Flores v. State

JOHNSON, Presiding Judge,

dissenting:

I also dissent to the Court’s decision to deny the Petition for Rehearing in the above-styled cause. At the outset, I must apologize to my colleagues relative to my concurrence in the original case herein. Flores v. State, 896 P.2d 558 (1995). My apology is based upon my reading of the case. I did concur with the decision as it related to Jose Flores only. After many discussions by the Judges on this Court, I find that I was in error in interpreting the wording in the opinion. I was wrong in my interpretation of “whether the error is harmless error beyond a reasonable doubt or goes to the foundation of the case constituting a substantial violation of a constitutional or statutory right.” Flores v. State, 896 P.2d at 560 . My initial reading of the opinion and my reason for the 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 and, therefore, voted to concur. Now I find that the majority would reverse all Flores type cases due to the fact that it is a substantial violation of a statutory right and the harmless error doctrine would not apply. Therefore, I dissent.

I will not write a long dissenting opinion due to the fact I generally concur in the dissent written by Judge Lumpkin and find it to be an excellent historical analysis of not only the function of an appellate court but also an excellent analysis of the “harmless error doctrine”. I specifically agree with Judge Lumpkin that the United States Supreme Court has not made a finding that the presumption of innocence instruction is of constitutional magnitude nor a constitutional requirement. Kentucky v. Whorton, 441 U.S. 786 , 99 S.Ct. 2088 , 60 L.Ed.2d 640 (1979).

I also agree with Judge Chapel’s specially concurring opinion wherein he makes reference to all of the Court being unanimous in its position that there is error in the original Flores case when the judge instructed on “not guilty” rather than “presumed innocent”. I further agree with Judge Chapel that this will cause a great deal of difficulty and many additional trials in the District Court of Tulsa County. I agree with Judge Chapel that this Court has not created the error, this Court has not created the problem, the problem was created by a District Judge who did not follow the law and use the OUJI instructions as required to do.

I again would use the harmless error doctrine in all of these eases and would look at each case to see whether or not the cases could be affirmed by using such doctrine. Lawyers understand the great legal difference between the terms “presumed innocent” and “not guilty”. While I feel this from a legal standpoint, I am not sure that jurors understand the significant difference between the two terms. Many layman would even consider this to be a legal technicality. Based upon this assumption, I would find that the harmless error doctrine could be applied to all of these cases and that the error does not constitute a substantial violation of a statutory right. Therefore, it is not so fundamental as it would require reversal of all of these cases. 20 O.S.1991, § 3001.1.