[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 16, 2003
No. 01-11621 THOMAS K. KAHN
CLERK
D. C. Docket No. 97-00051 CV-3-JTC
ROBERT KARL HICKS,
Petitioner-Appellant,
versus
FREDERICK J. HEAD, Warden,
Georgia Diagnostic and Classification Prison,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Georgia
(June 16, 2003)
Before EDMONDSON, Chief Judge, BIRCH and DUBINA, Circuit Judges.
DUBINA, Circuit Judge:
Petitioner Robert Karl Hicks (“Hicks”), a death row inmate, appeals the
district court’s order denying him federal habeas relief pursuant to 28 U.S.C. §
2254. We granted Hicks’s motion for a Certificate of Appealability (“COA”)1 on a
question of first impression for our circuit: whether violations of Ake v. Oklahoma,
470 U.S. 68, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985), are subject to harmless error
analysis and, if so, whether the trial court’s denial of psychiatric assistance until a
few days before trial, in violation of Ake, constitutes harmless error. Joining
several other circuits, we hold that Ake violations are amenable to harmless error
analysis, and we conclude that the Ake violation in this case was harmless.
Accordingly, we affirm the judgment of the district court denying habeas relief.
I. BACKGROUND
A. Facts
The facts are taken verbatim from the Georgia Supreme Court’s decision in
Hicks’s direct appeal:
Early in the evening of July 13, 1985, the victim, Toni Rivers,
drove to an area on Rawls Road to meet a friend with whom she
planned to visit Callaway Gardens. When the friend arrived, the
victim’s automobile was there, but the victim was not.
1
See 28 U.S.C. § 2253.
2
At about 8:00 pm that evening, a resident of Blanton Mill Road
heard a loud scream from a nearby pasture area, and then a woman’s
voice saying, “Don’t do that.” He saw a car parked near the end of
his driveway and walked to it. From there, he looked over a fence,
through a gap in the woods, and into the pasture, where he saw
someone lying on the ground and saw someone else “jump from the
other side [and then] hunker down.”
He flagged down two men driving by in a pickup and told them
to call the police, that something was going on in the pasture. The
two men, Robbie McCune and Charles Garner, heard screams
themselves, and, looking toward the pasture, saw a shirtless man with
blond hair and a black beard bending over and making stabbing
motions. Garner testified that as the man straightened up, he wiped
something off and put it into his pocket.
Garner and McCune got the license number of the car parked
by the side of the road and drove away to find a telephone. As they
did, they saw the blond male exit the woods, get into his car, drive a
few yards up the road, and stop. (The car had run out of gas.)
Garner and McCune found a telephone at the first house down
the road, called the sheriff, and returned just in time to see the blond
male climb into the back of a black pickup that had stopped to give
him a ride. A deputy sheriff approached the area and McCune
flagged him down. He told the deputy that the man he had called
about was in the back of the other pickup. Meanwhile, Garner got out
and ran to the pasture to find the woman.
Sheriff’s deputy Chuck Hudson testified that Garner and
McCune “flagged me down and told me that the guy sitting in the
back of the [pickup] I had just passed was the one they had seen . . .
in the wooded area where . . . all the screaming and all had taken
place . . . [W]hen they told me that, I turned around and went back
and stopped the black pickup truck.” Hudson was informed by the
driver, whom he knew, that the man in the back had asked for a ride
to a gas station.
3
Hudson asked the man, whom he later identified as the
defendant, if he knew anything about a girl or if he had heard
anything in the area. The defendant answered negatively. Hudson
offered to help the defendant with his car problems, and told him that
if “everything was all right, I’d help him get some gas and get his car
going.” Then, Hudson testified, “Mr. Hicks came down off the truck
and started to get in the back of my patrol car, and I made him stop,
and I searched him.” Hudson found a “folding pocket knife” in the
defendant’s right front pocket, that was covered in a “dark red
substance that appeared to be blood – fresh blood.”
