Fields v. State

MeCORMICK, Judge,

concurring.

In Estelle v. Smith, 451 U.S. 454 , 101 S.Ct. 1866 , 68 L.Ed.2d 359 (1981), a Texas .capital murder defendant was examined by a psychiatrist who had been ordered by the trial court to evaluate the defendant’s competency to stand trial. At the time of the examination, the defendant had been indicted and an attorney had been appointed for him. Before the psychiatric examination, the defendant was not informed he had a right to remain silent nor that evidence obtained during the examination could be used against him in the punishment phase of his trial. His attorney apparently was not notified in advance that the examination would encompass the issue of future dangerousness.

In reaching its holding in Estelle v. Smith, the Supreme Court discounted arguments by the State of Texas that the Fifth Amendment is applicable only to the guilt-innocence phase of the trial and not the punishment determination. Likewise, the Court was not persuaded that the conclusions drawn from the interview were based on nontestimonial factors. The Court showed that the psychiatrist based his opinions on the content of ideas expressed by the defendant. The Supreme Court, therefore, held that the Fifth Amendment privilege was involved in the case before it.

The United States Supreme Court concluded that the defendant’s Fifth Amendment rights were violated because of the failure to warn the defendant of his right to be silent and the possibility that evidence gathered in the interview could be used against him at the hearing on punishment. The Supreme Court said:

“.. . That respondent was questioned by a psychiatrist designated by the trial court to conduct a neutral competency examination, rather than by a police officer, government informant, or prosecuting attorney, is immaterial. When Dr. Grigson went beyond simply reporting to the court on the issue of competence and testified for the prosecution at the penalty phase on the crucial issue of respondent’s future dangerousness, his role changed and became essentially like that of an agent of the State recounting unwarned statements made in a post-arrest custodial setting. During the psychiatric evaluation, respondent assuredly was ‘faced with a phase of the adversary system’ and was ‘not in the presence of [a] personf ] acting solely in his interest.’ Id. [384 U.S.] at 469, 16 L.Ed.2d 694 , 86 S.Ct. 1602 , 10 Ohio Misc. 9 , 36 Ohio Ops.2d 237, 10 ALR3d 974. Yet he was given no indication that the compulsory examination would be used to gather evidence necessary to decide whether, if convicted, he should be sentenced to death. He was not informed that, accordingly, he had a constitutional right not to answer the questions put to him.” 454 U.S. at 467, 101 S.Ct. at 1875 .

The Supreme Court therefore concluded:

“A criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding. Because respondent did not consent to the pretrial psychiatric examination after being informed of his right to remain silent and the possible use of his statements, the State could not rely on what he said to Dr. Grigson [psychiatrist] to establish his future dangerousness.” 454 U.S. at 468, 101 S.Ct. at 1876 .

The Supreme Court also held that failure to notify defense counsel prior to the examination that the psychiatric examination *723 would lead to an opinion on future dangerousness violated the defendant’s Sixth Amendment right to counsel because the psychiatric interview was a critical stage of the proceedings. The Supreme Court did not hold that counsel had a right to be present during the examination but did hold that notification is important so that a determination can be made by the attorney and defendant as to whether or not to participate in the examination.

Thus, the Supreme Court overruled a number of decisions of this Court. See Livingston v. State, 542 S.W.2d 655 (Tex.Cr.App.1976), cert. denied 431 U.S. 933 , 97 S.Ct. 2642 , 53 L.Ed.2d 250 (1977); Shippy v. State, 556 S.W.2d 246 (Tex.Cr.App.1977), cert. denied 434 U.S. 935 , 98 S.Ct. 422 , 54 L.Ed.2d 294 (1977); Von Byrd v. State, 569 S.W.2d 883 (Tex.Cr.App.1978), cert. denied 441 U.S. 967 , 99 S.Ct. 2418 , 60 L.Ed.2d 1073 (1979); Wilder v. State, 583 S.W.2d 349 (Tex.Cr.App.1979), and Gholson v. State, 542 S.W.2d 395 (Tex.Cr.App.1976), cert. denied 432 U.S. 911 , 97 S.Ct. 2960 , 53 L.Ed.2d 1084 (1977).

The threshold question that must be decided is whether Estelle v. Smith, supra, is retroactive in its effect or whether the holdings enunciated in that case should be applied only prospectively. The majority fails to discuss this issue.

