Satterwhite v TX Respondents Brief
Public Court Documents
October 1, 1987

21 pages
Cite this item
-
Brief Collection, LDF Court Filings. Satterwhite v TX Respondents Brief, 1987. cb8479aa-c39a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/05678a91-75e5-4617-82e7-acd990f3887e/satterwhite-v-tx-respondents-brief. Accessed July 07, 2025.
Copied!
No. 86-6284 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1987 JOHN T. SATTERWHITE, Petitioner, v. THE STATE OF TEXAS, Respondent. On Petition for Writ of Certiorari to the Texas Court of Criminal Appeals RESPONDENT’S BRIEF » * - 1 - QUESTIONS PRESENTED I. Whether the admission of psychiatric testimony at the punishment phase of Satterwhite’s capital murder trial - deprived him of his sixth amendment right to counsel in violation of Estelle v. Smith, 451 U.S. 454 (1981). II. Whether, if there was a Smith violation, it was harmless beyond a reasonable doubt. table of contents Page QUESTIONS PRESENTED > TABLE OF AUTHORITIES >v OPINION BELOW 1 JURISDICTION 2 CONSTITUTIONAL PROVISIONS INVOLVED 2 STATEMENT OF THE CASE 2 A. Course o f Proceedings Below 2 B Statement o f the Facts 3 SUMMARY OF ARGUMENT 10 ARGUMENT ...................................................... 11 I. THE ADMISSION OF DR. GRISON’S TESTIMONY DID NOT VIOLATE THE SIXTH AMENDMENT H A. Defense counsel was put on notice of the examination and its scope 11 B. There was no prosecutorial misconduct in this case .................................................. 13 H ANY ERROR IN THE ADMISSION OF DR. GIUGSON’S TESTIMONY WAS HARMLESS BEYOND A REASON ABLE DOUBT 16 - i i - A The harmless error doctrine is ap- -111- Page 1. The harmless error doctrine applies to capital cases generally 16 2. The harmless error doctrine applies to denials of counsel 18 3. The harmless error doctrine applies to the punishment phase of capital trials........................................................ 19 B. The correct standard for determining harmless error is whether, absent the improperly admitted evidence, the jury nonetheless would have reached the same result 21 C. There was overwhelming evidence to support the jury’s affirmative answers to the punishment issues absent Dr. Grigson's testimony 22 1. The jury could have reached the same verdict on punishment without considering any psychiatric testimony 22 2. The court below properly considered Dr. Schroeder’s testimony in deter mining that the admission of Dr. Grigson’s testimony was harmless 24 3. Dr. Grigson’s testimony was not prejudicial per se 30 CONCLUSION 31 Cnscs 1 /V15LL U l1 AU 1 U U Ill I 111,0 Page Andrade v. McCotter, 805 F.2d 1190 (5th Cir.), cert, denied, __ IJ.S. 107 S.Ct. 660 (1986) .............. 18 Hare foot v. Estelle, 463 U.S. 880 (1983) ............ 24,30 Buchanan u. Kentucky, __ U.S. __, 107 S.Ct. 2906(1987)....................................... 13,15,16,20 Cape v. Francis, 741 F.2d 1287 (11th Cir. 1984) . . . 20 Cardinale v. Louisiana, 394 U.S. 437 (1969)............ 27 Chapman v. California, 386 U.S. 18 (1967) . . . 17,21,22 Coleman v. Alabama, 399 U.S. 1 (1970).................. 18 Estelle v. Smith, 451 U.S. 454 (1981).............. passim Evans v. MeCottcr, 790 F.2d 1232 (5th Cir.), cert, denied, _ U.S. 107 S.Ct. 327 (1986) .............. 18 Felder v. MeCottcr, 765 F.2d 1245 (5th Cir. 1985), cert, denied sub nom. McCotter v. Felder, - V.s. 106 S.Ct. 1523 (1986)........................... 18 Holloway v. Arkansas, 435 U.S. 475 (1978)............ 18 Hughes v. Hopper. 629 F.2d 1036 (5th Cir. 1980), cert, denied, 450 U.S. 933 (1981) ........................... 13 . . 23 19,20 Jackson v. Virginia, 443 U.S. 307 (1979) Jurek v. Texas, 428 U.S. 262 (1976) Maggio v. Fulford, 462 U.S. I l l (1983) . 23 Meadows v. Kuhlman, 812 F.2d 72 (2d Cir. 1987). . 18 Mealer v. Jones, 741 F.2d 1451 (2d Cir. 1984)........ 18 Michigan v. Tyler, 436 U.S. 499 (1978).................... 27 Milton v. Wainwright, 407 U.S. 371 (1972)........ 18,25 Miranda v . Arizona, 384 U.S. 436 (1966)............ 4,26 Moore v. Illinois, 434 U.S. 220 (1977) .......................... 18 Muniz v. Procunier, 760 F.2d 588 (5th Cir.), cert, denied sub nom. McCotter v. Muniz, _ U.S. _ 106 S.Ct. 267 (1985)............................................. ’ . 20 Murray v. Carrie,, _ U.S. _ 106 S.Ct. 2639 (1986) ................................................................ 28 O'Bryan v. Estelle, 714 F.2d 365 (5th Cir. 1983), cert, denied sub nom. O'Bryan v. McKaskle 465 U.S. 1013 (1984) ............................................... 23 Patton v. Yount, 467 U.S. 1025 (1984).................... 23 Powell v. State, __S.W .2d_, No. 67,630 (Tex. Crim. App. July 8, 1987) 20 Robinson u. Percy, 738 F.2d 214 (7th Cir. 1984> ...................................................................... 18,25 Smith v. Murray, _ U.S. _ , 106 S.Ct. 2661 (1986)................................................. 17,28,29,30 Smith u. Phillips, 455 U.S. 209 (1982) ....................... 27 Strickland v. Washington, 466 U.S. 668 (1984) . . : . 24 Cases Page Cases Cage Tison v. Arizona, U .S .__, 107 S.Ct. 1676 (1987)........................................................................... 24 United States i>. Hastings, 461 U.S. 499 (1983) 21 United States v. Lane, __U.S. __ , 106 S.Ct. 725 (1986).............................................................. 22,24 United States v. Prior, 546 F.2d 1254 (5th Cir. 1977) .............................................................. 13 Wainwright v. Sykes, 433 U.S. 72 (1977) ............ 17,28 White v. Estelle, 720 F.2d 415 (5th Cir. 1983)............ 20 Constitutions, Statutes and Rules U.S. Const. Amend. V ............................................2,13,26 U.S. Const., Amend. VI ....................................... passim 28 U.S.C. § 1257(3)................ ....................................... 2 Tex. Code Crim. Proc. Ann. art. 37.071 (Vernon 1979).......................................................... 2,14 Tex. Code Crim. Proc. Ann. art. 46.02 (Vernon 1974)............................................................ 