Rey v. State

MANSFIELD, Judge,

concurring.

I concur in the result reached by the majority in this case. Under the unusual facts presented, Appellant’s due process rights required that he be provided a state-funded pathologist. I write separately, however, because the majority does not provide adequate guidance for the trial courts with respect to the three factors in the balancing test established by Ake v. Oklahoma, 470 U.S. 68 , 105 S.Ct. 1087 , 84 L.Ed.2d 53 (1985). I also write as to whether the federal harmless error rule applies to a violation of the standards established in Ake .

I. The Ake Test

The United States Supreme Court in Ake set forth three factors or tests that must be used to determine when due process requires a state to provide an indigent defendant with the services of a testifying psychiatrist.

The first factor is the defendant’s interest in the accuracy of the criminal proceeding against him. The second factor is the State’s interest in having a fair and accurate adjudication of criminal cases without wasteful or unnecessary expenditures of state funds. Providing indigent defendants with experts can be expensive and the State has a right to inquire as to whether a defendant’s request for same is constitutionally required. The majority opinion correctly states that Ake applies to non-psychiatric experts such as pathologists, investigators and DNA analysts.

The third factor simply requires the court to evaluate the probable value of the assistance of the expert sought and the risk of error if such assistance is denied. Ake at 78 , 105 S.Ct. at 1093-94 .

A. Factors One and Two:

The Interests of the Defendant and the State

There is certainly little doubt that the accused always has an interest in an accurate result in the proceedings against him. The State has a strong interest in the integrity of the system that remains the same in each case. However, these two interests are not identical, as the majority opinion seems to imply.

It is clear that Ake requires a court to weigh and balance the competing interests of the State and the accused on a case-by-case basis. The State’s interest in preserving its resources can be protected only by providing experts to indigent defendants who meet the Ake requirements.

The private interest in the accuracy of a criminal proceeding that places the defendant’s life at risk — the situation both in Ake and in this case — is extremely compelling. The interest of the State in an accurate result in a death penalty case is equally strong. Accordingly, the burden an indigent defendant on trial for his life must meet in order to validate his request for a state-funded expert should be reasonable and the weight given to the State’s concern for cost should be given minimal weight. The interest in accuracy is considerably less in non-capital cases, especially in lower level felony or misdemeanor cases where the accused, if convicted, faces a short period of incarceration, or even a fine and/or a probated sentence. In such cases, the accused’s burden of proof to support his request for a state-funded expert should be clear and convincing evidence and great weight should be given to the State’s concern for cost.

Some would question the propriety of injecting the issue of cost into due process *347 analysis. Unfortunately, the State’s resources are limited and indigent defendants cannot be provided with whatever assistance they request. The United States Supreme Court itself has noted that cost may be taken into account in determining whether the benefit of providing an additional safeguard to an individual is outweighed by the cost to society as a whole. See Mathews v. Eldridge, 424 U.S. 319 , 96 S.Ct. 893 , 47 L.Ed.2d 18 (1976). I do not believe that Ake or due process requirements mandate that an indigent defendant charged with a misdemeanor or a state jail felony be provided an expert costing $5,000. Chief Justice Burger, in his concurrence, stated, “Nothing in the Court’s opinion reaches non-capital cases.” Ake, 470 U.S. at 87 , 105 S.Ct. at 1098 .

B. Factor Three: Probable Value and Risk of Error

The third factor in the Ake balancing test requires the court to determine the probable value of the expert assistance sought and the risk of error in the proceeding if such assistance is not offered. Ake, at 79, 105 S.Ct. at 1094 .

The majority states correctly that the accused has the burden of demonstrating need for the expert’s assistance. Whether or not the defendant can receive due process of law without a state-funded expert is an issue for the trial judge to decide. The defendant must show that the issue on which he seeks expert assistance is likely to be a “significant factor” at trial. Second, he must explain what value the expert will add to his defense. Finally, the defendant must demonstrate how, and to what extent, failure to provide the expert will create a risk of an inaccurate verdict.

The role of the trial judge is to balance the factors described in' the preceding paragraph against the parties’ interests in accuracy (taking into account the offense or offenses for which the accused is on trial) and the cost of providing the expert requested. Only by doing all of this can the trial judge determine if due process requires the granting of defendant’s request for a state-funded expert.