Meanwhile, Garner had found the victim, nude from the waist
down and covered with blood. She told him she was dying. When
Hudson and another deputy arrived at the scene, she begged for help,
saying she could not breathe. She clawed at the ground making
choking noises until just before the EMT’s arrived, when she stopped
moving. She soon died.
The victim had “five large, gaping lacerations of the throat . . .,
an open gash on the abdomen . . . and eight stab wounds.” She died
from a near-total loss of blood.
Inside the defendant’s automobile, deputy Hudson discovered a
pair of women’s shorts, a bloody pair of men’s socks, a pair of
sandals, and a key ring with the initials “T.R.”
Blood on the seat of the car, and on the defendant’s pants,
socks and knife, was identified as being consistent with that of the
victim.
Hicks v. State, 352 S.E.2d 762, 767-68 (Ga. 1987) (alterations in original).
B. Procedural History
On June 13, 1985, a jury in Spalding County, Georgia, found Hicks guilty of
the malice murder of Toni Rivers and recommended that the court impose a death
4
sentence. The jury found three statutory aggravating circumstances: the offense of
murder was committed by a person with a prior record of conviction for a capital
felony, rape; the offense was committed while the offender was engaged in the
commission of the offense of aggravated battery; and the offense of murder was
outrageously or wantonly vile, horrible, or inhuman in that it involved an
aggravated battery to the victim. See Ga. Code Ann. § 17-10-30(b)(1), (b)(2) and
(b)(7) (1997). The Supreme Court of Georgia affirmed Hicks’s conviction and
sentence. Hicks, 352 S.E.2d at 779. The United States Supreme Court denied
certiorari on June 15, 1987. Hicks v. State, 482 U.S. 931, 107 S. Ct. 3220, 96 L.
Ed. 2d 706 (1987).
Hicks filed his first state habeas petition in the Superior Court of Butts
County, Georgia. Following an evidentiary hearing, the state court denied relief.
The Supreme Court of Georgia denied Hicks’s application for a certificate of
probable cause to appeal, and the United States Supreme Court denied certiorari.
Hicks v. Kemp, 494 U.S. 1074, 110 S. Ct. 1797, 108 L. Ed. 2d 798 (1990). Hicks
then filed a federal habeas petition, and the State moved to dismiss the petition for
lack of exhaustion. The district court entered judgment dismissing the petition
without prejudice. Hicks filed a second state habeas petition, and the State moved
to dismiss the petition as successive under state procedural rules. After
5
conducting a hearing on the motion to dismiss, the state court dismissed the
petition. The Georgia Supreme Court denied Hicks’s application for probable
cause to appeal, and the United States Supreme Court denied certiorari review.
Hicks filed his second federal habeas petition on April 24, 1997, and filed
an amended petition on June 8, 1998. The district court denied him any relief on
the claims he raised. The district court specifically found that Hicks’s Ake claim
was subject to harmless error analysis and that under the Brecht v. Abrahamson
harmless error standard, the constitutional violation did not have a “‘substantial
and injurious effect or influence in determining the jury’s verdict.’” 507 U.S. 619,
637-38, 113 S. Ct. 1710, 1722, 123 L. Ed. 2d 353 (1993) (quoting Kotteakos v.
United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253, 90 L. Ed. 2d 1557 (1946)).
The district court denied Hicks’s motion to alter or amend the judgment, stating
that Hicks had failed to make a substantial showing of the denial of a
constitutional right. In a separate order, the district court specifically denied
Hicks’s application for a COA. Hicks filed a notice of appeal and application for a
COA in this court. We granted the COA on the sole issue of whether Ake
violations are subject to harmless error analysis and, if so, whether the trial court’s
denial of a mental health expert until shortly before trial constitutes harmless error.