Linkletter v. Walker, 381 U.S. 618 , 85 S.Ct. 1731 , 14 L.Ed.2d 601 (1965), held that the Constitution neither prohibits nor requires retroactive effect for decisions expounding new constitutional rules affecting criminal trials. Therefore, a constitutional rule may be applied prospectively and not to cases occurring before the rule was announced.

Recently, in Brown v. Louisiana, 447 U.S. 323 , 100 S.Ct. 2214 , 65 L.Ed.2d 159 (1980), the Supreme Court discussed the principles of retroactivity. The Court held that three factors should be considered: (1) purpose of the new rule; (2) extent of reliance by law enforcement on the old rule, and (3) the effect on the administration of justice of retroactivity. The most important and controlling factor is the purpose of the new rule. The other two factors become important only when the purpose does not favor either prospectivity or retroactivity. As for the purpose criteria, the Supreme Court said, “And only when an assessment of those probabilities casts doubt upon the reliability of the determinations of guilt in past criminal cases must the new procedural rule be applied retroactively.” 447 U.S., at page 329 , 100 S.Ct., at page 2220 . Therefore, when a new rule is announced, it must be applied retroactively only if the procedure used casts doubt upon the fairness of the trial or the efficacy of the truth finding procedure. In Williams v. United States, 401 U.S. 646 , 91 S.Ct. 1148 , 28 L.Ed.2d 338 (1971), the Supreme Court said that retroac-tivity is only appropriate where the former practice “presents substantial likelihood that the results of a number of those trials were factually incorrect.” 401 U.S., at 655 , 91 S.Ct., at 1153 .

I would note in passing, though it is certainly not of controlling importance, that for years law enforcement officials relying on this Court’s holdings have followed the procedures set out in Estelle v. Smith, supra. Numerous defendants in this State alone have been convicted via the procedure outlined in that case. These capital murder trials often lasted for weeks, if not months, and retrials in all of these cases would certainly burden the administration of justice in this State and others. See also State v. Osborne, 102 Idaho 405 , 631 P.2d 187, 218 (1981).

Both holdings in Estelle v. Smith changed the law in Texas. This Court had for years rejected claims on these bases. Never before had it been held that a court-appointed mental health expert must warn a defendant of his right to remain silent and that evidence adduced in the psychiatric interview could be used against him. Never before had it been held that the defendant attorney must receive notice before a psychiatric interview on the dangerousness issue could be held. In fact, in numerous cases this Court rejected the contentions that the proceedings used in Estelle v. Smith violated a defendant’s rights. See *724 Livingston v. State, supra; Shippy v. State, supra; Von Byrd v. State, supra; Wilder v. State, supra, and Gholson v. State, supra. In fact, the United States Supreme Court had denied certiorari in many of those cases. Until the United States District Court decision in Smith v. Estelle, 445 F.2d 647 (N.D.Tex.1977), there had been no contrary judicial voice in Texas. That the rule in Estelle v. Smith was a new rule was explicitly recognized by the federal courts as a factor in excusing the defendant from the contemporaneous objection rule. The United States Supreme Court in a footnote said, “For the reasons stated by the Court of Appeals we reject the State’s argument that the respondent waived his Fifth Amendment claim by failing to make a timely, specific objection to Dr. Grigson’s testimony.” The Fifth Circuit had said, in part, “. . . Texas courts interpreted the Fifth and Sixth Amendments to permit testimony like Dr. Grigson’s to be admitted, see e.g., Livingston v. State, 542 S.W.2d 655, 661-662 (1976), cert. denied 431 U.S. 933 , 97 S.Ct. 2642 , 53 L.Ed.2d 250 (1977), we have held that the apparent futility of objecting to an alleged constitutional violation excuses a failure to object.” Smith v. Estelle, 602 F.2d 694 (5th Cir. 1979), at 708. Certainly, if the defendant could not have anticipated the new rule, neither could the State.

In Marshall v. Barlow’s, Inc., 436 U.S. 307 , 98 S.Ct. 1816 , 56 L.Ed.2d 305 (1978), the Supreme Court held administrative search warrants were needed for unconsented OSHA inspections. That ruling was held not to be retroactive in Savina Home Industries v. Secretary of Labor, 594 F.2d 1358 (10th Cir. 1979), since “. . . the clearest lower court pronouncement regarding Section 8(a)’s constitutionality had been that warrantless OSHA inspections were not vio-lative of the Fourth Amendment”, 594 F.2d at 1364.

