Black v. State

CHAPEL, Judge,

dissenting:

The opinion in this ease takes the theories of “harmless error” and “waiver” to new heights, piling one concept on another in a strained effort to uphold a defective conviction. Either or both of these concepts can be useful tools, but neither should be used to deny any citizen his or her basic constitutional rights. No litigant is entitled to perfection in legal proceedings, but all litigants are entitled to a trial which affords protection of constitutional rights. Plotner v. State, 762 P.2d 936 (Okl.Cr.1988) (defendant is entitled to a fair trial, not a perfect one). The opinion in this case goes too far in affirming a conviction which was obtained only after two (2) constitutional violations occurred.

The authorities arrested and held the defendant for ten (10) days before he was taken before a magistrate for a probable cause hearing. I agree with the opinion’s fine analysis of the Pugh 1 and McLaughlin 2 decisions and its conclusion that evidence gathered after forty-eight (48) hours of detention is inadmissible. However, I disagree with the application of harmless error analysis under the circumstances. Instead, where a defendant is held for ten (10) days without a hearing, as here, I would reverse with instructions to dismiss. Moreover, even if harmless error analysis were appropriate, I could not agree that the admission of evidence gathered after forty-eight (48) hours of detention was harmless “beyond a reasonable doubt” as required by Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967).

*46 Further compounding the problem in this case is a clear Batson 3 violation which the opinion disposes of by concluding the error was waived by defendant’s failure to object. I cannot agree. Most constitutional rights can be waived. However, waivers of some constitutional protections can only be waived by a defendant who makes an informed, knowing waiver. In some cases, the knowing and informed requirement may be imputed to a defendant’s attorney, who may waive certain constitutional rights by failing to object when there is a strategical reason for doing so. Confrontation would be one example of a constitutional right that may be waived by counsel’s failure to object at trial.

However, some constitutional rights are so “fundamental” that there is absolutely no strategical reason to “waive” them during trial and which may never be waived by counsel’s failure to object unless the defendant knowingly and voluntarily decides to waive these rights him or her self. 4 Examples of these “fundamental” constitutional rights include: the right to counsel, Chapman v. California, 386 U.S. 18 , 24 n. 8, 87 S.Ct. 824 , 828 n. 8, 17 L.Ed.2d 705 (1967), citing Gideon v. Wainright, 372 U.S. 335 , 83 S.Ct. 792 , 9 L.Ed.2d 799 ; the right to an impartial judge, Chapman, supra, citing Turney v. State of Ohio, 273 U.S. 510 , 47 S.Ct. 437 , 71 L.Ed. 749 ; and the protection against double jeopardy, Menna v. New York, 423 U.S. 61 , 96 S.Ct. 241 , 46 L.Ed.2d 195 (1975).

The Sixth Amendment right to a trial by a jury composed of a fair cross-section of the community 5 is another right which I would deem “fundamental” under this category of cases. Therefore, absent an affirmative waiver by the defendant, a violation of these protections is fundamental error and, therefore, reversible error regardless of whether counsel objected at trial or not. Accordingly, I do not believe we can, or should, infer a waiver of constitutional rights which fall into this category. I would reverse the conviction on the Batson violation.

. Gerstein v. Pugh, 420 U.S. 103 , 95 S.Ct. 854 , 43 L.Ed.2d 54 (1975).

. County of Riverside v. McLaughlin, 500 U.S. 44 , 111 S.Ct. 1661 , 114 L.Ed.2d 49 (1991).

. Batson v. Kentucky, 476 U.S. 79, 98 , 106 S.Ct. 1712, 1723 , 90 L.Ed.2d 69 (1986).

. This Court has held that failure to object waives review of all but fundamental error. Garcia v. State, 734 P.2d 820, 824 (Okl.Cr.1987). This Court has defined fundamental error as error "which denies the accused a constitutional or statutory right, and which goes to the foundation of the case.” Miller v. State, 827 P.2d 875, 878 (Okl.Cr.1992), citing West v. State, 764 P.2d 528 (Okl.Cr.1988). I interpret this to mean that this type of error would not be fundamental had the defendant knowingly and voluntarily waived the rights him or her self. In other words, this type of error can be waived, but waiver will not be presumed from a silent record, i.e. by a failure to object.

.Litteer v. State, 783 P.2d 971, 972 (Okl.Cr.1989), overruled on other grounds, 862 P.2d 1271 (Okl.Cr.1993), citing Taylor v. Louisiana, 419 U.S. 522 , 95 S.Ct. 692 , 42 L.Ed.2d 690 (1975).