Page v. Lee

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
GEORGE FRANKLIN PAGE, 
Petitioner-Appellant,
v.  No. 02-23
R. C. LEE, Warden, Central Prison,
Respondent-Appellee.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
James A. Beaty, Jr., District Judge.
(CA-99-1060-1)
Argued: February 27, 2003
Decided: July 28, 2003
Before LUTTIG, WILLIAMS, and GREGORY, Circuit Judges.
Affirmed in part and dismissed in part by published opinion. Judge
Luttig wrote the opinion, in which Judge Williams joined. Judge
Gregory wrote an opinion concurring in the judgment.
COUNSEL
ARGUED: Walter Lamar Jones, CLIFFORD, CLENDENIN,
O’HALE & JONES, L.L.P., Greensboro, North Carolina, for Appel-
lant. Valerie Blanche Spalding, Special Deputy Attorney General,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellee. ON BRIEF: William G. Causey, Jr., High
Point, North Carolina, for Appellant. Roy Cooper, Attorney General
2 PAGE v. LEE
of North Carolina, NORTH CAROLINA DEPARTMENT OF JUS-
TICE, Raleigh, North Carolina, for Appellee.
OPINION
LUTTIG, Circuit Judge:
Petitioner-appellant George Page challenges the validity of his con-
viction and death sentence, imposed by a North Carolina court for the
shooting death of a North Carolina police officer. He claims that the
state trial court erred by denying his request for appointment of a
mental health expert, in violation of the Due Process Clause as eluci-
dated in Ake v. Oklahoma, 470 U.S. 68 (1985), and by denying his
request to interview jurors during voir dire as to their understanding
of the concept of "life without parole," in violation of principles
established in Kelly v. South Carolina, 534 U.S. 246 (2002), and Sim-
mons v. South Carolina, 512 U.S. 154 (1994). As no judge on the
panel believes that petitioner has made a substantial showing of the
denial of a constitutional right as to his Simmons claim, no certificate
of appealability on this claim is issued, and the appeal as to that issue
is dismissed. See 28 U.S.C. § 2253(c)(1). We do grant a certificate of
appealability on petitioner’s Ake claim. We conclude, however, that
the district court did not err in rejecting that claim, and therefore
affirm its judgment as to that issue.
I.
The relevant facts underlying petitioner’s conviction for first
degree murder and related other crimes are succinctly set forth in the
North Carolina Supreme Court’s opinion affirming petitioner’s con-
viction and sentence on direct appeal:
[A]t around 8:00 a.m. on 27 February 1995, Sandra
McGill was sitting in her apartment when she heard a loud
explosion coming from the bar counter. Because she was
blind, McGill called maintenance personnel, who discovered
that a bullet had gone through her fish tank. The shot was
fired by defendant George Franklin Page, who was pointing
PAGE v. LEE 3
a high-powered rifle out the window of his apartment
directly opposite McGill’s building. He fired another shot
when the maintenance person, Ellis Hollowell, went outside
to take a closer look at a hole in the vertical blinds; this shot
hit the wall just above Hollowell’s head. Shortly after 9:00
a.m. defendant fired a third shot into a moving vehicle, a
cable van.
Police Officers E.A. Newsome, A.N. Swaim, M.R. Bol-
linger, and J.W. McKenzie of the Winston-Salem Police
Department arrived after 9:00 a.m. to inspect McGill’s
apartment. While Swaim and Newsome were proceeding to
defendant’s building to question the residents, defendant
fired two more shots. While the officers radioed for help, he
again fired his rifle, and the officers all took cover. Several
testified that they saw defendant moving from window to
window.
Officers John Pratt and Stephen Amos arrived at the
scene and drove directly to defendant’s building. Amos was
at the hood of the car when defendant fired another shot that
went through the patrol car’s back window, then hit Amos
in the chest. Pratt, along with officer Steven Sigmon and
others, arrived and took Amos to the ambulance. Sigmon
testified that he saw the muzzle flash and heard a shot that
passed ten feet above his head.
Around 9:30 a.m. defendant called his ex-girlfriend,
Tamara Mitchell, and stated that his apartment was sur-
rounded by police officers and that he thought he had shot
someone. At 10:00 a.m. Sergeant Marble, a crisis negotiator,
called defendant. After discussion, defendant said he wanted
to speak with his clinical psychologist, Dan Pollock, and his
psychiatrist, Jason Crandell. Pollock spoke with defendant
and implored him to surrender. . . . Negotiations continued
until 11:45 a.m. when defendant agreed to go, without
weapons, with Crandell and Marble to Pollock’s office.
Defendant was taken into custody shortly thereafter.
State v. Page, 346 N.C. 689, 693-94 (1997).
4 PAGE v. LEE
Petitioner was, for some time before and after the offense, being
treated by both a psychiatrist and a psychologist for various disorders.
At a pre-trial hearing on March 7, 1996, petitioner, according to the
North Carolina Supreme Court, "moved for appointment of a third
expert, a forensic psychiatrist, arguing that this type of expert was
better equipped than a clinical psychologist to prepare a legal
defense." State v. Page, 346 N.C. at 696. There was no dispute that
petitioner’s sanity at the time of the offense would be an issue at trial.
