Petition — THOMAS A. A. BAREFOOT v. TEXAS (No. 80-5320)
Supreme Court brief1979
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AUG 27 1980
MARE ROTAK 32, CLERK
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IN THE
SUPREME COURT OF THE UNITED STATES Pe ae ee ee
OCTOBER TERM, 1979
No.
THOMAS A. BAREFOOT,
PETITIONER
-V~.-
THE STATE OF TEXAS,
RESPONDENT
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PETITION FOR WRIT OF CERTIORARI TO THE
COURT OF CRIMINAL APPEALS OF TEXAS
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WILLIAM E. GRAY, JR.
P.O. Box 377
Simonton, Texas 77476
(713)346-1248
LAWYER FOR PETITIONER
TABLE OF CONTENTS
OPINION BOW 6 06.66 66 G 4 vc we OTE 0 TREES Owiele bb be wee eee eee 1
SUL Ere BO e ok CRT 6 SER ae DO P64 UM Boe eb SUSE ES Ke ReRaeee es 1
CONSTITUTIONAL AND STATUTORY
PROVISIONS REVOVE 6 cbc OE bs 606 0b OR RSE eS eee 2
QUESTIONS PRESENTED. ..cccccccccccccccccccccrcccccccccccccccs |
STATEMENT OF THE CASE... wcccccceccccccsescccccccccccsscccsecs 89
A. EVIDENCE AT THE PUNISHMENT HEARING......ccceeeecses 7
G THR: PAYCRIATRIC CHOPIMONS oii 0k ch dentes Ue bsncuban Oe
C. HOLBROOK'S EXPERT PSYCHIATRIC OPINION.........e200- 19
D. GRIGSON'S EXPERT PSYCHIATRIC OPINION........e2-022. 24
E. PETITIONER'S OBJECTIONS TO THE
PSYCHIATRIC TL LE 4 6b OEE VED 06 64 6 ORS Oe 26
F. OBJECTIONS TO THE PSYCHIATRIC
TESTIMONY ON Se abs i wad 6 Cows ¢ Hae Nee wee 26
SUMMARY OF PRUNE o:a Ube 06 6008 6 OSU ON Ce bee Os bee eee nee 27
ARNT 6 6d 6 wee Cab cube Cie 02s 5b 00 eS 00'S 0086 0eb bee eee 29
Le LORE L s obi seeks ob ce 0600 0s Ok ON a OO 6 60 6a Whee Eee eee 32
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TABLE OF AUTHORITIES
CASES: PAGE
Chambers v. State, 568 $.W.2d 313
(Tex.Crim.App. TIO Vikviccs vheecdee kde a oavcesenct ene
Estelle v. Smith, 602 F.2d 694 (5 Cir. 1979)..cceeeevecceeeelly
Estelle v. Smith, -- U.S.--, Now 79-1127 (15960)... e eee eee ee 27,29
Gardner v. Florida, 430 U.S. 349 (1977). .cccccccccceseeseeeddl
Green v. Georgia, 442 U.S. 95 (1979). .ccececcccccevceeseeees 30
Jurek v. TexaS, 428 U.S. 262 (1976) .ccccccccccccccccvesesvesad
Lockett v. Ohio, 438 U.S. 586 (1978). ...ccveccceecccevecseses 30
Moore v. State, 542 S.W.2d 664
(Tex.Crim.App. WIS levies cadhscnenkdéevgeesces chun
Roberts Ve Louisiana, 431 5.8. 633 CV977) ccc Hodson ccvdweseeeue
STATUTES:
Texas Code of Criminal Procedure,
Article TE UR gece wbeceedweéenveschaxeneen
Texas Penal Code, Section 19.02(a)(1)..ccccecsccccessereseesd
Texas Penal Code, Section 19.03(a)(1)...ceeeceevceenvevcevveed
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IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1979
NO.
THOMAS A. BAREFOOT
Petitioner
vs.
THE STATE OF TEXAS
Respondent
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PETITION FOR WRIT OF CERTIORARI TO
THE COURT awe CRIMINAL APPEALS OF TEXAS
‘Petitioner prays that a writ of certiorari issue to review
the judgment of the Court of Criminal Appeals of Texas, entered
on March 12, 1980, rehearing denied on April 30, 1980.
CITATION TO OPINION BELOW
The opinion of the Court of Criminal Appeals of Texas is
reported at --S.W.2d--, No. 637159, dated March 12, 1980, and
attached as Appendix A.
JURISDICTION
Jurisdiction of this Court is invoked under 28 U.S.C., Sec.
1237(3), petitioner having asserted below and asserts here the
deprivation of rights secured by the Constitution of the United
States.
The judgment of the Court of Criminal Appeals of Texas was
rendered on March 12, 1980, and petitioner's motion for leave to
file a motion for rehearing was denied on April 30, 1980.
On July 29, 1980, Mr. Justice Powell entered an order
staying petitioner's scheduled execution, [A-100, and granted an
extension of time to and including August 28, 1980, in which to
file a petition for writ of certiorari [A-99].
slag 0
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
1. This case involves the Fifth, Sixth, Eighth and
Fourteenth Amendments to the Constitution of the United States.
2. It also involves the following provisions of Texas law:
TEXAS CODE OF CRIMINAL PROCEDURE, ARTICLE 37.071.
(a) Upon a finding that the defendant is guilty of a
capital offense, the court shall conduct a separate
sentencing proceeding to determine whether the def-
endant shall be sentenced to death or life imprison-
ment. The proceeding shall be conducted in the trial
court before the trial jury as soon as practicable.
In the proceeding, evidence may be presented as to any
matter that the court deems relevant to sentence. This
subsection shall not be construed to authorize the
introduction of any evidence secured in violation of
the Constitution of the United States or of the State
of Texas. The state and the defendant or his counsel
shall be permitted to present argument for or against
sentence of death.
(b) On conclusion of the presentation of the evidence, the
court shall submit the following issues to the jury:
(1) whether the conduct of the defendant that caused
the death of the deceased was committed deliberate-
ly and with the reasonable expectation that the
death of the deceased or another would result;
(2) whether there is a probability that the defendant
would commit criminal acts of violence that would
constitute a continuing threat to society; and
(3) if raised by the evidence, whether the conduct
of the defendant in killing the deceased was un-
reasonable in response to the provocation, if
any, by the deceased.
(c) The state must prove each issue submitted beyond a
reasonable doubt, and the jury shall return a special
verdict of "yes" or "no" on each issue submitted.
(d) The court shall charge the jury that:
(1) it may not answer any issue "yes" unless it agre-
es unanimously; and
(2) it may not answer any issue "no" unless 10 or
more jurors agree.
(e) If the jury returns an affirmative finding on each
issue submitted under this article, the Court shall
sentence the defendant to death. If the jury returns
a negative finding on any issue submitted under this
article, the court shall sentence the defendant to
confinement in the Texas Department of Corrections for
life. ‘
(f) The judgment of conviction and sentence of death shall
be subject to automatic review by the Court of Criminal
Appeals within 60 days after certification by the sen-
tencing court of the entire record unless time
is extended an additional period not to exceed 30 days
by the Court of Criminal Appeals for good cause shown.
Such review by the Court of Criminal Appeals shall
have priority over all other cases, and shall be heard
in accordance with rules promulgated by the Court of
Criminal Appeals.
TEXAS PENAL CODE, SEC. 19.02(a)(1). MURDER,
(a) A person commits an offense if he:
(1) intentionally or knowingly causes the death
of an individual.
TEXAS PENAL CODE, SEC. 19.03(a)(1) CAPITAL MURDER
(a) A person commits an offense if he commits murder
as defined under Section 19.01(a)(1) of this Code
and:
(1) the person murders a peace officer .. . who
is acting in the lawful discharge of an
official duty, and who the person knows is a
peace officer...
QUESTIONS PRESENTED
I
WHETHER THE STATE'S USE OF PSYCHIATRIC TESTIMONY
BASED SOLELY UPON A HYPOTHETICAL QUESTION WHICH
CONTAINED A DETAILED SUMMMARY OF THE STATE'S
AGGRAVATING EVIDENCE AT BOTH STAGES OF THE TRIAL
AND NONE OF THE MITIGATING CIRCUMSTANCES,
DISTORTED THE SENTENCING FACTFINDING PROCESS AND
BOLSTERED THE STATE'S PUNISHMENT EVIDENCE WITH THE
GLOSS OF MFDICAL EXPERTISE, CONTRARY TO THE EIGHTH
AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION OF
THE UNITED, STATES.
II
WHETHER PSYCHIATRIC TESTIMONY THAT PETITIONER WOULD
CONSTITUTE A CONTINUING DANGER TO SOCIETY, BASED
SOLELY UPON A HYPOTHETICAL QUESTION WHICH CONTAINED
ONLY THE AGGRAVATING EVIDENCE PRODUCED BY THE STATE
AT BOTH STAGES OF THE TRIAL, AND ALREADY HEARD BY
THE JURY, IS OF SUFFICIENT RELIABILITY TO SUPPORT
A SENTENCE OF DEATH, UNDER THE EIGHTH AND FOURTEENTH /
AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES.
° Ii!
WHETHER THE STATE'S USE OF PSYCHIATRIC TESTIMONY BASED
SOLELY UPON A HYPOTHETICAL QUESTION WHICH CONTAINED A
DETAILED SUMMARY OF THE STATE'S AGGRAVATING EVIDENCE
AT BOTH STAGES OF THE TRIAL BUT WHICH CONTAINED NO
MEDICAL, PSYCHIATRIC OR PSYCHOLOGICAL FACTS OR HISTORY,
AND NO TECHNICAL MATERIAL WHATSOEVER PECULIARLY WITHIN
THE EXPERTISE OF A PSYCHIATRIC OR MEDICAL WITNESS,
WAS SO UNRELIABLE AS TO DEPRIVE THE PETITIONER OF DUE
PROCESS OF LAW, SUBJECTING HIM TO CRUEL AND UNUSUAL
PUNISHMENT.
STATEMENT OF THE CASE
Petitioner Thomas A. Barefoot was convicted and sentenced
to death for the shooting of Carl Levin, a patrolman for the City
of Harker Heights, Texas, on August 7, 1978.
At the outset of its case on guilt or innocence, the state
presented the testimony of six witnesses from New Mexico,
regarding petitioner's arrest in Valencia County, New Mexico, on
October 29, 1977, for the offenses of criminal sexual penetration
of a minor in the first degree and kidnapping, and his escape
from the Valencia County jail on January 19, 1978.
(R.1113-1142)
On the morning of August 7, 1978, PFC Edwards was driving
to Fort Hood when he saw flames coming from the roof of the
Silver Spur Club. (R.1168-1170) He saw a man near the edge of the
Club parking lot who was looking in the direction of the fire.
This man ran across the highway. (R.1170-1174)
Edwards reported the fire and the presence of the man to
the Harker Heights police dispatcher. As he was returning to the
fire, Edwards again saw the same man. He reported this to
officers Carl Levin and Chuck Cox who were at the fire when he
got back. He observed what looked like a burning plastic milk jug
on the roof of the club. (R.1182-1193)
Levin, dressed in a Harker Heights police uniform departed
in a marked Harker Heights police car. (R.1194-1195)
Edwards identified the petitioner as the man he saw at the
scene of the fire on August 7, 1978. (R.1203, 1215-1216)
Michael Thrash, another Fort Hood soldier, was walking to
work at 5:35 a.m. on August 7th, when he saw a car with emergency
flashers and a spotlight parked at an intersection. (R.1219-1231)
Thrash saw a man walk from the bushes and up to the police car.
(S£.1228-1231) This man had a conversation with a police officer
and then the man took a step forward. There was a shot and Thrash
saw fire come from the barrel of a gun. (R.1241) The policeman
fell to the ground and the man ran away. Thrash obtained
assistance after attempting to chase the man who fired the shot.
(R.1243-1244) He could not identify the man who did the shooting.
Donnie Ray Tiller, a cab driver who lived in a trailer with
Robert Roberson, Radene Goodlow and Deborah Forbes, in Killeen,
Texas, testified that the petitioner, known to the witness és
"Darren Callier," began living in the trailer in June, 1978.
(R.1396-1404, 1407-1409).
On August 6th, the petitioner told Tiller of a plan to burn
or blow up a building to create a diversion while he was robbing
the Oasis Club. (R.1415-1418) The last time Tiller saw
petitioner was about 4:30 p.m. on August 6th. (R.1419-1422)
The following morning petitioner called Tiller at work and
asked him if he had been listening to the news. When Tiller said
that he had, petitioner stated: "Yeah, I shot him. I killed the
mother fucker, I shot him in the head. . ." (R.1423-1429)
Another habitue of the trailer, Robert Roberson, testified
that at about 4:30 a.m. on August 7th, he drove petitioner to
Harker Heights. Petitioner had what appeared to be a small
automatic pistol, a home-made bomb and a plastic milk jug.
Petitioner said he was going to blow up the Silver Spur Club
because Joe told him to do it for the insurance.(R.1516-
1521,1527,1576-1577) Roberson drove petitioner to a convenience
store where petitioner bought gas, then he left petitioner at
another convenience store in Harker Heights and returned to the
trailer. Petitioner left the bomb in the car and R»berson
disposed of it that afternoon. (R.1539,1575)
Later that morning Roberson was awakened by petitioner who
had red splotches on his t-shirt and face. Petitioner said he had
“wasted a cop." He changed clothes and left the trailer on foot.
(R. 1532-1538, 1581-1582)
That same morning Francisco Hernandez met petitioner on a
street in Killeen and after a brief conversation they went to a
grocery store where petitioner bought groceries and then to
Hernandez's apartment, where petitioner spent the night.
(R.1601-1605, 1629-1630)
Hernandez heard a news broadcast on the morning of August
8th which indicated that the police were looking for petitioner.
6
— ss
Petitioner admitted that he was the man they were looking for but
he denied that he killed a policeman. (R. 1696-1614) :
Petitioner shaved his mustache and Hernandez gave him a
different shirt. Hernandez obtained a ride for them to Belton
where petitioner bought a bus ticket to Houston and Hernandez
hitch-hiked to Austin. (R.1615-1624, 1635-1637)
EVIDENCE AT THE PUNISHMENT HEARING
John E. Green, first assistant United States Attorney for
the Western District of Oklahoma, in Oklahoma City, handled a
case on October 22, 1975, in which petitioner was convicted of
the unlawful possession of a sawed-off .410 gauge shotgun, and
sentenced to confinement in the federal penitentiary for one
year. Petitioner objection to this evidence, because it did not
involve an act of violence, was overruled. (R. 1663-1666)
Byron Legendre first assistant district attorney for the
Fifteenth Judicial District Court in Lafayette Parish, Louisiana,
was the prosecutor in a case where petitioner entered a plea of
guilty to two felony counts, distribution of marijuana and
possession of amphetamine, on December 2, 1974. (R.1968-1970)
Legendre was present in court on November 26, 1974, when
petitioner pled guilty to the misdemeanor offense of possessing
marijuana and the offense of carrying a concealed weapon. (R.1669-
1670)
John Clausen, now a deputy sheriff, was a police officer in
Morgan City, Louisiana, in 1969. At that time he knew the general
reputation of the petitioner for being a peaceful and law abiding
citizen in Morgan City. That reputation was bad. (R.1975-1976)
Louis Belaire had been a deputy sheriff in New Iberia,
Louisiana, in 1972. At that time, in Iberia Parish, petitioner's
reputation for being a peaceful and law abiding citi ses was bad.
(R. 1978-1979)
Lieutenant Danny Brown of the Louisiana State Police
stationed in Lafayette, Louisiana, asserted that petitioner's
reputation was bad in that area in 1973. (R. 1980-1983)
Carl Primeaux, probation parole officer for the Louisiana
Department of Corrections, broadened the area of petitioner's
7
ss
_—— >
bad reputation to include both Lafayette and New Iberia,
Louisiana, during 1973 to 1975. (R.1964-1986)
Chester Childs, a police officer from Oklahoma City,
Oklahoma, testified that petitioner's reputation for being a
peaceful and law abiding citizen in Oklahoma City in 1975 was
bad. (R.1988-1991) ,
Dorece Green, Executive Director of Permian Place,
established the same reputation for petitioner in Ector County,
Texas, in 1976. (R.1991-1994)
Sheriff A. C. Gaston, from Woodward, Oklahoma, gave
identical reputation testimony for the year 1977. (R.1995-1997)
Bob Olive, assistant chief of police in Neodesha, Kansas,
gave like answers for petitioner's reputation in his area in
1977. (R.2001-2004)
Thomas Esquibel, district attorney for Sandeval and
Valencia Counties, New Mexico, testified that petitioner's
reputation in those counties was bad in 1977 and 1978. (R.2004-
2007).
James Trost, a clinical psychologist for the New Mexico
Health and Environmental Department, in Santa Fe, New Mexico, was
in Valencia County on December 6, 1977, in response to a court
order to conduct an evaluation. He had “some familiarity” with
petitioner's reputation for being a peaceful and law abiding
citizen and that reputation was bad. (R.2008-2009)
THE PSYCHIATRIC TESTIMONY
Doctor John Holbrook was “self employed" the major part of
his practice being in the area of forensic psychiatry. His office
was in Dallas, Texas. He listed an impressive array of
qualifications. (R.2066-2069) He was employed by the Texas
Department of Corrections from 1968 until 1973, primarily to
“reinforce through a long correctional experience some of [his]
experiences [he] had prior to that time in doing criminal
evaluations." (R.2069)
According to Holbrook he had been called to testify as an
expert witness for both the state and the defense in death
penalty cases. (R.2070)
Holbrook thought it was within his capacity as a doctor of
psychiatry to predict the future dangerousness of an individual
within a reasonable medical certainty if he was supplied with
enough background data about that individual. (R.2072) He could
do this even if he had never seen the individual or never
performed an actual face to face evaluation process with him.