6
II. STANDARD OF REVIEW
We give deference to state courts’ merits-adjudication of constitutional
questions unless the decisions are “contrary to” or an “unreasonable application of
. . . clearly established” United States Supreme Court precedent. Williams v.
Taylor, 529 U.S. 362, 412, 120 S. Ct. 1495, 1523, 146 L. Ed. 2d 389 (2000). See
also 28 U.S.C. § 2254(d).
III. DISCUSSION
A. Whether Ake violations are subject to harmless error analysis.
We will assume, without deciding, that the state court’s determination of no
Ake error was an unreasonable application of clearly established Supreme Court
precedent.2 In Ake, the Court held that “when a defendant has made a preliminary
showing that his sanity at the time of the offense is likely to be a significant factor
at trial, the Constitution requires that a State provide access to a psychiatrist’s
assistance on this issue if the defendant cannot otherwise afford one.” 470 U.S. at
2
The state court concluded that the appointment of Dr. Andrea Bradford (“Dr. Bradford”)
just days before the trial satisfied Ake. Specifically, the Georgia Supreme Court concluded that the
trial court did not err in denying Hicks’s motion for a continuance and request for additional funds
for neurological testing. The Georgia Supreme Court’s determination that the denial of Hicks’s
motion for a continuance did not violate Ake was considered by the district court to be an
unreasonable application of the clearly established Supreme Court precedent.
7
74, 105 S. Ct. at 1091-92. The constitutional right recognized in Ake provides a
criminal defendant the assistance of a psychiatrist in two general circumstances:
“when [the] defendant demonstrates to the trial judge that his sanity at the time of
the offense is to be a significant factor at trial, . . . . [and] when the State presents
psychiatric evidence of the defendant’s future dangerousness” during a capital
sentencing hearing. Ake, 470 U.S. at 83, 105 S. Ct. at 1096.
To date, we have not addressed the question whether Ake error is amenable
to harmless error analysis. The question whether a particular constitutional error
is subject to harmless error analysis depends upon whether the error is properly
characterized as trial error or structural error. Trial error is error that “occur[s]
during the presentation of the case to the jury.” Arizona v. Fulminante, 499 U.S.
279, 307-08, 111 S. Ct. 1246, 1264, 113 L. Ed. 2d 302 (1991). Such error “is
amenable to harmless-error analysis because it may . . . be quantitatively assessed
in the context of other evidence presented in order to determine [the effect it had
on the trial].” Brecht, 507 U.S. at 629, 113 S. Ct. at 1717 (alterations in original)
(internal quotations omitted). In contrast, structural error is error “affecting the
framework within which the trial proceeds, rather than simply an error in the trial
process itself.” Arizona, 499 U.S. at 310, 111 S. Ct. at 1265. By its very nature,
structural error “def[ies] analysis by ‘harmless-error’ standards.” Id., 499 U.S. at
8
310, 111 S. Ct. at 1265. The Supreme Court has observed that classification of an
error as structural and, therefore, not subject to harmless error review, is the
“exception and not the rule.” Rose v. Clark, 478 U.S. 570, 578, 106 S. Ct. 3101,
3106, 92 L. Ed. 2d 460 (1986). “[I]f the defendant had counsel and was tried by
an impartial adjudicator, there is a strong presumption that any other errors that
may have occurred are subject to harmless-error analysis.” Id., 478 U.S. at 579,
106 S. Ct. at 3106.
Hicks made a request for psychiatric assistance in order to bolster his
insanity defense. The trial court granted the request. At the time the trial court
ruled on the motion for a continuance, the psychiatrist, Dr. Bradford, had met
with Hicks and performed an evaluation to assist in his defense. Dr. Bradford’s
preliminary diagnosis of Hicks was intermittent explosive disorder, which,
according to Dr. Bradford, rendered Hicks unable to control his impulses. This
disorder did not fit within the legal definition of insanity under Georgia law and,
therefore, proof of this disorder would not alleviate Hicks’s guilt.3
3
Georgia law provides two defenses to the offense of murder: insanity and delusional
compulsion. The insanity defense provides that “[a] person shall not be found guilty of a crime if,
at the time of the act, omission, or negligence constituting the crime, the person did not have mental
capacity to distinguish between right and wrong in relation to such act, omission, or negligence.”
