Cook v. State

OPINION ON REHEARING AFTER REMAND FROM THE UNITED STATES SUPREME COURT

OVERSTREET, Judge.

Kerry Max Cook, appellant, was indicted for the offense of capital murder in the death of Linda Jo Edwards alleged to have been committed on or about June 10, 1977 in Tyler, Smith County, Texas. Appellant was convicted and sentenced to death on July 13, 1978. On direct appeal to this Court we affirmed appellant’s conviction. Cook v. State, 741 S.W.2d 928 (Tex.Cr.App.1987). The appellant then petitioned the United States Supreme Court for a writ of certiorari, alleging primarily Fifth and Sixth Amendment violations due to the admission of psychiatric testimony of Dr. James Grigson during punishment. The Supreme Court granted appellant’s petition in cause No. 87-7290, Cook v. Texas, 488 U.S. 807, 109 S.Ct. 39, 102 L.Ed.2d 19 (1988) and vacated our judgment and remanded the case to us for consideration in light of Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988), which also dealt with Fifth and Sixth Amendment violations due to admission of the same Dr. Grigson’s testimony at punishment. The issue became whether a *601harmless error analysis applies to violations of Fifth and Sixth Amendment rights set out in Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). On remand, we again affirmed^the appellant’s conviction concluding that while error existed, it was harmless. On June 13, 1990, we granted appellant’s motion for rehearing in order to reconsider our earlier decision. After further consideration we withdraw our previous opinion of January 17, 1990.

Appellant’s case will be reconsidered once again in light of Satterwhite. In his motion for rehearing, appellant raises five grounds for rehearing:

1. First, the Court has misconstrued the relative reliance the prosecution placed on Dr. Grigson’s testimony during summation;

2. Appellant requests that the Court reconsider whether it has misconstrued the relative importance of Dr. Grigson’s testimony compared to other admissible evidence in the Satterwhite and this case;

3. Whether there was just as much, if not more, compelling evidence of future dangerousness, apart from Grigson’s testimony, introduced in Satterwhite;

4. Whether the nature of the murder, i.e. more gruesome than that in Satter-white, is indicative of future dangerousness; and

5. What should be the relevance of the difference in prior criminal records of John Satterwhite and Kerry Max Cook.

We will resolve these issues by addressing appellant’s first two grounds for rehearing; the remaining three grounds will not be discussed separately since all lead to the ultimate inquiry, to-wit: whether we can conclude “beyond a reasonable doubt” that the erroneously admitted testimony of Dr. Grigson did not contribute to the verdict obtained.

We grant rehearing to review the erroneously admitted testimony by way of the Supreme Court’s analysis in Satterwhite. The error in Satterwhite and herein are remarkably similar. In both Satterwhite and Cook, the following facts are present:

1) Dr. James Grigson, a well known and experienced psychiatrist, examines the appellants without notice to their defense counsels.

2) Dr. Grigson is permitted to testify on future dangerousness at the punishment stage over defense objections.

3) A second expert who is a psychologist by training with considerably less experience than Dr. Grigson also testifies on future dangerousness. This testimony is admissible.

4) In each trial, Dr. Grigson’s testimony is clearly more resolute and explicit than that of the psychologist.

5) Dr. Grigson’s testimony is alluded to in final argument by the State with emphasis on the future dangerousness issue. The testimony of the psychologist in each case is also referred to in final argument.

6) Both appellants are given the death penalty by each jury.

7) Dr. Grigson’s testimony is subsequently held to be in violation of each appellant’s Fifth and Sixth amendment rights.

The Supreme Court fashioned the issue in Satterwhite as follows: “[t]he question in this case is whether it was harmless error to introduce psychiatric testimony obtained in violation of that safeguard [Sixth Amendment]1 in a capital sentencing proceeding.” Satterwhite, 108 S.Ct. at 1795. We are confronted again with the same issue.

I.

A brief review of the facts is in order. The murder of Linda Jo Edwards in Tyler, Texas was a heinous crime, the details of which are outlined in Cook v. State, 741 *602S.W.2d 928, 931-38 (Tex.Cr.App.1987). In short, the deceased had been hit in the head with a plaster object, attacked by multiple stab wounds, and the body was severely mutilated, parts of which were never found. Once appellant became a suspect, and after he was represented by counsel, he was examined by Dr. Grigson, a psychiatrist. The psychiatric examination occurred at the apparent request of the District Attorney of Smith County without notice to counsel and without court order. Appellant was moved from Smith County to Dallas County for the examination, which took place in the hospital division of the Dallas County Jail and was completed in an hour and a half. There was no showing that Miranda warnings were given to the appellant or that Dr. Grigson informed him that the examination was for the purpose of determining his future dangerousness. Cook, supra at 943. Dr. Grigson testified at the punishment phase of the trial over appellant’s objection, hence the Fifth and Sixth Amendment violations as defined by the Supreme Court in Estelle v. Smith, supra, 451 U.S. at 469, 101 S.Ct. at 1876.

II.

In his first point of error, the appellant contends that the reliance the prosecution placed on Dr. Grigson’s testimony during summation in Cook was more so than that relied upon by the prosecution in Sat-terwhite. We agree with the appellant on this point.