(R. 2073)
Holbrook did not know petitioner. He had never talked to
him. Even so, he was prepared to answer and did answer the
following hypothetical question posed by the prosecutor: (R.2074-
2091)
"Doctor Holbrook, we'll first start out with an individual
that is approximately [33] years of age and we'll go back in time
to the year [1969] when that individual was approximately [24]
years of age. Starting at that point in time, Doctor, I'll ask
you if you will assume please that during the year of [1969] the
individual that we're talking about had acquired a bad reputation
for the character trait of being peaceful and had also acquired
the bad reputation for the character trait of being law abiding
in the community surrounding Morgan City, Louisiana. I'll then
ask you to asqume that some three years later in the year of
[1972], that same individual in the community surrounding New
Iberia, Louisiana, had once again acquired a bad reputation in
the community for being peaceful and a bad reputation in the
community for being law abiding. Doctor Holbrook, I would ask you
further that in the year [1973] to next year, still within the
state of Louisiana, in the community of Lafayette, Louisiana, the
same individual has once again acquired a bad reputation in the
community for being peaceful and a bad reputation in the
community for being law abiding. I'll further ask you to assume
that in the year [1974], the next year, that this same individual
was convicted of a felony offense of distribution of marijuana
and was sentenced to five years in prison at hard labor probated
and one year to do in the Parish jail in Louisiana. I'll further
ask you to assume that during the year of [1974] this same
individual that we're talking about, was convicted of the felony
ns hte FO of ee
offense of possession of amphetamines. . . . I'll further ask you
to assume also in the year of [1974] this same individual that
we're talking about, was convicted of the offense of unlawfully
carrying a weapon. Once again in the year of [1974] I would ask
you to assume that that individual was convicted of the offense
of possesion of marijuana. Then I'd ask you to go to the year
[1975] and I'd ask you to assume in the year of [1975] this same
individual had acquired or renewed his bad reputation in the
community of New Iberia, Louisiana, and Lafayette, Louisiana for
being -- for having a bad reputation for being peaceful and a bad
reputation for being law abiding. Then I's ask you to assume
that in the year of [1975] in the community of Oklahoma City,
’ Oklahoma, that this same individual had acquired for himself a
bad reputation for being peaceful and a bad reputation for being
law abiding. Doctor, I'd further ask you if you will please, to
assume that during the year of [1975], this same individual was
convicted in the Western District Federal Court in the Western
District of Oklahoma for the federal felony offense of carrying
an unregistered firearm, that being a sawed-off shotgun and was
sentenced to do time in the fed :al prison. I would further ask
you to assume that in the year of [1976] this same individual
acquired a bad reputation for being peaceful and a bad reputation
for being law abiding in the community of Odessa, Ector County,
Texas. I will also ask you then to go to the year of [1977], and
I'll ask you to assume that in the year of [1977] in the
community of Woodward, Oklahoma, that this same individual had
acquired for himself a bad reputation for being peaceful and a
bad reputation for being law abiding. I will further ask you to
assume that in the same year, that being the year of [1977], this
same individual in the community of Neodesha, Kansas, had
acquired a bad reputation for being peaceful and a bad reputation
for being law abiding. I'll further ask you to assume that in
the year of [1977], in the community of Grants, New Mexico and
Los Lunas, New Mexico, this same individual had once again
acquired a bad reputation for being peaceful and a bad reputation
for being law abiding. I'll ask you to assume then also in the
Lee ee La ee OP SRR Ot Nemes me rT ae oe A SY OM ORME! RO, M7) RO Sete a
‘ ’ ;
year of [1978], in the community surrounding Valencia County, New
Mexico, this individual enjoyed at that time a bad reputation for
being peaceful and a bad reputation for being law abiding. I'll
further’ ask you to assume that on January [19, 1978], the same
individual was incarcerated in the Valencia County jail awaiting
trial for a three count felony indictment. I'll ask you to assume
that in an effort to avoid prosecution for those charges, that
same individual unlawfully escaped from custody in Valencia
County jail and firom that day forward became a fugitive from
justice. I'll then ask you to go to June of [1978] to thecentral
Texas city of Killeen which is located in Bell County, Texas.
I'll ask you to assume that this same individual that we're
talking about while in the city of Killeen, Bell County, Texas,
was located in a public restaurant and while in that public
restaurant he met a person that we will call Robert Roberson. And
on that first meeting in that public restaurant in the restroom
facility he discussed with that individual, Robert Roberson, the
sale of methamphetamine or what is called on the street as speed.
I would ask you further to assume that possession of
me amphetamine or speed in the state of Texas is a second degree
felony that carries with it a possible punishment of up to twenty
years in the penitentiary and a fine of up to ten thousand
dollars. I'll further ask you to assume that delivery or the
distribution of methamphetamine is a first degree felony in the
state of Texas. That selling it, buying it or being a party to
the distribution of methamphetamine being a first degree felony
carries with it a possible punishment of life in the Texas
Department of Corrections. I'll ask you to assume further that
those drug laws did not deter or slow down the individual that
we're talking about in his day to day actions. I'll further ask
you to assume that the individual that we're talking about then
meets a person by the name of Tiller, Donnie Ray Tiller. I'd ask
you to assume further that when he meets this individual named
Tiller, he then tells Mr. Tiller the following story. He does not
tell him that he has come from Valencia County, New Mexico but he
tells him that he lives in an adjoining central Texas city by
the name of Copperas Cove, Texas. That he also tells Mr. Tiller
that while in the city of Copper (sic) Cove, Texas he borrowed
his father's truck and lost it and further he tells Donnie Ray
Tiller that his father is fixing to have to go back to coliege
and is going to leave within the next three days and that he then
asked Mr. Tiller that if he could stay for the next couple of
days with Mr. Tiller at his home in Killeen, Texas, so he can
avoid having to answer the consequences of his alleged conduct
with his father in Copperas Cove, Texas. I'll ask you to further
assume that Mr. Tiller and Mr. Roberson lived together in a
trailer park in the city of Killeen, Texas. And I'll ask you to
assume further that based on this story that had just been told
them by this individual, that they allowed him to stay with them
in their trailer for a period of a couple days (sic). I'll
further ask you to assume that when this story was told to Mr.
Tiller, that the individual that told him that story also told
him that his name was Darren Callier and did not tell him what
his true name was. I'll ask you to assume further that he then
moved into this trailer in Killeen, Texas with Tiller and
Roberson and instead of being there for a couple days (sic), he
moved in on a permanent status. I'll ask you to assume further
that after moving into that trailer he would continually ask
Tiller to get him a gun. I'll further ask you to assume that this
individual who we'll now call Darren Callier had told Tiller that
in his opinion he had been previously mistreated by a Harker
Heights police officer. And in response to that he was going to
kill a Harker Heights cop. I'll further ask you to assume that
after predicting that he would kill a Harker Heights cop, he told
Tiller that he, Tiller, would be reading about him, that being
Darren Callier, in the newspapers. I'll further ask you to assume
that while living in this trailer with Roberson and Tiller, there
also lived in that trailer two females, one a prostitute and the
other one was living with Robert Roberson. I'll ask you to
further assume that all of these individuals, the five of them
together, bought, sold, purchased and used speed, that being
methamphetamine on a regular basis, even though possession or
12
sale would carry with it a range of punishment from twenty years
all the way to life in the penitentiary. I'd ask you to assume
further that during most of the time that this Darren Callier was
staying at the trailer, he had no job and no visible means of
Support. I'll further ask you to assume that this Darren Callier
would idly boast on many occasions that he was going to pull off
some jobs or robberies and that he would commit the c*fense of
murder. I'd ask you to assume further that on the date of August
[6, 1978] at the trailer in Killeen, Texas Darren Callier
specifically told the individual I told you was named Tiller,
that he was going to rob a club in Harker Heights, Texas and
before robbing the club he was going to set fire to a coffee shop
in Harker Heights, Texas as an effort to divert the police from
the club that he was then going to rob. I'll then ask you to
assume further that on August [6] of [1978], that person, Darren
Callier, told Tiller at that time that if he was seen by
witnesses he would either then change his appearance so as not to
be recognized later or, if necessary, he would kill the witness.
I'll then ask you to assume further that on the next day, August
[7] of [1978], that individual, Darren Callier, had acquired for
himself a gun, a twenty-five caliber automatic and a bomb. I'll
ask you to assume further that he then goes to Roberson at the
trailer at around [4:30] a.m. in the morning and tells Roberson
that he wants him to give him a ride to Harker Heights, Texas
because he, Darren Callier, doesn't have a car. He tells Roberson
at that time that he is going to blow up the place and rob
something. Further that he tells Roberson that he must do this to
show everybody that he means what he says and that then he can go
on to the next thing. I'll ask you to assume further that he
never specifies what the next thing is. I'll then ask you to
assume that while at the trailer he takes an empty plastic gallon
milk jug and he takes it with him when he goes into the car. That
he then talks Roberson into taking him to Harker Heights, Texas.
That Roberson then takes him to a gas station in Harker Heights,
Texas and that at that time he buys a gallon of gas and puts it
into the plastic milk jug that he has. He tells Roberson at this
¢
time that he needs the gallon of gas to ignite the bomb that he's
going to blow up -- use to blow up a club in Harker Heights,
Texas. I'll ask you: to assume further that then at that time Mr.
Roberson takes him to a Seven Eleven [convenience store] in
Harker Heights, Texas. And at that time the individual by the
name of Darren Callier gets out of the car, tells Roberson that
he's going to go and blow up a club by the name of the Silver
Spur in Harker Heights, Texas and that individual Darren Callier,
then leaves the car. I'll ask you to assume further that when he
left the car he forgot and left the bomb in the car. I'll then
ask you to assume further that this Darren Callier is next seen
at the scene of the Silver Spur. I'll ask you to assume that the
scene that we're talking about when we (sic) talking about the
Silver Spur complex ji. right around a residential community in
Harker Heights, Texas. I'll ask you to assume further that this
Darren Callier never made any mention to anybody to show that he
had any regard whatsoever to the individuals or the community,
the residential community that surrounded this Silver Spur
complex and what might happen to them if the fire burned out of
acontrol. I'll further then ask you to assume that a fire did, in
fact, occur at the Silver Spur complex. They found on top of the
building at the Silver Spur complex a heap of melted plastic that
appeared to be the same type of melted plastic that you would
(sic) in a gallon milk jug. And I'll ask you to assume further
that the only individual that was seen then leaving the scene of
the fire, that being the arson of the Silver Spur, was this same
Darren Callier. I'd ask you to assume that when he was seen by a
third party individual there at the scene of the fire that that
individual was in a car and got within [7 1/2) yards of Darren
Callier at the scene of the fire. I will then further ask you to
assume that Darren Callier had ample opportunity to see the
individual that had already seen him, the third party that was in
the car. I'll then ask you to assume that that individual, that
14
third party, left the scene of the fire to go en route to the
fire department and police department in Harker Heights, Texas.
I'll ask you to assume that the last time that individual saw
Darren Callier he was running down a street which we will call
business [190] and he was going in a westerly direction from the
scene of the fire. I will then ask you to assume that an
individual who was a police officer by the name of Carl Levin had
an occasion to leave his home which was further down business
[190] and proceed on to the fire. And I'll ask you to assume
further that Carl Levin was in a police car that was obviously
marked as a police car as you see in state's exhibit number [29]
that I hold up. I would ask you then to assume that this
individual that had seen Darren Callier at the fire, went, to the
police department and left the police department and went back
down business [190] in an easterly direction going back towards
the fire. I will than ask you to assume that this third party
then saw Darren Callier once again on business [190] proceeding
in a westerly direction. I'll ask you to assume that another
police car similarly marked to the one you see in state's exhibit
number [29], was following behind that individual on business
{190}. I'll ask you to assume that by the time the police car got
to the same location where that third party had seen Darren
Callier on [190], he had then disappeared into darkness. I will
then ask you to take up this individual Darren Callier where he
was next seen and I will ask you to assume that he was next seen
at a vacant house around [5:40] in the morning when it was dark.
At a vacant house in Harker Heights, Texas at the corner of Amy
Lane and Valley Road. I will ask you to assume at that time he
was stopped for questioning by a police officer by the name of
Carl Levin who was in a car that was distinctively marked as the
one you see in state's exhibit number [29] and that Carl Levin
was wearing a distinctive Harker Heights police uniform very
15
similar to the one that you can see over here in state's exhibit
number [9]. I will then ask you to assume, if you will, Doctor
Holbrook, that Darren Callier then meets the officer as the
‘officer stops his car. I'd ask you to assume that the officer is
holding his note pad in his hand. He has a gun strapped to his
side but the officer never reaches for the gun. I'll ask you to
assume that the officer is standing there talking to Darren
Callier and that the officer makes no movement for his gun, no
physical movement towards Darren Callier whatsoever. I'd ask you
to assume further that at that point in time that without any
provocation from the police officer whatsoever, that Darren
Callier then reaches in his back pocket, pulls out a [.25]
caliber automatic and places it within three to six inches of the
head of that police officer and pulls the trigger. I'll then ask
you to assume that the direction that he pointed that pistol
would have been right to the temple area and I'll ask you to
assume that a person's brain would be behind the temple area.
I'll ask you to assume that he did not shoot that officer in any
other place except the temple area which would house the brain.
I'll further ask you to assume that immediately after he shoots
the police officer, he then runs from the scene. I'll ask you to
assume that he never did anything whatsoever to check on the
extent of injuries to that police officer. I'd ask you to assume
further that he then runs from the scene into the darkness
running down the street and runs down behind people's houses and
finally ends up back at the trailer in Killeen, Texas where
Roberson and Tiller had lived. I'd ask you to assume that when he
gets to the trailer that this Roberson tells him that the police
are looking for him. I'll ask you to assume further that he
responds, that he knows the police are looking for him. That he
had just wasted a cop. And I'll ask you to assume that he used
those words, I've wasted a cop. I'll further ask you to assume
that he physically shows Roberson how he wasted the cop, that he
16
reaches into his pocket, comes up with his finger and points his
finger up to the left temple of Robert Roberson showing him how
he wasted the cop. I'll then ask you to assume that at that time
he washes up, washes off what appeared to be blood on his person
and he changes his clothes at that time in an effort to change
his identity. I'll ask you to further assume then that he leaves
the trailer and sometime later he then calls the individual who I
before told you about who was named Tiller. I'll ask you to
assume that Tiller at that time was on his job as a dispatcher at
a cab company. I'll ask you to assume further that when he was
talking to Tiller over the phone, he asked Tiller if he had been
listening to the news. And I'll ask you to assume further that
Tiller had been listening to the news and heard about the murder
of a Harker Heights police officer. I'll ask you to assume
further that Tiller asked him, did you do it? And I want you to
assume further please that Darren Callier responded with the
words, yeah, I killed him, I shot the mother fucker in the head.
And I want you to assume those are the exact words that came
down. I'll further ask you to assume that Darrel Callier is next
seen in the city of Killeen, Texas, in downtown Killeen. I will
ask you to assume that when he's next seen we're talking about a
time which would be within (3 1/2] hours of the murder. That at
that time he is sober and he meets a homosexual in the city of
Killeen. I'd ask you to assume that he had never met this
homosexual before. I would ask you then to assume that he tells
this homosexual the following story. He tells the homosexual that
he had just lost his job and that he had previously been staying
at the Star Motel in Killeen and that because he lost his job he
couldn't pay the rent and was kicked out of the Star Motel and
now he didn't have a place to stay. I'd ask you further to ,assume
that in reliance on what he was just told, the homosexual agreed
to let this Darren Callier stay at his place. I'll ask you to
further assume that on the ~- the time -- that night that
17
followed, that Darren Callier ate a full meal, conversed back and
forth with the homosexual, drank beer with him and never did
anything whatsoever to show remorse for what happened to the
police officer and he never did anything to even indicate that he
had been involved in any type of activity, criminal activity
prior to meeting the homosexual. I'll ask you to further assume
that during the conversation he did tell the homosexual that his
real name was Thomas A. Barefoot. I'd ask you to further assume
then that the homosexual the next morning is listening to the
news and hears a description about -- hears first of all facts
about the capital murder that occurred in Harker Heights and then
hears the description of the suspect. I'll ask you then to
further assume that this Thomas A. Barefoot tells him that yes,
he's the person they're .looking for but he further tells the
homosexual that he didn't do it. I'll then ask you if you will
please to assume that the homosexual is scared and that he tells
Thomas A. Barefoot that he will help have him disguised and get
him out of town if he so desires. I will then ask you to assume
that Thomas A. Barefoot shaves off his mustache to change his
identity and then changes clothes into some of the abevhes that
were owned by the homosexual. I'll ask you to assume that Thomas
A. Barefoot chooses his next destination to be Houston, Texas.
I'll then ask you to assume that the homosexual and Thomas A.
Barefoot obtain a ride to Belton, Texas where Thomas A. Barefoot
purchases a one way ticket to Houston and he gets on the
Greyhound,.bus to go -- or Kerrville bus to go to Houston, Texas.
I'll further ask you to assume that on his person at that time he
has a knife in one pocket and a loaded [.25] caliber automatic in
the other pocket. A one way ticket to Houston, a small amount of
change, no changes of clothes, nothing else with him whatsoever
to indicate that he is a traveler. He sere on the bus en route to
Houston at that time. I'll also ask you further to assume that
the pistol that he has in his pocket, he has strategically
18
placed behind his billfold so that if a person looks at him just
with the naked eye and sees his posterior region he will see only
a billfold protruding from his pocket and not see a gun. I'll ask
you further to assume that the gun is in a location that if he is
patted down only the billfold will be felt. You': have to have a
full blown search of his person to find the weapon that we're
talking about. I'll further ask you to assume that in Houston,
Texas when he arrives he is arrested by five different officers
and that on his person is found the knife and the gun that I
previously told you about. I would furth © ask you to assume that
when he is transported from Houston all the way to Bell County,
he sleeps in the back of the patrol car on his way to Bell
County, Texas. I'll further ask you to assume that this
individual is then charged with capital murder, tried for capital
murder and convicted by a jury of the offense of capital murder
of that Harker Heights police officer in Bell County, Texas. Now,
with all that before you, Doctor Holbrook, I would ask you if
that (sic) would be sufficientfacts for you then to look at and_
to form an expert psychiatric opinion as to what type of
character traits that individual had exhibited during that period
of life."
