Griffith v. State

KELLER, Judge,

concurring.

I join the majority opinion. Even if one assumed arguendo, however, that appellant adequately presented his claim during the hearing held on the motion to appoint an expert, I would hold that appellant has failed to show that he was deprived of due process as a result of the trial court’s refusal to hire Dr. Theodore Blau as a defense expert at state expense.

I.

In his motion for expert assistance, appellant contended that the State intended to call Dr. Alan Brantley for the purpose of using a forensic profiling technique to show that appellant posed a future danger to society. Appellant claimed that he needed Blau’s testimony to show that the technique was not scientifically valid and was not intended for use outside of the investigatory context. Appellant explained that Blau had helped the FBI develop the technique in question and was therefore in a unique position to give relevant testimony concerning its reliability. In a supplemental motion appellant also contended that he needed Blau’s assistance to help defense counsel prepare for cross-examination and to provide direct testimony.

At the hearing on appellant’s motions, the trial court asked if Blau was going to listen to Brantley’s testimony. Defense counsel replied, “I don’t think so” and stated that he could take notes and give them to Blau. The trial court then asked why appellant’s psychiatrist and psychologist could not rebut Brantley’s testimony. A psychiatrist, Dr. Mitchell Young, and two psychologists, Edward Friechman and David Hopkinson, had been retained on appellant’s behalf. As the *295 majority points out, defense counsel contended that these experts could not provide the desired testimony because Brantley’s testimony was forensic in nature rather than psychological.

Before Brantley testified, appellant objected to Brantley’s testimony, characterizing it as “novel.” The State contended that the evidence was not novel, but merely involved the opinions of a psychologist based upon experience and training in dealing with violent offenders. Appellant contended that the testimony was novel because the witness relied upon methodology.

Responding to appellant’s concerns, Brant-ley denied that he would rely upon profiling techniques. Brantley explained that profiling involved forming a behavior composite for an unknown offender and that the technique was inapplicable where the offender was known. Brantley stated that he would rely primarily upon appellant’s past behavior as a predictor of his future dangerousness.

During his testimony, Brantley expressed an opinion, based upon his training and experience and his consideration of a variety of factors, that appellant posed a future danger:

Q. Based upon your education and your background and experience and specialized training you formed an opinion as to the— based upon the Debra McCormick case, Karen James case, the Loan Khuu case, have you formed an opinion whether — an opinion regarding the future probabilities of dangerousness of this particular defendant?

A. Yes I have.

Q. What is your opinion about the likelihood or the probability of him continuing to be a violent person?

A. Well, in my opinion based upon the totality of everything that I had access to and everything I reviewed and all the people I talked to it’s my opinion that the probability of the offender here, Mr. Griffith, engaging in future acts of violence consistent with his past behavior is quite high.

In reaching his conclusion, Brantley relied not only upon forensic evidence (the crime scene, autopsy) but also upon a variety of other kinds of evidence, including witness interviews, personnel records, school records, investigative reports, and an interview with a former girlfriend. Brantley never claimed, during his testimony before the jury, that his assessment of appellant’s future dangerousness was based upon a scientific technique or a particular methodology.

Later, appellant filed a bill of exceptions, providing a description of the testimony Blau would have provided at trial:

Dr. Blau assisted the Behavioral Sciences Unit of the FBI in developing its offender profile. The process or technique was not developed to assist prosecutors in the prediction of dangerousness for known criminals but to study unsolved crimes in order to provide the behavioral and personality characteristics of unidentified offenders. The process involves an analysis of the nature of the offense and the manner in which it was committed. The data are compared with characteristics of known personality types, from which a description of the offender is developed. This profiling is most productive where the same offender demonstrates repeated patterns of the same crime. The purpose of profiling is to catch a criminal, not predict future dangerousness. Very few efforts have been made to validate the quality of the psychological profiles. At its present stage of development, it is more of an art form than a science, relying, as it does, heavily on intuition, rather than quantifiable measurement. While it is useful, it is a difficult and unreliable procedure. In terms of detecting and locating the offender, it has been successful in approximately 45% of the cases and of some assistance in 70% of the cases. 1

II.