13 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1987 JOHN T. SATTERWHITE, v. Petitioner, THE STATE OF TEXAS, Respondent. On Petition for Writ of Certiorari to the Texas Court of Criminal Appeals RESPONDENT’S BRIEF TO THE HONORABLE JUSTICES OF THE SUPREME COURT: NOW COMES the State of Texas, Respondent1 herein, by and through its attorney, the Attorney General of Texas, and fdes this Brief. OPINION BELOW The opinion of the Texas Court of Criminal Appeals was delivered on September 17, 1986, and is 1 For clarity, the Respondent is referred to as "the state," and petitioner as "Satterwhite." published as Sntterwhite u. State, 726 S.W.2d 81 (Tex. Grim. App. 1986), (A.78-102).2 Satterwhite’s motion for leave to file motion for rehearing was denied on December 3,1986. JURISDICTION Satterwhite has invoked the jurisdiction of this Court under the provisions of 28 U.S.C. 1257(3). CONSTITUTIONAL PROVISIONS INVOLVED Satterwhite bases his claims upon the fifth and sixth amendments to the United States Constitution. STATEMENT OF TIIE CASE A. Course of Proceedings Below Satterwhite was indicted on April 4,1979, in Bexar County, Texas, for the murder of Mary Francis Davis, while in the course of committing and attempting to commit the offense of robbery. Trial began on September 17, 1979, and on September 19, 1979, the jury found Satterwhite guilty of the offense of capital murder. On September 20, 1979, aRer a punishment hearing, the jury answered affirmatively the special issues submitted pursuant to Article 37.071, Tex. Code Crim. Proc. Ann. (Vernon 1979).3 Accordingly, 2 "A.," refers to the Joint Appendix, "SF" refers to the statement of facts of Satterwhite’s trial, and "Tr.” refers to the transcript. 3 Tex. Code Crim. Proc. Ann. art. 37.071 (Vernon 1979) provides, in pertinent part, as follows: (b) On conclusion of the presentation of the evidence, the court shall submit the following issues to the jury: (1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the (footnote continued on following page! punishment was assessed at death. Satterwhite s conviction and sentence were affirmed by the Texas Court of Criminal Appeals, which affirmed on September 17, 1986. Satterwhite v. State, 726 S.W.2d 81 (Tex. Crim. App. 1986). On Junel, 1987, the Court granted Satterwhite’s petition for writ of certiorari on the question whether Petitioner was denied effective assistance of counsel, a fair and impartial trial, equal protection of law, due process of law and his right to be free from cruel and unsual punishment guaranteed by the fifih, sixth, eighth, and fourteenth amendments to the United States Constitution because the trial court allowed witness, James Grigson, M.D., to testify to evidence obtained in violation of Article I, Section 10, of the Texas Constitution and in violation of the fiRh, sixth and fourteenth amendments of the Constitution of the United States. Satterwhite v. Texas,___U.S.___ , 55 U.S.L.W. 3807. B. Statement of the Facts Satterwhite was arrested on March 13, 1979, less than two days aRer the commission of the capital murder* and charged with the offense on March 15, 1979 (Tr. 3). On * 4 Ifootnote continued from previous page) reasonable expectation that the death of the deceased or another would result; . , (2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. 4 The facts surrounding Satterwhite’s arrest are set forth in the opinion of the court below (A. 87-90). March 16, 1979, the slate filed a motion for psychological examination requesting evaluation for purposes of determining competency to stand trial, sanity at the time of the offense, and "also with regard to the defendant’s propensity for violence and dangerousness in the future as well as the likelihood of the defendant committing future acts of violence." (A. 3; Tr. 1). l)r. Betty Schroeder was appointed that day (A. 5; Tr. 2). Dr. Schroeder examined Satterwhite on March 16, 1979. Prior to any conversation, she administered Mirandah warnings off the standard police issued card. She discussed with Satterwhite whether an attorney had been appointed (A. 47; SF VIII 2659). At no time prior to or during the interview did Satterwhite request counsel (A. 47; SF VIII 2642), and he signed a release form prior to examination. VOIR DIRE EXAMINATION ON BEHALF OF DEFENDANT BY MR. WOODS: Q. Dr. Schroeder, my name is Richard Woods one of the attorneys appointed and I have never met you but I have heard about you. You had a conversation and conference with John Satterwhite? A. Yes. I did. Q. Okay. Prior to having this conversation with him did you give him any warnings or tell him what you were doing was going to be used in Court against him? A. Yes. I did. 5 Miranda e. Arizona, 384 U.S. 436 (1966). Q. How did you tell him this? A. Discussing it with him and I keep a little card in my billfold that I refer to the Miranda warnings. Q. What kind of card do you keep in your bill fold, do you have that available? A. I have it back in the other office. I keep it in my billfold at all times. Q. You don’t carry your billfold with you at all times? A. All times except I don’t have it now. THE COURT: Is it one of the cards the police department issues? THE WITNESS: I got it from them. Yes. THE COURT: The Court will take notice that contains the Miranda Warning. ON BEHALF OF THE DEFENDANT BY MR. WOODS: Q. And you gave Mr. Satterwhite the Miranda warnings so to speak that he had a right to have a lawyer to be present during this? A. Yes. We discussed it and even I asked him to sign a release in order that I might appropriately release the information he was to give me. Q. Did he sign the release? 6 A. He did. Q. And did he have a conversation with you? A. Yes. Rather lengthy one. Q. How long did that last? A. I have seen him on a number of occasions. On that particular occasion I would say probably no more than an hour or hour and fifteen minutes. Q. And he at no time during this interview or conference asked that a lawyer be present or anything of that nature? A. No. Not at that time. Q. What dale was this that you saw him and you gave him this warning? A. I believe I received the order and executed it on the same day, March 16,1979. (A. 46-48; SF VIII 2641-43; see SF VIII 2646-47). At the punishment phase of trial, Dr. Schroeder testified that on March 16, 1979, she administered various standardized tests (A. 51-52; SF 2648-51). She attempted to further test Satterwhite on a number of other occasions, but Satterwhite refused (A. 51, 53-54; SF VIII 2648, 2652-53). In particular, on April 8, 1979, Dr. Schroeder sent an associate to evaluate him, but Satterwhite gave "her an answer which was evasive and he did not care to participate at that time." (A. 53; SF 7 VIII 2652).