This Court, the highest criminal court in this State, had sanctioned the type procedure condemned in Estelle v. Smith, supra. I am not unmindful of the recent opinion in Battie v. Estelle, 655 F.2d 692 (5th Cir. 1981). In that opinion the Fifth Circuit found that Estelle v. Smith was retroactive as related to the Fifth Amendment issue. Battie did not address the Sixth Amendment question. However, this Court is not bound by decisions of federal courts other than the Supreme Court, Pruett v. State, 463 S.W.2d 191 (Tex.Cr.App.1970), and upon consideration, I am compelled to disagree with the conclusion reached in Battie .

In Battie , the federal court found that Estelle v. Smith announced no new rule of law. The opinion said essentially that Estelle v. Smith was an application and extension of Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966). The Fifth Circuit said, “A decision establishes a new principle of law either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed.” After so saying, the Fifth Circuit proceeded to ignore completely the fact, and omitted mention, that state case after state case had upheld the procedure used in Estelle v. Smith. It was on that clear past precedent that the litigants had relied. That this Court was in error in its interpretation of the Constitution is now without question. However, the litigants were certainly entitled to rely upon the decision of the highest court in this State until the federal courts found differently.

In United States v. Peltier, 422 U.S. 531 , 95 S.Ct. 2313 , 45 L.Ed.2d 374 (1975), the Supreme Court held that the constitutional rule announced in Almeida-Sanchez, 413 U.S. 266 , 93 S.Ct. 2535 , 37 L.Ed.2d 596 (1973), would not be applied retroactively. The Court held that despite the fact that Almeida-Sanchez applied familiar principles of constitutional law almost fifty years old and that the Supreme Court had never ruled on the fact situation issue before, the law enforcement agents were relying on apparently valid statutes and lower court decisions.

The Supreme Court said:

“It was in reliance upon a validly en- ■ acted statute, supported by long standing administrative regulations and continu *725 ous judicial approval, that Border Patrol agents stopped and searched respondent’s automobile. Since the parties acknowledge that Almeida-Sanchez was the first roving border patrol case to be decided by this Court, unless we are to hold that parties may not rely upon any legal pronouncements from sources other than this Court, we cannot regard as blameworthy those parties who conform to the prevailing statutory or constitutional norm.” 422 U.S., at 541-542 , 95 S.Ct., at 2319 .

It should be noted that in this case as in United States v. Peltier, supra; Johnson v. New Jersey, 384 U.S. 719 , 86 S.Ct. 1772 , 16 L.Ed.2d 882 (1966), and Stovall v. Denno, 388 U.S. 293 , 87 S.Ct. 1967 , 18 L.Ed.2d 1199 (1967), the question concerns the retroactivity of a rule affecting the admissibility of evidence offered by a litigant rather than a procedure used in the trial as in Brown v. Louisiana, supra, or Hankerson v. North Carolina, 432 U.S. 233 , 97 S.Ct. 2339 , 53 L.Ed.2d 306 (1977).

While I do not believe that the Fifth Amendment holding in Estelle v. Smith was merely an inevitable extension of Miranda nor that it had been “clearly foreshadowed”, a holding can be a new rule of law and yet have been foreshadowed by a prior case. See, for example, Brown v. Louisiana, supra. In Burch v. Louisiana, 441 U.S. 130 , 99 S.Ct. 1623 , 60 L.Ed.2d 96 (1979), the Supreme Court held that a conviction by a nonunanimous six person jury violates a defendant’s Sixth and Fourteenth Amendment rights. That holding had been distinctly foreshadowed in Williams v. Florida, 399 U.S. 78 , 90 S.Ct. 1893 , 26 L.Ed.2d 446 (1970), and Ballew v. Georgia, 435 U.S. 231 , 98 S.Ct. 1029 , 55 L.Ed.2d 234 (1978).

However, in Brown v. Louisiana, supra, the Supreme Court addressed the issue of retroactivity rather than holding at the threshold that there was no new rule involved. The test for determining if there is a new rule is whether the decision changed the prevailing law. Whether a holding has been foreshadowed is a factor to be considered if the purpose of the rule does not clearly favor retroactivity or prospectivity. See also Woodard v. United States, 429 F.2d 716 (D.C.Cir.1970), which discusses why whether a new rule has been “foreshadowed” should not be determinative of retro-activity.

