# Flores v. State > Court of Criminal Appeals of Oklahoma · June 27, 1995 · 66 O.B.A.J. 2161 URL: https://www.frixlaw.com/law-library/cases/9600732 ## Case - **Full name:** Jose Flores FLORES, Appellant, v. STATE of Oklahoma, Appellee - **Court:** Court of Criminal Appeals of Oklahoma - **Decided:** June 27, 1995 - **Citations:** 66 O.B.A.J. 2161; 899 P.2d 1162; 1995 OK CR 31; 1995 Okla. Crim. App. LEXIS 40; 1995 WL 500467 - **Precedential status:** Published - **Opinion:** Concurrence by Strubhar - **Judges:** Lane, Chapel, Strubhar, Johnson, Lumpkin - **Cited by:** 11 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/9600732 ## Opinion text STRUBHAR, Judge, specially concurring: It is with some trepidation that I write to this Order denying rehearing since the opinion of January 24, 1995 1 clearly sets forth the views of this Court, the dissents’ remarks notwithstanding. I am saddened by the dissents’ attempted evisceration of a principle so fundamental to our system. It is disheartening that Judge Lumpkin chooses to term as a “folkway” a principle which serves as the foundation of our criminal justice system. To discount the presumption of innocence is to succumb to the current trend in our society to shirk and devalue principles for short-term and short-sighted results. If the presumption of innocence is not sacred in our system then what is to become of us. This Court took this challenge very seriously when it rendered its decision in this matter. Knowing its decision could affect many convictions, otherwise valid and cause great pain for victim’s families, this writer agonized over the decision to find such an error may never be harmless. Yet, in the name of preserving convictions in which the accused is overwhelmingly guilty, the dissent attempts to drain Flores of much of its vitality. The dissents’ untenable conclusion, that the error can be harmless when the evidence of guilt is strong, arises from a specious denial of the role of the Due Process Clause in protecting the invaluable guarantee afforded by the presumption of innocence. 2 Judge Lumpkin and Judge Johnson both agreed that the erroneous instruction in this case lessened the burden of proof. See Flores v. State, 896 P.2d at 564 (Lumpkin, J. concurring in result). However, they now somehow reason that such an error can be harmless if the evidence of guilt is overwhelming. This surely cannot be. If the instruction in this case lessens the burden of proof, an identical instruction in another case must also have the same effect regardless of the evidence of guilt. And when an instructional error consists of a misdescription of the burden of proof, it vitiates all of the jury’s findings. Sullivan v. Louisiana, 508 U.S.-,- -, 113 S.Ct. 2078, 1082-83 , 124 L.Ed.2d 182, 190 (1993). This leaves a reviewing court to engage in pure speculation as to what a reasonable jury would have done. Sullivan v. Louisiana, 508 U.S. at-, 113 S.Ct. at 2082-83 , 124 L.Ed.2d at 190 . The Supreme Court has said such an error is structural and is not subject to harmless error review. Id. The dissents’ votes in this case are wholly inconsistent "with their harmless error analysis. The facts show overwhelmingly that Mr. Flores brutally and savagely strangled Sheila Ann Brown and prior to her death caused severe and violent injury to her anal opening. After this savage murder Mr. Flores ruthlessly bound and gagged Brown and tossed her body into a trash dumpster. Yet in the Flores opinion of January 24, 1995, Judges Lumpkin and Johnson found the presumed not guilty instruction necessitated reversal because the error was harmful. It is they who need to more fully explain their change in position 3 ; judicial integrity requires it. *1169 Truly, it is unfortunate that the dissent now finds the need to retreat from the original Flores decision in the wake of several reversals based on the plain error found in this case. Each member of this Court has sworn an oath to uphold the law and apply it without regard to public opinion, retention elections and the number of cases affected. In our system the presumption of innocence gives concrete protection to the accused and forbids the State from imposing punishment unless it can demonstrate beyond a reasonable doubt at a public trial with the attendant