Justice Roach dissent provides excellent discussion of cases that justify Harmless Error review

Justice Roachs dissenting opinion in   Hayes v. Commonwealth, 175 S.W.3d 574 (Ky. 10/20/2005) provides an enlightening discussion of situations that merit the application of the Harmless Error Rule consideration. 

While his opinion was a dissent in this case, it should be considered in any discussion of this issue, where one must determine if a case deserves Harmless Error consideration.
    Our research finds application for the Harmless Error rule going back to English Common Law.  The Ky. Rules of Civil Procedure recognize the Harmless Error Rule in CR 61.01 HARMLESS ERROR.
 The Ky. Rules of Criminal Procedure in the same wording as CR 61.01 applies RCr 9.24 to criminal procedure. A substantial or palpable error is set out in CR 61.02 for civil cases, but also applies to criminal appeals.

    Hayes v. Commonwealth, 175 S.W.3d 574 (Ky. 10/20/2005)

Main points mentioned by Justice Roach

1)  the United States Supreme Court has strictly limited those cases where harmless error is inapplicable, having recognized that “most constitutional errors can be harmless.

2) The Supreme Court itself has repeatedly identified only six structural errors.

3) the Supreme Court meant for its lists of structural errors in Fulminante and Neder to be exhaustive.
    
             HARMLESS ERROR – DISSENT BY JUSTICE ROACH

                     DISSENTING OPINION BY JUSTICE ROACH
[119]    After noting that the evidence against Hayes was “overwhelming” and rejecting all of his claims of error save one relating to voir dire, the majority opinion, in a conclusory fashion, proclaims the voir dire error is not subject to harmless error. Because the majority opinion relies on inapplicable cases and refuses to consider harmless error, I dissent. …

