# Robinson v. State

> Court of Criminal Appeals of Oklahoma · April 21, 2011 · 255 P.3d 425

URL: https://www.frixlaw.com/law-library/cases/9777983

## Case

- **Full name:** Kevin Wayne ROBINSON, Appellant, v. STATE of Oklahoma, Appellee
- **Court:** Court of Criminal Appeals of Oklahoma
- **Decided:** April 21, 2011
- **Citations:** 255 P.3d 425; 2011 OK CR 15; 2011 Okla. Crim. App. LEXIS 16; 2011 WL 1546453
- **Precedential status:** Published
- **Opinion:** Concurrence by Lumpkin
- **Judges:** Smith, Johnson, Lewis, Lumpkin
- **Cited by:** 42 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/9777983

## Opinion text

LUMPKIN, Judge:
SPECIALLY CONCURRING.
T1 I agree with the rationale and result reached in the present case, but write further to explain that the denial of a peremptory challenge is a due process issue.
12 First, I note that Appellant did not challenge the deprivation of the peremptory challenge before the trial court. As such Appellant has waived appellate review of the instant challenge for all but plain error. Wackerly v. State, 2000 OK CR 15, ¶ 7 , 12 P.3d 1, 7 ; Simpson v. State, 1994 OK CR 40, ¶ 2 , 876 P.2d 690, 692-93 . However, this analysis is only applicable because the United States Supreme Court has determined that the loss of a peremptory challenge is a due process issue.
T3 The loss of a peremptory challenge is not of a constitutional dimension. Ross v. Oklahoma, 487 U.S. 81, 88 , 108 S.Ct. 2273, 2278 , 101 L.Ed.2d 80 (1988). Instead, "[tlhe right to exercise peremptory challenges in state court is determined by state law." Rivera v. Illinois, 556 U.S. 148 , 129 S.Ct. 1446, 1450 , 173 L.Ed.2d 320 (2009). States pass statutes defining the proper procedure and the failure to follow this procedure results in a due process analysis. See Golden v. State, 2006 OK CR 2, ¶ 6 , 127 P.3d 1150, 1156 (Lumpkin, V.P.J., dissenting); Lisenba v. People of State of California, 314 U.S. 219, 236-37 , 62 S.Ct. 280, 290 , 86 L.Ed. 166 (1941). Not every violation of state law rises to the level of a constitutional due process violation.
"LA] mere error of state law," we have noted, "is not a denial of due process." Engle v. Isaac, 456 U.S. 107, 121, n. 21 , 102 S.Ct. 1558 , 71 L.Ed.2d 783 (1982) (internal quotation marks omitted). See also Estelle v. McGuire, 502 U.S. 62, 67, 72-73 , 112 S.Ct. 475 , 116 L.Ed.2d 385 (1991). The Due Process Clause, our decisions instruct, safeguards not the meticulous observance of state procedural prescriptions, but "the *434 fundamental elements of fairness in a criminal trial." Spencer v. Texas, 385 U.S. 554, 563-564 , 87 S.Ct. 648 , 17 L.Ed.2d 606 (1967).
Rivera, 556 U.S. at —, 129 S.Ct. at 1454 . At bottom, the Due Process Clause requires a fundamentally fair trial. Bracy v. Gramley, 520 U.S. 899, 904-05 , 117 S.Ct. 1793, 1797 , 138 L.Ed.2d 97 (1997).
I 4 A majority of this Court determined in Golden v. State, 2006 OK CR 2, ¶¶ 13-19 , 127 P.3d 1150, 1153-54 , that a denial of the complete array of peremptory challenges to which a defendant is entitled to under Oklahoma law constitutes structural error which may not be deemed harmless error. Since Golden, the United States Supreme Court has determined that the erroneous denial of a peremptory challenge does not require automatic reversal of a defendant's conviction as a matter of federal law. Rivera, 556 U.S. at —, 129 S.Ct. at 1452-53 . Golden was decided on federal Constitutional grounds and not an independent state law basis. Golden, 2006 OK CR 2, ¶¶ 14-15 , 127 P.3d at 1153-54 . Therefore, Rivera mandates the overruling of Golden. Michigan v. Long, 463 U.S. 1032, 1041 , 103 S.Ct. 3469, 3476-77 , 77 L.Ed.2d 1201 (1983) (holding that state courts are free and unfettered to interpret their state constitutions however the United States Supreme Court's determinations of federal constitutional questions is controlling).
5 Turning to our analysis of due process in jury formation, the key question is: "was the jury as finally composed fair and impartial and no member removable for cause." See Rivera, 556 U.S. at —, 129 S.Ct. at 1453-54 ; Ross, 487 U.S. at 89 , 108 S.Ct. at 2279 ("If a defendant is tried before a qualified jury composed of individuals not chal-lengeable for cause, the loss of a peremptory challenge due to a state court's good-faith error is not a matter of federal constitutional concern."); Grant v. State, 2009 OK CR 11, ¶ 22 , 205 P.3d 1, 12 ; Rojem v. State, 2006 OK CR 7, ¶¶ 36-37 , 130 P.3d 287, 295 ; Harris v. State, 2004 OK CR 1, ¶¶ 13-14 , 84 P.3d 731, 741 ; Ross v. State, 1986 OK CR 49, ¶ 11 , 717 P.2d 117, 120 . As the jury in the present case was fair and impartial no due process violation has been shown.
T6 As no constitutional error occurred we turn to state law to determine the effect of the error. "Just as state law controls the existence and exercise of peremptory challenges, so state law determines the consequences of an erroneous denial of such a challenge." Rivera, 556 U.S. at —, 129 S.Ct. at 1450 . The erroneous deprivation of the peremptory challenge is harmless. 20 ©.9.2001, § 3001.1.
[ 1 Further, in relation to Proposition IV, I note that in Harmon v. State, 2011 OK CR 6, ¶ 55-57 , 248 P.3d 918, 938 , this Court finally settled the reasonable hypothesis argument and directed the Oklahoma Uniform Instruction Committee (Criminal) to correct the instructions regarding proof of aggravating circumstances just as it had for the rest of our sufficiency of the evidence analysis in Easlick v. State, 2004 OK CR 21, ¶ 15 , 90 P.3d 556, 559 .
C. JOHNSON, Judge:
SPECIALLY CONCURRING.
T 1 I agree with the result reached by the Court in this case. The Court is proper in revisiting Golden v. State, 2006 OK CR 2 , 127 P.3d 1150 , wherein my opinion held that the error was "structural error" and reversal was required.
[ 2 The recent U.S. Supreme Court case of Rivera v. Illinois, 556 U.S. 148 , 129 S.Ct. 1446 , 173 L.Ed.2d 320 (2009), indicated that state courts could look to basically a harmless error analysis as to the problem with the challenges and "structural error." I agree with the Court in this case that the error could be harmless. There is no question that all parties agreed and it is not the egregious problem that we had in Golden.
3 I still have a firm belief that the right of an Appellant to have the proper number of peremptory challenges goes to the heart of a defendant's due process rights. Again, the Court should look at this on a case by case basis, but my belief still is that this is a fundamental right and must be protected. I *435 am authorized to state that Judge David Lewis joins in this writing.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9777983. Public record. Not legal advice.