US SUPREME COURT DECISIONS

After petitioner was charged with the capital crime of murder committed during a robbery, but before he was represented by counsel, he was subjected to a court-ordered examination by a psychologist to determine his competency to stand trial, sanity at the time of the offense, and future dangerousness. Petitioner was not served with copies of the State's motion for the examination or the court's order. Petitioner was later indicted, counsel was appointed to represent him, and he was arraigned. The District Attorney, without serving a copy of his motion on defense counsel, requested a second psychiatric evaluation of petitioner as to the same matters. Without determining whether defense counsel had been notified of the State's motion, the trial court granted the motion and ordered an examination by the same psychologist and a specified psychiatrist. Later, a letter to the court from another psychiatrist (Dr. Grigson) appeared in the court file, stating that, pursuant to court order, he had examined petitioner and that he concluded that petitioner had "a severe antisocial personality disorder and is extremely dangerous and will commit future acts of violence." After petitioner was tried by a jury and convicted of capital murder, a separate sentencing procedure was conducted in accordance with Texas law before the same jury. Appearing as a witness for the State, Dr. Grigson testified, over defense counsel's objection, that in his opinion petitioner presented a continuing threat to society through acts of criminal violence. The jury answered affirmatively the special verdict questions as to whether the State had proved, beyond a reasonable doubt, (1) that the defendant's conduct causing the death was committed deliberately and with the reasonable expectation that the victim's death would result, and (2) that there was "a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society." The court, as required by state law, sentenced petitioner to death. On petitioner's appeal of his death sentence, the Texas Court of Criminal Appeals held that the admission of Dr. Grigson's testimony violated the Sixth Amendment right, recognized in Estelle v. Smith, 451 U. S. 454, of a defendant formally charged with a capital crime to consult with counsel before submitting to a psychiatric examination designed to determine future dangerousness. However, the court concluded that the constitutional violation chanrobles.com-red

Page 486 U. S. 250

was subject to harmless error analysis, and that the error was harmless in this case.

Held:

1. The use, at the capital sentencing proceeding, of Dr. Grigson's testimony on the issue of future dangerousness violated the Sixth Amendment. The Court of Criminal Appeals properly determined that there had been no compliance with the Sixth Amendment requirement, set out in Estelle v. Smith, that defense counsel be given advance notice of a psychiatric examination encompassing the issue of future dangerousness. Petitioner's right to counsel had attached at the time Dr. Grigson examined him in jail, and the record does not support the State's contention that various ex parte motions and orders contained in the court file provided defense counsel with notice that an examination encompassing the issue of petitioner's future dangerousness would take place. Moreover, even if the ex parte orders and filings were timely and were applicable to Dr. Grigson's examination, they did not adequately notify defense counsel that Dr. Grigson would examine the petitioner to assess his future dangerousness. Constructive notice to defense counsel achieved by mere placement of the State's motions and the court's ex parte orders in the court file does not satisfy the Sixth Amendment. Pp. 486 U. S. 256-258.

2. The harmless error rule set forth in Chapman v. California, 386 U. S. 18 -- which held that, if the prosecution can prove beyond a reasonable doubt that a constitutional error did not contribute to the verdict, the error is harmless and the verdict may stand -- applies to the admission of psychiatric testimony in violation of the Sixth Amendment right set out in Estelle v. Smith. Some constitutional violations -- including Sixth Amendment violations that pervade the entire criminal proceeding -- by their very nature cast so much doubt on the fairness on the trial process that, as a matter of law, they can never be considered harmless. However, the effect of the Sixth Amendment violation in this case is limited to the admission into evidence of Dr. Grigson's testimony. It is important to avoid error in capital sentencing proceedings. Moreover, the evaluation of the consequences of an error in the sentencing phase of a capital case may be more difficult because of the discretion that is given to the sentencer. Nevertheless, a reviewing court can make an intelligent judgment about whether the erroneous admission of psychiatric testimony might have affected a capital sentencing jury. Pp. 486 U. S. 256-258.

3. The Court of Criminal Appeals improperly held that the erroneous admission of Dr. Grigson's testimony was harmless beyond a reasonable doubt. The court concluded that the admission of this testimony on the critical issue of "future dangerousness" -- a probability of which must be found before a death sentence may be imposed under Texas law -- was harmless because the legally admitted evidence was sufficient to support chanrobles.com-red

Page 486 U. S. 251

the jury's finding of future dangerousness. However, under the Chapman harmless error test, the controlling question is whether the State has proved beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. Upon reviewing all the evidence at the sentencing hearing, this Court finds it impossible to say beyond a reasonable doubt that Dr. Grigson's expert testimony on the issue of petitioner's future dangerousness did not influence the sentencing jury. Pp. 486 U. S. 258-260.

726 S.W.2d 81, reversed and remanded.

O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C.J.,and WHITE, STEVENS, and SCALIA, JJ., joined. MARSHALL, J., filed an opinion concurring in part and concurring in the judgment, in which BRENNAN, J., joined, and in Part II of which BLACKMUN, J., joined, post, p. 486 U. S. 260. BLACKMUN, J., filed an opinion concurring in part and concurring in the judgment, post, p. 486 U. S. 267. KENNEDY, J., took no part in the consideration or decision of the case.