Golden v. State

• Decision Date: 10 January 2006
• Docket Number: No. F2004-582.,F2004-582.
• Citation: 2006 OK CR 2,127 P.3d 1150
• Parties: Ryan GOLDEN, Appellant v. STATE of Oklahoma, Appellee.
• Court: Oklahoma Supreme Court

127 P.3d 1150

2006 OK CR 2

Ryan GOLDEN, Appellant v. STATE of Oklahoma, Appellee.

No. F2004-582.

Court of Criminal Appeals of Oklahoma.

January 10, 2006.

An Appeal from the District Court of Pottawatomie County; the Honorable John Gardner, Associate District Judge.

Richard Smotherman, Asst. District Attorney, Melissa Estes, Legal Intern, Shawnee, OK, attorney for the State at trial.

Carlyle Hatfield, Chad Moody, Attorneys at Law, Oklahoma City, OK, attorneys for the defendant at trial.

Cindy Brown Danner, Appellate Defense Counsel, Norman, OK, attorney for appellant on appeal.

W.A. Drew Edmondson, Attorney General Of Oklahoma, Preston Saul Draper, Assistant Attorney General, Oklahoma City, OK, attorneys for State on appeal.

OPINION

C. JOHNSON, Judge.

¶ 1 Appellant, Ryan Golden, was convicted by a jury in Pottawatomie County District Court, Case No. CF 2003-199, of First Degree Murder, in violation of 21 O.S.2001, § 701.1(A). Jury trial was held on March 9th-11th, 2001, before the Honorable John Gardner, Associate District Judge. The jury set punishment at life imprisonment without the possibility of parole and Judge Gardner sentenced Appellant in accordance with the jury's verdict on April 16, 2004. From the Judgment and Sentence imposed, Appellant filed this appeal.

¶ 2 Recitation of the facts surrounding the crime is not necessary because reversible error occurred in the manner of jury selection which requires this matter to be reversed and remanded for a new trial.

¶ 3 Prior to jury selection, the trial court announced it would call twenty-two (22) names and then the State and the Defendant would each have five (5) peremptory challenges. (Tr. 18) The trial court stated it would "offer unlimited challenges for cause" but "the law grants both the state and the defendant five preemptory (sic) changes ... to excuse any prospective juror for any reason whatsoever." (Tr. 22) In his first claim of error, Mr. Golden argues he must be granted a new trial because he was not afforded the statutorily-prescribed number of peremptory challenges in his first degree murder trial. We agree.

¶ 4 Title 22, Section 655 provides that in prosecutions for first degree murder, a defendant is entitled to nine peremptory challenges. The statutory language is clear. The trial court erred when it did not allow Mr. Golden nine peremptory challenges. We agree with Mr. Golden that the trial court's error deprived him of his statutory right to nine peremptory challenges and his constitutional right to due process of law. Marrero v. State, 2001 OK CR 12, ¶¶ 11-12, 29 P.3d 580, 582; Spunaugle v. State, 1997 OK CR 47, ¶¶ 30-32, 946 P.2d 246, 252, overruled on other grounds by Long v. State, 2003 OK CR 14, 74 P.3d 105; Ross v. Oklahoma, 487 U.S. 81, 91, 108 S.Ct. 2273, 2280, 101 L.Ed.2d 80 (1988).

¶ 5 In Marrero, a defendant charged with first degree murder was tried jointly with a co-defendant who was not charged with murder and the trial court required the defendants to share five peremptory challenges. There, we found reversible error and stated "the denial of the full number of peremptory challenges allowed by state law amounted to a structural error that affected the entire trial." Id. We noted defense counsel objected at trial and said "under the facts of this case" the error could not be harmless. Id. While we found the error in Marrero was structural and reversible, our reference to the "facts of the case" and to preservation of the error suggests this Court in fact applied a harmless error analysis and did not actually treat the error as structural error.

¶ 6 In Spunaugle, we found the denial of three peremptory challenges in a murder prosecution to be error "which pervaded the entire trial" and which was "not subject to harmless error analysis," but also stated the error was not "waived" and noted facts in the record sufficient to prove prejudice. Spunaugle, 1997 OK CR 47, ¶ 32, 946 P.2d at 252. Like Marrero, in Spunaugle, the language of our opinion suggests that this Court did not, in fact, treat the error as structural.

¶ 7 The State admits that depriving a defendant of his full complement of peremptory challenges is error, but suggests the error should be considered harmless because it was waived by the defendant. The State argues counsel's failure to object waives review for all but plain error and further argues that Golden did not make a sufficient record to prove prejudice by claiming he was forced to keep objectionable jurors because of the trial court's error on peremptory challenges.