The facts of this case are unique as ample evidence exists questioning the competency of the State’s pathologist. The record shows that the issue of the mechanism of the death of the deceased is open to question. Evidence that the deceased did not die as the result of blows to the head, but rather due to a heart attack (the deceased had a serious heart condition), would support appellant’s defense that he did not intend to kill the deceased by beating him and that he did not act deliberately with the reasonable expectation that death would result.

Denial of the assistance of a state-funded expert on the issue of the mechanism of death — clearly an issue likely to be a “significant factor” at trial of a capital case — denied appellant due process and, based on Ake , requires the reversal of the judgment of the trial court and remand for new trial.

II. Harmless Error

The majority presents, but does not resolve, the issue of whether or not the constitutional violation in this case is subject to the federal harmless error rule. For the following reasons, I believe that it is.

The United States Supreme Court has addressed whether or not a particular error is subject to harm analysis on numerous occasions. Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967) is often cited as the first case in which the federal harmless error rule was developed. In Chapman the Supreme Court held that it, and not the states, would develop a harmless error rule to deal with errors that violate the U.S. Constitution. The Court held: “... that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman, 386 U.S. at 24 , 87 S.Ct. at 828 . It is important to note that the Court specifically rejected Chapman’s claim that all federal constitutional errors are harmful per se, thereby requiring automatic reversal.

The Court since Chapman has dealt extensively with the issue of harmless error. In several instances the Court held that if it is clear beyond a reasonable doubt, e.g., overwhelming evidence of guilt existed and the jury would have returned a verdict of guilty *348 in the absence of the error, then the error was harmless. U.S. v. Hastings, 461 U.S. 499 , 103 S.Ct. 1974 , 76 L.Ed.2d 96 (1983); Pope v. Illinois, 481 U.S. 497 , 107 S.Ct. 1918 , 95 L.Ed.2d 439 (1987).

However, certain “structural” errors are not subject to the harmless error rule. For example, violation of the right to counsel, Holloway v. Arkansas, 435 U.S. 475 , 98 S.Ct. 1173 , 55 L.Ed.2d 426 (1978); a constitutionally defective instruction on reasonable doubt, Sullivan v. Louisiana, 508 U.S. -, 113 S.Ct. 2078 , 124 L.Ed.2d 182 (1993); a coerced confession, Payne v. Arkansas, 356 U.S. 560 , 78 S.Ct. 844 , 2 L.Ed.2d 975 (1958); a biased judge, Tumey v. Ohio, 273 U.S. 510 , 47 S.Ct. 437 , 71 L.Ed. 749 (1927); exclusion of potential jurors on the basis of race, Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986).

In Arizona v. Fulminante, 499 U.S. 279 , 111 S.Ct. 1246 , 113 L.Ed.2d 302 (1991), the Court held that a confession of a prisoner, motivated by a genuine fear of violence, to a fellow inmate who was a paid FBI informer who offered to “protect” him from this violence in exchange for the confession was involuntary and not harmless error. It is important to note that five members of the Court held that the admission at trial of an involuntary confession is subject to harmless error analysis. Fulminante, at 280-81, 111 S.Ct. at 1261 .

The Court in Ake nowhere holds that the failure to provide the accused with a state-funded expert in violation of his due process rights is an error not subject to harmless error analysis. In fact, the Court did not perform a harm analysis and absence of such an analysis, I believe, allows this Court to perform a harm analysis under Chapman . The error described in Ake is arguably a “trial error” similar in impact to that of the admission of an involuntary confession. In any event, it seems logically questionable to differentiate between “trial errors” and “structural errors” given the result may be the same in either case. *

Conclusion

As previously stated, I believe that Ake , as applied to this case, requires reversal and remand for a new trial because denial of the defendant’s right to a state-paid pathologist could not be shown to be harmless error beyond a reasonable doubt. A similar result would be mandated under Rule 81(b)(2) Tex. R.App.Proe. in the absence of Ake .

A more intellectually honest approach would be to designate certain errors as errors per se requiring automatic reversal such as the denial of the right to counsel, denial of the right to a jury selected in a racially nondiscriminatory manner, and denial of the right of self-representation.