constitutional safeguards that a particular individual has engaged in proscribed criminal conduct. “Our society’s belief, reinforced over the centuries, that all are innocent until the state has proved them to be guilty, like the companion principle that guilt must be proved beyond a reasonable doubt, is ‘implicit in the concept of ordered liberty,’ Palko v. Connecticut, 302 U.S. 319, 325 , 58 S.Ct. 149, 152 , 82 L.Ed. 288 (1937), and is established beyond legislative contravention in the Due Process Clause. See Estelle v. Williams, 425 U.S. 501, 503 , 96 S.Ct. 1691, 1692-1693 , 48 L.Ed.2d 126 (1976); In re Winship, 397 U.S. 358, 364 , 90 S.Ct. 1068, 1072-1073 , 25 L.Ed.2d 368 (1970). See also Taylor v. Kentucky, 436 U.S. 478, 483 , 98 S.Ct. 1930, 1933-1934 , 56 L.Ed.2d 468 (1978); Kentucky v. Whorton, 441 U.S. 786, 790 , 99 S.Ct. 2088, 2090 , 60 L.Ed.2d 640 (1979) (Stewart, J., dissenting).” U.S. v. Salerno, 481 U.S. 739, 763 , 107 S.Ct. 2095, 2110 , 95 L.Ed.2d 697 (1987) (Marshall, J., and Brennan, J., dissenting). “It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people.” United States v. Rabinowitz, 339 U.S. 56, 69 , 70 S.Ct. 430, 436 , 94 L.Ed. 653 (1950) (Frankfurter, J., dissenting). Honoring the presumption of innocence can be difficult and sometimes we as citizens of a free society must pay substantial social costs as a result of our commitment to the values we espouse. But in the end the presumption of innocence protects the innocent. The shortcuts we take with those whom we believe to be guilty can only harm those wrongfully accused and, ultimately, ourselves. It has always been my belief that one of this Court’s most important roles is to provide a formidable bulwark against governmental violation of the constitutional and statutory safeguards securing in our free society the legitimate expectations of every person to innate human dignity, and a fair trial. It is a regrettable abdication of that role and a saddening denigration of our system when members of this Court would condone arbitrary and capricious judicial conduct branding an individual as a criminal without compliance with constitutional and statutory procedures which ensure the fair and impartial ascertainment of criminal culpability. The dissents’ position must surely be a short-lived aberration. Throughout the world today there are men, women, and children imprisoned indefinitely, awaiting trials which may never come or which may be nothing more than a mockery because their governments believe them to be “dangerous.” Our Constitution and its attendant principle of the presumption of innocence, whose construction began long ago, can shelter us forever from the evils of such unchecked power. Over our history our principles have slowly, through our efforts, grown more durable, more expansive, and more just. Yet, principles alone cannot protect us if we lack the courage, and the self-restraint, to protect ourselves. Today, the dissent applies itself to an ominous exercise in demolition. Theirs is truly a position which will go forth without authority, and come back without respect. The trial court’s erroneous instruction altering the presumption of innocence to a presumption of not guilty amounts to plain error. As Mark Twain once said, “[t]he difference between the almost right word is really a large matter — ‘tis the difference between the lightning bug and the lightning.” 4 Honoring the oath I swore upon taking this office, I concur in *1170 this Order denying the State’s Petition for Rehearing. . Flores v. State, 896 P.2d 558 (1995). . While acknowledging a distinction between omitting an instruction on the presumption of innocence and administering an incorrect instruction, Judge Lumpkin employs the erroneous analysis used when an instruction is omitted rather than considering the specific question presented. .See Judge Johnson's Dissenting Opinion in which he states, "I must apologize to my col *1169 leagues [for my vote] ... my reason for [my] concurrence was my position that although there was error, which is clear and unambiguous, I would have applied a harmless error test but in Flores , I did not find harmless error_" (emphasis added). . The Art of Authorship --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9600732. Public record. Not legal advice.