HOLBROOK'S EXPERT PSYCHIATRIC OPINION
The learned doctor, who recently committed suicide, drew
the following purported psychiatric conclusions from this jury
argument framed as a hypothetical question:
"Assuming all these data to be accurate, I think the first
thing that becomes obvious from the data is that we have an
individual who has established what is called a bad reputation as
a law abiding, peace loving citizen. In something in the order
of ten or twelve communities, plus or minus a few, in five states
which is approximately a tenth of the whole continental area of
the United States. He's been unable to establish any sort of
normal kind of relationship to society but who has done just the
19
contrary in that magnitude. Starting as far back as [1969] which
-- we're moving up on ten years at this point. Over that period
of time this kind of antisocial or lack of ability to adapt to
society and not only that to more (R.2092) or less reject it. To
not indicate in some way behaviorally at least, whether we know
what's going on in his mind or not, that they're capable of
relating to any of the normal institutions that most people live
by. Either religion, science or political science, church, family
or whatever. And none of these kind of loyalties seem to appear
with that history. Further then that we have in this history that
is related to me an indication of an ascending sort of scale of
criminal behavior in that the individual has been arrested a
number of times for a variety of charges starting with relatively
minor charges of possession of marijuana as I understand it,
progressing to possession and even distribution of amphetamines,
then moving to the element of adding danger to criminal behavior
or possession of an illegal weapon and then a concealed weapon.
There is a progression of this person actually having been
confined and attempted to correct this kind of behavior at least
on two occasions and indicate that that had no effect on this
behavior. That it continued and accelerated throughout time. We
see this person being very mobile, moving in the confines of five
states that we know about -- probably -- well, I won't say that.
At least five states that we know about and a number of
communities that we know about. This person also has by history
of this report contrived to do two things. To remain relatively
anonymous by taking up an alias when it is convenient to do so.
Further the individual has used that in such a way to serve their
(sic) own purposes. Almost everything that is reported here
indicates that not much behavior at least by history this person
has done to serve purposes for anyone other than themselves
(sic). So the indicators are this is extremely self-serving
purpose -- person. He tends to disregard the normal values of
20
social life with this ascending scale maintaining anonymity and
taking on an alias, to do that and maintaining considerable
mobility. In the latter stages of the history the individual has
continued to associate themselves (sic) with people who would
perpetuate that anonymity and would even by some manipulation on
their (sic) part provide them (sic) with transportation, food,
lodging, without any real effort on that person's part. Assuming
that all of the planning that went into this and the way it's
stated, there are indicators that the individual really had in
mind to commit a very serious offense and was intent upon doing
it by history. This has been reported well in the book called
"The Criminal Personality and Profile for Change" by Yokelman
(phonetic) from Saint Elizabeth's Hospital in Washington, D.C.
which is a net result of about eighteen years work of their
separate life represents thirty-six years of their collective
life. (R.2093-2095) They threw away about [300,000] pages of data
given to them by individuals that they had evaluated there which
is a criminal evaluation center and began to go upon basic data
as this sort of thing, information given by family and the
individual seemed to be worthless and a quarter million pages of
it were thrown away after twelve years. The kind of information
here shows what I have said thus far. The planning indicates what
they found and what I have found over almost twenty years, that
in the mind of the criminal whatever you want to call it, they
operate on the basis of three things -- four really. That they
have a peculiar criminal mind. That each offense they commit has
been thought of many times. The only thing they need is the
opportunity together with a target and anonymity and mobility.
They will invaribly provide those elements if they are very
actively engaged in criminal thinking. This goes on and on. This
is manifest in the history that you give. In the report of the
individual actually sort of bragging about an offense of a very
serious nature indicates that the person derived a great deal
21
of personal pleasure. There certainly was no gain as far as I
could determine from this data. This fits my own experience in
dealine with the criminal (R.2095) what ever you want to call
them diagnostically. That the primary goal of the criminal is the
excitement and the ego enhancing part of criminal behavior and
when this begins to have an ascending kind of order both in
frequency and in seriousness and involving more and more danger,
that there is no end point other than the ultimate of danger to
other people and/or themselves. So all of those elements are
present. This is an invariable set of circumstances and it's born
(sic) out by very good evidence and these people wrote three
volumns on the subject and I made a contribution of my own. In
reviewing the literature on the subject most authors who are
thinking straight and you think now of Yokelman reviewed that and
it's available - -."
At this point petitioner's counsel interposed a hearsay
objection which was sustained by the court, but Holbrook was
undeterred: “Without belaboring that my opinion agrees with all
of that." (R.2096)
Holbrook's opinion was “based within a reasonable
psychiatric certainty.
‘The late doctor next, within reasonable psychiatric
certainty, classified petitioner as a “criminal sociopath."
According to Holbrook "the criminal sociopath involves
criminal (R.2097) behavior. The elements are normally by most
authors including myself, suggest that the individual is number
one, one who continues to demonstrate from early life into
adulthood antisocial behavior and in the criminal its criminal
antisocial behavior. These are acts that are not arrestable to
arrestable kinds of behavior (sic)." (R.2098)
Holbrook basically reiterated his first conclusionary
statement, connecting the history given him with the actions of a
“criminal sociopath." (R.2098-2099) He found “probably six or
22
seven major criterias (sic) for the sociopath in the criminal
area within reasonable medical certainty. Most authors accept
somewhere between five and fifteen. We might add another one here
and that is usually in the history of this individual you will
find some indicator of violence or serious threats of violence
which, if taken alone, may not be significant but if taken in
this history and the context of this person's life, one might
begin to take it very seriously. Another thing that might be
mentioned here is another criteria and I think we're up to around
seven or eight now, would be, the person escaping or running away
from authority or being unwilling to accept a confrontation in
the legal way in a court of law. The run away or escape is
usually a part of the history. Truancy very often when they are
young or it may, in fact, be present in the correctional sense or
the legal sense where a fugitive or a person who had become a
fugitive and run away from (R.2099) even that basic
responsibility. In summary those are the characteristics of the
criminal sociopath in my view and many, many other people."
(R. 2100)
Holbrook knew of no treatment that coulé be given a person
such as petitioner that would make him change his personality and
behavior from that of being a criminal sociopath. (R.2100) In his
opinion, petitioner's personality and behavior may become
accelerated within the next few years, that is what he would
anticipate.It was his further opinion that within reasoable
psychiatric certainty there was a probability that petitioner
would commit criminal acts of violence in the future that would
constitute a continuing threat to society, and this would include
the society within the Texas Department of Corrections.
(R. 2100-2101)
On cross-examination Holbrook conceded that (1) he never
examined petitioner; (2) he never had petitioner under any kind
of clinical study and never observed him before he came into the
23
courtroom that day; and (3) he had not been present during the
course of the trial. (R.2101-2102)
GRIGSON'S EXPERT PSYCHIATRIC OPINION
Doctor James Grigson who, along with Holbrook, has
testified for the state in an inordinate number of capital murder
cases in Texas, was asked essentially the same hypothetical
question. (R.2111-2126) The second hypothetical question
contained additional details about the offenses for which
petitioner was arrested in Valencia County, New Mexico:
“Assume further that Thomas A. Barefoot's name had been
entered into the National Criminal Information Center in
Washington, D.C. for escaping from jail in Valencia County, New
Mexico. . . [and that] at the time of the escape. . . [Thomas A.
Barefoot was under indictment] for the following charges. Count
One that [he] intentionally and unlawfully engaged in vaginal
sexual intercourse with a minor child under the age of thirteen
years old not then his spouse. Count Two that [he]. . . engaged
in the anal sexual intercourse of a minor child under the age of
thirteen old which was not his spouse. Count Three that [he]. . .
restrained and confined a minor child by use of force or
deception with the intent to commit criminal sexual (R.2120)
penetration against the child's will." (R.2121)
The prosecutor also added the details of the escape from
the Valencia County jail to Grigson's question. (R.2121)
Grigson after reviewing his credentials, asserted that,
even without a medical or psychiatric examination of an
individual, he would be able to give a medical opinion within
reasonable psychiatric certainty as to the psychological or
psychiatric makeup of an individual, provided he was given
sufficient facts, information and circumstances. (R.2110)
After hearing the question, Grigson said: “This would be a
fairly classical, typical, sociopathic personality disorder."
(R.2128) According to Grigson the most outstanding personality
24
characteristic of the sociopath is the lack of a conscience.
There are varying degrees of this disorder. On a scale of one to
ten there is the mild sociopath, all the way up to the severe
sociopath who have a complete disregard for another person's
life. Based on the facts given him, Grigson would place
petitioner "into your most severe category. If you go up above
ten, it would be above ten but really in your most severe
sociopaths. . . . There is not anything in medicine or psychiatry
or any other field that will any way at all modify or change the
severe sociopath. There is just not anything available."
(R.2128-2129)
Grigson was then asked: “Assuming as true the facts of the
hypothetical question. . . do you have an opinion within
reasonable psychiatric certainty whether or not there is a
probability that the defendant, Thomas Andrew Barefoot, will
commit criminal acts of violence that would constitute a continu-
ing threat to society?"
Not surprisingly, Grigson did have an opinion: "Yes, he
most certainly would." This would be true, no matter where
petitioner was. "It wouldn't matter whether he was in the
penitentiary or whether he was free. Wherever he is he's going to
continue what he's already been doing." Not satisfied with this
outrageous conclusion, the prosecutor persisted: "Would
you state whether or not, Doctor Grigson, you have an opinion
within reasonable psychiatric certainty as to the degree of that
probability that you have just expressed to this jury?"
Grigson: "Well, yes, sir, I would put it at one hundred
percent and absolute."
On cross-examination Grigson denied that he was familiar
with the following: (1) American Psychiatric Association Task
Force Report on Clinical Aspects of the Violent Individual; (2)
Dr. Bernard Diamond's article on the Psychiatric Prediction of
25
Dangerousness; (3) Cocozza and Stedman's article on the failure
of psychiatric predictions of dangerousness published in 1976;
(4) Doctor Guttmacher's Clinical Evaluation of the Dangerousness
of the Mentally 11l; (5) Doctor Rubin's article on The Prediction
of Dangerousness in Mentally I11 Criminals. (R.2133-2134)
Grigson said it was untrue that it was the position of the
American Psychiatric Association that psychiatrists cannot
reliably predict whether or not someone -- criminals in the
future are going to commit future acts of violence. According to
Grigson "This is that same group that found homosexuality was not
an illness and this is a small minority group."(R.2134)
PETITIONER'S OBJECTIONS TO THE PSYCHIATRIC TESTIMONY
Petitioner objected to the hypothetical question posed to
Holbrook because it assumed only aggravating facts and assumed no
mitigating facts that were brought out during the trial; that is
assumed facts that were controverted by the evidence; that in
some cases it assumes what was going on in the mind of persons
involved "which facts are not facts in evidence at all;" and
because "there is no way that a hypothetical can be generated
which will incorporate all the facts which have come before [the]
jury and which would incorporate what [the] jury as determined to
be true .. . for] untrue." (R.2091)
A similar objection was interposed when Grigson testified,
with the additional statement that the question was asking the
witness to invade the province of the jury. (R.2126-2127)
Earlier, outside the presence of the jury, petitioner made
similar objections to Grigson's testimony. (R.2042-2044)
OBJECTIONS TO THE PSYCHIATRIC TESTIMONY ON APPEAL
On appeal to the Court of Criminal Appeals of Texas,
petitioner argued that psychiatrists, as a group, are not
qualified by education or training to predict future behavior.
(Barefoot v. State, --S.W.--, No. 63,715, page 18, Appendix "B")
The Court, id at page 19, specifically rejected this
‘
26
contention:
"This Court is well aware that the ability of psychiatrists
to predict future behavior is the subject of widespread debate.
However, we are not inclined to alter our previously stated view
that a trial court may admit for whatever value it may have to a
jury psychiatric testimony concerning the defendant's future
behavior at the punishment stage of a capital murder trial.
Chambers v. State, 568 S.W.2d 313 (Tex.Crim.App. 1978); Moore v.
State, 542 S.W.2d 664 (Tex.Crim.App. 1976)."
No member of the Court dissented from this view.
SUMMARY OF ARGUMENT
The Court has before it now, in Estelle v. Smith, No.
79-1127, 602 F.2d 694 (5 Cir. 1979), issues involving the state's
use of psychiatric testimony in support of an affirmative answer
to punishment issue number two, where the accused was actually
examined by the testifying psychiatrist.
Interwoven with the Smith contentions is the claim there
raised in the brief amicus curiae for the American Psychiatric
Association that the use of psychiatric testimony in a capital
case on the issue of whether a defendant is likely to commit
serious crimes in the future is constitutionally invalid because
it undermines the reliability of the fact finding process.
Here, the state has refined the punishment procedure by
having two psychiatrists, one of them being the same Doctor
Grigson who testified for the state in the Smith case, testify,
based upon a hypothetical question which incorporated all of the
state's evidence at both stages of the bifurcated trial, that the
petitioner "most certainly would" commit criminal acts of
violence that would constitute a continuing threat to society.
Grigson put the degree of probability “at one hundred percent and
absolute." (R.2131)
27
The Court of Criminal Appeals of Texas, with no voice
raised in dissent, asserted that the use of expert testimony and
the testimony of experts based upon hypothetical questions, is a
matter of state law and, under the peculiar Texas statutes,
within the exclusive discretion of each individual trial judge,
who may admit any evidence he deems relevant to sentence.
Such claim must yield to this Court's requirement for
reliability in the determination that death is the proper
punishment after conviction of a capital offense.
The global purview of the Texas punishment issue predicated
upon a finding of future dangerousness, requires exclusion of
psychiatric predictions of future dangerousness as a matter of
federal constitutional law, and petitioner here incorporates the
Summary of Argument contained in the amicus brief for the
American Psychiatric Association.
Second, even if psychiatric predictions of future
dangerousness, based upon a legitimate psychiatric and medical
examination, be proper at the punishment stage of a capital
trial, where these predictions are based, as here, solely upon a
hypothetical resume of the same evidence, embellished with the
prosecutor's conclusions, submitted to the jury with no medical
or psychiatric evidence requiring expert analysis for the
assistance of the jury in resolving the issue of future
dangerousness, the punishment proceeding is distorted, the
petitioner is denied a fair hearing by the fact finders, and the
state is permitted to bolster its non-medical and non-psychiatric
evidence with the gloss of medical expertise.
Third, Grigson's flat prophecy that petitioner "most
certainly would” commit future criminal acts of violence that
would constitute a continuing threat to society, and that the
probability of such future conduct was “one hundred percent and
absolute," within reasonable psychiatric certainty, eliminated
the state's burden of proving an affirmative answer to punish-
28
ment issue number two beyond a reasonable doubt, deprived the
petitioner of his statutory right to have his punishment fairly
assessed by the jury, and denied him fundamental fairness and due
process of law.
ARGUMENT
The petitioner adopts the argument under point I, pages 11
through 17, of the amicus brief for the American Psychiatric
Association, filed in Estelle v. Smith, --U.S.--, No. 79-1127,
and submits that the issue of the reliability of psychiatric
predictions of long-term future criminal behavior was squarely
raised in and rejected by the Court below.
The evil of such predictions, at least by practitioners
like Grigson and Holbrook, under the Texas capital punishment
statutes, is that they eliminate the jury's need to consider
mitigating evidence. There is no cure, according to these
experts, for the criminal sociopath. Thus this Court's reliance
upon the following assurances by the Court of Criminal Appeals of
Texas, in Jurek v. State, 522 S.W.2d 934, 939-940(Tex.Crim.App.
1975), cited with approval in Jurek v. Texas, 428 U.S. 262, at
272-273 (1976), is misplaced:
"In determining the likelihood that the defendant would be
a continuing threat to society, the jury could consider whether
the defendant had a significant criminal record. It could
consider the range and severity of his prior criminal conduct. It
could further look to the age of the defendant and whether or not
at the time of the commission of the offense he was acting under
duress or under the domination of another. It could also consider
whether the defendant was under an extreme form of mental or
emotional pressure, something less, perhaps, than insanity, but
more than the emotions of the average man, however inflamed,
could withstand." —
There is likewise no room in the “criminal sociopath"
category for consideration of the youth of the offender, the
29
influence of drugs, alcohol, or extreme emotional disturbance,
and even the existence of circumstances which the offender
reasonably believed provided a moral justification for his
conduct. Roberts v. Louisiana, 431 U.S. 633, 637 (1977).
Equally immaterial is the fact that the offender was a
party to but did not himself commit the murder. Lockett v. Ohio,
438 U.S. 586 (1978)
All of these mitigating circumstances are moot under the
Grigson-Holbrook caveat that there is no known cure for the
sociopathic personality. What matters, then, the age of the
offender, his part in the crime, whether he was acting under
duress or was under the domination of another, whether he was
under an extreme form of mental or emotional pressure, the fact
that he was under the influence of drugs or alcohol, or the fact
that he reasonably believed in the existence of circumstances
which provided a moral justification for, his conduct? Even if all
these factors be true, if he is a sociopath, he must die.
The Grigson-Holbrook prophecies carefully eliminate the
jury's need to consider life imprisonment for the offender. He
will be a danger to the inmates and personnel of the Texas
Department of Corrections. This all adds up to a mandatory
affirmative answer to the second punishment issue and a mandatory
sentence of death for the offender.
It can thus be seen that the reliability of such opinions
goes to the very heart of the punishment proceedings in Texas
capital murder trials.
A majority of this Court swept aside a state procedural
rule which excluded relevant and reliable mitigating evidence at
the punishment proceeding, holding that such exclusion
constituted a violation of the Due Process Clause of the
Fourteenth Amendment. Green v. Georgia, 442 U.S. 95 (1979).
The harm is just as great to a convicted capital offender
where the state procedural rule or statute permits the admission
30
of potentially unreliable and bolstering aggravating evidence at
the punishment proceeding. Cf. Gardner v. Florida, 430 U.S. 349
(1977).
In Gardner, three Members of this Court agreed that the
sentencing process of a capital trial must satisfy the
requirements of the Due Process Clause and that sentencing is a
critical stage of a capital criminal proceedingat which the
defendant is entitled to the effective assistance of counsel.
