A case for harmless review of Ake errors.

• Author: Brown, Kristen
• Position: Supreme Court Review

1. INTRODUCTION

   In Tuggle v. Netherland,(1) the Supreme Court ruled that the state of Virginia's use of a psychiatric expert's testimony at trial to prove part of its case against Tuggle, an indigent capital defendant, was an Ake error(2) because the trial judge denied funds for Tuggle to hire a rebuttal expert.(3) The Court then remanded the case to the Fourth Circuit Court of Appeals to determine whether that error was harmless.(4) The Fourth Circuit held that it was harmless(5) and the Supreme Court agreed on appeal.(6)

   Tuggle's case illustrates precisely why harmlessness review of an Ake error is appropriate. Tuggle's sentencing jury heard both property and improperly admitted evidence.(7) Considering that evidence within the parameters of Virginia's statutory scheme, the jury found two aggravating circumstances: vileness of the crime and future dangerousness of the defendant.(8) The improperly admitted evidence about Tuggle's future dangerousness(9) was unrelated to the jury's decision that the murder was vile.(10) Since a Virginia capital sentence can stand even if supported by only one aggravating circumstance, the improper evidence was indeed harmless because it invalidated only the "future dangerousness" aggravator.(11)

   As this case illustrates, there are times where an appellate court should perform harmless error analysis of Ake errors. Rather than automatically going through a complete resentencing, the reviewing court should decide whether the error infected the jury's deliberation so thoroughly that it caused an unconstitutional defect in the trial.

   The saga of Lem Tuggle came to a close on December 12, 1996. Twelve years after his conviction for the rape and murder of Jessie Geneva Havens, Tuggle was executed by the state of Virginia.(12)

2. BACKGROUND

   1. AGGRAVATING CIRCUMSTANCES IN CAPITAL CASES SINCE FURMAN V. GEORGIA

      When the United States Supreme Court invalidated the Georgia and Texas capital punishment statutes in 1972,(13) it in effect abolished capital punishment as it then existed in the United States.(14) The Furman Court held, in a one paragraph per curiam opinion, that the challenged state laws constituted cruel and unusual punishment(15) as prohibited by the Eighth Amendment to the United States Constitution.(16) The essence of the concurring opinions(17) was that the language of the statutes was overly broad.(18) In particular, the Court pointed to the statutes' potential for allowing (1) too many or too few capital sentences and (2) capital sentences out of proportion with the crime.(19)

      1. Overinclusion and Underinclusion

         The justices objected to the statutes' failure to limit or channel the sentencer's discretion.(20) Because the statutory parameters for imposing the death penalty were vague,(21) sentencing bodies exercised a great deal of discretion in their decision-making and invoked the punishment inconsistently.(22) The result was two common problems with capital sentences: overinclusion and underinclusion.(23) Overinclusion occurs when nearly any killing can qualify for capital punishment.(24) Underinclusion is the imposition of the death penalty inconsistently from one trial to the next, resulting in less harsh penalties for equally heinous crimes.(25) When the Court upheld some revised capital statutes four years later, it reiterated that overinclusion and underinclusion create arbitrary and capricious results that violate the fundamental notions of fairness protected by the Eighth Amendment.(26)

      2. Proportionally

         The Court also banned death sentences unless the defendant was a major participant in a dangerous felony and exhibited a reckless indifference to human life; that is, the punishment had to be proportional to the crime.(27) At one point, the Court construed the proportionality doctrine so narrowly that only those who had killed, attempted to kill or intended to kill another human were eligible for the death penalty.(28) However, between 1977 and 1994, states executed ten non-triggermen who were convicted of felony murder.(29) The Supreme Court allows felony murder to qualify as a capital crime whether the accomplice kills intentionally or accidentally.(30)

      3. The States' Response to Furman

         States reacted to Furman by revising their statutes to address the problems of underinclusion, overinclusion, and proportionality. The new capital statutes fisted aggravating circumstances that, if present, designated certain killings as capital crimes.(31) Because the statutes required the presence of aggravating circumstances before the death penalty could be considered, they limited the discretion of juries and judges and thus solved the inclusion problems.(32) The statutory parameters also solved the proportionality discrepancies by setting objective standards for prosecutors to determine whether to seek the death penalty.(33) The legislative purpose, in accord with Furman, was to single out a subclass of killers who, because of the brutality of their crimes, society deemed deserving of death.(34)