Ga. Code Ann. § 16-3-2 (1999). Delusional compulsion provides that a person shall not be guilty
of a crime if, at the time of the offense, “the person, because of mental disease, injury, or congenital
deficiency, acted as he did because of a delusional compulsion as to such act which overmastered
his will to resist committing the crime.” Ga. Code Ann. § 16-3-3 (1999). See Fulghum v. Ford, 850
9
“[A] right to which a defendant is not entitled absent some threshold
showing [cannot] fairly be defined as basic to the structure of a constitutional
trial.” Starr v. Lockhart, 23 F.3d 1280, 1291 (8th Cir. 1994). Thus, we conclude
that an Ake error is trial error. Assuming that the trial court’s delay in granting
psychiatric assistance and its denial of Hicks’s motion for a continuance was an
Ake error, it constitutes trial error because the court must quantitatively assess the
error in the context of other evidence presented in order to determine the effect it
had on the trial. Fulminate, 499 U.S. at 307-08, 111 S. Ct. at 1264. In holding
that Ake error is trial error, we join several of our sister circuits. See White v.
Johnson, 153 F.3d 197, 201 (5th Cir. 1998); Tuggle v. Netherland, 79 F.3d 1386,
1388 (4th Cir. 1996); Brewer v. Reynolds, 51 F.3d 1519, 1529 (10th Cir. 1995);
Starr, 23 F.3d 1280, 1291. Because an Ake error is a trial error, it is subject to
harmless error analysis. See Brecht, 507 U.S. at 629, 113 S. Ct. at 1717.
B. Which harmless error analysis applies to Ake violations.
Based on the foregoing analysis, we must next consider which harmless
error standard applies to Ake violations. Hicks urges the court to apply the
F.2d 1529, 1532 (11th Cir. 1988); Stevens v. State, 350 S.E.2d 21, 22 (Ga. 1986) (noting that to
support a claim of delusional compulsion, it must appear that (1) the defendant was laboring under
a delusion; (2) the criminal act was connected to the delusion; and (3) the delusion was as to a fact
which, if true, would have justified the act).
10
Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967),
standard that provides for habeas relief on the basis of a constitutional error unless
the respondent can demonstrate that the error was harmless beyond a reasonable
doubt. Under the Chapman standard, a constitutional error may not be declared
harmless if a “reasonable possibility” exists that the “error contributed to the
verdict.” Brecht, 507 U.S. at 637, 113 S. Ct. at 1721. Hicks contends that this
standard applies to his case because the state courts never applied the Chapman
standard during his state post-conviction proceedings. See Starr, 23 F.3d at 1292.
Contrary to Hicks’s argument, the Supreme Court in Brecht directed the
federal courts, on habeas review, to apply the harmless error standard set forth in
Kotteakos v. United States, 328 U.S. 750, 66 S. Ct. 1239, 90 L. Ed. 1557 (1946),
and determine whether the error “‘had substantial and injurious effect or influence
in determining the jury’s verdict.’” Brecht, 507 U.S. at 623, 113 S. Ct. at 1714
(quoting Kotteakos, 328 U.S. at 776, 66 S. Ct. at 1253). The Brecht Court opined
that “[o]verturning final and presumptively correct convictions on collateral
review because the State cannot prove that an error is harmless under Chapman
undermines the States’ interest in finality and infringes upon their sovereignty
over criminal matters.” 507 U.S. at 637, 113 S. Ct. at 1721. The Court noted that
granting federal collateral relief upon a mere “reasonable possibility” that the error
11
contributed to the verdict would be inconsistent with the historic purpose of
habeas review which is “to afford relief to those whom society has ‘grievously
wronged.’” Id. The Court concluded that because “[t]he Kotteakos standard is
thus better tailored to the nature and purpose of collateral review and more likely
to promote the considerations underlying . . . habeas cases,” the Kotteakos
harmless error standard would be applicable to constitutional errors of the trial
type. Id., 507 U.S. at 637-38, 113 S. Ct. at 1722.