*> "In most cases it wasn’t in regard to his rights. It was with regard to some physical conditions such as being hungry, being tired, it being too early or too late." (A. 57; SF VIII 2648). In response to the state’s questions regarding Satterwhite’s character and without objection from the defense, Dr. Schroeder opined that he was of average intelligence, that he had a facade of cooperativeness but was guarded in many respects,6 7 8 that he had an antisocial personality, and that he would constitute a continuing threat to society (A. 56; SF VIII 2655-57). • Subsequent to the appointment of counsel^ on April 17, 1979, the state filed with the trial court a second motion for psychiatric evaluation again for the purpose of determining Satterwhite’s competency, sanity, and "propensity for violence and dangerousness as well as the likelihood of [his] committing future acts of violence." The state requested evaluation by Dr. John T. Holbrook and Dr. Schroeder (A. 12; Tr. 22), and the motion was granted on April 18,1979 (A. 14; Tr. 23). 6 The defense objected to the response as hearsay, and the objection was sustained. 7 "The guardedness that I saw in many respects and the very cunning kind of guardedness. In fact he examined the release with such tenacity that I was really surprised. He even told me a few things because I was questioning why he made a multitude of marks on the back of it. He told me other experiences he had where he felt his rights had been violated." (A. 54-55; SF VIII 2654). 8 Defense attorney Rick Woods was appointed on April 10, 1979 (A 7-8; Tr. 15), and was officially notified of his appointment on April 13, 1979 (A 11; Tr. 17), the same day a written waiver of reading of the indictment, signed by both him and Satterwhite, was filed with the court (Tr. 20). On May 27,1979, Woods filed a motion requesting additional counsel (Tr. 52-53), and on July 25, 1979, Steve Takas was appointed co-counsel (A. 24; Tr. 61). 8 On May 18, 1979, a psychological report prepared by Dr. James P. Grigson on May 8, 1979, was filed in the trial court pursuant to court order (A. 15-16; Tr. 30).I 9 Dr. Grigson examined Satterwhite on May 3, 1979, after administering warnings and specifically informing him that the evaluation would include the future dangerousness issue. A. I first attempted to examine him on March the 19th of this year but the first time I was able to examine him was May 3rd of this year. Q. And prior to the examination did you give him any type of admonitions to him in the way of warnings? A. Yes, sir. I did. I explained to him on both occasion the purposes of the examination in terms of the three questions, that I was primarily doing the evaluation in order to determine the question of competency, and the question of sanity or insanity and the question of whether or not he presented a continuing threat to society, whether or not there was a question as to propensity of violence, dangerousness. I also, after explaining what those three questions meant, explained to him that I did state that there was a Federal Judge by the name of Judge Robert Porter in Dallas who had ruled in cases in a case where if an individual was charged with Capital Murder 9 Dr. Grigson testified that the examination was performed pursuant to a court order (SF VIII 2694, 2708), but that order is not identified in the record on appeal. 9 that they had the right or the option to remain silent or to simply refuse the examination and no psychiatric examination would take place. Now, I did give him all of that on both occasions. Q. And in response to your admonitions on both occasions did he at any time agree to confer with you? A. Yes, sir. He did. Q. Did you at any time tell him that whatever or the results of your conference or interview with him could be used against him in a court of law? A. I told him with regard to the question of dangerousness that if he were to be found guilty of Capital Murder that then in the second phase of the trial, in the punishment phase, that if I found him or any psychiatrist who examined him found him to be dangerous that this could be used in testifying with regard to the case. It could result in his getting possibly the Death Penalty. (A. 60; SF VIII 2685-86; see also VIII 2700-02). In addition to finding Satterwhite competent to stand trial and sane at the time of the offense, Dr. Grigson diagnosed him as sociopathic and constituting a continuing threat to society (A. 71-72; Tr. 30; SF VIII 2704-08). 10 On May 29, 1979, the defense filed a motion to restrict access to Satterwhite requesting that no person he allowed to interview or contact him without first obtaining express written consent of his court-appointed attorneys or by court order obtained only after an adversary healing with notice to counsel (A. 17-18; Tr. 40) as well as a motion to require the state to divulge the names of its witnesses (A. 19-20; Tr. 46). Both motions were granted that date (Tr. 41, 47; SF II 280- 81). On August 24, 1979, Satterwhite moved for psycho logical examination to determine competency to stand trial and insanity at the time of the offense. Neither defense, however, was pursued at trial. Satterwhite produced no evidence at either the guilt or punishment phases of trial. SUMMARY OF ARGUMENT Dr. Origson’s psychiatric examination of Satterwhite was not conducted in violation of Estelle v. Smith, 451 U.S. 454 (1981). Defense counsel was put on notice by the state’s motions and court’s orders, which were on file, that his client was to be examined with regard to the special issues at the punishment phase of trial. Because competent counsel must be charged with notice of the case file and because the prosecution was not guilty of any misconduct in connection with Dr. Grigson’s examination, there was no sixth amendment violation. Alternatively, any error was harmless beyond a reasonable doubt. Given the brutal facts of the offense and the lay testimony as to Satterwhite’s bad reputation, criminal history and violent nature, the jury easily could have reached the same verdict on pimishinent absent any psychiatric testimony, particularly since Satterwhite introduced no evidence at either the guilt or punishment phases of trial. When the 11 testimony of Dr. Schroeder is considered along with all the other evidence, it cannot be gainsaid that the jury would have reached the same result had it not heard Dr. Grigson s testimony. A fortiori, any error in the admission of Dr. Grigson’s testimony was harmless beyond a reasonable doubt. ARGUMENT I. THE ADMISSION OF DR GRIGSON’S TESTIMONY DID NOT VIOLATE THE SIXTH AMENDMENT. A Defense counsel was put on notice of the examination and its scope. The court below found that "Dr. Grigson’s testimony was improperly admitted into evidence in violation of appellant’s Sixth Amendment right to assistance of counsel." (A. 97). The court found a sixth amendment violation because Satterwhite’s right to assistance of counsel had attached at the time that Dr. Grigson examined him and his "attorneys should have been informed that an examination, which would encompass the issues of future dangerousness, was to take place. (Id.) In fact, however, defense counsel were advised by motions of the state, granted by the trial court, that an examination was to take place and that its scope would extend to the future dangerousness issue. On the facts of this case, there can be no question that Satterwhite had the opportunity to consult with his attorneys prior to the examination, and, therefore, was not dpnriwpH 0f Pny constitutionally secured right. 