We have held that, to be entitled to a state-appointed expert, a defendant must show that the proffered expertise relates to *296 an issue that is “likely to be a significant factor” at trial. Rey v. State, 897 S.W.2d 333, 339 (Tex.Crim.App.1995)(citing and quoting Ake v. Oklahoma, 470 U.S. 68, 74, 82-83, 86 , 105 S.Ct. 1087 , 84 L.Ed.2d 53 (1985)). The “likely to be a significant factor” language necessarily inquires about the showing made to the trial court by a defendant before trial. An important question, though, is whether Ake confers due process protection upon a defendant when the events at trial show that he did not in fact need the proffered expertise even though, at an earlier point in time, such expertise may have appeared to be necessary. I would answer that question “no.”

In Ake , as in many other cases, the Supreme Court recognized that due process is grounded on the notion of “fundamental fairness.” 470 U.S. at 76 , 105 S.Ct. 1087 . Fundamental fairness requires that a defendant have a “meaningful access to justice.” Id. at 77 , 105 S.Ct. 1087 . A defendant who did not need the expert witness has not been deprived of a meaningful access to justice and hence, has not been deprived of due process. In evaluating the due process claim in Ake , the Supreme Court did not limit its analysis to the events preceding the defendant’s request for expert assistance but considered subsequent events transpiring at trial. See Id. at 86-87 , 105 S.Ct. 1087 . Moreover, a majority of this Court has characterized Ake error as “structural,” and therefore, not subject to a harm analysis. We found this type of error to be structural because it is “one which eliminates a basic tool of an adequate defense.” Rey, 897 S.W.2d at 345 . But refusing to appoint an expert does not in fact eliminate a basic tool of an adequate defense if the defendant did not in fact need the expert. And the defendant has not established his deprivation of an adequate defense when the stated purpose for which the expert was sought is shown to be irrelevant in light of events occurring at trial.

III.

Appellant claims that he needed to hire Blau for two reasons: (1) to provide testimony relating to the theory of forensic profiling, and (2) to assist defense counsel in cross-examining Brantley. Neither of these reasons is implicated in the case at hand.

Reason (1) is not implicated because Brantley provided no testimony concerning the profiling technique. That technique relies solely upon forensic evidence to extrapolate the characteristics of an unknown offender. But Brantley did not rely solely upon forensic evidence and he did not attempt to extrapolate the characteristics of an unknown offender. In reaching his conclusions Brantley relied not only upon forensic evidence but also upon many nonforensic sources, and those sources (e.g. witnesses, girlfriend, and school and personnel records) were familiar with appellant. Moreover, Brantley did not claim to rely upon any scientific technique or methodology (the alleged basis for claiming that his testimony was “novel”). Instead, he relied upon his training and extensive experience in the area of criminal psychology to formulate his opinions. Hence, testimony from Blau concerning the inapplicability of the technique would have been irrelevant because Brantley did not rely upon the technique. Instead, Brant-ley formed an opinion based upon a holistic review of the evidence relating to appellant, and Brantley evaluated that evidence by using his training and experience.

Even though Brantley was an expert in the profiling technique, he did not testify about that technique during this trial. At the hearing on the admissibility of Brantley’s testimony, the trial court commented, “I don’t think there’s anything novel about it.” The court was correct.

As for reason (2), assistance with cross-examination, appellant has failed to show that he needed or could have benefitted from such assistance. Because Brantley relied upon his training and experience rather than upon the profiling technique or any specific methodology, Blau’s expertise regarding the technique would not have assisted defense counsel during cross-examination. Moreover, given the nature of the future dangerousness issue, and the nature of Brantley’s testimony, it would appear unlikely that any expert assistance would increase the effectiveness of cross-examination. Another expert might, based upon his own training and *297 experience, disagree with Brantley’s conclusions, but such disagreement, while useful as testimony, would not provide any basis for cross-examination.

Because appellant has not shown that Blau was needed for any relevant purpose during the trial, appellant’s due process claim must fail. With these comments, I join the majority opinion.

HOLLAND and WOMACK, JJ., join.

. The bill of exceptions also stated that Blau would testify regarding the general inability of mental health experts to predict future dangerousness. Appellant does not discuss this portion of the bill in his brief and makes no claim based upon it.