As Mr. Justice Stevens noted in Gardner:
", . »« [F]ive Members of the Court have now
expressly recognized that death is a different
kind of punishment from any other which may be
imposed in this country."
and:
"It is of vital importance to the defendant
and to the community that any decision to
impose the death sentence be, and appear to
be, based on reason rather than caprice or
emotion." 430 U.S. at 357-358.
Both psychiatrists in petitioner's case reached their
standard boilerplate psudo-psychiatric conclusions upon
non-medical and non-psychiatric facts. A person's reputation for
being a peaceful and law abiding citizen in various communities
may or may not have either legal or medical significance.
Doubtless the late Doctor Martin Luther King had such a
reputation over a wider georgaphic range than did thepetitioner
in the same circles that established petitioner's reputation.It
is interesting to note how quickly Holbrook became a legal
advocate when he analyzed this evidence, pointing out that
petitioner had a bad reputation as a peaceful and law abiding
citizen in "ten or twelve communities, plus or minus a few, in
five states which is approximately a tenth of the whole
continental area of the United States." Later Holbrook expanded
on this geographic opinion by saying that petitioner was very
31
~~ pe oe
P
;
:
mobile, moving in the confines of five states "that we know
about" and a "number of communities that we know about."
Then, even though Holbrook had remarked about this
far-flung reputation, he found significance in the fact that the
petitioner had used an alias in Bell County, after his escape
from the New Mexico jail. This showed that petitioner tended to
disregard the normal values of social life with this ascending
scale maintaining anonymity and taking on an aiias while at the
same time maintaining considerable mobility.
Grigson made no effort to correlate petitioner's "history"
as recounted by the prosecutor with his standard conclusions.
A reading of the testimony of these psychiatric witnesses
makes one wonder what they could have done with chicken entrails,
or a flight of birds.
Petitioner's court-appointed counsel made no effort to
counter this damaging testimony, either by a searching cross
examination into the fraudulent basis of the expert conclusions
or by defensive psychiatric witnesses. The record does not reveal
the reason for this supine surrender, but petitioner's present
lawyer is well aware of the extreme difficulty confronting court
appointed counsel for an indigent capital defendant in obtaining
medical or psychiatric assistance of any sort.
CONCLUSION
The sentence of death in this cause should be set aside for
all the reasons stated above.
Respectfully submitted
William E. Gray, Jr.
P.O. Box 377
Simonton, Texas 77476
(713)346-1248
¢
32
CLERK'S OFFICE
COURT OF CRIMINAL APPFLAS
AUSTIN, TEXAS
I, THOMAS LOWE, Clerk of the Court of Criminal Appeals of Texas,
do hereby certify that in Cause No. 63,715, styled:,
THOMAS A. BAREFOOT Appellant
Vs.
STATE OF TEXAS Appellee
the judgment of the 27th. Judicial District Court of Bell County,
Texas was AFFIRMED, on March 12, 1980, the Appellant's Motion for
Leave to File Motion for Rehearing was Denied on April 30, 1980.
The Appellant's Motion to Stay Issuance of Mandate was Granted on
April 30, 1980 for 30 days and the Mandate of this Court issued on
June 2, 1980.
THEREFORE, WITH THE DENYING OF THE APPELLANT'S MOTION FOR LEAVE TO
FILE MOTION FOR REHEARING, this cause was disposed of by this Court
on ~° June’2, 1980, the appellant having exhausted all remedies of
this, The Court of Criminal Appeals of Texas and the judgment has
now become final on the docket of this Court.
WITNESS my hand and the seal of said Court, at my office in Austin,
Texas, this the 2lst. day of July, A. D., 1980.
H
THOMAS Li , Clerk of the
Court of Criminal Appeals
of Texas
“APPENDIX “A”
THOMAS A. BAREFOOT, Appellant
aka DARREN CALLIER
NO. 63,715 v. ~- Appeal from BELL County
THE STATE OF TEXAS, Appellee
OPINION
This is an appeal from a conviction for Capital murder,
The punishment is death.
Appellant contends that the trial court erred by failing
to instruct the jury at the guilt-innocence stage of the trial
en the law of circumstantial evidence, denying his motion for
change of venue, overruling his challenges for cause of three
Prospective jurors, refusing his request for additional peremp-
tory challenges, admitting evidence of extraneous offenses,
failing to define “probability” in the charge at the punishment
stage, and overruling his objections to the testimony of two
witnesses as to the probability he would commit acts of violence
in the future. Appellant also contends that Art, 37.071, V.A.C.
C.P., is unconstitutiorally vague,
Appellant was conv’cted for the murder of Harker Heights
police officer Carl Levin. The appellant fatally shot Levin
after the officer stopped him for questioning in an arson investi-
gation. Although appellant does not contest the sufficiency of
the evidence, a detailed review of the testimony is required in
order to discuss his contention that the circumstantial evidence
charge should have been submitted to the jury.
Appellant and four other persons were living in a trailer
"in killeen during the summer of 1978. One of the appellant's
roommates, Donnie Ray Tiller, testified that appellant had asked
him for a gun and stated that he intended to kill a Harker Heights
policeman who had allegedly mistreated him during an arrest for
public intoxication. Appellant also told Tiller of his plans to
commit various robberies in Narker Heights, :
APPENDIX “RR”
BAREFOOT -2
On August 6, 1978, appellant told Tiller that he was
going to commit a robbery the next morning at the Oasis Club
in Harker Heights after creating a diversion by bombing or
setting fire to a building. Appellant Stated to Tiller that
he would kill anybody who recognized him as the robber. Ap-
pellant was wearing a white T-shirt and blue jeans at the time
of this conversation.
Another roommate, Robert Roberson, testified that appel-
lant awakened him at approximately 4:30 a.m. on October 7 and
asked him for a ride to Harker Heights. Appellant was wearing
a white T-shirt and blue jeans, and was armed with a .25 caliber
automatic pistol and a home-made bomb. On the way to Harker
Heights, appellant told Roberson he was going to blow up the
Silver Spur, a night club. After first stopping at a convenience
store where appellant filled an empty plastic milk jug with
gasoline, Roberson dropped appellant off near the Silver Spur
at about 5:00 a.m. and returned to the trailer.
John Edwards, a soldier at Fort Hood, drove past the Silver
Spur at $:15 a.m. He saw flames coming from the roof and a man
he identified as appellant standing in the parking lot. As
Edwards watched, appellant began to run along Highway 190.
Edwards drove to the police station, which was nearby, to report
the fire and then returned to the Silver Spur. On his way back
to the fire, Edwards saw appellant near the intersection of
Highway 190 and Amy Lane.
Rack at the fire, Edwards saw a fireman remove a melted
plastic jug from the roof of the building. He then told Officer
Levin what he had seen. Levin, who was in uniform and driving
a marked patrol car, left the scene of the fire and drove toward
Amy Lane.
*
BAREFOOT -3
Michael Thrash, another Fort Hood soldier, lived on Amy
Lane. He was walking to work at 5:35 a.m. when he saw a patrol
car parked at the intersection of Amy Lane and Valley Road with
its emergency lights on and its spotlight trained on some bushes.
Officer Levin was standing beside the patrol car. A man wearing
a white T-shirt and blue jeans stepped out of the bushes and
walked toward the officer. The man then shot Levin in the head
at point-blank range and fled down Valley Road.
Mary Richards, who lived on Valley Road, heard the shot
and looking through a window, she saw a man wearing a white T-
shirt running down Valley Road from Amy Lane. Richards could
not positively identify appellant, but testified he resembled the
man she saw.
Appellant called Tiller at approximately 10:30 a.m. on
the morning of the shooting. Tiller described the conversation
as follows:
“I answered the phone. He said, Donnie, I
said, yes. He said this is Darren. He says
have you been listening to the news? And I said,
yes, Darren, did you do that? He said, Yeah, I
shot him. I killed the mother fucker. I shot him
in the head."
Tiller testified that this conversation was in reference to the
August 7 shooting of the Harker Heights policeman. After appel-
lant hung up, Tiller contacted the police.
Appellant returned to the trailer after the shooting and
spoke to Roberson. Roberson testified that appellant was still
dressed in a white T-shirt and blue jeans, had red blotches
which appeared to be blood on his face and shirt, and appeared
to be in a state of panic.
After Roberson
police had been to the trailer looking for
that “he had to get out of town because he
told him that the
him, appellant said
that .
wasted a cop,
he hilled a cop." Asked by Roberson ‘ow he had done it, appel-
i
Jant reached for his back pocket andthen pointed his finger at
BAREFOOT -4
Roberson's head at the place corresponding to the bullet wound
to the head of the deceased. After washing up and changing
clothes, appellant left the trailer.
Francisco Hernandez testified that he met appellant in
downtown Killeen on the morning of August 7. He invited appellant
to his home for lunch and subsequently offered to let him spend
the night. The next morning, after hearing a radio news report
describing the suspect in the Levin murder, appellant told Hernandez
that "I am the one that they're looking for but I didn't kill no
policeman," |
Appellant subsequently made his way to Belton, where he boarded
a bus for Houston. Police acting on information from Hernandez ar-
rested appellant at the bus station in Houston at approximately 11:30
p.m. August 8. A .2S caliber automatic pistol that ballistics tests
proved fired the bullet that killed Levin was in espera s pocket
at the time of his arrest.
David Kingsley was acting Chief of Police for Harker Heights at
the time of the charged offense. He testified that Officer Levin
was the only peace officer killed in Bell County on August 7, 1978,
If the accused admits or confesses killing the deceased,
proof of the admission or confession is direct evidence of the
main inculpatory fact and a charge on circumstantial evidence
is not required. Sloan v. State, S1S S.W.2d 913 (Tex.Cr.App.
1974); Hurd v, State, $13 S.W.2d 936 (Tex.Cr.App. 1974); Swift
Vv. State, $09 S.W.2d 586 (Tex.Cr.App. 1974). However, if the
admission or confession is equivocal as to the killing of the
:' deceased, or if it is not clear that the killing admitted or
confessed is the killing with which the defendant is accused,
proof of the admission or confession alone will not relieve the
trial court of the necessity of giving a circumstantial evidence
charge. Ridyolph v. State, S44 S.W.2d 784 (Tex.Cr.App. 1977); °
Hielscher v. State, 511 S.W.2d 305 (Tex.Cr.App. 1974); Martinez
Vv. State, 207 S.W.2d 387 (Tex.Cr.App. 1948). Even if the con-
fession is equivocal, a circumstantial evidence charge is not
BAREFOOT -$
necessary if tive other evidence, together with the confession,
conclusively establishes that the killing confessed is the
killing for which the defendant is on trial. Ridyolph v. State,
supra; Hogan v. State, 496 S.W.2d 594 (Tex.Cr.App. 1973); Steel
v. State, 459 S.W.2d 649 (Tex.Cr.App. 1970); Patterson v. State,
416 S.W.2d 816 (Tex.Cr.App. 1967).
Tiller testified that appellant's admission to him that
he “shot him in the head" was in reference to the shooting of
the Harker Heights policeman on August 7. Officer Levin, who was
shot in the head, was the only peace officer in Bell County killed
that day. Appellant told Roberson that he “killed a cop" and
described the shooting-in a manner consistent with the murder
of Levin. Appellant was seen in the area a few minutes prior to
the shooting wearing a white T-shirt and blue jeans, the witness
to the shooting testified that the assailant was dressed in that
fashion, and Roberson testified that appellant was so dressed
when he returned to the treiler splattered with blood. These
facts, together with the other evidence discussed above, leave
no reasonable doubt that the killing admitted by appellant was
that of Officer Levin. Therefore, the admissions are direct
evidence of the main inculpatory fact and the trial court did
not err in refusing to charge on the law of circumstantial evi-
dence. See and compare Ridyolph v. State, supra; Casey v. State,
523 S.W.2d 658 (Tex.Cr.App. 1975); Hielscher v. State, supra;
Hogan v. State, supra; Steel v. State, supra; Patterson v. State,
_ Supra,
Appellant contends that the trial court erred by refusing
his motion for a change of venue. Appellant argues that news
accounts of the shooting had created such a prejudice against
him that he could not obtain a fair and impartial trial in Bell
County.
BAREFOOT -6
The trial of appellant commenced eighty-three days after
the commission of the offense. The hearing on the change of
Venue motion was held September 20, 1978, forty-four days after
the shooting. Six residents of Bell County testified that in
their opinion appellant could not receive a fair trial in the
county at the time of the hearing of the motion. However, four
of these witnesses stated during cross-examination that they
could be fair and impartial if selected as jurors. Appellant's
other witnesses were employees of local newspapers and radio
and television stations. Each described the coverage appellant's
case had received and identified copies of newspaper stories and
transcripts of broadcasts that were admitted in evidence. On
cross-examination, these witnesses stated that the purpose of
their news coverage had been to inform, not to inflame, the public,
that they believed appellant could receive a fair trial, and that
they could be impartial jurors.
The State called eleven witnesses to testify that there was
not such a prejudice against appellant in Bell County that he
could not receive a fair trial. The State also introduced
evidence showing that the county's population was between 125,000
and 158,000; that there were 45,000 registered voters in the
county; and that the four largest cities in the county were
Killeen, population $2,000, Temple, population 48,000, Harker
Heights, population 10,500, and Belton, population 10,000.
The evidence raised fact issues whether appellant could
‘obtain a fair and impartial trial in Bell County. These issues
were decided adversely to appellant when the trial Sudge, as ihe
trier of fact, overruled the motion for change of venue. Von
Byrd v. State, 569 S.W.2d 883 (Tex.Cr.App. 1978); Freeman v.
State, $56 S.W.2d 287 (Tex.Cr.App. 1977).
BAREFOOT
Although appellant did not renew his motion for change of
venue, it is instructive to consider the voir dire examination
of prospective jurors which began October 31, 1978. Both ap-
pellant and the State agree that of the 132 prospective jurors
examined, 63 had heard something about the case through news
reports and 21 had formed an opinion that appellant was guilty.
They also agree that 11 of the jurors selected had heard about
the case, but all testified that they could be fair and impartial
and would base their verdict on the evidence presented in’court.
Finally, we have examined the newspaper stories and broad-
cast transcripts in the record and find that they are factual
and not inflammatory. They do not in themselves establish
prejudice or require a change of venue. Freeman v. State, supra;
Knight v. State, $38 S.W.2d 101 (Tex.Cr.App. 1975).
We find no evidence that appellant did not receive a. fair
trial by an impartial jury free from outside influence. The
trial court did not abuse its discretion in overruling the motion
for change of venue.
Appellant contends that the trial court erred in overruling
his challenges for cause to three venire members and in failing
to grant his request for additional peremptory challenges. Two
of these venire members, Johnnie Kopriva and Robert Latsha, were
peremptorily challenged by appellant after his challenges for
cause were overruled. Appellant subsequently exhausted his peremp-
tory challenges and, after his challenge for cause to venire
member James Smith and his request for additional peremptory
challenges were overruled, was forced to accept Smith as a juror
despite his declaration that Smith was an objectionable juror.
Thus, appellant properly preserved the alleged errors. Hernandez
vy. State, $63 S.W.2d 947 (Tex.Cr.App. 1978); Wolfe v. State, 178
S.W.2d 274 (Tex.Cr.App. 1944).
BAREFOOT -8
Appellant contends that venire member Kopriva was biased
against a portion of the law on which appellant was entitled
to rely. Specifically, he argues that Kopriva was unable to
accept appellant's right to remain silent and present no evidence
in his defense. This contention is based on the following voir
dire examination by defense counsel:
"@ Do you feel -- and many people do, so you
would not necessarily be in the minority --
do you feel that a person accused of a’
criminal offense should be required to come
in the courthouse and defend himself, stand
up and defend himself?
ae No, sir.
“O. Do you feel that he should be required to
put on any evidence of any type in the defense
of his case?
"A, Yes, sir.
"0. You feel that he should, sir?
“. Yes, sir, he should. His lawyer should put a
defense on if that's what you mean.
"Q. Yes, sir. That's what I'm asking.
“A. Yes, sir.
"Q, You feel that way, even though the law allows
for the defencant to sit Silently and not put
on any evidence?
"A, I don't think that I understand that question,
eit,
ane R
"Q. A moment ago you kind of indicated that you felt
he should put on some evidence.
"A, 1 didn't understand the question, though.
"Q. All right. To make sure we understand then,
you're saying that he does not have to put on
any evidence to satisfy you?
“MR. EADS: Objection, Your Honor.
“THE COURT: Overruled.
“. If you will answer my question, please, sir.
You are saying again that a defendant does not
have to put on any evidence to satisfy you that
he's not guilty? aid B
BAREFOOT -9
"A. No, sir. I think the lawyers should present
their evidence of the case because --
a
"Q. You can explain that answer if you would like
to, sir.
"A. Well, even though the State proves its case and
-- well, I would still like to hear the other
side of the story."
After this exchange with defense counsel, the prosecutor
explained to the venireman the State's burden of proof and the
defendant's Fifth Amendment privilege. Kopriva indicated that
he understood and that he would not hold appellant's silence
against him. Defense counsel then reexamined Kopriva as follows:
"Q. Mr. Kopriva, Mr. Eads has done an excellent
job of outlining for you what the law says
and what the constitution says.
he yeu, Sit.
“2. You are certainly a mature adult, and you
certainly have the option at this point of
stating to us that you disagree with that law.
All right, sir?
"A, (Headnod.)
"Q. So, that's really what I'm asking you. Do
you, even though the law may say that the de-
fendant has a right to remain silent, the law
may say that the defendant can sit here and
not open his mouth, the law may say that the
defense counsel can sit here and not open their
mouths. Do you yourself still feel that the
lawyers should at least put on some evidence or
that the defendant should at least take the
stand?
"A. No, sir. I understand the question now. If
he proves his case beyond a reasonable doubt
that the defendant is guilty, well then, I'm
sure that y'all are not going to sit there and
just let -- without saying a word -- I mean,
that's what the trial is about.
"Q. I'll admit we are kind of stretching it a
little bit. y
"A. Yes, sir.
“Q. And certainly we will be talking just as we
are talking l.ere today.
"A. 7e8.: Sif.
BARLFOOT -10
"@. But let's say we do all of our talking out
here at the counsel table and no evidence of
any kind is put forth in behalf of the de-
fendant.
"A. Tes, Sar.