12 The state announced its intent to have Satterwhite examined on the future dangerousness issue when, on March 16, 1979, it filed its first motion for a psychiatric examination. Therein, the state requested that the court appoint I)r. Schroeder to examine Satterwhite as to his competency and sanity "and also with regard to the defendant’s propensity for violence and dangerousness in the future as well as the likelihood of the defendant to commit future acts of violence." (A. 3; Tr. 1 ). The state’s motion was granted the same day (A. 5; Tr. 2). Counsel was notified on April 13, 1979, that he had been appointed to represent Satterwhite (A. 10; Tr. 17). Defense counsel appeared in court with his client that same day for arraignment (A. 1, 9; Tr. 8), at which time Satterwhite pled not guilty (A. 1) and he and counsel signed a written waiver of reading of the indictment (Tr. 20). The state's second motion for a psychiatric examination was filed on April 17, 1979 (A. 12; Tr. 22), four days after the appointment of counsel and sixteen days before Satterwhite was examined by Dr. Grigson. This motion also requested an evaluation of Satterwhite’s competency and sanity and "propensity for violence and dangerousness as well as the likelihood of the Defendant to commit future acts of violence" (id.) and was granted the following day (A. 14; Tr. 23). Experienced defense counsel, whose effectiveness has not been questioned, had a professional obligation to consult with his client, which he did, and to review the file of the case, which the Court must presume he did. Competent counsel must be charged with knowledge of the prior orders of the court. Were the rule otherwise, competent counsel in a capital case would deliberately not consult the case file, thereby allowing the trial court and the state to commit reversible "error." From consultation with his client and review of the case file, 13 defense counsel necessarily discovered the state’s motions for examinations as well as the orders granting them. Here, as in Buchanan v. Kentucky,___U .S .___ , 107 S.Ct. 2906, 2918 (1987), ”[i]t can be assumed . . . that defense counsel consulted with petitioner about the nature of this examination." It is well settled that the prosecution cannot be charged with suppressing evidence that defense counsel "already has or, with reasonable diligence, he can obtain himself." United States v. Prior, 546 F.2d 1254, 1259 (5th Cir. 1977); see also Hughes v. Hopper, 629 F.2d 1036, 1039 (5th Cir. 1980), cert, denied, 450 U.S. 933 (1981). Similarly, defense counsel for Satterwhite should not be heard to complain of a lack of notice, given the motions and orders for psychiatric examinations which were on file. Because defense counsel had ample opportunity to consult with Satterwhite, there was no sixth amendment violation. B. There was no prosecutorial misconduct in this case. Thus, this case is very different from Estelle v. Smith, 451 U.S. 454 (1981). In Estelle v. Smith, the Court found that a pretrial psychiatric examination to determine whether a capital murder defendant would constitute a continuing threat to society was conducted in violation of the fifth amendment privilege against self-incrimination and the sixth amendment right to counsel. In that case, the trial court sua sponte appointed Dr. Grigson to examine the defendant on the issue of his competency to stand trial pursuant to Tex. Code Crim. Proc. Ann. art. 46.02 (Vernon 1974). Dr. Grigson examined Smith without giving any warnings regarding his fifth amendment privilege against self-incrimination and did not notify defense counsel of the psychiatric examination or that it would 14 encompass the issue of the defendant’s future dangerousness. After the examination, Dr. Grigson reported to the court that Smith was competent to stand trial. At trial, no issue was raised as to Smith’s competency to stand trial or as to the defensive issue of insanity at. the time of the alleged offense. After Smith was convicted of capital murder at the guilt stage of the bifurcated trial, Dr. Grigson was called by the state at the penalty stage to testify that, based upon his exami nation, he considered Smith a severe sociopath who would commit violent acts in the future "if given the opportunity to do so." The jury subsequently returned affirmative answers to the special issues submitted under Tex. Code Crim. Proc. Ann. art. 37.071(b) (Vernon 1974), and the court assessed the death penalty. This Court held that because prior to the psychiatric examination Smith had not been warned that he had the light to remain silent and that any statement made could be used against him at the sentencing proceeding, admission at the penalty stage of Dr. Origson’s testimony on the crucial issue of future dangerousness violated the fifth amendment privilege against compelled self- incrimination. The Court further held that Smith’s sixth amendment right to counsel was violated because defense counsel was not notified in advance of the psycliiatric examination or that it would encompass the issue of future dangerousness and there was no affirmative waiver of the right to counsel. Central to the Court’s finding of a sixth amendment violation were the prosecution’s surreptitious tactics which deprived Smith and his counsel of the opportunity to decide whether to participate in the examination. Not only were defense counsel not notified of the examination or its scope, the prosecution did not include Dr. Grigson’s name on a list 15 of witnesses which it was required to furnish to the defense. Smith, 451 U.S. at 459. Further, defense counsel did not discover until after jury selection had begun that Dr. Grigson had submitted a psychiatric report to the trial court. Id. at 458 & n.5. Given this lack of notice to Smith and his