That Miranda did not inevitably and mechanically compel Estelle v. Smith can be seen in Berry, Self Incrimination and the Compulsory Mental Examination: A Proposal, 15 Ariz.L.Rev. 919 (1973), cited in Battie . There, Berry says, “. . . when a writer concludes that, because the psychiatric examination occurs while the defendant is in custody and is conducted by state-employed doctors, the protections of Miranda v. Arizona should apply, he is evading the challenge of legal analysis. The differences between the mental examination and custodial interrogation are no less important than the similarities.” In light of all the foregoing, I find that Estelle v. Smith did change the law in Texas. It is, therefore, necessary to determine the purpose of the holding in Estelle v. Smith and whether the procedure used adversely affected the search for truth. Initially, I shall consider the requirement that a defendant be warned before the interview that he need not submit to the interview and that anything he says may be used against him.

In an opinion by Chief Justice Warren in Johnson v. New Jersey, supra, the United States Supreme Court held that its decision in Miranda v. Arizona, supra, requiring that warnings be given a defendant when he is questioned by the police, is not retroactive.

In Johnson , co-defendants Johnson and Cassidy, both of whom faced death sentences, claimed that their Fifth and Sixth Amendment rights were violated. Cassidy was arrested at 4:00 a. m. for murder and interrogated for hours. At 10:25 a. m., he gave a partial confession. He was interrogated more. After noon, he gave a more incriminating confession. By 11:40 p. m., he gave a final confession. It was accepted that he had requested and been denied the right to consult with an attorney before confessing. Prior to confessing, he was not given Miranda type warnings.

*726 Johnson was arrested at 5:00 p. m. for the same crime. He was routinely questioned and taken briefly before a magistrate. At 2:00 a. m. he was taken to the homicide scene. After continued interrogation he gave a confession at 6:20 a. m. It was accepted that he had requested and been denied an attorney. Prior to confession he was not given Miranda warnings. The Supreme Court said, “We here stress that the choice between retroactivity and nonretro-activity in no way turns on the value of the constitutional guarantee involved. ... To reiterate ... we do not disparage a constitutional guarantee in any manner by declining to apply it retroactively.” 384 U.S., at 728, 86 S.Ct., at 1778. The Supreme Court added:

“Finally, we emphasize that the question whether a constitutional rule of criminal procedure does or does not enhance the reliability of the fact-finding process at trial is necessarily a matter of degree. We gave retroactive effect to Jackson v. Denno, [ 378 U.S. 368 , 84 S.Ct. 1774 , 12 L.Ed.2d 904 (1964)] supra, because confessions are likely to be highly persuasive with a jury, and if coerced they may well be untrustworthy by their very nature. On the other hand, we denied retroactive application to Griffin v. California [ 380 U.S. 609 , 85 S.Ct. 1229 , 14 L.Ed.2d 106 (1965)] supra, despite the fact that comment on the failure to testify may sometimes mislead the jury concerning the reasons why the defendant has refused to take the witness stand. We are thus concerned with a question of probabilities and must take account, among other factors, of the extent to which other safeguards are available to protect the integrity of the truth-determining process at trial.” 384 U.S., at 728-729, 86 S.Ct., at 1778.

The Supreme Court in Johnson , therefore, held that the Miranda requirement that a defendant must receive warnings before being interrogated by police would not be retroactive and affirmed the convictions. Johnson also addressed the retroactivity of Escobedo v. Illinois, 378 U.S. 478 , 84 S.Ct. 1758 , 12 L.Ed.2d 977 (1964), discussed below.

If the rule that police officers must warn a suspect of his rights prior to questioning is not subject to retroactive application, I can see no reason to require that the new rule that a court-appointed psychiatrist must give warnings prior to a psychiatric interview be retroactive. In Tehan v. United States ex rel. Shott, 382 U.S. 406 , 86 S.Ct. 459 , 15 L.Ed.2d 453 (1966), the Supreme Court held that Griffin v. California, 380 U.S. 609 , 85 S.Ct. 1229 , 14 L.Ed.2d 106 (1965), was not to be applied retroactively. In Tehan, the defendant did not testify. The prosecutor, in argument, commented extensively upon this failure. The Supreme Court refused to overturn the conviction and apply Griffin retroactively, saying, “. . . the Fifth Amendment’s privilege against self incrimination is not an adjunct to the ascertainment of truth. That privilege . . . stands as a protection of quite different constitutional values — values reflecting the concern of our society for the right of each individual to be let alone.” 382 U.S., at 416, 86 S.Ct., at 465.