Dr. Grigson’s testimony was that Cook has an antisocial personality disorder termed sociopath and after defining it, and stating that it is not an illness but “simply a descriptive term to describe an individual which has certain personality characteristics,” states that Cook is “at the very end, the very most severe where you will find of the sociopath.” After responding that such a person has a complete disregard for another human being’s life, Dr. Grigson stated, “[i]t’s my opinion that Mr. Cook certainly will, from a medical psychiatric standpoint probability, continue to behave and act in a way that does represent a very serious threat to the people within our society.” In response to whether prison society is included, the doctor testifies: “[i]t would not matter where he might be, whether he was free in the free world or whether he was institutionalized. He would present a real threat to people that found themselves in that same setting with him, whether it is prisoner guards or rather free people.” In response to how severe a threat Mr. Cook would be to others, the doctor responds:

“It is extremely severe. You can’t come any more severe than that. If I had the least doubt, if I had any question within my mind, I certainly would not mind telling you that. I feel absolutely one hundred percent certain that he is and will continue to be a threat no matter where he is.”

We have concluded that the prosecution did indeed refer notably to Grigson’s testimony in its summation. After arguing that appellant should be executed and pointing to the psychologist’s testimony that he could not be rehabilitated, the prosecutor refocused on Grigson’s testimony:

“You heard Dr. Grigson, a very professional man tell you about the categories involved in psychiatric evaluations. Didn’t you hear something in every one of those categories that applied to Kerry Max Cook?

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He said it is a mind who has no social responsibility in any form or fashion. Kerry Max all over again the first time. The second time you saw all over the wall of this courtroom, no social responsibility whatsoever. He has no conscience. Dr. Grigson told you that the man was impossible to rehabilitate, that he was not susceptible to rehabilitation, that he could not begin to understand what the term was.”

While Dr. Grigson did not testify verbatim to the above quote “impossible to rehabilitate,” this was the implication of his testimony and the prosecutor aptly attributes this testimony to Dr. Grigson in his closing argument. In Satterwhite, the Supreme Court writes:

*603His [Dr. Grigson’s] testimony stands out both because of his qualifications as a medical doctor specializing in psychiatry and because of the powerful content of his message. Dr. Grigson was the only licensed physician to take the stand.

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He explained that Satterwhite has “a lack of conscience” and is “as severe a sociaopath as you can be.”

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Dr. Grigson concluded his testimony on direct examination with perhaps his most devastating opinion of all: he told the jury that Satterwhite was beyond the reach of psychiatric rehabilitation.

Satterwhite, 108 S.Ct. at 1799. After quoting a portion of the prosecutor’s final argument which alludes to Dr. Grigson’s testimony, the Supreme Court concluded that the error was harmful. We find it hard to conclude otherwise given the similarity of the testimony herein,

III.

In his second ground for rehearing, appellant requests this Court to reconsider whether it has misconstrued the relative importance of Dr. Grigson’s testimony compared to other admissible evidence in Sat-terwhite and the matter herein.

It is not the role of the appellate court to determine the harmfulness of an error simply by examining whether there exists overwhelming evidence to support the defendant’s guilt. Harris v. State, 790 S.W.2d 568, 585, (Tex.Cr.App.1989) reh. denied 1990. The Supreme Court opines in Satterwhite:

The Court of Criminal Appeals thought that the admission of Dr. Grigson’s expert testimony on this critical issue was harmless because ‘the properly admitted evidence was such that the minds of an average jury would have found the State’s case [on future dangerousness] sufficient ... even if Dr. Grigson s testimony had not been admitted.’ [Satterwhite v. State] 726 S.W.2d [81], at 93. The question, however, is not whether the legally admitted evidence was sufficient to support the death sentence, which we assume it was, but rather, whether the State has proved ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’ Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967); Satterwhite, 108 S.Ct. at 1798.

It is the State’s burden to prove beyond a reasonable doubt that the jury did not consider Dr. Grigson’s testimony on future dangerousness when it arrived at its finding.2 The State asserts in its brief that we look to Dr. Landrum’s testimony and the testimony of the thirteen character witnesses who all testified to future dangerousness. The position then becomes that a jury would have reached the same result based upon this evidence alone. This, however, does not answer the inquiry, “what impact did Dr. Grigson’s testimony have on this same jury, if any?”

In Satterwhite, the State also introduced the testimony of Bexar County psychologist, Dr. Betty Lou Schroeder, on future dangerousness. When comparing the testimony of Dr. Schroeder in Satterwhite to that of Dr. Landrum who testified in the matter herein, the two are relatively the same insomuch as they both concluded that each appellant would be a continuing threat to society. Dr. Schroeder testified that she found Satterwhite to be a “cunning individual” and a “user of people,” with an inability to feel empathy or guilt. She testified that in her opinion, Satterwhite would be a continuing threat to society through acts of criminal violence. Id. Dr. Schroeder’s testimony was supported by recent examinations of Satterwhite wherein he had been *604informed of his Miranda rights and had also granted a release. Dr. Sehroeder’s testimony was properly admitted and her opinion was also referred to by the State in summation.

