Johnson v. State

LUMPKIN, Judge,

concurring in results.

I concur in the result reached in this case; however, because I find some language which could be misleading, I cannot join entirely in the opinion.

Capital eases today receive a degree of • scrutiny unprecedented in our history. A carelessly chosen or misplaced word or phrase can be taken out of context and create issues where none existed before. It is because of this I cannot join in the statement the failure to utilize a particular OUJI-CR instruction is “serious,” yet harmless beyond a reasonable doubt. Ante at page 318. Are there some errors which are “serious” yet harmless, while other “serious” errors are not harmless? Are there errors which are *322not “serious” which are not harmless? The phrase used here adds nothing but confusion, and the entire paragraph implies there is an error of constitutional magnitude. I find none.

It is because of these potential “time bombs” I cannot join wholeheartedly in this otherwise well-reasoned opinion. I also once again urge this Court to adopt a unified Spuehler-type approach to evaluating both direct and circumstantial evidence. See White v. State, 900 P.2d 982, 993-95 (OM.Cr. 1995) (Lumpkin, J., Specially Concurring).