concluding that "superfluous definition" of term that "was not enumerated as an element of the offense" was "harmless"
How later courts described this case
- concluding that "superfluous definition" of term that "was not enumerated as an element of the offense" was "harmless"
- waiver of the right to counsel will not be "lightly presumed"
- “We therefore hold, consistent with Coleman[], that the denial of counsel at a preliminary hearing is subject to harmless error analysis.”
Written by the judges who cited it.
The opinion
*410 CHAPEL, J.,
Dissenting:
{1 In 1987 this Court considered whether denial of counsel at preliminary hearing could be harmless error. In Cleek v. State, 1 we determined that, as the Oklahoma constitution provides for preliminary hearing, this was a critical stage of trial and a defendant must be afforded counsel. We considered the corresponding United States Supreme Court case law holding a denial of counsel potentially harmless, 2 and determined that the provisions of our state constitution differed significantly enough to compel a different result. We decided that, under the Oklahoma constitution, denial of counsel at preliminary hearing was reversible error. 3 Although nothing has changed in the intervening years, the majority proposes we revisit Cleek and reach the opposite conclusion.
[2 I believe Cleek is correctly decided on state constitutional grounds. I see no inconsistency in saying that a defendant may not be denied counsel at preliminary hearing, but may waive preliminary hearing under certain cireumstances. Indeed, one may waive counsel at preliminary hearing. However, a defendant's choice to waive either counsel or preliminary hearing itself cannot be compared to denial of the right to representation at a critical stage of criminal proceedings. I might go along with an argument that Norton waived his right to counsel, but the majority finds no waiver, and I will not disagree In that case I 'think reversal is required.
. 1987 OK CR 278 , 748 P.2d 39 .
. Coleman v. Alabama, 399 U.S. 1 , 90 S.Ct. 1999 , 26 L.Ed.2d 387 (1970).
. Cleek, 748 P.2d at 41 .