"Q. Do you feel that a defendant should put on some
evidence of some kind in order to refute or to
contest his guilt?
"A, No, sir. I leave that up to the defendant."
It is obvious that Kopriva was initially confused as to the
relationship between appellant's right to remain silent and his
right to effective assistance of counsel. Subsequent questioning
by both the prosecuting attorney and defense counsel makes it
clear that Kopriva did not expect appellant to testify or present
other evidence but only that his attorneys would do their best
on his behalf. The trial court did not err by overruling the
challenge for cause. Scott v. State, 490 S.W.2d $78(Tex.Cr.App.
1973).)
Appellant contends that his challenge for cause to venire
member Robert Latsha should have been granted because he believed
that death is the only proper punishment for capital murder.
This contention is based on the following exchange with defense
counsel:
vB Okay, let's assume that the State puts on --
here again, a hypothetical case, the State
puts on -- that you were sitting in a capital
murder case and the State proved beyond a
reasonable doubt, satisfied you that the in-
dividual, that the defendant in that particular
case caused the death of a police officer by
shooting him with a gun and that the defendant
knew he was a police officer and knew he was
acting in the lawful discharge of his duties.
"Now, do you have an opinion, having found
that man guilty, as to what proper punishment
would be in that case?
Do I have an opinion as to what the proper
punishment would be?
"Oo. Yes, sir.
BAREFOOT -11
"A, I thought the way it was stated, there is
Only one punishment for capital murder.
"Q. All right. What do you believe the one
punishment is for capital murder?
"A, The death penalty.
“¢. All right. And do you believe that should
be the proper punishment foi capital murder?
a Ves, -Sirs
"Q. And that's an affirmative opinion of yours?
"A, Yes, sir.
a * And is that an opinion that you have arrived
at as a result of your past experience and your
upbringing and your thinking that you have in-
dicated that you have made about the death
penalty?
"A. Yes, sir.
“@. And it would be your position that if a capital
murder case, involving the shooting of a police
officer, that if that -- if the individual was
Proven guilty beyond a reasonable doubt that he
shot a police officer who was in the lawful
exercise of his duties and knew that man was a
police officer when he shot him, that in your
mind the only proper punishment that could be
given would be the death penalty?
"A. Yes, sir.”
Prior to this exchange, the prosecutor, during his voir dire,
had stated to the venireman that the law provides that the nunish-
ment for capital murder "shall be death." That this misled
Latsha is indicated by his statement to defense counsel that, "I
thought the way it was stated, there is only one punishment for
capital murder." After the punishment alternatives and procedure
were better explained, Latsha Clearly stated that he would affirma-
tively answer the punishment issues only if the State met its
burden of proof and that he bei teved death to be the proper
punishment only if the answers to the issues were yes. No error
is shown,
Appellant contends juror James Smith expressed an opinion
as to his guilt and a bias against the minimum punishment for
BAREFOOT
-12
murder during his voir div-g examination. The first contention
is based on the following exchange with defense counsel:
"A .
A i.
"@.
bie? B
"Q.
CA.
a F
"A.
"So since we have had publicity in this
case I have to ask you, sir, whether or
not, based on what you've read and maybe
something you've heard from discussions
at Fort Hood with people that you work with,
whether you've formed an opinion as to the
guilt or the innocence of this man?
An opinion. I don't know whether it would
be an opinion -- an assumption I would say
-- assuming -- I don't know.
Well, now, I don't know that it really re-
quires, 1 think, whether you call it an
Opinion or assumption. Let me ask you this,
Would it require some evidence for you to
set aside that assumption or feeling that you
have?
I'm not a lawyer but it seems to me like if he
was found with a weapon that would be pretty
conclusive in my way of thinking. If it was
proved to be the weapon that shot the police-
man .
I understand what you're saying.
I don't know.
And the point I'm trying to make, of course,
is the State has gone over when we say the
State has the burden of proof, what does that
mean to you?
It means they have to prove it beyond a doubt.
Alright, now, sometimes we have individuals
and everyone's opinion, of course, they're
entitled to their opinion and sometimes a per-
son's opinion agrees with the law and sometimes
it doesn't. Sometimes their feelings agree.
We can't help but have feelings established
about something and the only thing that I'm
trying to get at is because of what you read
and because of this feeling that you have, for
example about the gun, would you require the
defendant to produce evidence of his innocence
to you before you cguld set aside these feelings?
“MR. EADS: I1'11 object to the question,
Your Honor. He's said that he would make the
State prove the burden of proof, your lionor.
“THE COURT: Overruled. Answer the question.
I think the State would have to prove it.
BAREFOOT “15
"Q. . . «You still would agree that you have
formed some sort of feelings about this
case?
"A. As to the guilt or innocence?
.: SO8, SET.
"A, An opinion, yes. I have formed an opinion
but now whether it's been proven I don't know
whether I'm correct or not.
za erRR
"Q. Let me ask you this, sir. If you were serving
as a juror on a criminal case, not necessarily
this case and at the close of evidence you felt
like the defendant was probably guilty but you
weren't sure beyond a reasonable doubt, how
would you feel compelled to vote in the jury-
room?
"A. You would have to prove to me that he was guilty
as a juror before 1 would say guilty."
In Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44
L.Ed.2d $89 (1975), the Supreme Court said:
"The constitutional standard of fairness re-
quires that a defendant have ‘a panel of impartial,
"indifferent" jurors.'Irvin v. Dowd, 366 U.S.(717]at
722. Qualified jurors need not, however, be totally
ignorant of the facts and issues involved.
"'To hold that the mere existence of aay
preconceived notion as to the guilt or
innocence of an accused, without more, is
sufficient to rebut the presumption of a
prospective juror's impartiality would be
to establish an impossible standard. It
is sufficient if the juror can lay aside
his impression or opinion and render a
verdict based on the evidence presented in
court.’ > 14., et 723.
"At the same time, the juror's assurance that he is
equal to this task cannot be dispositive of the ac-
cused's rights, and it remains open to the defendant
to demonstrate ‘the actual existence of such an
opinion in the mind of the juror as will raise the
presumption of partiality.‘ Ibid."
421 U.S. at 799, S00.
BAREFOOT -14
The voir dire of Smith fails to show that he would be
influenced as a juror by any opinion or prejudice or by any-
thing he may have heard or read about the case. The trial court
did not err in overruling appellant's challenge for cause based
on Smith's alleged opinion as to appellant's guilt. Freeman v.
State, supra.
Appellant's contention that Smith was biased against the
minimum punishment for murder is based on the following voir dire
examination by defense counsel:
' And murder being defined the same way, the
knowing and intentional killing of another
human being. Do you feel like that in a
murder case that you could consider as little
as five years as a punishment?
sO I don't think so, sir.
"THE COURT: Counsel, you need to explain
to him that you're talking about not this case
but a proper case.
ie Right. We're not talking about any particular
murder case. The definition of murder never
changes. Murder is always the intentional and
knowing killing of another human being. But
the facts change. :
"A, Yes, sir.
“eo. And we have diffevent facts and different cases
so we have a range of punishment that varies.
But even so some people themselves feel that
since the definition never changes that they just
could not go along with what the law says and
give somebody as low as five years for the in-
tentional and knowing killing of another human
being.
"A. I think my answer would have to depend on the
facts of the case involved, would it not? That's
a hard question for me to answer.
"Q. I understand, sir. ‘I'm just --
"A. I'm not trying to hedge, I just don't know the
answer.
"Q. I understand what you're saying. And as the judge
said we're not talking about a particular case,
but we do have the same definition regardless of
what the facts are and so I'm just talking about
where you have the knowing and intentional kill-
ing of another human being.
BAREFOOT
a.
“o,
"A.
"Q
"As
“@.
as
15
lf it's obvious murder I don't think five
years is -- I don't see the five years.
Where do you get this opinion from?
I just don't believe in murder.
Alright. Yuu understand, of course, that
as the judge has said, we don't know what ~
the facts would be and I would submit to
you that there are all kinds of facts --
Yes, sir.
And that some facts there may be some sort of
mitigating circumstances and I don't know what
those mitigating circumstances would be but
still you would think that regardless of what
was shown to you that you would still be unable
to give five years in a case for the knowing
and intentional killing of another human being?
Yes, sir, I don't think I could."
Thereafter, the prosecutor sought to rehabilitate the juror
by demonstr
within the
as follows:
ating the wide range of fact situations that may fall
murder statute. The prosecutor then questioned Smith
_ "The point I'm trying to make, Mr. Smith, is
baat Oe
“2.
this. You can see why we have a range of
punishment for murder.
Yes, sir, I see.
And all I'm saying is, do you feel like that
as a juror in the State of Texas, that you could
sit and listen to the evidence and consider the
full range of punishment in a criminal case.
If it's a murder case you could consider not less
than five years or life in the Texas Paper nent of
Corrections in that proper case where the facts
justified it. Where the law allowed it and the
circumstances warranted that particular punish-
ment? That's the point I'm trying to make."
Smith stated that he could consider the minimum punishment
in a proper case. The record does not support appellant's
contention
five years
that Smith could not give the minimum punishment of
and that the juror was subject to challenge for cause
pursuant to Art. 35.16(c)(2), V.A.C.C.P. Von Byrd v. State,
supra.
i
BAREFOOT -16
Since we have concluded that Kopriva, Latsha, and Smith
were not excludable for cause, it follows that appellant was
not wrongfully deprived of a peremptory challenge upon a
venire member who was subject to challenge for cause or forced
to accept such a venire member as a juror. Thus, the trial
court did not abuse its discretion in denying appellant's
request for three additional peremptory challenges. Von Byrd
¥. State, supra; Burns v. State, 556 S.W.2d 270 (Tex.Cr.App.
1977). j
In twelve grounds of error, appellant complains of the
admission of evidence offered to show a motive for the com-
mission of the instant offense that also shows he committed
extraneous offenses in New Mexico. Michael Roach, a deputy
sheriff in Valencia County, New Mexico, testified that he ar-
rested appellant on October 29, 1977, for criminal sexual
penetration of a minor and later took him before a magistrate
for arraignment. John Horecek, a magistrate in Valencia. County,
testified that he arraigned appellant on November 1, 1977. At
this time, Horecek informed appellant that he was charged with
two counts of sexual penetration of a minor Carrying a maximum
punishment of imprisonment for life and one count of kidnapping
carrying a maximum punishment of imprisonment for fifty years,
and set bail at $100,000. Ronald Childress, a New Mexico
attorney, testificd that he represented appellant in regard to
these charges and that a trial was set for January 30, 1978.
Lawrence Romero, sheriff:of Valencia County, Daniel Hawkes, a
deputy sheriff, and Velma Hardesty, the jailer, testified that
appellant escaped from the Valencia County jail on January 9,
1978. These witnesses identified and the trial court admitted
in evidence certified copies of the complaint, indictment, and
arraignment in the sexual penetration and kidnapping case, and
an indictment and arrest warrant charging appellant with escape.
BARL FOOT -17
In its charge to the jury, the trial court limited the
jurors’ consideration of these extraneous offenses to the question
of appellant's novi ve for killing the deceased. One of the
exceptions to the general rule that an accused is entitled to .
be tried on the accusation made in the State's pleading and not
for some collateral crime or for being a criminal generally is
that evidence showing a motive is admissible even though it
also shows the commission of an extraneous offense. Hughes v.
State, 563 S.W.2d S81 (Tex.Cr.App. 1978); Cherry v. State, 488
S.W.2d 744 (Tex.Cr.App. 1972); Rodriguez v. State, 486 S.W.2d
355 (Tex.Cr.App. 1972); Stephens v. State, 182 S.W.2d 707 (Tex.
Cr.App. 1944).
Although several cases in which extraneous offenses were
heid admissible to show motive were prosecutions for escape or
for offenses growing out of an escape, appellant is mistaken
when he argues that the rule of admissibility is limited to this
narrow fact situation. In Hughes v. State, supra, the defendant
shot a police officer who had stopped him for investigation of
a reported case of credit card abuse. This Court held that the
defendant's extortion conviction in an Alabama federal court
seven months prior to the shooting, which resulted in a three-
year probated sentence, was admissible to show motive. In Cherry
v. State, supra, the defendant's escape from a Georgia penitentiary,
where he was serving a life sentence, was held to be admissible
to show his motive for shooting a police officer eight months
later. To the same effect are Washburn v. State, 318 S.W.2d
bly (Tex.Cr.App. 1958) (evidence that the defendant attempted to
extort money from his victim four years prior to the murder) and
Ellisor v. State, 282 S.W.2d 393 (Tex.Cr.App. 1955)}(evidence that
the defendant committed a burglary two days prior to shooting a
police officer who stopped him for specding.)
bend
BAREFOOT -18
Appellant argues that it was unnccessary to admit the
New Mexico offenses because there was other evidence of motive,
including the apparent arson at the Silver Spur and statements
appellant had made to friends threatening to kill a Harker
Heights policeman. That appellant may have had other motives
for killing Levin, however, does not mean that he was not
motivated by a desire to avoid his return to New Mexico. See
hughes v. State, supra; Ellisor v. State, supra. The trial
court did not err in admitting the evidence of extraneous.
offenses for the limited purpose of showing motive.
Appellant contends that the trial court erred by refusing
to define "probability" in its charge to the jury at the punish-
ment stage of the trial. This Court has previously held that
such a definition is not required. King v. State, 553 S.W.2d
105 (Tex.Cr.App. 1977). No error is presented.
Two psychiatrists, Drs. John Holbrook and Janes Grigson,
were called by the State to testify at the punishment stage of
the trial. Both doctors were given a hypothetical fact situation
based on the evidence in this case and asked if the individual
described in that question would probably commit future acts of
violence that would constitute a continuing threat to society.
Both doctors testified that in their opinion he would do so.
Appellant argued at the trial, as he does now on appeal, that
Holbrook and Grigson were not qualified to give an opinion as to
his future conduct because they had not personally examined him
ans based their opinions solely on the State's hypothetical
question. Appellant also argues that psychiatrists, as a group,
are not qualified by education or training to predict future
behavior. Appellant does not contest the individual qualifications
of either witness.
BAREFOOT -19
This Court is well aware that the ability of psychiatrists
to predict future behavior is the subject of widespread debate.
However, we are not inclined to alter our previously stated
view that a trial court may admit for whatever value it may have
to a jury psychiatric testimony concerning the defendant's
future behavior at the punishment stage of a capital murder
trial. Chambers v. State, 568 S.W.2d 313 (Tex.Cr.App. 1978);
Moore v. State, S42 S.W.2d 664 (Tex.Cr.App. 1976).
The trial court did not err by permitting the doctors to
testify on the basis of the hypothetical question. The use of
hypothetical questions in the examination of expert witnesses is
a well established practice. 2 C. McCormick and R.Ray, Texas
Evidence, Sec. 1402 (2d ed. 1956). That the experts had not
examined appellant went to the weight of their testimony, not
to its admissibility.
Appellant argues that the hypothetical question was improper
because it was not based on all of the evidence in the case.
Although a hypothetical question must be based on the facts of
the case, counsel may assume the facts in accordance with his
theory of the case. If the opponent desires to secure the
expert's opinion upon a different set of facts he may do so on
cross-cerxamination. Atkinson v. State, $11 S.W.2d 293 (Tex.Cr.
App. 1974), Knoeppel v. State, 382 S.W.2d 493 (Tex.Cr.App. 1964);
MeMurrevy v. State, 168 S.W.2d 8S8 (“ex.Cr.App. 1943); Davis v.
State, 114 S.W. 366 (Tex.Cr.App. 1908). These grounds of error
are overruled.
Appellant also contends that Holbrook and Grigson should not
have been permitted to express an opinion as to the probability
of future violent behavior on his part because.such testimony
constitutes a legal conclusion. Appellant cites the case of
Carr v. Radhey, 593 S.W.2d $06 (Tex.Sup. 1965). In that case,
the Court held that
BAREFOOT -20
: ¥ 4 a3 P 4 ag i er ee i a
he we tater es tee Bem nen’ bee se euebew ete Hk eee eer ae ee ee ° :
“a witness may not be asked whether a testator
had the mental capacity to make and publish a
will because, under Brown v. Mitchell [31 sS.w.
621 (Tex.Sup. 1895)) whether a person has mental
Capacity to execute a will involves a legal de-
finition and a legal test. A witness may be
asked, assuming he knows or is a properly quali-
fied expert, whether the testator knew or had
the capacity to know the objects of his bounty,
the nature of the transaction in which he was
engaged, the nature and extent of his estate,
and similar questions." 393 S.W.2d at 813.
Appellant argues that a witness should not be permitted to testify
that there is a probability that the defendant would commit
criminal acts of violence that would constitute a continuing
threat to society because the question involves a legal definition
and a legal test.
Appellant's contention is without merit for the simple
reason that “probability,” “criminal acts of violence," and "con-
tinuing threat to society" are not terms defined by statute or
’
case law. On the contrary, they are words of Ordinary meaning.
King v. State, supra. Thus, the testimony in question did not
involve the application of a legal definition or test. We also
note that if appellant were correct in arguing that a witness
may not express an opinion on a matter involving a legal defini-
tion or test, this would, among other things, prevent the routine
Practice of asking a psychiatrist whether, in his opinion, the
defendant was legally insane at the time of the offense. V.T.C.
A. Penal Code, Sec. 8.01.
Finally, appellant contends that Art. OF cOl he et B.C Oal vs
is unconstitutional because the term “probability"™ is so vague
that men of common intelligence must guess as to its meaning and
Appiication. This contention has been repeatedly overruled by
this Court. Granviel v. State, 552 S.W.2d 107 (Tex.Cr.App. 1976);
Collins v. State, S48 S.W.2d 368 (Tex.Cr.App.. 1976); Jurek v.