[137]    I agree with the Sixth Circuit that the Constitution does not require that the Fifth Amendment privilege against self-incrimination “must also be covered in voir dire.” Id. Thus I cannot conclude that it was an abuse of discretion for the trial court not to allow Appellant to ask his questions on that subject. And because the trial court ultimately instructed the jury on that privilege, I cannot say that “the trial court’s failure to ask these questions . . . render[ed] the defendant’s trial fundamentally unfair’ so as to require reversal. Mu’Min v. Virginia, 500 U.S. 415, 425-26, 111 S.Ct. 1899, 1905 (1991).
[138]    II. HARMLESS ERROR
[139]    Equally troubling, however, is the majority opinion’s proclamation that harmless error does not apply to the present situation. The opinion relies on Oswald v. Bertrand, 374 F.3d 475 (7th Cir. 2004), to support this conclusion. In Oswald, the trial court sent jury questionnaires to 156 individuals, “more than 80 percent of whom responded that on the basis of the media coverage of the crime they thought that Oswald was guilty.” Id. at 479. It took over four days of voir dire to narrow the list to 29. On the last day the following exchange occurred
[140]    Roger Klitzka, in the course of being voir dired, said, “I know I’ve learned more in the last three days here sitting down there in that room about this case than I have since the day that it happened. . . . [A]ccording to what I hear, the young man is guilty of what he is being accused of and things like that and everything and l just think it’s just a waste of time.” The judge asked him whether he meant “it’s a waste to have the trial at all,” and Klitzka confirmed that that was indeed what he meant.
[141]    Apparently this was not just Klitzka’s personal opinion (he was not selected for the jury). The implication of what he said was that the entire jury pool had made up its mind that Oswald was guilty.
[142]    Id.
[143]    In the face of these statements by a prospective juror about the entire jury pool, the trial judge still refused to make the prospective juror respond to defendant’s counsel’s inquiries concerning what he had heard while the jury pool was discussing the case. The Seventh Circuit noted that “[e]yen though the circumstances strongly suggested that the jury had made up its mind that Oswald was guilty, the judge refused either to question Klitzka further or to recall for further questioning any of the prospective jurors who had already been voir dired.” Id. After noting other juror selection irregularities, the court concluded that there was “a high probability that some, maybe all, of the jurors who tried Oswald were biased.” Id. at 480. The divided court then reversed the conviction because the right “to be tried before an impartial tribunal . . . is one of the handful of rights of a criminal defendant that is not subject to the doctrine of harmless error.” Id. at 482.
[144]    It is clear, however, that Oswald addressed a fundamentally different issue than that presented in this case because it dealt with actual furor bias, namely the belief that the defendant was -quilty. Here there is no evidence that any juror held Hayes’s decision not to testify against him-there is no actual evidence of juror bias. Rather, the inquiry in this case is simply whether the trial court’s failure to allow a question at voir dire concerning the privilege against self incrimination is subject to harmless error analysis. This question is distinct from that addressed in Oswald, where the trial judge refused additional voir dire questioning after a juror’s testimony suggested other members of the jury pool were actually biased. Aside from the opinion of the majority, I am unable to find a case in America that would refuse to apply harmless error in these circumstances.
[145]    In fact, the United States Supreme Court has strictly limited those cases where harmless error is inapplicable, having recognized that “most constitutional errors can be harmless.” Fulminante, supra, at 306, 111 S.Ct. 1246.
 ”[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other [constitutional] errors that may have occurred are subject to harmless-error analysis.” Rose v. Clark, 478 U.S. 570, 579, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986).
 Indeed, we have found an error to be “structural,” and thus subject to automatic reversal, only in a “very limited class of cases.” Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (complete denial of counsel); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (biased trial judge); Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986) (racial discrimination in selection of grand jury); McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (denial of self-representation at trial); Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (denial of public trial); Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (defective reasonable-doubt instruction)).
[147]   Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 1833 (1999) (alterations in original, emphasis added). The Supreme Court recently reaffirmed this principle, stating that “[i]t is only for certain structural errors undermining the fairness of a criminal proceeding as a whole that even preserved error requires reversal without regard to the mistake’s effect on the proceeding.” United States v. Dominguez Benitez, 542 U.S. 74, -, 124 S.Ct. 2333, 2339 (2004); see also United States v. Gonzalez-Huerta, 403 F.3d 727, 734 (10th Cir. 2005) (“The Court has found structural errors only in a very limited class of cases”); United States v. Padilla, 415 F.3d 211, 219 (1st Cir. 2005) (stating that the Supreme Court has “recognized the existence of a tiny class of structural errors” that “includes only the most pervasive and debilitating errors”).
[148]   The Supreme Court itself has repeatedly identified only six structural errors.       E~,, Neder, 527 U.S. at 8, 119 S.Ct. at 1833 (citing Johnson v. United States, 520 U.S. 461, 468-69, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) and its recognition of structural error in only six circumstances:
 (1) a total deprivation of the right to counsel;
(2) lack of an impartial trial judge;
(3) unlawful exclusion of grand jurors on the basis of race;
 (4) denial of the right to self-representation at trial;
 (5) denial of the right to a public trial; and
 (6) an erroneous reasonable doubt instruction to the jury); see also Gonzalez-Huerta, 403 F.3d at 734 n.5 (noting the six structural errors the Supreme Court has identified); Padilla, 415 F.3d at 219 (same); Lewis v. Pinchak,348 F.3d 355, 358 (3d Cir. 2003) (same); State v. Torres, 93 P.3d 1056, 1059-1060 (Ariz. 2004) (same).
[149]    Recently, in a unanimous en – banc decision, the Eighth Circuit surmised “that the Supreme Court meant for its lists of structural errors in Fulminante and Neder to be exhaustive.” United States v. Allen, 406 F.3d 940, 945 (8th Cir. 2005) (en banc).
 The North Carolina Supreme Court has also declined to extend structural error analysis beyond the “six cases enumerated by the United States Supreme Court.” State v. Garcia, 597 S.E.2d 724, 745 (N.C. 2004). This conclusion is further supported by the fact that the Supreme Court has had several opportunities to expand its list of structural errors, but has consistently refused to do so. See, e.g., Johnson; Neder.
Even if one were not persuaded that the list of structural errors in Fulminante and Neder is exhaustive, the majority opinion has utterly failed to make its case that the alleged voir dire error-a relatively minor event at most-is within the “tiny class of structural errors” that includes only the “most pervasive and debilitating errors. “Fadilia, 415 F.3d at 219.
 It simply strains reason for the majority to claim that the alleged error at issue was so pervasive and debilitating as to infect “the framework within which the trial proceed[ed],” thus allowing Appellant to evade harmless error review through the application of the structural error doctrine. Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).
[150]    Moreover, our own Criminal Rules require that we undertake harmless error review:
[151]    No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order, or in anything done or omitted by the court or by any of the parties, is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order unless it appears to the court that the denial of such relief would be inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding that does not affect the substantial rights_of the parties.
[152]    CR 9.24 (emphasis added). Absent some overriding constitutional mandate, we must determine whether an error is harmless before finding that an error is reversible. Since there is no evidence that a juror who was seated drew an adverse inference against Harrison and since the jury was properly instructed, I cannot discern any error that affected his substantial rights.

[153]         III. CONCLUSION

[154]    In accordance with the foregoing discussion, I would affirm Hayes’s convictions based on the overwhelming evidence against him.

[155]    I agree with the majority’s opinion as to Harrison, though I would affirm his conviction for possession of drug paraphernalia.

[156]    Graves and Wintersheimer, JJ., join this dissenting opinion.

For personal bio of Justice Roach please go to: http://www.kycourts.net/Supreme/SC_Bios_Roach.shtm

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