PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

 

No. 94-5029 D. C. Docket No. 90-6558-CIV-JCP

DEAN DELGUIDICE,

Petitioner-Appellant,

versus

HARRY K. SINGLETARY,

Respondent-Appellee.

 

Appeal from the United States District Court

for the Southern District of Florida

 

(May 24, 1996)

Before ANDERSON and BARKETT, Circuit Judges, and YOUNG*, Senior

District Judge.

PER CURIAM:

_________________________

* Honorable George C. Young, Senior U.S. District Judge for the

Middle District of Florida, sitting by designation.
 1 A second person was struck during the course of this

melee, which resulted in the jury finding Delguidice guilty as to

the second count of battery.

2

Dean Delguidice, a Florida prison inmate convicted in 1988 of

attempted manslaughter and two counts of battery, appeals the district

court's judgment denying his petition for writ of habeas corpus brought

pursuant to 28 U.S.C.A. § 2254. Delguidice argues that the state trial

court erred in admitting the testimony of a psychologist because his

counsel was not sufficiently notified in advance of the scope and nature

of the examination giving rise to the psychologist's testimony. We

reverse and remand.

I. FACTS

The issues in this appeal involve two overlapping criminal

prosecutions of Delguidice. The charges in this case (hereinafter "the

instant case") arose on May 8, 1987, when Delguidice attacked a

department store security guard.1

 The information charging Delguidice

in the instant case was filed June 1, 1987; counsel for Delguidice filed a

notice of reliance on the insanity defense on July 23, 1987.

Thereafter, in September 1987, Delguidice was tried and convicted

in an unrelated criminal case (hereinafter "the second case"). Delguidice

was represented by different counsel in the second case. At the request
 2 Delguidice's counsel in the second case received notice

of the examination in open court when the trial judge directed

that Delguidice undergo a competency exam for sentencing.

 3 Specifically, Dr. Ceros-Livingston was sent documents

which led her to believe she was to examine Delguidice as to both

cases. She was sent a notice to examine Delguidice as to his

competency (for sentencing purposes in the second case). For

some unknown reason, she was also sent a probable cause affidavit

and booking sheet which indicated that she was to examine

Delguidice as to the instant case. Consequently, she examined

Delguidice both as to his competency to be sentenced in the

second case and as to his sanity at the time of the offense

giving rise to the instant case.

 4 It is clear, however, that Delguidice's counsel in the

instant case had a copy of the doctor's report well before the

trial.

3

of Delguidice's father, on November 30, 1987, a clinical psychologist, Dr.

Ceros-Livingston, was appointed to determine Delguidice's competency

to be sentenced in the second case. It is undisputed that Delguidice's

attorney in the second case had notice of the court's order for the

examination by Dr. Ceros-Livingston.2 On December 5, 1987, when Dr.

Ceros-Livingston conducted the examination pursuant to the court's

order in the second case, she was under the misapprehension that she

was to evaluate Delguidice with respect to both pending cases.3

 She

prepared a report of her findings accordingly. Delguidice's counsel in

the instant case was not notified in advance of the examination.4

 

At trial in the instant case, Delguidice interposed an insanity

defense. Dr. Arnold Stillman testified for the defense in support of
 5 The District Court of Appeal did, however, order that

Appellant's sentence as a habitual offender be reversed.

Delguidice v. State, 554 So.2d 35 (Fla. App. 4 Dist. 1990). 

4

Delguidice's insanity theory. He testified that Delguidice suffered from

"organic brain syndrome," which resulted in episodic attacks of violence

over which Delguidice had no control. Dr. Stillman concluded that

Delguidice was insane at the time of the offense and that he thought he

was acting in self-defense. 

The trial court in the instant case, over counsel's objection, allowed

Dr. Ceros-Livingston to testify in rebuttal of Delguidice's insanity

defense. She testified that although Delguidice believed he was

defending himself at the time of the assault in the instant case, he was

legally sane at that time. In Dr. Ceros-Livingston's opinion, Delguidice

knew right from wrong and understood the consequences of his actions

at the time of the instant offense. Dr. Ceros-Livingston was the only

witness who testified in opposition to Delguidice's insanity defense. 