State, $22 S.W.2d 934 (Tex.Cr.App. 1975), aff'd 428 U.S. 262, —
96 S.Ct. 2950, 49 L.Ed.2d 929 (1976).
ee a eee Lee dine a nmnetih
BAREFOOT -21
At the punishment stage of the trial, witnesses from
Various cities in New Mexico, Kansas, Oklahoma, Louisiana,
and Texas testified that appellant's reputation in their
communities for being a peaceful and law-abiding citizen was
bad. Evidence was also admitted of appellant's prior con-
Viction in Louisiana for possession and distribution of mari-
huana, possession of amphetamine, and carrying a concealed
weapon, and in a federal district court in Oklahoma for unlawful
possession of a sawed-off shotgun. This evidence, together
with the evidence adduced at the guilt-innocence stage of the
trial, is more than adequate to support the jury's affirmative
answers to the punishment issues. '
Although appellant's counsel and the State have both filed
briefs which are of excellent quality and which greatly aided
the Court in its difficult decision, the appellant has filed a
pro se brief in which he asserts additional grounds of error.
In addition to the grounds of error urged by counsel appellant
usserts that the trial court erred in refusing to grant his
motion for an instructed verdict and in refusing to sequester the
jury during the trial. The evidence that we have already
summarized in this opinion is enply sufficient to support the
jury's verdict and the court did not err in overruling appel-
lant's motion for an instructed verdict. The careful trial judge
considered the appellant's motion concerning the sequestering of
the jury during the trial and overruled that motion. Whether to
grant this motion is within the discretion of the trial court,
and we find nothing to show an abuse of discretion by the trial
judge in overruling that motion. The grounds of error presented
by the pro se brief are overruled.
The judgment is affirmed.
DALLY, Judge
(Delivered March 12, 1980)
EN BANC |,
Reberts, J., concurs in result.
THOMAS A. BAREFOOT, Appellant
aka DARREN CALLIER
NO. 63,715 Vv. - - - Appeal from BELL County
THE STATE OF TEXAS, Appellee
OPINION DISSENTING IN PART
To the overruling of the twelve grounds of error concerning
admission of evidence showing commission of extraneous offenses
in New Mexico, I respectfully dissent. The Court appears to re-
cognize other proof made by the State and to acknowledge that
it showed appellant killed Levin from a more immediate, localized
motivation. Given the obvious Prejudicial impact of the extran-
eous New Mexico offenses, I cannot agree that we may tolerate it
on the double negative theory that existence of other motives for
killing Levin "does not mean that he was not motivated by a de-
Sire to avoid his return to New Mexico." It seems clear to me
that this is the classic case where slight probative value is
far outweighed by heavy prejudice.
CLINTON, Judge
(Delivered March 12, 1980)
EN BANC
Phillips, J. joins
In THE
Supreme Court of the United States
OcTOBER TERM, 1979
a
No. 79-1127
W. J. ESTELLE, JR., Director,
Texas Department of Corrections,
Petitioner,
v.
ERNEST BENJAMIN SMITH,
Respondent.
On Writ of Certiorari to the United States
Court of Appeals for the Fifth Circuit
MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE
AND BRIEF AMICUS CURIAE FOR THE
AMERICAN PSYCHIATRIC ASSOCIATION
JoEL I. KLEIN
EUGENE J. COMEY
ROGOVIN, STERN & HUGE
1730 Rhode Island Avenue, N.W.
Washington, D.C. 20036
- (202) 466-6464
Counsel for Amicus Curiae
WILSON - Eris Painting Co.. Inc. - 768.0096 - Wasnincton. D.C. 20001
APPENDiIK © CC
-—
TABLE OF CONTENTS
MOTION FOR LEAVE TO FILE BRIEF AMICUS
CURIAE . feakiapoib ies aia lidscasonios destiny sebianlensicegaencapies
BRIEF AMICUS CURIAE 20....0....c.ccccccccesceeeee VBE
INTEREST OF AMICUS CURIAB. ................. mW
STATEMENT OF THE CASE. ouunsccssssssssccsmsssssssssesee
SUMMARY OF grb A hs lets aes
AMOUIADING 2 oo ise Po
I. The Use Of Psychiatrie Testimony In A Capital
Case On The Issue Of Whether A Defendant Is
Likely To Commit Serious Crimes In The Future
Is Constitutionally Invalid Because It Under-
mines The Reliability Of The Factfinding
PCN ea cib in cciealspbsagdilasanntentpoegearsipenyaesbaecebece
II. Assuming Arguendo That Psychiatric Testimony
May Be Used In A Capital Case On The Issue
Of Future Criminal Behavior, The Defendant
Must Be Provided A Full And Fair Opportunity
To Challenge and Rebut Such Testimony ............
III. A Defendant In A Capital Case Should Be
Allowed to Refuse To Participate In A Psychia-
tric Examination That May Lead To Testimony
Against Him On The Issue Of Future Criminal
Behavior And Should Be Advised Of The Pur-
pose Of The Examination So That He May In-
telligently Exercise This Right ~. sah Sis
ILRI snc ccthcccovsescsesccenorpacaingncounssnqponionsntwonccccceneoreces
Page
on or we wo
11
17
31
2 A oo
Pra eee <r S eS aS
ae >
fi Be
TABLE OF AUTHORITIES
Cases; Page
Adams v. State, 517 $.W.2d 717 (Tex. Crim.
App. 1979) 29
Addington v. Texas, 441 U.S. A18 (1979).......... 4,11, 27
Armstrong .V. State, 502 S.W.2d 731 (Tex. Crim.
App. 1974) . Pa be 19, 30
Barefoot Vv. State, 596 S.W.2d 875 (Tex. Crim.
App. 1980) ....-.-----s-c-cecscedermnsennenensnenecesesnsecnensnenenens 29
Batlie y. State, 551 S.W.2d 401 (Tex. Crim. App.
1977), cert. denied, 434 U.S. 1041 (1978) .......... 9
Brandon Vv. State, —— S.W.2d ——, No. 59,348
(Tex. Crim. App. April 25, 1979) ......--....-.---++ 29
Brewer V. Williams, 430 U.S. 387 CLOTTED 5. ic cieraies 10
Bruce V. Estelle, 536 F.2d 1051 (5th Cir. 1976),
cert. denied, 429 U.S. 1053 (1977) ......-.------.-+ 80
Chambers Vv. State, 568 S.W.2d 313 (Tex. Crim.
App. 1978), cert. denied, 440 U.S. 928 (1979).. 10,29
Collins v. State, 548 S.W.2d 368 (Tex. Crim. App.
1976), cert. denied, 430 U.S. 959 (1977) ........... 9, 29
Couch V. United States, 409 U.S. $22 (1978)........ 24
Furman v. Georgia, 408 U.S. 238 (1972) ............ 18
Gardner v. Florida, 430 U.S. $49 (1977) ............. passim
Garner Vv. United States, 424 U.S. 648 (1976)... 29
Gholson V. State, 642 S.W.2d 395 (Tex. Crim. App.
1976), cert. denied, 432 U.S. 911 (1977) .......... 9, 29, 30
Gilbert v. California, 388 U.S. 263 (1967)............ 26
Granviel v. State, 652°S.W.2d 107 (Tex. Crim. App.
1976), cert. denied, 431 U.S. 933 (1977) .......----- 9
Gregg V. Georgia, 428 U.S. 153 (1976) .........-- 12, 17, 22
Green V. Georgia, 442 U.S. 95 C1G7FB), nnesccccccoccsse 18
Hughes v. State, 662 S.W.2d 857 (Tex. Crim.
App. 1978) - Fee caiaeih abiiinameearena 29
Hurd Vv. State, 613 S.W.2d 936 (Tex. Crim. App.
UDTA) enn nn nnn nnncenensencnrennnnencescnccncs
Jurek Vv. Texas, 428 U.S. 262 (1976) .........-0-00020 9, 16-17
Livingston vy. State, 542 S.W.2d 655 (Tex. Crim.
App. 1976), cert. denied, 481 U.S. 988 (1977)..9, 29, 30
Lockett v. Ohio, 438 U.S. 586 (1978) .........-cccreereoee 238, 25
eel A ied
2
bm
TABLE OF AUTIIORITIES—Continued
Page
Maness V. Meyers, 419 U.S. 449 (1975) ou. 29
Mathews v. Eldridge, 424 U.S, 319 ‘(1976)........... 19
Miranda Vv. Arizona, 384 U.S. 436 (1966).......... * 25
Moore Vv. State, 642 S.W.2d 664 (Tex. Crim.
App. 1976), cert. denied, 431 U.S. 949 (1977).. 9,29
Murphy Vv. Waterfront Commission of New York
Harbor, 378 U.S. 62 (1964) oo. eee 8, 25, 28
O’Connor v. Donaldson, 422 U.S. 668 (1975) ........ 3
Parham v. J.R., 442 U.S. 584 (1979) 20. 34
Presnell v. Georgia, 439 U.S. 14 (1978) ............... 8, 25
Rhode Island y. Innis, 48 U.S.L.W. 4506 (May
PAM NERA PTI nt Mn SE ak OR oR as 29
Roberts Vv. United States, 48 U.S.L.W. 4370
(April 15, 1980) ........... REY eae 29
Robinson vy. State, 548 S.W.2d 63 (Tex. Crim.
App. 1977) ... Rh: “SCENTS. +E SO 29
Ross V. State, 542 S.W.2d 395 (Tex. Crim. App.
1976), cert. denied, 482 U.S. 911 (1977) ............. 29
Schmerber v. California, 384 U.S. 757 (1966)...... 26
Shippy. Vv. State, 656 S.W.2d 246 (Tex. Crim.
App.), cert. denied, 434 U.S. 935 (1977) ............ 9-10
Simmons Vv. State, 594 S.W.2d 760 (Tex. Crim.
Fe: ea RRS PRR a IE SC ah Dee a ea 29
Smith v. Estelle, 445 F. Supp. 647 (N.D. Tex.
fy IAT RIE RSE EI, Ts Se RP, MO 2
Smith v. Estelle, 602 F.2d 694 (6th Cir. 1979)....passim
United States v. Albright, 388 F.2d 719 (4th
ae a EER VR ec ee eae 26, 27
United States v. Cohen, 530 F.2d 43 (5th Cir.),
cert. denied, 429 U.S. 855 (1976) 000... 26, 27
United States v. Dionisio, 410 U.S. 1 (1978)........ 26
United States v. Malcolm, 475 F.2d 429 (9th Cir.
RN a Oe 27
United States ex rel. Mathew v. Nelson, 461 F.
Bem, TOG COR BUG cccccectnscvgscnssecesessnecseein 16
United States v. Nobles, 422 U.S. 225 (1976)...... 24
United States v. Weiser, 428 F.2d 932 (2d Cir.
1969), cert. denied, 402 U.S. 949 (1971).......... 27
iv
TABLE OF AUTHORITIES—Continued
Von Byrd v. State, 569 S.W.2d 883 (Tex. Crim.
App. 1978) 10
Whalem v. United States, 346 F.2d 812 (D.C.
Cir.), cert. denied, 382 U.S. 862 (1965)............ 27
Williams v. New York, 337 U.S. 241 (1949) _........ 23
Woodson v. North Carolina, 428 U.S. *280
(197G) nnn annnaencninesecnen-menensemennennmrccnensensnrnensnsnensaseree 8,11
Constitutional Provision:
U.S. Const. Amend. V ....2........-0---cccececceeeeseeesereeee 24
Statutes and Rules:
Tex. Code Crim. Pro. Ann. art. 37.071 (Vernon
Supp. 1979) .......-..- i acatinesselienstbetnabiinencsinmascenetae 5
Tex. Code Crim. Pro. Ann. art. 37.071(b) (1),
(b) (3) (Vernon Supp. 1979) -...........:-ceee-csee 5
Tex. Code Crim. Pro. Ann. art. 37.071(b) (2)
(Vernon Supp. 1979) ....------------.-------c-eneseeeeeeees 4,5
Fed. R. Crim. Pro. 32(€) ..........-::cccc-ceeeceeeceneeneeeesnee 22
Miscellaneous:
American Psychiatric Association, Diagnostic and
Statistical Manual of Mental Disorders { 301.7
(ROOD) anna cas noccevansnsccranscncensenveptsocessaqgeoncsosccsenesoeoes 20
American Psychiatrie Association, Diagnostic and
Statistical Manual of Mental Disorders { 301.70
(19BO) ..-nccenecrecencoasecrsessensensncncnsescncnensersesnssensossees 20, 21-22
American Psychiatric Association, Principles of
Medical Ethics with Annotations Especially
Applicable to Psychiatry, 130 Am. J. Psy-
chiatry 1058 (1973) ..........-------sceceeseeescecreceeeene is 80
American Psychiatric Association Task Force on
Clinical Aspects of the Violent Individual, Clini- .
cal Aspects of the Violent Individual (1974)...... 13-15
Page
v
TABLE OF AUTHORITIES—Continued
Carney, F.L., “Inpatient Treatment Programs,” in
W.H. Reid, The Psychopath: A Comprehensive
Study Of Antisocial Disorders and Behaviors
261 (1978) ..
Cocozza & Steadman, Some Refinements In The
Measurement and Prediction of Dangerous Be-
havior, 131 Am. J. Psychiatry 1012 (1974)......
Craft, M., The Natural History of Psychiatric
Disorder, 115 Brit. J. Psychiatry 89 (1969)....
Diamond, The Psychiatric Prediction of Danger-
ousness, 123 U. Pa. L. Rev. 439 (1974) ..............
Dinitz, S., “The Antisocial Personality,” in W.J.
Curran, A.L. McGarry & C.S. Petty, Modern
Legal Medicine, Psychiatry, and Forensic
SEO TI COTO era ikea echeebetidiocican
Dix, The Death Penalty, “Dangerousness,” Psy-
chiatric Testimony, and Professional Ethics, 6
Page
Am. J. Crim. Law 151 (1977) ............ nde 13-14, 20, 30
Ennis & Litwack, Psychiatry and The Presump-
tion of Expertise: Flipping Coins In The
Courtroom, 62 Calif. L. Rev. 693 (1974) ............
Griswold, The Fifth Amendment Today 7
EL SRR RS a SAREE i BUSS 3 2G SR Rae gS
Halleck, S. Psychiatry And The Dilemmas Of
TIO RDO LD cece 2 bce rc kaihthcdsceads ceca dveickinsctocedas
Kozol, et al., The Diagnosis ‘And Treatment of
Dangcrousness, 18 Crime and Delinquency 371
- (1972) _.W...... atic stale ceianedditinadibiicaadindibh pera. sink
Levine & Bornstein, Is The Sociopath Treatable?
The Contribution of Psychiatry To A Legal
Dilemma, 1972 Wash. Univ. L.Q. 693 ..................
Livermore, Malmquist & Meehl, On The Justifi-
cation For Civil Commitment, 168 U. Pa. L. Rev.
AE CRRA, iocctethoconnccadlcscsaht satacctecscplabbaneaiictacsspenaiis
Monaghan, Prediction Rescarch and the Emer-
gency Commitment of Dangerous Mentally Il
Persons: A Reconsideration, 185 Amer. J. Psy-
SI TED CT ais eek deesesinecneccosinn
15
21
16
vi
TABLE OF AUTHORITIES—Continued
Rappeport, Enforced Treatment—Is It Treat-
ment?, II Bull. Am. Acad. Psychiatry & Law 48
ISNT bee ae ERR Cid. PRIA NT REE eae ese Re
Sadoff, R., Forensic Psychiatry: A Practical
Guide for Lawyers and Psychiatrists 25
C1OTG) a ee ae
Sands, “Psychiatric History And Mental Status,”
in A. Freedman & H. Kaplan, eds., Comprehen-
sive Textbook of Psychiatry 499 (1977) .............
Schwitzgebel, R. Kirkland, “Prediction of Danger-
ousness and Its Implications for Treatment,”
in W.J. Curran, A.L. McGarry & C.S. Petty,
Modern Legal Medicine, Psychiatry, and Foren-
Page
sic Medicine 783 (1980) ..... 4 14, 15-16
Steadman & Cocozza, Psychiatry, Dangerousness,
and The Repetitively Violent Offender, 69 J. of
Crim. Law & Criminology 226 (1978) ................
Stevenson, “The Psychiatric Interview,” in
American Handbook of Psychiatry (2d ed.
IBURST: Teall WE a SNE
Stone, A., Mental Health and Law: A System
in Transition RMIMIIED kasiptceal shes inde hve stensansdbe cpdeletg ened
Stirrup, “Will This Man Be Dangerous?” in De-
Reueck & Porter, The Mentally Abnormal Of-
fender 17 (1968) ... vat
Vaillant, Sociopathy As A Human ‘Process, "$2
Arch, Gen. Psychiatry 178 (1976) ........0....0...0...
Wenk, Robinson & Smith, Can Violence Be Pre-
dictedf, 18 Crime and Delinquency 398 (1972)..
Wigmore, J., Treatise On Anglo-American System
Of Evidence In Trials At Common Law § 6e (3d
ed. 1940) ............ DRE IT Rk AE A
Will, The Reluctant Patient, The Unwanted Psy-
chotherapist—and Coercion, . Contemp. Psycho-
I ee I rake eatleb stig tiecnishitcelenn ence vonne
Woodruff, R.A., Goodwin, Dw, & Guze, S.B.,
Psychiatric Diagnosis pees
26
14,15
15
20
16
7? aree
, In THE —
Supreme Court of the Muited Piates
OcToBER TERM, 1979
No. 79-1127
W. J. ESTELLE, JR., Director,
Texas Department of Corrections,
Petitioner,
v.
ERNEST aaron SMITH,
Respondent.
On Writ of Certiorari to the United States
Court of Appeals for the Fifth Circuit
MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE
FOR THE AMERICAN PSYCHIATRIC ASSOCIATION
Counsel for the American Psychiatrie Association
hereby respectfully move pursuant to Rule 42 of the
Rules of this Court for leave to file the attached brief
amicus curiae. The consent of the attorney for the re-
spondent has been obtained. The consent of the attorney
for the petitioner has been requested, but no response
has been received.
The American Psychiatric Association, which is the
nation’s largest organization of physicians specializing in
4
"y, JLR., 442 U.S. 584 (1979), and-Addington v. Texas,
441 US. 418 (1979).
The Association has monitored the administration of
capital punishment statutes in this country and the role
of psychiatric testimony in that process. The instant case
raises important questions about how that role will be
implemented. In particular, Texas requires a jury find-
ing that a defendant, if not executed, would “commit
criminal acts of violence that would constitute a coritinu-
ing threat to society.” Tex. Code. Crim. Pro. Ann. art.