counsel, the Court found that he "was denied the assistance of his attorneys in making tht: Ig-nnCttiii, decision of whether to submit to the examination and to what end the psychiatrist’s findings could be employed." Id. at 471. Amicus for Satterwhite argues, however, that "this case is even more egregious than Smith" because "the record contains no court order authorizing Grigson to interview petitioner for any reason" (Brief of Amicus Curiae N.A.A.C.P. Legal Defense and Educational Fund, Inc., hereinafter "Am. Br.," 41) and the court’s orders do not mention Dr. Grigson by name (Am. Br. 43). The state is unable to grasp the significance of this distinction. The trial court entered two orders for psychiatric examinations of Satterwhite, both of which granted motions by the state which requested that Satterwhite be evaluated with regard to the special issues on punishment. It is of no constitutional significance that those orders appointed practitioners other than Dr. Grigson. While the sixth amendment right to consultation with an attorney prior to an examination will "depend on counsel’s awareness of the possible uses to which petitioner’s statements in the proceedings could be put," Buchanan, ___ U.S. a t ___, 107 S.Ct. at 2919, there is no requirement that the defense be supplied with the identity of the particular psychiatrist who conducts the interview. Amicus also argues that the trial court’s orders were insufficient to put counsel on notice as to the scope of the examination because they did not provide that Satterwhite was to be examined as to future * dangerousness (Am. Br. 42-43). This argument is disingenuous. Both the order of March 16 (A. 5; Tr. 2) and the order of April 17 (A. 14; Tr. 23) state that the trial court had ordered examinations pursuant to the state’s motions. When the orders are read in conjunction with those motions, as they must be, and as competent defense counsel would, there can be no doubt as to the purposes for which the examinations were to be conducted. Here, as in Buchanan, "[tjhere is no question that petitioner’s counsel had this information." Id. at ___, 107 S.Ct. at 2919. This case is, therefore, very different from Estelle v. Smith. Given the notice afforded defense counsel and the absence of any prosecutorial misconduct, there was no violation of Satterwhite’s right to counsel. II. ANY ERROR IN THE ADMISSION OF DR. GRI(ISON’S TESTIMONY WAS HARMLESS BEYOND A REASONABLE DOUBT. A. The harmless error doctrine is applicable to this case. 1. The harmless error doctrine applies to capital cases generally. Assuming arguendo that Dr. Grigson’s testimony was admitted in violation of Estelle v. Smith, any error was harmless beyond a reasonable doubt, as the court below correctly concluded. Harmless error rules are essential to the administration of justice. They "serve a very useful purpose insofar as they block setting aside 16 17 convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial," Chapman v. California, 386 U.S. 18, 22 (1967). The qualitative difference between death and other punishments is not a sufficient basis for abrogation of the harmless error doctrine in capital cases. In Smith v. Murray,___U .S .____, 106 S.Ct. 2661 (1986), the Court found that a habeas petitioner’s challenge to the admission of psychiatric evidence at his capital trial had been procedurally defaulted by his failure to raise the issue on direct appeal, thereby waiving any error under state procedural rules. The Court held that the procedural default doctrine of Wainwright u. Sykes, 433 U.S. 72 (1977), is fully applicable to capital cases. We reject the suggestion that the principles of Wainwright v. Sykes apply differently depending on the nature of the penalty a State imposes fcr the violation of its criminal laws. We similarly reject the suggestion that there is anything "fundamentally unfair" about enforcing procedural default rules in cases devoid of any substantial claim that the alleged error undermined the accuracy of the guilt or sentencing determination. Id. a t___, 106 S.Ct. at 2668. Just as there is no special exception for capital cases in application of the procedural default doctrine, there is none for the harmless error doctrine. It is doubtless true that organized opponents of the death penalty would welcome the imposition of overly stringent procedures in capital cases, thereby increasing the states’ costs in carrying out their sentences. But any benefits derived from such procedures must be measured against the states’ valid interest in the 18 enforcement of their penal statutes and the societal cwsts entailed. For that reason, the courts have held in capital cases that the erroneous admission of evidence can be harmless. See, e.g., Andrade v. McCotter, 805 F.2d 1190, 1193-94 (5th Cir.), cert, denied,___U.S.____, 107 S.Ct. f>60 (1986); Evans u. McCotter, 790 F.2d 1232, 1240-41 (5th Cir.), cert, denied, ___ U.S. ___, 107 S.Ct. 327 (1986). 2. The harmless error doctrine applies to denials of counsel. Satterwhite, relying on Holloway u. Arkansas, 435 U.S. 475 (1978), also argues that he was denied counsel at a critical stage of the criminal proceedings against him and that such denial can never be harmless < Petitioner’s Brief, hereinafter "Pet. Br.," at 7-8). As the court, below correctly recognized, Holloway is limited to its particular facts (A. 99 n.5). In any event, there is ample authority for the proposition that the denial of counsel may be harmless. In Milton v. Wainwright, 407 U.S. 371 (1972), the Court held that the admission of a confession obtained in violation of the defendant’s sixth amendment right to counsel was harmless beyond a reasonable doubt. Similarly, in both Moore v. Illinois, 434 U.S. 220 (1977), and Coleman v. Alabama, 399 U.S. 1 (1970), the Court found that the defendant was denied counsel at a critical stage and remanded for a determination whether the error was harmless.10 10 Sec also Meadows v. Kuhlman, 812 F.2d 72 (2d Cir. 1987); Felder v. McCotter, 765 F.2d 1245 (5th Cir. 1985), cert. denied sub nom. McCotter v. Felder, __ U .S.___, 106 S.Ct. 1523 (1986); Mcaler v .Jones, 741 F.2d 1451 (2d Cir. 1984); Robinson v. Percy, 738 F.2d 214 (7th Cir. 1984). 