As noted, Delguidice was convicted and the trial court entered

judgment against him. The Florida Fourth District Court of Appeal

affirmed his conviction (rejecting the Sixth Amendment challenge at

issue here).5

 Delguidice's petition for writ of habeas corpus in the

District Court for the Southern District of Florida, which raised his Sixth

Amendment constitutional challenge, was denied. This appeal ensued.
 6 There has been no argument that the examination at

issue here was not a "critical stage." Thus, the State

effectively concedes this point.

5

II. DISCUSSION

Delguidice asserts that the district court erred in denying his

habeas corpus petition, i.e., it erred in concluding that the admission of

Dr. Ceros-Livingston's testimony at trial did not violate Delguidice's Sixth

Amendment right to consultation with counsel. Delguidice contends

that, pursuant to Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.

2d 359 (1981), and its progeny, when counsel is not properly notified of a

psychiatric evaluation, use of the results of that evaluation violates the

defendant's Sixth Amendment right to consultation with counsel.

A criminal defendant has a Sixth Amendment right to assistance of

counsel before submitting to a pretrial psychological examination that

represents a "critical stage" of that defendant's prosecution. Smith, id.

at 1876. See also Godfrey v. Kemp, 836 F.2d 1557, 1563-64 (11th Cir.),

cert. denied, 487 U.S. 1264, 109 S.Ct. 27 (1988).6 In Smith, the Court held

that once a defendant is formally charged, his Sixth Amendment right to

counsel precludes such an examination without first notifying counsel as

to its scope and nature. Smith, 101 S.Ct. at 1877; Powell v. Texas, 492

U.S. 680, 109 S.Ct. 3146, 3148 (1989). 

In Smith, the sentencing jury evaluated the defendant's future

dangerousness in deciding whether to impose the death penalty. Smith,
6

101 S.Ct. at 1870. The defendant had been interviewed by a psychiatrist

to determine whether he was competent to stand trial. Id. At the

sentencing hearing, however, the psychiatrist testified that the defendant

constituted a continuing threat to society. Id. at 1871. The defendant's

counsel were not aware in advance that the examination would include

an inquiry into defendant's future dangerousness, and the Court

concluded that the defendant had not received the opportunity to

discuss with his counsel the examination or its scope. Id. 1876-77. The

Court employed the following rationale for its conclusion that the

defendant's Sixth Amendment rights had been violated: 

It is central to [the Sixth Amendment] principle that in addition to

counsel's presence at trial, the accused is guaranteed that he need

not stand alone against the State at any stage of the prosecution,

formal or informal, in court or out, where counsel's absence might

derogate from the accused's right to a fair trial.

Id. at 1876 (quotation omitted); see also United States v. A.R., 38 F.3d

699, 704 (3d Cir. 1994). 

In sum, the Sixth Amendment right to counsel requires that

counsel be given advance notice of the scope and nature of a

psychological examination so that counsel can discuss with the client

the advisability of undergoing the examination and give other

appropriate advice. Buchanan v. Kentucky, 483 U.S. 402, 424-25, 107

S.Ct. 2906, 2918-19 (1987); Smith, 451 U.S. at 469-71, 101 S.Ct. at 1876-77. 

It is clear that Delguidice's counsel in the instant case had no advance
 7 The State notes that counsel for Delguidice in the

instant case knew about the examination before trial and,

accordingly, had sufficient time to prepare an effective cross

examination. The Supreme Court cases explaining the contours of

Smith, however, make clear that the purpose of the notification

requirement is to afford counsel the opportunity to consult with

the client prior to the examination. See Smith, 451 U.S. at 469-

71, 101 S.Ct. at 1876-77. Nothing in Smith or its progeny

suggests that notification after the examination but prior to

trial satisfies the Sixth Amendment concerns espoused in those

cases; indeed, such notification forces a defendant to "stand

alone against the state" at precisely a time the Supreme Court

has held he need not.