37.071 (b) (2) (Vernon Supp. 1979). In the present case,
as has generally been the practice in Texas, testimony on
this issue was provided by a psychiatrist, even though, in
amicus’ view, psychiatrists have no special expertise in
this area. Moreover, the basis for the psychiatrist’s opin-
ion about the defendant was formed at a pretrial exam-
ination purportedly concerned with competency to stand
trial, and in circumstances where the defendant was not
advised that the psychiatrist might subsequently testify
against him at the punishment phase of his trial.
Amicus believes that these practices deviate markedly
from the constitutional guidelines established by this
Court for the administration of capital punishment.
Texas has created a system whereby a psychiatrist, seem-
ingly clothed with professional expertise, acts as little
more than an arm of the prosecution, providing damag-
ing testimony secured from an unsuspecting and un-
counseled defendant. The decision whether this Court
will countenance such practices will have important im-
plications not only for the fair administration of capital
punishment statutes, but also for the quality and integ-
rity of the practice of forensic psychiatry. Accordingly,
resolution of this case will significantly affect the inter-
ests of the Association and its members, i fe
’
5
STATEMENT OF TIIE CASE
Respondent Ernest Smith was indicted for murder for
participating in a robbery during which the victim was
fatally’ shot by Smith’s accomplice. The State announced
its intention to seek the death penalty, and the trial court
ordered the prosecutor to secure a psychiatric examina-
tion to determine Smith’s competence to stand trial.
Smith’s attorney never raised the question of competence
and was not apprised of the court-ordered examination
at the time it was performed. The examining psychia-
trist, Dr. James Grigson, examined Smith for 90 minutes,
concluded that he was competent to stand trial, and so
advised the court by written letter. Smith was then tried
by a jury and convicted of murder.
In Texas, capital cases require bifurcated proceedings:
a guilt phase and a penalty phase. Tex. Code Crim. Pro.
Ann. art. 37.071 (Vernon Supp. 1979). At the penalty
stage, one of the three critical questions to be resolved
by the jury is “[w]hether there is a probability that the
defendant would commit criminal acts of violence that
would constitute a continuing threat to society.” Jd. at
art. 37.071(b) (2).? At the penalty phase of Smith’s trial,
the prosecution initially introduced no new evidence on
this issue, but, rather, rested its case subject to a right
* The other two questions, not at issue in this case, are:
Whether the conduct of the defendant that caused the
death of the deceased was committed deliberately and
with the reasonable expectation that tho death of the de-
ceased or another would result;
[and]
({I}f raised by the evidence, whether the conduct of the
defendant in killing the deceased was unreasonable in
response to the provocation, if any, by the deccased. Tex.
Code Crim. Pro, Ann. art. 37.071(b) (1), (b) (3) (Ver-
non Supp. 1979). °
6
to “reopen.” Smith’s counsel introduced testimony from
several lay witnesses about his good character and repu-
tation. The prosecution then sought to call Dr. Grigson, --
even though neither Smith nor his attorney had been
informed at the time of Dr. Grigson’s pretrial examina-
tion, or at any time prior to his testimony, that the
doctor might testify on this issue.?
Based solely on the information derived from his 90
minute competency examination of Smith, Dr. Grigson
testified that in his view Smith was a “sociopath” because
he had failed to display any remorse over the homicide.
According to Dr. Grigson, sociopaths repeatedly engage in
violent behavior and are not amenable to treatment. On
this basis Dr. Grigson concluded that Smith “certainly”
would continue to commit acts of violence and, therefore,
would constitute a continuing threat to society. The prose-
cution called no other witnesses at the penalty phase of
the trial.
The jury returned a verdict mandating capital punish-
ment. ‘The Texas Court of Criminal Appeals affirmed, 540
S.W.2d 693 (1976), and this Court denied certiorari, 430
U.S. 922 (1977). Smith next unsuccessfully sought ha-
‘ beas corpus in the Texas courts, and then filed a writ of
habeas corpus in the United States District Court for
the Northern District of Texas. On December 30, 1977,
that court (Porter, J.), granted the writ insofar as it
vacated Smith’s death sentence. 445 F.Supp. 647. The
decision rested on the constitutional infirmities surround-
ing the use of Dr. Grigson’s testimony at the penalty
phase of Smith's trial, including the failure to advise the
defendant and his counsel that information learned at
2Dr. Grigson was not listed on the prosecutor’s witness
list even though the prosecutor intended to call him during
the penalty phase. Smith v. Estelle, 602 F.2d 694, 702 (6th
Cir. 1979).
rok
--
~
Ss ine
t
the time of the competency examination might be used
as a basis for testimony against Smith at the death -
penalty hearing. The court further ruled that the failure
to advise the defense that Dr. Grigson would testify at
the penalty phase until the doctor actually took the stand
violated Smith’s ‘ght to due process of law, his right to
the effective assis.ance of counsel, and his Eighth Amend-
ment right to introduce complete evidence on the question
of mitigating circumstances, The State thereupon filed a
motion for a new trial, which was denied.
Texas next appealed to the United States Court of Ap-
peals for the Fifth Circuit. On September 13, 1979, that
court affirmed the judgment of the district court. It first
held, relying on Gardner v. Florida, 430 U.S. 349 (1977),
that the failure to advise the defense that Dr. Grigson
would testify at the penalty phase until the doctor actually .
took the stand violated Smith’s rights under the Fifth
and Eighth Amendments. 602 F.2d 694, 698-703. In
addition, the court went on to hold that a defendant can-
not be compelled to speak to a psychiatrist who can use
his statements against him at the sentencing phase of a
capital trial, that he must be so advised by the examining
psychiatrist, and that he has a right to the ussistance of
counsel in deciding whether to submit to the examination.
Id, at 703-709.
This Court granted certiorari on March 17, 1980. 48
U.S.L.W. 3602.
SUMMARY OF ARGUMENT
I. Although the use of expert testimony in state crim-
inal prosecutions is traditionally a matter of state law,
the need for reliability in the determination that death
is the appropriate punishment for a capital offense war-
rants exclusion of psychiatric: predictions of Jong-term
future criminal behavior as a matter of federal consti-
8
tutional law. Gardner v. Florida, 430 U.S. 349 (1977);
' Woodson v. North Carolina, 428 U.S. 280 (1976). The
professional literature uniformly establishes that such
predictions are fundamentally of very low reliability, and
that psychiatric testimony and expertise are irrelevant
to such predictions. In view of these findings, psychiatric
testimony on the issue of future criminal behavior only
distorts the factfinding process. To the extent that there
are important facts for a jury to consider on this issue,
they can be fully presented by lay witnesses who do not
testify with the mantle of professional expertise.
II. If, contrary to the argument above, psychiatric
testimony may be used in a capital case on the issue of
long-term future criminal behavior, the defendant must
be provided a full and fair opportunity to challenge and
rebut such testimony. This Court’s decision in Gardner v.
Flozida, 430 U.S. 349 (1977), establishes that a defendant
js entitled to a meaningful opportunity to deny or explain
information relied upon in the decision to impose the sen-
tence of death. Only when defense counsel is advised that
psychiatric testimony will be offered can he adequately
prepare cross-examination and rebuttal. The State has
no justification for the failure to provide adequate notice.
IJJ. A defendant in a capital case should be allowed
to refuse to participate in a psychiatric examination that
may lead to testimony against him on the issue of future
criminal behavior and should be advised of the purpose of
the examination so that he may intelligently excercise this
right. The complex of values underlying the Fifth Amend-
ment privilege warrants its application to the penalty
phase of a capital case. Murphy v. Waterfront Commis-
sion of New York, 378 U.S. 52 (1964); Presnell v.
Georgia, 439 U.S. 14 (1978). A psychiatric examina-
tion |that looks toward securing testimony concerning
long-term future criminal behavior invariably requires
_ the defendant to impart testimonial information. The cir-
cumstances surrounding such ° psychiatric interviews,
moreover, necessitate warnings to protect a defendant
against unknowing waiver of the constitutional privilege.
Recognition of the privilege in this context will not dis-
tort the fair state-individual balance that underlies the
privilege,
ARGUMENT
This Court has recognized that “death is a different
kind of punishment ... .” Gardner v. Florida, 430 U.S.
349, 357 (1977). Before it may be imposed, a state must
assure scrupulously fair procedures aimed at protecting
the “interest in reliability” obviously so important in a
capital case. Jd. at 359. Amicus believes that such reli-
ability is undermined by the use of psychiatric testimony
on the issue of likely Jong-term future criminal behavior.
Although this Court previously ruled that the « -estion of
future criminal behavior is a legitimate inquiry in a
capital case, see Jurek v, Texas, 428 U.S. 262, 275-76
(1976), it did not then focus on the use of psychiatric
testimony in relation to this inquiry.*. The fundamental
*The Court did note in passing that in the one capital
case that had then been considered by the Texas Court of
Criminal Appeals, which happened to be defendant Smith's
appeal, a psychiatrist had testified. 428 U.S. at 273. This
factor was noted at the end of a long list of considerations
relating to the issue of future criminal behavior. Since the
decision in Jurek, however, it has become plain that Texr
relies almost exclusively on psychiatric testimony to estaLiish
its proof on the issue of future criminal behavior. Sce, e.g.,
Gholson v. State, 542 S.W.2d 396, 400-01 (Tex. Crim. App.
1976), cert. denied, 432 U.S. 911 (1977) ; Livingston v. State,
642 S.W.2d 655, 661-62 (Tex. Crim. App. 1976), cert. denied,
431 U.S. 938 (1977) ; Moore v. State, 642 S.W.2d 664, 676-76
(Tex. Crim. App. 1976), cert. denied, 431 U.S. 949 (1977);
Collins v. State, 648 S.W.2d 368, 377 (Tex. Crim. App. 1976),
cert, denied, 430 U.S. 959 (1977) ; Battie v. State, 651 S.W.2d
401, 406-07 (Tex. Crim. App. 1977), cert. denied, 434 U.S.
1041 (1978) ; Granviel v. State, 662 S.W.2d 107, 114-16 (Tex.:
im. App. 1976), cert. denied, 431 U.S, 933 (1977) ; Shippy
10
disadvantage of utilizing such testimony is that it gives
the appearance of being based on expert medical judg-
ment, when in fact no such expertise exists. While tradi-
tionally such matters might be appropriate for elucida-
tion on cross-examination, amicus believes that, in the
unique circumstances of a capital case, this Court should
prohibit the use of such testimony altogether, and thereby
bar false claims to expertise that inevitably distort the
jury's factfinding process.
Alternatively, even if this Court is unwilling to pro-
hibit the use of psychiatric testimony on this issue, it
should establish procedures that assure basic fairness in
the utilization of such testimony. At a minimum, consti-
tutionally satisfactory procedures would require that a
defendant and his counsel be fully informed when the
state plans to rely on such evidence so that the defendant
may develop the requisite information to conduct a fair
cross-examination and may be prepared to call rebuttal
witnesses if he so chooses. In addition, a defendant should
be advised prior to a psychiatric examination that it may
subsequently be used to form the basis of expert testi-
mony on the issue of future criminal behavior and that
he need not participate in such an examination if he so
chooses.* ;
v. State, 666 S.W.2d 246, 254-65 (Tex. Crim. App.), cert.
denied, 434 U.S. 936 (1977) ; Chambers v. State, 568 S.W.2d
313, 324-25 (Tex. Crim. App. 1978) ; Von Byrd v. State, 569
S.W.2d 883, 895-96 (Tex. Crim. App. 1978). Indeed, in most
of these cases it hus been Dr. Grigson, the physician who
testified in this case, who appeared as the State’s star witness.
* The Court of Appeals held that the defendant has a right
to be assisted by counsel in making this decision. 602 F.2d
at 708-709. Amicus will not address this issue other than to
note our agreement that the assistance of counsel should be
available at this critical stage of a criminal proceeding,
see Brewer y. Williams, 480 U.S. 387, 398 (1977), and that
such assistance would prove extremely helpful to defendants
confronting this important but difficult decision.
ll
I, THE USE OF PSYCHIATRIC TESTIMONY IN A
CAPITAL CASE ON THE ISSUE OF WHETHER A
DEFENDANT IS LIKELY TO COMMIT SERIOUS
“CRIMES IN THE FUTURE 1S CONSTITUTION-
ALLY INVALID BECAUSE IT UNDERMINES THE
RELIABILITY OF THE FACTFINDING PROCESS.
It is well recognized that the use of expert testimony
in state prosecutions is traditionally a matter of state
evidentiary law. See J. Wigmore, Treatise On Anglo-
American System Of Evidence In Trials At Common Law
§ Ge (3d ed. 1940). Nevertheless, this Court has made
clear that capital punishment cases are constitutionally
“different,” Gardner v. Florida, 430 U.S. 349, 357 (1977)
(plurality opinion), and that it is of “vital importance
to the defendant and to the community that any decision
to impose the death sentence be, and appear to be, based
on reason rather than caprice or emotion.” Jd. at 358.
“(T]he penalty of death is qualitatively different from a
sentence of imprisonment, however long. ... Because of
that qualitative difference, there is a corresponding dif-
ference in the need for reliability in the determination
that death is the appropriate punishment in a specific
case.” Woodson vy. North Carolina, 428 U.S. 280, 305
(1976) (plurality opinion). In amicus’ view the use of
expert testimony on the issue of long-term future crimi-
nal behavior is inconsistent with these established prin-
ciples.*
*It should be made clear at the outset that amicus is urg-
ing « limited prohibition aimed only at long-term predictions
of violence by psychiatrists. In Texas, the inquiry focuses
on the defendant's lifetime, not on a discrete time period
where psychiatric expertise might be more relevant. In civil
commitment cases, for example, as this Court recognized Jast
Term in Addington vy. Texas, 441 U.S. 418 (1979), psychia-
trists often can and do make reliable predictions about short-
term prognoses, and such predictions often include potential ©
violence. See Monaghan, Prediction Research and the Emer-
gency Commitment of Dangerous Mentally Ill Persons: A Re-
12
As the court below recognized, “Dr. Grigson’s testi-
mony was extremely damaging to the defendant.” 602
F.2d at 697. After detailing “his extensive [professional]
qualifications,” id., Dr. Grigson proceeded to testify as a
medical expert, using psychiatric nomenclature to de-
scribe Smith, and concluding that “certainly Mr. Smith
is going to go ahead and commit other similar or same
criminal acts if given the opportunity to do so.” Jd. at
698. Faced with this seemingly expert medical testimony,
it is not surprising that the jury found that Smith was
likely to commit serious criminal acts in the future even
though he had no prior record of violent behavior.
As this Court has observed, “since the members of a jury
will have had little, if any, previous experience in sen-
tencing, they are unlikely to be skilled in dealing with
the information they are given.” Gregg v. Georyia, 428
U.S. 158, 192 (1976) (plurality opinion).
Increasingly, psychiatrists have been asked, both in
civil and criminal proceedings, to make a variety of long
and short term assessments of a person’s propensity to
commit violent acts in the future. As a result, amicus
has for many years been concerned with the question of
psychiatric predictions of future vidlent behavior. In the
early 1970’s the American Psychiatric Association ap-
consideration, 186 Amer. J. Psychiatry 198 (1978). In such
siluations the psychiatrist is able to evaluate the patient’s cur -
rent mental condition and to discern likely behavioral pat-
terns, including potential] violent behavior in the near future,
if the illness remai.is untreated.
Similarly, amicus is not contending that psychiatrists
should be prohibited from testifying on all issues at the
penally phase of a capital case. On the contrary, there are
many issues, such as the defendant's mental state at the time
of the crime or whether he acted under duress, that are well
- within the expertise of psychiatrists,
wis ——
13
pointed a Task Force comprised of distinguished psychi-
atric experts with experience in the field of criminal
behavior “to assemble the body of knowledge concerning
the individual violent patient and the clinical issues sur-
rounding his case.” American Psychiatric Association
Task Force on Clinical Aspects of the Violent Individual,
Clinical Aspects of the Violent Individual at v (1974)
(hereinafter “Task Force Report”). That Task Force
submitted a report, “aimed at the practicing clinician,”
to “describe the current state of the art and [to] pro-
vide[] an overview of selected literature and clinical
opinion on matters of evaluation, management, and pre-
diction of violent behavior.” Jd. The Task Force focused
its analysis on the violent patient—that is, the individual
“who acts or has acted in such a way as to produce
physical harm or destruction.” Jd, at 1.
The primary conclusion of this Task Force was that
judgments as to the Jong-run potential for future vio
lence and the “dangerousness” of a given individual are
“fundamentally of very low reliability,” primarily be-
cause such judgments are predictions of rare or infre-
quent events. Jd. at 23. In some circumstances, of
course, a clinician might be fairly confident that violent
behavior would recur, as for example where a parent’s
past behavior clearly and repetitively evidences physical
abuse of his or her children. But, as the Task Force
noted, the relatively high degree of reliability in these
cases is a function of knowing that the base rate of such
behavior—that is, the rate of repetitive past violent acts
—is very high for the person under scrutiny.* Id. “It
*In this case, Smith had no history of committing harmful
acts; his only prior conviction was for possession of mari-
juana. See Dix, The Death Penalty, “Dangerousness,” Psy-
chiatric Testimony, and Professional Ethics, 6 Am. J. Crim.
14
would not be necessary that the patient be ‘mentally ill’
or suffering from a psychiatric disorder in order to pre-
dict that such behavior will recur.” Jd. Thus, to the
extent that a psychiatrist’s prediction of “dangerousness”
is based solely on this knowledge of base rates of be-
havior, his prediction involves no more “expertise”—and
certainly no more “psychiatric expertise’—than does
that of the average nonexpert.”
According to the Task Force, “the state of the art
regarding predictions of violence is very unsatisfactory.
The ability of psychiatrists or any other professionals to
reliably predict future violence is unproved.” Jd. at 30.
“*(DJangerousness’ is neither a psychiatric nor a medical
Law 151, 154 (1977). In view of this fact, it is apparent
that Dr. Grigeon's testimony that Smith would commit future
harmful acts had no scientific basis whatsoever.
