OK: Refusal to consent as evidence subject to harmless error

Admission of defendant’s refusal to consent to a search in this capital case was error, but it was harmless beyond a reasonable doubt on the whole record. The court provides a comprehensive review of state cases on the subject of error in referring to refusal of consent. Bosse v. State, 2015 OK CR 14, 2015 Okla. Crim. App. LEXIS 14 (Oct. 16, 2015):

[*P39] This Court finds the weight of the law discussed above persuasive, but we note that this issue is subject to harmless error analysis. Most constitutional errors occurring during trial are subject to harmless error analysis, as they may be assessed, along with the evidence presented, for any prejudice to the defendant. Robinson v. State, 2011 OK CR 15, ¶ 3, 255 P.3d 425, 428; Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). For purposes of this case, we assume without deciding that a defendant’s exercise of his Fourth Amendment right to refuse consent to search may not be used as substantive evidence of guilt. Because the error is of constitutional dimensions, we review both admission of the evidence and its use in closing argument to determine whether the error was harmless beyond a reasonable doubt. Robinson, 2011 OK CR 15, ¶ 12, 255 P.3d at 430; Bartell v. State, 1994 OK CR 59, ¶ 10, 881 P.2d 92, 95. Bosse does not contest admission of his own statements, or any of the incriminating evidence obtained either with his consent or with a warrant; in addition, the State presented forensic evidence and testimony supporting the verdict. Under the circumstances of this case we find any error in use of this evidence to infer guilt was harmless beyond a reasonable doubt. Miller v. State, 2013 OK CR 11, ¶ 106, 313 P.3d 934, 971-72; Robinson, 2011 OK CR 15, ¶ 3, 255 P.3d at 428. This proposition is denied.