 8 Because we find that the notice given was

constitutionally inadequate, we need not decide whether

Delguidice's Sixth Amendment rights in the instant case could

have been satisfied by adequate notice to counsel in the second

case. 

7

notice of the psychological examination by Dr. Ceros-Livingston.7 

The State's only argument is that the examination was initiated at

the request of Delguidice's father, that Delguidice was represented by

counsel (albeit different counsel) in the second case at the time the Court

ordered the competency examination, and that this counsel knew about

the examination. Thus, the State argues that Delguidice is not entitled to

relief. 

The State's position is essentially that notice need not have been

given to counsel in the instant case because Delguidice was represented

in the second case and that counsel was notified that an examination

would take place. The problem with the State's argument is its failure to

focus on whether counsel in the second case was notified as to the

scope of the examination.8

 Although Delguidice's counsel in the second
 9 These facts are easily distinguishable from Magwood v.

Smith, 791 F.2d 1438 (11th Cir. 1986). In Magwood, two

physicians were appointed at the request of defense counsel to

determine defendant's competency to stand trial. Later, these

physicians testified at trial to rebut defendant's insanity

defense. Id. at 1441. Unlike the instant case, however, the

physicians limited their testimony at trial to only defendant's

competency to stand trial; neither expressed an opinion as to

defendant's sanity at the time of the offense. Id. at 1442. The

court expressly noted that this differed from the situation in

Smith, supra. Magwood, 791 F.2d at 1442. 

8

case was aware in advance that Delguidice was to be examined as to his

competency for sentencing, he had no advance notice at all that Dr.

Ceros-Livingston was also going to examine Delguidice on the separate

issue of Delguidice's sanity. The record reveals that at a hearing in open

court before sentencing in the second case, Delguidice's father

requested that Delguidice be examined for competency with respect to

sentencing. Delguidice's counsel in the second case was present. The

trial court agreed and ordered the same. However, the documents which

were sent to Dr. Ceros-Livingston by Court Projects included the

booking sheet and probable cause affidavit relating to the instant case. 

These documents led Dr. Ceros-Livingston to believe that she was

expected to examine Delguidice not only for competency for sentencing

in the second case, but also for possible insanity at the time of the crime

at issue in the instant case. There is no evidence in the record

suggesting that counsel for Delguidice in the second case had any

advance notice that the examination by Dr. Ceros-Livingston would

exceed the scope contemplated, i.e., competency in the second case.9
9

The Supreme Court case law is clear that, under the Sixth

Amendment, counsel must have advance notice not only of the fact of an

examination but also of the scope of the examination. Indeed, that was

the precise matter at issue in Smith. There, it was possible that defense

counsel did have advance notice of an examination relating to

competency to stand trial, but was not notified in advance that the

examination would encompass the issue of future dangerousness. 

Defense counsel, however, were not notified in advance that

the psychiatric examination would encompass the issue of

their client's future dangerousness.[fn15]

[fn15] It is not clear that defense counsel were even informed

prior to the examination that Dr. Grigson had been appointed

by the trial judge to determine respondent's competency to

stand trial. 

451 U.S. at 471 and n.15, 101 S.Ct. at 1877 and n.15. Accordingly, the

Court held that by exceeding the scope of the noticed examination, the

defendant's Sixth Amendment right to counsel had been violated: 

"Respondent was denied the assistance of his attorneys in making the

significant decision of whether to submit to the examination and to what

end the psychiatrist's findings could be employed." Id. at 470-71, 101

S.Ct. at 1877. See also Vanderbilt v. Collins, 994 F.2d 189, 198 (5th Cir.

1993) (holding that Sixth Amendment violated when examination

encompassed more than its intended scope). 

