holding that “[pjrosecutorial discretion regarding the decision whether to seek the death penalty presents no equal protection problem”
How later courts described this case
- holding that “[pjrosecutorial discretion regarding the decision whether to seek the death penalty presents no equal protection problem”
- "An adoptive confession avoids the confrontation problem because the words of the hearsay become the words of the defendant."
- conducting proportionality review of death sentence for contract killing court considered contract-murder cases in which death penalty was not sought by prosecutor
- evidence cannot be considered newly discovered when it is not "in fact any different in substance than that which was available to defendant at the time of the trial"
Written by the judges who cited it.
The opinion
Durham, J.
(concurring) — I agree with the majority opinion, but I believe that section VII, dealing with the defendant's motion for a new trial, is misleading. In affirming the trial court, the majority relies on the fact that "the psychological evidence claimed by defendant in the present case as 'newly discovered' easily could have been gathered, discovered, and presented to the jury." Majority opinion, at 797. I believe this unnecessarily calls into question trial counsel's judgment and trial strategy.
The evidence in question is a Minnesota Multiphasic Personality Inventory (MMPI) which was administered to the defendant by Dr. Mayers at Western State Hospital. The majority states that the test was completed by the defendant, but not scored. This is not entirely accurate. As Dr. Mayers testified:
A The Minnesota Multiphasic Personality Inventory was initially administered to Mr. Harris. However, he misplaced or lost the test.
The Court: Who did?
Witness: Mr. Harris.
Q While he was at Western State?
A Yes, sir. He accused another patient of stealing it from him, I then gave him another form to complete and checked on him repeatedly, however, it took a great deal of time for him to complete it, along with the Rotter Incomplete Sentences blank. He completed the Rotter Incomplete Sentences blank, and I looked at it immediately and evaluated its contents.
While I, repeatedly, asked him when he was going to finish the MMPI, he indicated that he was having some *801 difficulty completing it and, indeed, it is a very lengthy test.
Because hospital personnel were quite anxious to have him return to jail as soon as possible, because of concerns about security risk, I administered the Rorschach Diagnostic Procedure, as a more rapid way to determine the presence or absence of any psychotic symptoms.
Q The Rorschach Test was then ten—
A Ink-blots. Upon administering the Rorschach, I scored it at once. Upon giving the test, I assessed the presence or absence of any psychotic symptoms. It was immediately apparent that there was none. At the point, the question which I was attempting to answer by the test, which is the presence or absence of psychosis, was answered for me, so that I wrote the letter to the judge.
At that point, Mr. Harris still had not completed the MMPI. But at that point, the information was irrelevant in that I had obtained better information, I felt, as to the presence or absence of psychosis.
He did, finally, indicate that he had completed the MMPI, however, in fact he had left a number of the items blank.
Q There's about some 560 or 530 questions in that?
A A great many questions, yes, sir. I finally did receive the MMPI, and, he had gone through the whole test, he had missed a number of items, and in addition the test result was invalid. I did not score that test, however, until after the letter to the judge had been written and sent, because the information was of no particular import in that the question that I had been attempting to answer had in fact been answered by what I considered to be a better, more appropriate test.
(Italics mine.) Report of Proceedings, at 734-36.
Later, referring to defense counsel's claim of an incomplete diagnosis of defendant, the following colloquy occurred:
The Court: What was incomplete about it?
Mr. Anderson: The failure to score the Minnesota Multiphasic.
The Court: Was it completed before the second phase of the trial?
*802 Witness: Was it scored? Or was it—
The Court: Was it completed by the—
Witness: He hadn't even completed the test, at that point. He never did complete that test for me.
(Italics mine.) Report of Proceedings, at 745.
Finally, and of critical importance, is Dr. Mayers' testimony regarding the results of the MMPI once it was scored:
The Court: When was it scored?
Witness: It was scored after Mr. Felnagle called and said, "Is there any other information?"
The Court: And when did he call?
Witness: He called at 3:30 the night before the sentencing phase, as I understand it.
The Court: At that time it had been completed? Or at least as complete as it was ever to be?
Witness: Well, it had not been completed by Mr. Harris. Is that what you mean?
Mr. Anderson: We're not talking about scoring now. The Court: It hadn't been completed. It was never completed. Is that it?
Witness: That's correct. It was never completed. It was scored, but the scoring indicated it was invalid and useless.
(Italics mine.) Report of Proceedings, at 746.
I am unaware of any authority which would allow a new trial based on evidence which is incomplete, invalid and useless.
Goodloe, J., concurs with Durham, J.