19 3. The harmless error doctrine applies to the punishment phase of capital trials. Amicus argues, without citation of authority, that it is difficult to assess the harm vel non of evidence improperly admitted at the punishment phase of a capital trial because the jury’s sentencing decision is less structured than its determination of guilt and, therefore, "the capacity of an appellate court to assess what the jury would have done in the absence of the tainted evidence is correspondingly restricted." (Am. Br. 47-48). For this reason, it is argued, "the harmlessness of constitutional error at petitioner’s capital sentencing proceeding should be determined solely by asking whether the evidence might have contributed to the jury’s decision." (Am. Br. 48). Amicus argument is based on a faulty premise. There is no substance to the suggestion that a capital sentencing jury’s decision-making is so unbridled that the wrongful admission of evidence can never be deemed harmless. In Jurek v. Texas, 428 U.S. 262 (1976), the Court upheld the Texas capital sentencing scheme from a broad constitutional attack. In concluding that the Texas statute did not violate the eighth and fourteenth amendments, the Court adverted to the narrow focus allowed a capital jury in deciding whether to assess the death penalty. Texas law essentially requires that one of five aggravating circumstances be found before a defendant can be found guilty of capital murder, and that in considering whether to impose a death sentence the jury may be asked to consider whatever evidence of 20 mitigating circumstances the defense can bring before it. It thus appears that, as in Georgia and Florida, the Texas capital- sentencing procedure guides and focuses the jury’s objective consideration of the particularized circumstances of the individual offender before it can impose a sentence of death. Jurek, 428 U.S. at 272-73. The jury’s discretion in deciding the punishment issues at a capital trial is no greater than at the guilt phase. Satterwhite cites no authority, and there is none, for the proposition that the harmless error doctrine is inapplicable, or should be more sparingly applied, to evidentiary errors at punishment. Further, although amicus asserts that prior to this case "no appellate court has ever found a Smith error harmless" (Am. Br. 49),“ in fact the admission of psychiatric testimony in violation of a defendant’s right to counsel may, in an appropriate case, be deemed harmless, as the Court has very recently stated. Buchanan v. Kentucky, __ U.S. a t___ n.21, 107 S.Ct. at 2919 n.21. See Cape v. Francis, 741 F.2d 1287, 1295 (11th Cir. 1984) 11 11 In Muniz v. Procunier, 760 F.2d 588 (5th Cir.), cert. denied sub nom. McCotter v. Muniz, ___U.S. ___ , 106 S.Ct. 267 (1985), the Fifth Circuit reversed the district court, which had found a Smith error to be harmless. In Muniz, the district court found the error haimless because of the other damaging evidence on punishment even though there was no other psychiatric evidence introduced. On appeal, the state conceded that the district court’s opinion was incorrect under the law of the Fifth Circuit as expressed in White v. Estelle, 720 F.2d 415, 418 (5th Cir. 1983). As amicus notes (Am. Br. 50 n.13), since its decision in this case, the Court of Criminal Appeals has decided another case in which it found Smith error to be harmless. Powell v. State,__ S.W.2d___ , No. 67,630 (Tex. Crim App. July 8, 1987). 21 (psychiatric testimony admitted in violation of fifth amendment privilege against self-incrimination found to be harmless). B. The correct standard for deter mining harmless error is whether, absent the improperly admitted evidence, the jury nonetheless would have reached the same result. Under Chapman v. California, the erroneous admission of evidence in violation of the Constitution does not mandate reversal of the conviction if it was harmless beyond a reasonable doubt. Chapman, 386 U.S. at 24. The harmless error rule is founded on the realization that even the most scrupulously conducted trials are not likely to be unblemished: [GJiven the myriad safeguards provided to assure a fair trial, and taking into account the reality of the human fallibility of the participants, there can be no such thing as an error-free, perfect trial, and . . . the Constitution does not require such a trial. United States v. Hastings, 461 U.S. 499, 508-09 (1983). It is, therefore, "the duty of a reviewing court to consider the trial record as a whole and to ignore errors that are harmless, including most constitutional violations." United States v. Hastings, 461 U.S. at 509. Amicus argues that the proper standard of review is "whether the evidence might have contributed to the jury’s decision." (Am. Br. 48). This proposed standard would effectively eviscerate the harmless error doctrine. Because any relevant evidence before the trier of fact 22 might have contributed to its decision, there would never be an occasion when, under amicus’ proposed rule, wrongfully admitted evidence could be deemed harmless. It is precisely this position which was rejected in Chapman. We are urged by petitioners to hold that all federal constitutional errors, regardless of the facts and circumstances, must always be deemed harmful. Such a holding, as petitioners correctly point out, would require an automatic reversal of their convictions and make further discussion unnecessary. We decline to adopt any 6uch rule. Chapman, 386 U.S. at 21-22; see also United States v. L°ne, ___ U.S. ___, 106 S.Ct. 725, 730 (1986), quoting Chapman. The proper inquiry is not whether the evidence "might" have affected the jury’s verdict, but whether, absent the evidence, the jury would nonetheless have reached the same verdict. Chapman, 386 U.S. at 26. C. There was overwhelming evidence to support the jury's affirmative answers to the punishment issues absent Dr. Grig son's testimony. 