Frederick v. State

LUMPKIN, Judge,

concurring in result:

Let me see if I got this straight: Appellant was provided access to a psychologist, but his attorney did not want that one, because he claimed only a handful of mental health experts in the country were qualified to address the subject of Appellant’s possible defense. The judge gave him additional time to find this Holy Grail of mental health; in fact, the judge ultimately gave him over six months to find it. Despite this half-year opportunity, it appears defense counsel took no action to secure this one-of-a-Mnd mental health expert 1 until just before trial, when he tried to get another continuance based on the expert’s inability to testify at the time trial was set (In fact, it appears from the record defense counsel knew the witness *1100 would not be available for the trial when he contracted with the expert for the case). The judge denied the request for continuance. Based on this, this Court would not only reverse and remand for a new trial, it would hold the judge’s actions constitute error not subject to harmless error analysis.

I can only conclude the following from this series of events and this Court’s holding: although a defendant is entitled to an attorney, he is not necessarily entitled to one of his choice. If the attorney (whether of his choice or not) is deficient, an appellant must not only show how the attorney was deficient, but he must also show how this deficiency prejudiced him. HOWEVER, if a defendant does not get the mental health expert of his choice, he need not show prejudice: he need only show his mental health expert was not the expert he wanted. I really do not think the Court wants to set a foundation for a principle of law on such sandy, moving soil. The record is devoid of evidence relating to what action defense counsel had taken to obtain a qualified expert witness. We are presented with statements in the record that a qualified expert was not available in Oklahoma when those very statements are refuted by Medlock v. State, a case of which we can take judicial notice. Experts were apparently available, but were not defense counsel’s choice.

Because I agree Appellant’s attorney was woefully incompetent by failing to act in a timely manner; and because this failure certainly prejudiced Appellant by not allowing him to present a quality defense, I concur reversal is warranted. If the trial judge erred in any manner it was in the failure to periodically hold a hearing and make a record which would chronicle defense counsel’s efforts in obtaining a qualified expert; determine if court assistance was required in identifying qualified experts; and if counsel was being dilatory, then take action to secure an expert for the defense to ensure the case was tried at the time previously set.

However, I cannot believe that, while the performance of a defense attorney (undeniably the key element in any trial) is subject to review to determine prejudice, this same review is not available to determine the competency of a mental health expert, I must dissent to that portion of the opinion which seeks to interpret the right to an expert witness in that untenable manner. This opinion attempts to elevate a denial of a defendant’s mental health expert of his choice into the same category of a biased judge and absence of an attorney altogether. That position is not supported by the law.

This Court typically saws the wood which is put in front of it. Here, that wood is the well-established principle of law governing attorney competency. To reverse on a basis which will not be repeated — certainly not here — is to turn what should be questionable dicta into questionable law by not only sawing the wood in front of us, but needlessly cutting down whole forests.

Let me repeat that in a different fashion: the issue here is not whether Appellant was denied a mental health expert to assist him in preparing his defense because the trial court judiciously guarded that right and granted an expert witness at state expense. In fact, Appellant was provided with an expert; but Dr. Philip Murphy did not think he was qualified to assist at trial after he diagnosed Appellant as suffering from MPD. In an overabundance of caution the trial judge afforded the Appellant the opportunity to obtain another expert who he thought was qualified and granted an extra six months to secure that expert. The issue is (1) whether his counsel was incompetent in failing to act in a timely manner in making arrangements for his qualified expert to be present at trial; and (2) whether, as a result of that counsel’s failure Appellant was prejudiced by being forced, not to present his defense, but prevented from presenting a defense of the quality he would have liked. There is even another possibility: the trial court abused its discretion in refusing Appellant’s request for a continuance which would have allowed him to present the defense with the expert he wanted (However, it is very hard to blame the trial judge when he granted an additional six months to obtain an expert and be prepared for trial). Because the Court can— and should — reverse on either of these well-established grounds, it need not address an *1101 issue which is not germane to the resolution of the ease.

In any event, the Court would hold this Sixth Amendment violation is not subject to harmless error analysis because Appellant was “in effect, wrongfully deprived of meaningful inquiry as to the potentiality of his only possible valid defense.” This reasoning is flawed.

Initially, it is beyond debate an error does not automatically warrant reversal simply because it violates the Sixth Amendment. See Satterwhite v. Texas, 486 U.S. 249, 256 , 108 S.Ct. 1792, 1797 , 100 L.Ed.2d 284 (1988) (admission of evidence at the sentencing stage of a capital case in violation of the Sixth Amendment Counsel Clause); Crane v. Kentucky, 476 U.S. 683, 691 , 106 S.Ct. 2142, 2147 , 90 L.Ed.2d 636 (1986) (erroneous exclusion of defendant’s testimony regarding the circumstances of his confession); Delaware v. Van Arsdall, 475 U.S. 673, 680 , 106 S.Ct. 1431, 1436 , 89 L.Ed.2d 674 (1986) (restriction on a defendant’s right to cross examine a witness for bias in violation of the Sixth Amendment Confrontation Clause); Rushen v. Spain, 464 U.S. 114, 117-118 , and n. 2, 104 S.Ct. 453, 454-455 , and n. 2, 78 L.Ed.2d 267 (1983) (ex parte communication between judge and juror which implicated the denial of a defendant’s right to be present at trial); Moore v. Illinois, 434 U.S. 220, 232 , 98 S.Ct. 458, 466 , 54 L.Ed.2d 424 (1977) (admission of identification evidence in violation of the Sixth Amendment Counsel Clause); Brown v. United States, 411 U.S. 223, 231-232 , 93 S.Ct. 1565, 1570-1571 , 36 L.Ed.2d 208 (1973) (admission of the out-of-court statement of a nontestifying codefendant in violation of the Sixth Amendment Counsel Clause); Coleman v. Alabama, 399 U.S. 1, 10-11 , 90 S.Ct. 1999, 2004 , 26 L.Ed.2d 387 (1970) (denial of counsel at a preliminary hearing in violation of the Sixth Amendment Counsel Clause). It is also beyond debate there is a “strong presumption” an error will fall into the category of errors which are subject to harmless error analysis. Rose v. Clark, 478 U.S. 570, 579 , 106 S.Ct. 3101, 3106 , 92 L.Ed.2d 460 (1986). It should also be beyond debate it would be an exceptional case in which a constitutional violation will not be subject to harmless-error analysis. See Arizona v. Fulminante, 499 U.S. 279, 306-08 , 111 S.Ct. 1246, 1263-65 , 113 L.Ed.2d 302 (1991).

The error in this case is ineffective assistance of counsel, not a right to an expert of choice, and is not harmless. However, the Court would take the fact it is not harmless in this case and apply it to every conceivable situation which might come before it based on this attempt to create a new right to an expert of choice. In light of the facts of this case, I do not think that is appropriate. The real error is not an error which “transcends the criminal process.” Fulminante, 499 U.S. at 311 , 111 S.Ct. at 1265 . In addition, the United States Supreme Court has already provided an analysis to utilize in determining if a defendant has been prejudiced or the error is harmless. That Appellant may have been prevented from presenting the quality of defense he wanted because his “good” expert could not attend does not detract from the fact he could have presented the same defense with the expert he claims was of lesser quality. The failure of counsel to act in a timely fashion to obtain the additional expert is clearly a trial error, subject to harmless error analysis.

Accordingly, I must dissent to that portion of the opinion.

. Although I note another Oklahoma trial attorney had no such difficulty finding an expert acquainted with the disorder. See Medlock v. State, 887 P.2d 1333, 1340 (OH.Cr.1994).