Similarly, in Buchanan, the Court indicated that defense counsel
 10 The Court went on to conclude that Buchanan's Sixth

Amendment rights had not been violated because his counsel had

been notified about both the examination and the scope of the

examination. Id. at 2919. The problem in Buchanan was that the

state used the results of this examination (an examination about

which counsel was fully informed) in a way not anticipated by

counsel. Id. at 2918 ("Petitioner attempts to bring his case

within the scope of Smith by arguing that, although he agreed to

the examination, he had no idea, because counsel could not

anticipate, that it might be used to undermine his 'mental

status' defense."). The Court thus noted that although the

effectiveness of counsel's consultation depended, in part, on an

awareness of the uses to which the examination could be put,

counsel should have been able to anticipate these uses. By

contrast, in this case, Delguidice's counsel in the second case

was not informed about the scope and nature of the examination;

thus, he was denied the opportunity to use his expertise to

anticipate potential uses because the State failed to discharge

its obligation to give him advance notice of the scope of the

examination. 

 11 The State does not argue that Delguidice's claim is

barred by Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060 (1989),

and we decline to raise the issue sua sponte. See Collins v.

Youngblood, 497 U.S. 37, 40-41, 110 S.Ct. 2715, 2718 (1990)

10

must be given advance notice "about the scope and nature" of the

examination to enable counsel to consult with client. 483 U.S. at 424, 107

S.Ct. at 2919. The Court in Buchanan emphasized that the nature of the

Sixth Amendment right at issue is the consultation with counsel, not the

uses to which the psychological examination is later put. Id., 107 S.Ct. at

2918-19. "Such consultation, to be effective, must be based on counsel's

being informed about the scope and nature of the proceeding."10 Id., 107

S.Ct. at 2919.

Because no counsel for Delguidice had advance notice that the

scope of the examination would include Delguidice's possible insanity,

we conclude that Delguidice's Sixth Amendment rights were violated.11
(holding that the Teague rule is not "jurisdictional" in the

sense that the court must raise and decide the issue sua sponte). 

11

Our conclusion that the trial court erred in admitting the testimony

of Dr. Ceros-Livingston in violation of Delguidice's Sixth Amendment

rights does not end our inquiry. We must also decide whether the error

was harmless. Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792, 1797-98

(1988) (adopting harmless error rule). The Court recently set forth a new

harmless error standard for habeas review of trial type errors. Brecht v.

Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 1722 (1993). "The test . . . is

whether the error 'had substantial and injurious effect or influence in

determining the jury's verdict.'" Id. (quoting Kotteakos v. United States,

66 S.Ct. 1239 (1993)). We follow the Fifth Circuit in applying the Brecht

standard to Smith errors. See Vanderbilt v. Collins, 994 F.2d 189, 198-99

(5th Cir. 1993). Cf. Horsley v. Alabama, 45 F.3d 1486, 1492 n. 11 (11th

Cir.) , cert. denied, ___ U.S. ___, 116 S.Ct. 410 (1995) ("We think the

Supreme Court's rationale (advancing comity, federalism, finality, and

the importance of the trial) for the Brecht rule reaches almost all federal

habeas cases . . . ."). 

After careful review of the record, we conclude that the error was

not harmless. Dr. Ceros-Livingston's testimony was the State's only

rebuttal of Delguidice's insanity defense, which was supported by the

testimony of Dr. Stillman and by a lay witness who testified that
12

Delguidice looked enraged ("not normal") during the commission of the

instant offense. In light of the evidence supporting Delguidice's insanity

defense, and in the absence of other evidence rebutting Delguidice's

insanity defense, we conclude that the admission of Dr. CerosLivingston's testimony had a substantial and injurious effect or influence

in determining the jury's verdict.

III. CONCLUSION

Accordingly, the judgment of the district court is reversed, and the

case is remanded to the district court with instructions that the writ of

habeas corpus, appropriately conditioned, should be granted.

REVERSED and REMANDED.