C. Whether the Ake violation in this case was harmless.
A comprehensive review of the record demonstrates that if the trial court’s
denial of Hicks’s motion for a continuance to seek additional evidence regarding
his mental condition was an Ake error, then it was harmless. At his first state
habeas proceeding, and after having the benefit of over two years to develop
expert analysis of his sanity, Hicks presented expert evidence regarding his mental
condition. During the hearing, Hicks introduced Dr. Bradford’s affidavit
containing her opinions with respect to Hicks’s mental condition after further
examination.4 Hicks also presented the affidavit opinions of neurologist Dr.
4
Dr. Bradford assisted in Hicks’s defense and testified at both the guilt and sentencing
phases of his trial. At trial, Dr. Bradford testified that her examination of Hicks revealed evidence
of a major psychiatric disorder and possible organic difficulties. (R. Exh. 5 at 773). Dr. Bradford
further stated that “[t]he primary major psychiatric illness is an intermittent explosive disorder. I
suspect there also may be some neurologic disease. There has not been an opportunity to confirm
that hypothesis.” (Id. at 775). Although Dr. Bradford testified that Hicks could not resist his actions
12
Jonathan Pincus, licensed clinical social worker C. Winter Giddings, and licensed
psychologist Dennis A. Bagarozzi regarding Hicks’s mental condition. These
opinions provide a thorough picture of Hicks’s childhood and adolescence and the
family dynamics allegedly responsible for the development of Hicks’s intermittent
explosive disorder. These opinions referred to specific violent and abusive
incidents in Hicks’s past to which Hicks’s family testified at the sentencing phase.
Further, Dr. Pincus opined that Hicks suffers from a neurological impairment of
organic brain disorder that may be responsible for Hicks’s inability to control his
explosive behavior. None of the experts’ opinions, however, contradicted the
evidence presented at trial that Hicks understood the difference between right and
wrong at the time that he stabbed the victim and slashed her throat.
Rather than demonstrate a different or more viable insanity defense, these
expert opinions relate to the same impulse control disorder testified to by Dr.
Bradford at trial. Although the post-conviction expert evidence is more complete,
the evidence is identical in kind to the testimony offered by Dr. Bradford at both
the guilt and sentencing phases. Indeed, to form her diagnosis of intermittent
that day due to this disorder, she did state that people with this disorder understand the difference
between right and wrong. (Id. at 808-09). Furthermore, at the sentencing phase, Dr. Bradford
testified that nothing changed her diagnosis of intermittent explosive disorder and noted that it did
not fit the test for legal insanity under Georgia law. (R. Exh. 6 at 1125). She reiterated that, in her
opinion, Hicks could not control the actions that constituted the crime in this case, and she expressed
her opinion that the jury should spare Hicks’s life. (Id. at 1143-44).
13
explosive disorder, Dr. Bradford relied upon the same critical violent incidents in
Hicks’s history as did the later experts. Accordingly, we conclude that any alleged
Ake error did not have a “substantial and injurious effect” on the guilty verdict or
the death sentence.
IV. CONCLUSION
We join several of our sister circuits and hold that Ake violations are subject
to harmless error analysis under the Brecht harmless error standard. Applying the
Brecht standard to the present case, we conclude that the alleged Ake error did not
have a “substantial and injurious effect” on the outcome of Hicks’s trial and
sentencing. Accordingly, we affirm the judgment of the district court denying
Hicks habeas relief.
AFFIRMED.
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