I am unable to see how the failure of a mental health expert to give the proper warnings might significantly mislead a jury or cause incorrect information to be available to the jury. The method used in obtaining the information may now be unconstitutional, but there is nothing casting doubt upon its reliability. Therefore, I would hold that the requirement set forth in Estelle v. Smith, supra, that a defendant be warned that he need not submit to the interview with the mental health expert and that the information garnered as a result of such an interview may be used against him, is not a retroactive requirement.

I now turn to whether the Sixth Amendment holding set out in Estelle v. Smith that a defendant be given prior opportunity to consult with his attorney about his participation in a psychiatric examination for a determination of dangerousness is retroactive.

In Escobedo v. Illinois, supra, a defendant was arrested for murder. His attorney *727 went to the police station and made numerous requests to speak with his client. His requests were denied. The defendant meanwhile was also making repeated efforts to consult with his attorney. These requests were likewise denied. After he was not allowed to speak with his attorney, Escobedo made an inculpatory statement that was admitted in his trial. The Supreme Court, using the “guiding hand of counsel” language that is found in Estelle v. Smith, held that counsel had been denied at a critical stage of the proceedings, thereby leading to the inculpatory statement and found that the Sixth Amendment had been violated.

However, in Johnson v. New Jersey, supra, the United States Supreme Court decided that the holding in Escobedo was not retroactive.

In United States v. Wade, 388 U.S. 218 , 87 S.Ct. 1926 , 18 L.Ed.2d 1149 (1967), a defendant participated in a lineup. The lineup was conducted after indictment and after counsel was appointed. Defense counsel was not notified prior to his client’s participation in the lineup. Once more, citing the need for the “guiding hand of counsel”, the Supreme Court found that the lack of notice to counsel violated the defendant’s Sixth Amendment right to effective assistance of counsel and reversed the conviction.

In Stovall v. Denno, 388 U.S. 293 , 87 S.Ct. 1967 , 18 L.Ed.2d 1199 (1967), the Supreme Court affirmed a death sentence and specifically held that the rule in Wade would not be applied retroactively but would be applied only prospectively. See also, Adams v. Illinois, 405 U.S. 278 , 92 S.Ct. 916 , 31 L.Ed.2d 202 (1972).

The danger of unfairness in a Wade-type lineup is certainly much greater than that presented here since the attorney has a right to be present at the lineup to guard against any unfairness in the procedure whereas he has no right to be present at the psychiatric interview. In fact, it is much less likely that a psychiatric interview will be unfair or unreliable compared to a lineup of suspects conducted by the police. I am not convinced that the lack of notice to the attorney in this type case casts any doubt on the fact-finding proceeding. As the Supreme Court in Estelle v. Smith noted, the purpose of the notice in examination cases is to allow an informed decision as to whether to participate, and not to guard against unfairness. It is true that, if his attorney had been notified prior to the interview, the appellant may not have participated, but it is also true that, if Johnson’s attorney had conferred with Johnson, Johnson may not have confessed. It is not a question of whether the evidence used would not have been adduced, but rather whether the trial and evidence introduced were unreliable that is important in determining retroactivity. Nowhere in Estelle v. Smith does the Supreme Court express any reservation as to the accuracy of the procedure used there. Compare, Brown v. Louisiana, supra. I find nothing that would indicate unreliability and nothing that would mislead the finder of fact. In United States v. Peltier, supra, the majority of the Supreme Court noted that, in every case in which relevant evidence was excluded to enforce a constitutional guarantee not related to the fact-finding process, such principles have been applied only prospectively.

Therefore, I would find that the principles of constitutional law set forth in Estelle v. Smith are not retroactive. Estelle v. Smith was announced May 18, 1981. The district court decision in Smith v. Estelle was announced December 30, 1977. The interview here in question and the trial occurred before either. Therefore, since Estelle v. Smith should not be applied retroactively, I would not reverse appellant’s conviction on that ground.