1. The jury could have reached the same verdict on punishment without consid ering any psychiatric testi mony. There was overwhelming evidence before the jury to support its affirmative answers to the punishment issues even absent Dr. Origson’s testimony. Indeed, the brutal facts of the offense, standing alone, were 23 sufficient under Texas law to justify imposition of the death penalty. O’Bryan u. Estelle, 714 F.2d 365, 386 (5th Cir. 1983), cert, denied sub nom. O’Bryan v. McKaskle, 465 U.S. 1 01 3 (1984). Amicus argues that the evidence admitted at the guilt phase should not be considered on the punishment issues because (1) Sharon Bell was not a credible witness and (2) the jury might have convicted Satterwhite on the theory that Bell was the actual killer. This first argument must fail, for two reasons. First, it flies in the face of the well established rule that once a defendant is convicted of a crime, a reviewing court must consider all the evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Here, the jury obviously found Bell to be a credible witness, as evidenced by its verdict. Second, if the Court accepts this argument, it must review a cold record and substitute its own judgment as to the credibility of the witnesses, something which it cannot, and may not, do. See, e.g., Patton v. Yount, 467 U.S. 1025, 1039-40 (1984); Maggio v. Fulford, 462 U.S. I l l , 117-18(1983). Amicus' other argument, that the jury might have believed that Bell was the actual killer, is equally unavailing. The court below specifically found that "there is no evidence that Bell did the actual killing." (A. 92).i2 Thus, the jury could not have found Satterwhite 12 Ordinarily, it would have been reversible error under Texas law for the trial court to have instructed the jury on the law of parties where there was no evidence to support such a charge. In the case at bar, however, the Court of Criminal Appeals found that any error was waived by Satterwhite’s requested instructions, which were substantially the same as that given by the trial court (A. 94-95). 24 gujlty on this theory.13 However, even had it done so, there would be no constitutional barrier to imposition of the death penalty. Tison v. Arizona, ___ U S ___ 107 S.Ct. 1076(1987). In addition to the evidence admitted at the guilt stage, the jury was entitled to consider Satterwhite’s extensive criminal record and bad reputation, as well as Satterwhite’s failure to introduce any mitigating evidence, in deciding the punishment questions. Thus, even absent any psychiatric testimony for the state, the jury could easily have answered the punishment issues in the affirmative. See Barefoot v. Estelle, 463 U.S. 880, 898 (1983) ("the jury may make up its mind about future dangerousness unaided by psychiatric testimony . . . ."). 2. The court below properly considered Dr. Schroeder’s testimony in determ ining that the admission o f Dr. Grigson’s testimony was harmless. Particularly damning, however, was Dr. Schroeder’s psychological assessment of Satterwhite, a diagnosis which paralleled that of Dr. Grigson. When her testimony is considered in conjunction with the other evidence offered by the state, there was overwhelming evidence on punishment. See United States v. Lane,___U.S. a t ____, 106 S.Ct. at 732 & n.13 (overwhelming evidence of guilt is highly relevant to harmless error inquiry). Because the jury’s verdict surely would have been the same had Dr. Grigson not 13 ”'rhe assessment of prejudice (on a claim of ineffective assistance of counsel) should proceed on the assumption that the decisionmaker is reasonably, conscientiously and impartially applying the standards that govern the decision." Strickland v Washington, 466 U.S 668, 695 (1984). 25 testified, his testimony was harmless beyond a reasonable doubt. See Milton v. Wainwright, 407 U.S. 371 (1972) and Robinson u. Percy, 738 F.2d 214 (7th Cir. 1984) (admission of coerced confessions harmless beyond a reasonable doubt where other, properly admitted confessions were before the trier of fact). Based on all the evidence introduced at the guilt and punishment phases, with particular emphasis on Dr. Schroeder’s testimony, the court below found that Dr. Grigson’s testimony was harmless. Dr. Schroeder’s testimony was very similar to Dr. Grigson’s concerning their conclusions about appellant. Both stated that appellant was a cunning individual, very evasive and very guarded. She added that appellant v,«,s a user of people, had an antisocial personality and an inability to feel empathy, and would be a continuing threat to society through his acts of criminal violence. The jury also had the evidence adduced at the guilt stage of the trial for its con sideration in answering the special issues at the punishment phase. The evidence at the guilt stage was undisputed that appellant committed a brutal and senseless murder during the course of a robbery. Even though he had obtained the money from the cash register and safe, he shot the deceased two or three times in the head at close range so that there would be no witnesses. The facts of this crime show that appellant’s conduct was calculated and remorseless. 26 We conclude that the properly ad mitted evidence was such that the minds of an average jury would have found the State’s case sufficient on the issue of the "probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society" even if Dr. Grigson’s testimony had not been admitted. The admission of the testimony was harmless error beyond a reasonable doubt. (A. 98-99) (citations omitted). Satterwhite does not, because he cannot, argue that the court below applied an incorrect constitutional standard to the facts of his case. Instead, Satterwhite and the amicus advance a number of reasons why, in their view, the Texas appellate court wrongly concluded that Dr. Grigson’s testimony was harmless. Amicus argues that Dr. Schroeder’s testimony "was admitted in patent violation of Estelle v. Smith and should never have reached the jury’s ears in the first place." (Am. Br. 55). It is far from clear that Dr. Schroeder’s examination of Satterwhite was conducted in violation of the fifth and sixth amendments. As the court below noted, "prior to examining appellant, Dr. Schroeder informed him of his rights as outlined in Miranda v. Arizona, supra. Additionally, the doctor obtained a release from appellant so as to allow her to release the information she obtained from the interview." (A. 98). Dr. Schroeder warned Satterwhite that, inter alia, the results of her examination were "going to be used in Court against him" (A. 46). Indeed, the warnings administered by Dr. Schroeder went beyond what is required by the Constitution. She told Satterwhite that "he had a right 27 to have a lawyer to be present during this" (A. 47), thus affording him a more extensive right to counsel than that required by Estelle v. Smith, 451 U.S. at 470 n.14. In any event, the Court need not consider whether Dr. Schroeder examined Satterwhite in violation of Estelle v. Smith. The court below refused to consider this issue because Satterwhite did not object at trial to Dr. Schroeder’s testimony or complain on appeal of its admission (A. 98). The Court of Criminal Appeals’ refusal to consider the admissibility of Dr. Schroeder’s testimony was thus based on an adequate and independent state ground which precludes review by this Court. See, e.g., Michigan v. Tyler, 436 U.S. 499, 512 n.7 (1978); Cardinale v. Louisiana, 394 U.S. 