 22 O.S.1991, § 836.

. OUJI-CR 110.

. Jenkins v. State, 11 Okl.Cr. 168 , 145 P. 500, 501 (1914).

. 12 O.S.1991, § 577.2 (emphasis added). It should be noted that Judge Hopper does not defend his decision to administer a “presumption of not guilty” instruction rather than a "presumption of innocent” instruction on the grounds that the latter does not accurately state the law. Rather, he seems to harbor the personal belief that "presumed not guilty” better describes the manner in which a jury should view a criminal defendant awaiting trial.

. McGautha v. California, 402 U.S. 183, 250 , 91 S.Ct. 1454, 1488 , 28 L.Ed.2d 711 (1971) (Brennan, J., dissenting), vacated on other grounds, 408 U.S. 941 , 92 S.Ct. 2873 , 33 L.Ed.2d 765 (1972).

. American Federation of Labor v. American Sash and Door Co., 335 U.S. 538, 553 , 69 S.Ct. 260 , 265, 93 L.Ed. 222 (1949) (Frankfurter, J., concurring).