™One commentator has noted:
“In an experimental study .. ., college students and
psychiatrists agreed extensively on the degree of ‘dan-
gerousness’ and ‘nondangerousness’ as indicated by vari-
ous personality characteristics. Tt iggests the possi-
bility that psychiatric judgment is not based upon any
special knowledge or expertise beyond that of educated
laymen. There are also several studies indicating that the
diagnostic classifications made by psychologists are not
more reliable or valid than those made by laymen.”
R. Kirkland Schwitzgebel, “Prediction of Dangerousness and
Its Implications For Treatment,” in W.J. Curran, A.L.
McGarry & C.S. Petty, Modern Legal Medicine, Psychiatry,
and Forensic Medicine 786 (1980) (footnotes omitted).
See A. Stone, Mental Health and Law: A System In Transi-
tion 83 (1976) (“There are... a group of patients in which
anyone could predict dangerous ucts; ¢.g., drug addicts who
-regularly support their habit by mugging, but that predie-
tion does not require a mental health professional,”),
15
diagnosis, but involves issues of legal judgment and defi-
nition, as well as issues of social policy. Psychiatric
expertise in the prediction of ‘dangerousness’ is not es-
tablished and clinicians should avoid ‘conclusory’ judg-
ments in this regard.” Id. at 33.*
‘The professional literature on the issue of predictions
of future criminal behavior was also reviewed and ana-
lyzed in a monograph published by the Center for Studies
of Crime and Delinquency of the National Institute of
Mental Health. A. Stone, Mental Health And Law: A
System In Transition 27-36 (1975). That study simi-
larly demonstrated that there are no reliable criteria for
psychiatric predictions of long-term future criminal be-
havior. Jd. at 29, citing S. Halleck, Psychiatry And The
Dilemmas Of Crime 348 (1971); Stiirup, “Will This
Man Be Dangerous?,” in De Reueck & Porter, The Men-
tally Abnormal Offender 17 (1968); Kozol, et al., The
Diagnosis And Treatment of Dangerousness, 18 Crime
and Delinquency 371, 383 (1972). These conclusions are
equally true today. Indeed, it has recently been noted that
“the professional literature almost uniformly affirms low
predictive accuracy with regard to the dangerousness of
mental patients.” R. Kirkland Schwitzgebel, “Prediction
of Dangerousness and Its Implications for Treatment,”
*A second important observation of the Task Force was
that “psychiatrists, in order to be safe, too often predict
dangerousness, especially in the case of the mentally ill offen-
ders.” Task Force Report at 25. See “Prediction of Danger-
ousness and Jts Implications for Treatment,” supra note 7, at
788 (“Mental health personnel rather consistently overpredict
dangerousness.”) This tendency toward false positive errors
in prediction—that is, persons clinically predicted to be
dangerous who are in fact not dangerous—has been attributed,
at cast in part, to “the strong negative reaction of the public
to errors associated with the release of dangerous persons,
whereas there is relatively little concern about unnecessary
confinement.” Id,
16
in W.J. Curran, A.L. McGarry, and C.S. Petty, Modern
Legal Medicine, Psychiatry, and Forensic Medicine 784
(1980).*
In view of these findings, the use of psychiatric testi-
mony on the issue of long-térm future criminal behavior
can only distort the factfinding process in a capital pun-
ishment trial. To the extent that there are important
facts for a jury to consider on this issue—such as a
defendant’s history of violence—those facts, as in most
criminal cases, can be fully presented by lay witnesses
who do not testify with the mantle of professional ex-
pertise. Indeed this Court recognized as much in Jurek,
where it upheld the use of the Texas criteria at issue
here:
“(P]rediction of future criminal conduct is an essen-
tial element in many of the decisions rendered
throughout our criminal justice system. The decision
whether to admit a defendant to bail, for instance,
must often turn on a judge’s prediction of the de-
fendant’s future conduct. And any sentencing au-
thority must predict a convicted person’s probable
future conduct when it engages in the process of de-
termining what punishment to impose. For those
sentenced to prison, these same predictions must be
made by parole authorities. The task that a Texas
jury must perform in answering the statutory ques-
* See also Diamond, The Psychiatric Prediction of Danger-
ousness, 123 U. Pa. L. Rev. 439 (1974) ; Ennis & Litwack, Psy-
chiatry and The Presumption of Expertise: Flipping Coins In
The Courtroom, 62 Calif. L. Rev. 693 (1974); Livermore,
Malmquist & Meehl, On The Justifications for Civil Commit-
ment, 117 U. Pa. L. Rev. 17 (1968); Steadman & Cocozza,
Psychiatry, Dangerousness, and The Repetitively Violent
Offender, 69 J. Crim. Law & Criminology, 226, 229-231
(1978) ; Wenk, Robinson & Smith, Can Violence Be Predicted?
18 Crime and Delinquency 393 (1972). See also United States
. ez rel. Mathew v. Nelson, 461 F.Supp. 707, 710 (N.D. Ill,
1978).
17
tion in issue is thus basically no different from the
task performed countless times each day throughout
the American system of criminal justice.” Jurek v.
Texas, 428 U.S. 262, 275-276 (1976).
A prohibition against using expert testimony, then, will ,
deny the jury no “possible relevant information about the
individual defendant whose fate it must determine... .”
Id. at 276. On the contrary, by sifting the mystique
from the facts and leaving only the latter, it will help
assure that a sentence of death is not the product of
“wholly arbitrary and capricious action.” Gregg V.
Georgia, 428 U.S. 153, 189 (1976). The integrity of the
criminal process demanded in a capital case will allow
for no less.
II. ASSUMING ARGUENDO THAT PSYCHIATRIC
TESTIMONY MAY BE USED IN A CAPITAL CASE
ON THE ISSUE OF FUTURE CRIMINAL BE-
HAVIOR, THE DEFENDANT MUST BE PROVIDED
A FULL AND FAIR OPPORTUNITY TO CHAL-
LENGE AND REBUT SUCH TESTIMONY.
In Gardner v. Florida, 430 U.S. 349 (1977), this Court
held that the Constitution is violated when a defendant
is sentenced to death on the basis of information that he
had no opportunity to explain or deny. 430 U.S. at
362-364. In that case, the sentencing judge relied on por-
tions of a presentence investigation report that he con-
sidered confidential and did not disclose to either counsel
for the State or counsel for the defendant.
In striking down that practice, the plurality opinion
reviewed each of the justifications asserted by the State
for a capital sentencing procedure that would permit
a trial judge to impose the death sentence based on un-
disclosed information. As to the State’s asserted need to
provide assurances of confidentiality to potential sources
of information, the plurality found intolerable the “risk
18
that some of the information accepted in confidence may
‘ be erroneous, or may be misinterpreted.” 430 U.S. at 359.
The plurality also found insufficient the State’s asserted
need to eliminate the potential for delay and to avoid
disruption of the rehabilitation process. Finally, the
plurality characterized as “foreclosed” by Furman Vv.
Georgia, 408 U.S. 288 (1972), the contention that trial
judges could be trusted to exercise their discretion in a
responsible manner. In sum, the plurality concluded that
the defendant had been deprived of due process of law
because he was denied “the opportunity to deny or ex-
plain” information that was relied upon in the decision
to impose the sentence of death.’®
The “opportunity to deny or explain” referred to by
the plurality in Gardner surely refers to the “opportunity
to be heard ‘at a meaningful time and in a meaningful
© Mr. Justice White concurred in the judgment on the
ground that the use of secret information in a capital sen-
tencing procedure failed to meet the requirement under
Woodson v. North Carolina, 428 U.S. 280, 305 (1976), for
“reliability in the determination that death is the appropri-
ate punishment... .” 430 U.S. at 364. In view of that con-
clusion, Mr. Justice White found it unnecessary to address
“the possible application to sentencing proceedings—in death
or other cases—of the Due Process Clause, other than as the
vehicle by which the strictures of the Eighth Amendment are
triggered ... .” Jd. Mr. Justice Brennan, though adhering
to the views he had expressed in Gregg Vv. Georgia, 428 -
U.S. 153, 227 (1976), stated that he agreed that the Due
Process Clause of the Fourteenth Amendment is violated
when a defendant facing the death sentence is not informed
of the contents of a presentence report made to the sentencing
judge. 430 U.S. at 364. Decisions of this Court subsequent to
Gardner establish that the Due Process Clause is applicable
to capital sentencing procedures. Green V. Georgia, 424 U.S.
95 (1979) (per curiam); Presnell v. Georgia, 4389 U.S. 14
(1978) (per curiam).
19
manner.” Mathews v. Eldridge, 424 U.S. 319, 333
(1976), quoting Armstrong v. Manzo, 380 U.S. 545, 552
(1965). The circumstances surrounding the presentation
of Dr. Grigson’s testimony in this case highlight the
need for defense counsel to have a meaningful oppor-
tunity to comment on psychiatric testimony concerning
future criminal behavior. As discussed above, the
scientific literature seriously undermines the validity of
the kind of professional judgments advanced by Dr.
Grigson, See pp. 18-16, supra. Obviously, famili-
arity with this body of information will not be common-
place among lawyers charged with representing defen-
dants in capital cases. Only when counsel is properly
advised that such testimony will be offered can he ade-
quately prepare cross-examination and rebuttal.
In this case, defense counsel was totally denied this
important opportunity. First, counsel was not notified in
advance that the state trial court had ordered a psychi-
atric examination of the defendant to determine compe-
tency to stand trial. Dr. Grigson filed no formal report
after his interview with the defendant, but instead wrote
a letter to the state trial judge stating his conclusion
that the defendant was competent. A copy of this letter
was never sent to defense counsel. By happenstance, de-
fense counsel did see the letter while inspecting the court’s
files, but they testified that this did not lead them to con-
clude that Dr. Grigson would testify as to “dangerous-
ness” since his letter went to the issue of competency
to stand trial.
Next, the trial court entered an order requiring coun-
sel for the prosecution to list all the State’s witnesses
whom he in good faith expected to use at the trial of the
State’s case in chief, both during the guilt or innocence
stage and, if known, the punishment stage. This order
notwithstanding, the prosecution never notified defense
counsel that Dr. Grigson would (or even might) be
called on the issue of dangerousness. Moreover, the trial
court subsequently entered an order precluding the pros-
ecution from calling in its case-in-chief any witnesses not
named on the witness list. Thus, defense counsel could
legitimately claim surprise when the prosecution “re-
opened” its case after presentation of defense witnesses
at the punishment stage to introduce the testimony of
Dr. Grigson.
4 As the court below stated, “[s]urprise can be as ef-
tive as secrecy in preventing effective cross-examination
. -”’ 602 F.2d at 699. That is plainly so here. If
defense counsel had been provided adequate time to pre-
pare, he could obviously have raised serious questions
about Dr. Grigson’s testimony. See Dix, The Death Pen-
alty, “Dangerousness,” Psychiatric Testimony, And Pro-
fessional Ethics, 5 Am. J. Crim. Law 151 (1977).™
‘ In fact, these questions could have covered other issues
q in addition to the inaccuracy of psychiatric prediction of long-
term future criminal behavior. Dr. Grigson testified that
; Smith was a “sociopath,” and he based this conclusion to a
considerable extent on his obser, ‘‘on that Smith evidenced no
“remorse.” But the American Psychiatric Association’s Diag-
nostic and Statistical Manual of Menta) Disorders was re-
vised in 1968 to eliminate the term “sociopathy” and to
reclassify a roughly equivalent category of disorder entitled
“antisocial personality disorder.” See DSM II, § 301.7 (1968).
More significantly, the discussion of the “antisocial personality
disorder” in the most recent version of that manual evidences
the need for an examination of a broad range of the patient’s
behavior in connection with a diagnosis of that disorder.
DSM III, 7301.70 (1980). See generally, S. Dinitz, “The
Antisocial Personality,” in W.J. Curran, A.L. McGarry,
& C.S. Petty, Modern Legal Medicine, Psychiatry, and
Forensic Science 799 (1980) ; R.A. Woodruff, D.W. Goodwin,
& S.B. Guze, Psychiatric Diagnosis 148 (1974) ; G.E. Vaillant,
Sociopathy As A Human Process, 32 Arch. Gen. Psychiatry
178 (1975). This broad behavioral approach undermines
21
any suggestion that the disorder is established solely or even
primarily by the absence of indications of “remorse” as Dr.
Grigson suggested.
Moreover, although Dr. Grigson’s brief 90 minute mental
status examination of Smith may well have been sufficient for
a psychiatric determination as to competency, it was wholly
inadequate in terms of the detail that should have been pur-
sued to diagnose an antisocial personality disorder or to make
a prediction concerning long-term future behavior. A mental
status examination focuses on the individual’s current per-
ceptions and orientation. By itself, it provides no medical
basis for making long-term future behavioral predictions of
any type, let alone those aimed at future criminal behavior.
See Sands, “Psychiatric History And Menta] Status,” in A
Freedman & H. Kaplan, eds., Comprehensive Textbook or
Psychiatry 499 (1977).
Dr. Grigson also testified that no psychiatric treament
could change Smith’s behavior and that Smith would not
improve but would only continue the same way or get worse.
But an extensive review of the professional literature in
1972 prompted two commentators to note that, although the
results had to be interpreted with some caution, the data
indicate that “some techniques may be effective in the treat-
ment of antisocial personality in juvenile offenders and possi-
bly in some adults.” Levine & Bornstein, Js The Sociopath
Treatable? The Contribution of Psychiatry To A Legal
Dilemma, 1972 Wash. Univ. L.Q. 698, 711. See F.L. Carney,
“Inpatient Treatment Programs,” in W.H. Reid, The Psycho-
path: A Comprehensive Study Of Antisocial Disorders And
Behaviors 261 (1978); Rappeport, Enforced Treatment—Is
It Treatment?, II Bull. Am. Acad. Psychiatry & Law 48
(1974). Moreover, there is evidence indicating that even
if treatment is not possible, the mere passage of time may
effect improvement. R.A. Woodruff, D.W. Goodwin, & S.B.
Guze, Psychiatric Diagnosis 149 (1974); Cocozza & Stead-
man, Some Refinements In The Measurement and Pre-
diction of Dangerous Behavior, 181 Am. J. Psychiatry 1012
(1974) ; M. Craft, The Natural History of Psychopathic Dis-
order, 115 Brit. J. Psychiatry 39, 43 (1969). Indeed, the
most recent edition of the Association’s Diagnostic And
Statistical Manual notes that “[a]fter age 30 the more flag-
wan
22
Counsel could have prepared an effective cross-examina-
tion and, indeed, could perhaps have secured convincing
rebuttal witnesses. In this manner, the jury could at
least have received a more complete presentation of the
relevant considerations.
In capital cases, as this Court has made clear, a jury
requires both “standards to guide its use of the infor-
mation [presented],” Gregg v. Georgia, 428 U.S. 153,
195 (1976), and the participation of counsel in “com-
ment{ing] on facts which may influence the sentencing
decision,” Gardner v. Florida, 430 U.S. 349, 360 (1977).
Here, by contrast, the procedures used by the State de-
prived the jury of an opportunity to hear defense coun-
sel challenge the accuracy or materiality of the infor-
mation.”
Texas asserts no justification—and amicus can con-
ceive of none—for the failure to give defense counsel
adequate notice that expert psychiatric testimony would
be admitted on the issue of dangerousness. Instead,
Texas argues that since Dr. Grigson’s testimony was dis-
closed on the record, this case is governed not by Gard-
rant aspects may diminish, particularly sexual promiscuity,
fighting, criminality, and vagrancy.” DSM III, § 301.70
(1980). .
* It is worth noting in this regard that the statute upheld
in Gregg V. Georgia provided that at the penalty stage of the
criminal proceeding “only such evidence in aggravation as
the State has made known to the defendant prior to his trial
shall be admissible.” 428 U.S. at 164, quoting Ga. Code Ann.
§ 27-2503 (Supp. 1975). Moreover, this Court noted in Gregg
that “the importance of obtaining accurate sentencing infor-
mation” was underscored by the requirement in Rule 32(c)
of the Federal Rules of Criminal Procedure that counsel be
afforded an opportunity to comment on the presentence report
and to introduce information relating to any alleged factual
inaccuracy in the report. 428 U.S. at 129 n.87,
De te ae
23
ner V. Florida, supra, but by Williams v. New York, 337
| US. 241 (1949).** The argument is flawed. In its zeal
to distinguish Gardner, Texas apparently overlooks the
fact that the plurality opinion in Gardner specifically
noted that Williams was decided some 30 years ago, and
that in the interim this Court had “acknowledged its
obligation to re-examine capital sentencing procedures
against evolving standards of procedural fairness in a
civilized society.” 480 U.S. at 357. In the course of that
re-examination, fiye members of the Court had by 1977
concluded that death is a different kind of punishment
from any other that may be imposed in this country. |
And it is now beyond question that “this qualitative dif-
ference between death and other penalties calls for a
greater degree of reliability when the death sentence is
imposed.” Lockett v. Ohio, 488 U.S. 586, 604 (1978)
(Burger, C.J.). The state’s continued reliance upon Wil-
| liams v. New York, supra, is therefore plainly mis-
placed. .
ee
~~ ) aie, Mie ot det Bie ee
Federal constitutional guarantees surrounding imposi-
tion of the unique and irrevocable punishment of death
necessitate procedures that meet the need for reliability
in the determination that death is the appropriate sen-
tence. That need for reliability is not satisfied when de-
fense counsel is given only a technical opportunity to
comment on critical psychiatric testimony and no advance
notice sufficient to allow meaningful preparation for
cross-examination and rebuttal. The thrust of this ‘
Court’s ruling in Gardner is that the interest in reli-
* The state also argues that the defendant waived any
error of constitutional dimension. The Court of Appeals
correctly concluded that there was no effective waiver of
the constitutional error. 602 F.2d at 701 n.8, 708 n.19; see
Gardner v. Florida, supra, 480 U.S. at 361-62 (no waiver
where defense counsel failed to request access to entire pre-
sentence report),
at?
24
ability demands “an Opportunity to comment on facts
Which may influence the sentencing decision in capital
cases.” 430 U.S. at 360. A meaningless “opportunity”
to comment fails to further the interest in reliability, and
thus fails to withstand constitutional] Scrutiny.
EXERCISE THIS RIGHT.
The Fifth Amendment provides that no person “shall
be compelled in any criminal ca
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