437, 438 (1969). Amicus argues that the Texas court’s imposition of its contemporaneous objection rule was incorrect "as a matter of state law" (Am. Br. 56), an issue which is outside the ambit of this Court’s certiorari jurisdiction. See, e.g., Smith u. Phillips, 455 U.S. 209, 221 (1982) ("Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dismension.”). Further, amicus misconstrues the decision of the court below. The Court of Criminal Appeals did not hold that Satterwhite’s claim was waived solely by his failure to interpose a trial objection. Satterwhite waived his claim by failing to object at trial and by failing to raise the issue on appeal (A. 98). Thus, the court below did nothing more than adhere to the time-honored rule that an appellate court will not review unassigned error. s In Smith v. Murray, the Court considered a factual situation remarkably similar to the case at bar. There, the habeas petitioner had objected at trial to the admission of psychiatric testimony but did not raise the matter as a ground on appeal. The Virginia state courts held that failure to raise the claim on appeal barred its consideration in any subsequent state proceeding, and this Court found that it was barred from federal habeas review under the procedural default doctrine of Wainwright v. Sykes. Smith o. Murray, ___ a t ___ 106 S.Ct. at 2666. Because the petitioner in Smith u. Murray did not establish either "cause" or "prejudice" so as to avoid the consequences of his procedural default, the Court undertook to determine whether the alleged error had resulted in a "fundamentally unjust incarceration," i.e., "the conviction of one who is actually innocent." Id. at ---- > 106 S.Ct. at 2668, quoting Murray v. Carrier, _ U-S- — . 106 S.Ct. 2639, 2650, 2654 (1986). In concluding that it had not, the Court reasoned in terms particularly appropriate to the instant case: There is no allegation that the testimony . . . was false or in any way misleading. In short, the alleged constitutional error neither precluded the development of true facts nor resulted in the admission of false ones. Thus, even assuming that, as a legal matter, [the] testimony should not have been presented to the jury, its admission did not serve to pervert the jury’s deliberations concerning the ultimate question whether in fact petitioner constituted a continuing threat to society. 28 29 Smith v. Murray, ___ U.S. at ___, 106 S.Ct. at 2668 (original emphasis). Here, as in Smith v. Murray, there is no allegation that Dr. Schroeder’s testimony was false or misleading. Instead, her testimony was highly probative on the issue whether Satterwhite in fact constituted a continuing threat to society. Indeed, amicus implicitly acknowledges the accuracy of Dr. Schroeder’s observations, at least to the extent that they suit his needs: The defense on summation argued the theory that Sharon Bell, deemed a non- credible witness by Dr. Schroeder, was the individual who actually killed the victim. . . . Defense counsel noted that the most gruesome testimony about the killing came from Sharon Bell, the prosecution’s star witness at the guilt trial, whose veracity had been questioned at the penalty trial by Dr. Schroeder. (Am. Br. 31). Because there is no allegation that Dr. Schroeder’s testimony was anything other than true and accurate, and because the state appellate court determined, as a matter of state procedural law, that it was properly before the trier of fact, it may be considered in determining whether Dr. Grigson’s testimony was harmless. Inasmuch as the two witnesses’ testimony was virtually identical, it follows as the night the day that any error in the admission of Dr. Grigson’s testimony was harmless beyond a reasonable doubt. 30 3. Dr. Grigson’s testimony was not prejudicial per se. Amicus’ final argument is that Dr. Grigson’s testimony can not be deemed harmless because it "was far more thorough, complete and self-assured" than that of Dr. Schroeder (Am. Br. 57). Indeed, amicus argues, Dr. Grigson’s testimony can never be deemed harmless because of "the extraordinary skill with which it is delivered to the jury." (Am. Br. 59). Amicus’ position is not well taken, either factually or legally. First, amicus does not demonstrate in what way Dr. Grigson’s testimony was more complete or how it was thereby more prejudicial. Second, as the Court has previously noted, an expert witness’s high degree of self-assurance may undermine, rather than bolster, his credibility. See Barefoot v. Estelle, 463 U.S. at 905 n .ll ( The more certain a State’s expert is about his prediction, the easier it is for the defendant to impeach him."). It is mere self-serving speculation to assert that Satterwhite’s jury found Dr. Grigson’s testimony to be critical on the punishment issues. Further, amicus again asks this Court to decide legal issues based on de novo credibility determinations made from a cold record. Because Dr. Grigson is a credible witness, the argument goes, his testimony necessarily was harmful. Here, however, as in Smith v. Murray, there is no indication that Dr. Grigson’s testimony was false or misleading. Just as there is no substance to the argument that the admission of psychiatric testimony can never be harmless error, there is no support for the proposition that the testimony of a particular expeit can never be deemed harmless. 31 Satterwhi*'1’0 cries out for application of the harmless error doctrine. The state proved the commission of a cold-blooded, gratuitous murder in the course of robbery to establish that Satterwhite was guilty of capital murder. At the punishment phase, the state introduced lay testimony to establish Satterwhite’s poor reputation, criminal record and proclivity for violence. The state also introduced the virtually identical testimony of two expert witnesses on the special punishment issues. Satterwhite produced no evidence whatsoever at either the guilt or punishment stages. On these facts, the admission of Dr. Grigson’s testimony was harmless beyond any doubt. CONCLUSION For the above reasons, the state requests that the judgment of the court below be affirmed. Respectfully submitted, JIM MATTOX Attorney General of Texas MARY F. KELLER Executive Assistant Attorney General for Litigation F. SCOTT McCOWN Assistant Attorney General Chief, Enforcement Division tr 32 PAULA C. OFFENHAUSER Assistant Attorney General ^Counsel of Record CHARLES A. PALMER* Assistant Attorney General P.O. Box 12548 Capitol Station Austin, Texas 78711 (512) 463-2080 Attorneys for Respondent !