Dr. Landrum, a clinical psychologist, examined Cook prior to this offense, the indictment, and the appointment of counsel. Dr. Landrum’s examination of Cook was not in connection with testifying on the issue of future dangerousness; this examination occurred in his capacity as a staff psychologist at Rusk State Hospital. The examination was performed within the three years prior to the June 1978 trial testimony. This testimony was properly admitted. Dr. Landrum defined Cook as sociopathic. When asked to categorize Cook, he responded, “All factors considered, I would say severe.” At other points in testimony, Dr. Landrum expressed the opinion of Cook that “it is likely that he will be a continuing threat to society” and “would have a high probability of acting out in an aggressive and harmful manner.” In response to whether Cook would be a continuing threat even in a prison society, Dr. Landrum responds, “Yes.” In response to whether there was any doubt in his mind that Cook will constitute a continuing threat, the doctor responds, “No.” And in response to whether there is even a remote possibility that Cook will be rehabilitated, the doctor replies, “In my opinion, there is not.”

The prosecutor referred to Dr. Land-rum’s testimony in summation in the following manner: After first remarking, “[yjou have heard a professional psychiatrist with many, many years of experience [referring to Dr. Grigson],” his next statement was as follows:

“You have heard a professional psychologist with ten years of experience in evaluating dangerous human behavior come in this Courtroom. You heard that young psychologist on the stand when he said when you get down to the situation of a case, it’s rarely, if ever, in looking at a psychopath, are you going to have any difference of professional opinion, when you narrow it down to a specific case.

“There is only one choice in this case and I thought perhaps that I misunderstood that psychologist. I said, Doctor, is there any — in your professional opinion — is there any possibility that Kerry Max Cook will be — any remote possibility. I even went so far as to say remote possibility that Kerry Max Cook will ever be rehabilitated. He said no, there is not. There is no possibility.”

The prosecutor referred to Dr. Landrum as the “young psychologist” and never invokes his name in summation; whereas he makes reference to Dr. Grigson’s testimony at the same time as “a psychiatrist of many, many years” and he invokes Dr. Grigson’s name in summation on two occasions. Dr. Landrum was the only other expert to testify and he admitted in testimony that it may have been up to three years since he examined Cook.

The evidence admitted in Satterwhite revealed a history of some four convictions of violent acts ranging from aggravated assault to armed robbery including the shooting of his mother’s former husband. Eight police officers testified that Satterwhite’s reputation for being a peaceful and law abiding citizen was bad. Satterwhite, 108 S.Ct. at 1798. Review of Cook’s prior history reveals no violent crimes. His one prior offense was theft of an auto. There were thirteen witnesses who testified that Cook’s reputation for being a law abiding and peaceful citizen was bad.

In Satterwhite, Dr. Grigson told the jury that Satterwhite was beyond the reach of psychiatric rehabilitation. Id., 108 S.Ct. at 1799. His testimony is not so very different here particularly in light of the prosecutor’s argument to the jury which refers to Dr. Grigson when he repeats that the psychiatrist told them “the man was impossible to rehabilitate.”

The Supreme Court arrived at its decision that admission of Dr. Grigson’s testimony was harmful error in Satterwhite by stating that “Dr. Grigson was the only psychiatrist to testify on this issue (future dangerousness) and the prosecution placed significant weight on his powerful and unequivocal testimony.” Id. The same ap*605plies to the facts herein. While the prosecution in both the Satterwhite and Cook trials did elicit future dangerousness testimony from both psychologists, it is clear that the emphasis placed upon the Grigson testimony herein is comparatively more eminent.

Tex.R.App.Proc., 81(b)(2), which is a Texas codification of Chapman provides:

“If the appellate record in a criminal case reveals error in the proceedings below, the appellate court shall reverse the judgment under review, unless the appellate court determines beyond a reasonable doubt that the errors made no contribution to the conviction or to the punishment.”

It is impossible to conclude that the jury was convinced of Cook’s future dangerousness required of special issue two of Article 37.071(b)(2) without the aid of Dr. Grig-son’s testimony. Our ultimate concern here is whether the Grigson testimony made a contribution to Cook's punishment. We cannot say, “beyond a reasonable doubt” that it did not contribute to the punishment.

Accordingly, the conviction is reversed and the cause is remanded for a new trial.

BENAVIDES, J., concurs in result. MILLER and WHITE, JJ., dissent.

. The referenced safeguard is the Sixth Amendment right of defendants formally charged with capital crimes to consult with counsel before submitting to psychiatric examinations designed to determine their future dangerousness; the Supreme Court recognized such in Estelle v. Smith, supra, which was also a Texas case in which the testimony of Dr. James Grigson was at issue.

. "Certainly error, constitutional error, in illegally admitting highly prejudicial evidence or comments, casts on someone other than the person prejudiced by it a burden to show that it was harmless. It is for that reason that the original common-law harmless-error rule put the burden on the beneficiary of the error either to prove that there was no injury or to suffer a reversal of his erroneously obtained judgment.” [Citation omitted] Chapman, 386 U.S. at 24, 87 S.Ct. at 828.