         In 1976, the Supreme Court upheld the first of these new statutes in Gregg v. Georgia,(35) thereby reinstating the death penalty as an acceptable sentence. The Georgia statute under which Gregg was convicted provided the sentencer with clear and objective standards that the Court believed would place reasonable limitations on the sentencer's discretion.(36) Justices Marshall and Brennan, however, held fast to the view that death is per se cruel and unusual punishment.(37)

      4. Development of the Aggravating Circumstances Doctrine

         Since Gregg, the Court has addressed the aggravating circumstances doctrine several times. Two of these decisions, Zant v. Stephens(38) and Godfrey v. Georgia,(39) illustrate the Court's present jurisprudence regarding this issue. Stephens concerned a Georgia defendant found guilty of beating, robbing, kidnapping and murdering a man who interrupted Stephens and an accomplice as they were committing a burglary.(40) The jury found three statutory aggravators: prior conviction of a capital felony; a substantial history of serious assaultive convictions; and commission of the offense while an escapee from jail.(41) Stephens appealed, arguing first that Georgia's "nonweighing"(42) scheme did not comport with Furman because it allowed too much discretion to the sentencer.(43) The Court disagreed, holding that the nonweighing statutory scheme added some measure of objectivity to the sentencer's decision-making process, which is all that Furman required.(44)

         Second, Stephens argued that his sentence could not stand because after the jury imposed death, an appellate court deemed one of the aggravating circumstances that supported the sentence was unconstitutional.(45) Specifically, while Stephens' case was on appeal, the Georgia Supreme Court decided that "prior convictions for assault" did not adequately narrow a sentencer's evaluation of a murder.(46)

         Nevertheless, the Court allowed Stephens' sentence to stand.(47) Though the jury instructions included a direction to consider the invalid circumstance in determining Stephens' sentence, the jury relied on two other valid aggravating circumstances which were sufficient by themselves to support the death sentence.(48)

         A second Georgia case illustrates that even when the aggravator passes constitutional muster, the court and the jury can misapply it. In Godfrey v. Georgia, the defendant shot and killed his estranged wife and mother-in-law.(49) Both women died instantly from shotgun blasts.(50) During the trial, the prosecutor stated three times that these murders involved no allegation of torture or aggravated battery.(51) The jury, however, returned death sentences for both killings based on its finding that they were "outrageously or wantonly vile, horrible and inhuman."(52) Both the trial judge and the Georgia Supreme Court affirmed the sentence.(53)

         The Supreme Court reversed.(54) The Georgia statute, which the Supreme Court had upheld against a constitutional challenge of vagueness just four years earlier,(55) allowed a death sentence if the offense included the aggravating circumstance of being "outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim."(56) In the earlier case, the Supreme Court ruled that this statutory aggravating circumstance met the narrowing requirement of Furman(57) as long as the Georgia Supreme Court did not rely on overly broad constructions of the language when applying it.(58)

         In Godfrey, however, the Supreme Court found that the Georgia Supreme Court had not "implie[d] any inherent restraint on the arbitrary and capricious infliction of the death sentence" when it affirmed that the offense was only "outrageously or wantonly vile, horrible or inhuman."(59) Because the sentencing instructions given by the trial judge did not sufficiently channel the jury's efforts, "the Jury's interpretation of [the vileness aggravator defined in the statute could] only be the subject of sheer speculation."(60) The Court found that "standardless and unchanneled imposition of death sentences in the uncontrolled discretion of a basically uninstructed jury in this case was in no way cured by the affirmance of those sentences by the Georgia Supreme Court."(61)

   2. THE AKE ERROR

      When a trial court denies an indigent defendant access to or funds for certain expert assistance in a capital case, that court violates the defendant's constitutional right to a fair trial as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution.(62) A key part of the State's duty to provide a fair trial for indigent defendants includes payment or arrangement for certain "basic tools" that have become integral parts of every capital trial.(63) In Ake v. Oklahoma,(64) the Court faced the question of whether an independent psychiatrist is one of those basic tools when the defendant's sanity might be an issue...