¶ 8 This Court has reviewed only two other cases, besides Marrero and Spunaugle wherein the defendant alleged he was deprived of the full complement of statutorily prescribed peremptory challenges and in those cases, the Court required the defendant to prove prejudice.¹ In Landrum v. State, 1971 OK CR 235, 486 P.2d 757, the trial court denied the defendant his last five peremptory challenges after his counsel waived the fourth peremptory challenge. The Court cited the syllabus from Phelps v. State, 1965 OK CR 98, 404 P.2d 687, to state:

It is not error alone that reverses judgments of conviction of crime in this State, but error plus injury, and the burden is upon the appellant to establish the fact that he was prejudiced in his substantial rights by the commission of the error.

Landrum, 1971 OK CR 235, ¶ 13, 486 P.2d 757. In Landrum, voir dire was not transcribed and there was nothing in the appeal record for this Court to review. The Court held the defendant had failed to show error coupled with injury and how he might have been prejudiced. Id., 1971 OK CR 235, ¶ 18, 486 P.2d at 759.

¶ 9 In a murder prosecution in White v. State, 1986 OK CR 153, 726 P.2d 905, the trial court allowed the defendant only five peremptory challenges. Defense counsel did not object and did not request additional challenges. Citing Landrum, the Court said the burden was on the appellant to "show that he was prejudiced in his substantial rights by the commission of the error" and found the complaint was not sufficient to cause reversal. Id., 1986 OK CR 153, ¶ 4, 726 P.2d at 907.

¶ 10 We take this opportunity to clarify whether the denial of the statutory number of peremptory challenges in a first degree murder case requires a showing of prejudice or requires automatic reversal. In other words, is it an error subject to harmless error analysis or is it a structural error?

¶ 11 In Ross v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 2278, 101 L.Ed.2d 80 (1988), the Supreme Court rejected the notion that the loss of a peremptory challenge constitutes a violation of the constitutional right to an impartial jury. "Because peremptory challenges are a creature of statute and are not required by the Constitution, it is for the State to determine the number of peremptory challenges allowed and to define their purpose and the manner of their exercise. As such, the "right" to peremptory challenges is "denied" or "impaired" only if the defendant does not receive that which state law provides." (citations omitted) Id., 487 U.S. at 89, 108 S.Ct. at 2279.

¶ 12 Oklahoma law provides that "[I]n all criminal cases the prosecution and the defendant are each entitled to the following peremptory challenges: . . . First. In prosecutions for first degree murder, nine jurors each." 22 O.S.2001, § 655. Oklahoma has therefore determined the number of peremptory challenges allowed and has defined their purpose and the manner of their exercise. Id., 487 U.S. at 89, 108 S.Ct. at 2279. Golden was charged with and tried for the crime of First Degree Murder, and, under Oklahoma law, was entitled to nine peremptory challenges. The record reflects he only received five.

¶ 13 While the right of peremptory challenge is not protected under the federal constitution, it is specifically provided for and safe-guarded by Oklahoma statute. Deprivation of the right to exercise nine peremptory challenges, which was statutorily due under Oklahoma law, constitutes a due process violation. This is not a case where the defendant claimed he was denied his full complement of peremptory challenges because he had to exercise one to remove a juror whom the trial court should have removed for cause. In this case, Golden was not afforded four challenges to which he was statutorily entitled. Golden did not receive all that was due him under Oklahoma law. See Hicks v. Oklahoma, 447 U.S. 343, 346, 100 S.Ct. 2227, 2229, 65 L.Ed.2d 175 (1980)(denial of petitioner's statutory right to have jury determine punishment constituted a violation of due process).

¶ 14 A "constitutional error does not automatically require reversal if it is subject to a harmless error analysis. Phillips v. State, 1999 OK CR 38, ¶ 67, 989 P.2d 1017, 1036; see Arizona v. Fulminante, 499 U.S. 279, 306, 111 S.Ct. 1246, 1263, 113 L.Ed.2d 302 (1991). In Arizona v. Fulminante, when discussing the general rule pronounced in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), that a constitutional error does not automatically require reversal, the Supreme Court said:

The common thread connecting these cases [those cases applying Chapman /harmless error analysis] is that each involved "trial error" — error which occurred during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt.

(emphasis added). Fulminante, 499 U.S. at 307-308, 111 S.Ct. at 1264. Harmless error analysis should be applied to an error which occurs in the presentation of the case to the jury and which can be measured against other evidence to determine whether it affected the factual determination of a defendant's guilt or innocence. Id.

¶ 15 Structural errors, which defy harmless error standards, are those defects in the trial itself which affect the framework in which the trial...