constitutional error may be found harmless if the Court finds, beyond a reasonable doubt, that it did not contribute to verdict
How later courts described this case
- constitutional error may be found harmless if the Court finds, beyond a reasonable doubt, that it did not contribute to verdict
Written by the judges who cited it.
The opinion
LUMPKIN, Judge,
concurring in pari/dissenting in part:
¶ 1 I concur in the result of the Court’s decision to affirm the conviction in this case. However, I disagree with the unsupported holding relating to Proposition V, Doctor Goodman’s testimony. The Court accurately sets out the majority of the caselaw, including Buchanan v. Kentucky, 483 U.S. 402 , 107 S.Ct. 2906 , 97 L.Edüd 336 (1987), where the U.S. Supreme Court held it is not error for the prosecution to call a defense psychiatric expert as a rebuttal witness due to the simple fact the defendant’s privilege has been waived by the presentation of the defense at trial. The only restriction is the prosecution cannot inquire and the expert cannot relate any admissions made by the defendant as a part of the evaluation or treatment without a waiver of the right to counsel. Id. at 423-24 , 107 S.Ct. at 2918 . However, the Court then proceeds to disregard that caselaw, and without authority or analysis determines “as a matter of law ... the attorney-client privilege should prohibit prosecutorial discovery and use of information generated by non-witness psychiatric experts when such experts are consulted by criminal defendants in the course of preparing for trial or a capital sentencing proceeding.” (Opinion at pg. 271). In reaching this conclusion, the majority has ignored the doctrine of waiver the federal courts have appropriately applied to this issue. See Granviel v. Lynaugh, 881 F.2d 185, 190 (5th Cir.1989). Once a defendant elects to present an insanity, or other psychological type defense, the privilege as to both the physician and attorney concerning the nature and findings of the offered psychosis is waived. Id. Instead of following established caselaw and evidentiary rules, the majority seems to simply pull a desired result out of the air. Accordingly, I do not find any error in Dr. Goodman’s testimony in this case.
¶ 2 I dissent to the Court’s decision to remand for resentencing based on the law as set out in my separate opinions in Salazar v. State, 852 P.2d 729 (OM.Cr.1993) and Hain v. State, 852 P.2d 744 (OM.Cr.1993).