The trial court, however, denied this motion. It noted that petitioner
was being treated by two mental health specialists (a psychiatrist and
a psychologist), that these specialists were available to aid petitioner,
and thus that there was no need for a third such expert. On direct
appeal, petitioner "contend[ed] that the trial court erred in providing
the State with access to a forensic psychiatrist while denying his
request for the same type of expert." Id. The North Carolina Supreme
Court concluded, applying North Carolina’s interpretation of Ake,
that, "[g]iven the facts before the trial court when it made its ruling,"
petitioner "did not demonstrate a particularized need for a forensic
psychiatrist or a reasonable likelihood that such an expert would
materially assist him in the preparation and the presentation of his
case." Id. at 697. Thus, the North Carolina Supreme Court held that
the trial court did not err, and it affirmed petitioner’s conviction and
sentence.
Petitioner then brought his petition for a writ of habeas corpus in
federal district court, again raising his Ake claim. The district court
concluded that the North Carolina Supreme Court’s adjudication of
the claim was neither contrary to nor an unreasonable application of
Ake, and denied the petition. Petitioner thereafter moved for a certifi-
cate of appealability with this court. Because Judge Gregory con-
cluded that, as to this issue, petitioner made a substantial showing of
the denial of a constitutional right, we issue a certificate of appeala-
bility on petitioner’s claim under Ake. And we now address the merits
of that claim.
PAGE v. LEE 5
II.
A.
As the petition for writ of habeas corpus in this case was filed on
December 3, 1999, after the April 24, 1996 effective date of the
Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"),
Pub. L. No. 104-132, 110 Stat. 1214, AEDPA applies to the federal
courts’ adjudication of petitioner’s claim. See Beck v. Angelone, 261
F.3d 377, 380 n.3 (4th Cir. 2001). In particular, since the North Caro-
lina Supreme Court addressed the merits of petitioner’s Ake claim on
direct appeal, 28 U.S.C. § 2254(d) applies.1 Section 2254(d) bars the
granting of habeas relief upon any claim adjudicated on the merits in
state court unless the petitioner can show that the state court’s deci-
sion was either "contrary to" or involved an "unreasonable application
of, clearly established Federal law, as determined by the Supreme
Court of the United States," or an "unreasonable determination of the
facts" given the evidence before the state court.
B.
1.
In Ake v. Oklahoma, the Supreme Court addressed "whether the
Constitution requires that an indigent defendant have access to the
psychiatric examination and assistance necessary to prepare an effec-
tive defense based on his mental condition, when his sanity at the
time of the offense is seriously in question." 470 U.S. at 70. The
defendant in that case, Ake, was arrested and charged with murdering
two individuals and wounding their children. Although his behavior
at the arraignment was "so bizarre that the trial judge, sua sponte,
ordered him to be examined by a psychiatrist" to determine whether
1
Petitioner also brought his Ake claim in his post-conviction Motion
for Appropriate Relief in North Carolina court. The North Carolina court
rejected this claim on the basis of N.C.G.S. § 15A-1419(a)(2), conclud-
ing that the claim had already been resolved on direct appeal. We have
previously noted that N.C.G.S. § 15A-1419(a)(2) is not a state procedural
bar that prevents federal habeas review of the claim. See Smith v. Dixon,
996 F.2d 667, 674 n.10 (4th Cir. 1993).
6 PAGE v. LEE
he needed to be committed, id. at 71, the trial court denied his attor-
ney’s request for the appointment of a psychiatrist to aid the defense.
At trial, Ake attempted to use the testimony of the state psychiatrists
who had treated him in the hospital to establish his insanity defense,
but the prosecution "asked each of these psychiatrists whether he had
performed or seen the results of any examination diagnosing Ake’s
mental state at the time of the offense, and each doctor replied that
he had not. As a result, there was no expert testimony for either side
on Ake’s sanity at the time of the offense." Id. (emphasis in original).
The prosecution used this testimony in the sentencing phase as well,
to establish Ake’s future dangerousness. The jury convicted Ake and
imposed a death sentence.
On appeal, Ake challenged as a violation of due process the court’s
refusal to provide a court-appointed psychiatrist. The Supreme Court
sustained the challenge: "We therefore hold that when a defendant
demonstrates to the trial judge that his sanity at the time of the offense
is to be a significant factor at trial, the State must, at a minimum,
assure the defendant access to a competent psychiatrist who will con-
duct an appropriate examination and assist in evaluation, preparation,
and presentation of the defense." Id. at 83. The Court had no trouble
determining that Ake had established to the trial court that his mental
state at the time of the offense would be a substantial factor in his
case, and thus concluded that Ake was entitled to the assistance of a
psychiatrist. See id. at 86-87.
Subsequent to the Supreme Court’s decision in Ake, the North Car-
olina Supreme Court set forth the appropriate test by which trial
courts in that state are to determine whether expert witnesses should
be appointed. Under that test, "[i]n order to make a threshold showing
of specific need for the expert sought, the defendant must demonstrate
that: (1) he will be deprived of a fair trial without the expert assis-
tance, or (2) there is a reasonable likelihood that it will materially
assist him in the preparation of his case." State v. Moore, 321 N.C.
327, 335 (1988). "In determining whether the defendant has made the
requisite showing of his particularized need for the requested expert,
the court ‘should consider all the facts and circumstances known to
it at the time the motion for psychiatric assistance is made.’" Id. at
336 (quoting State v. Gambrell, 318 N.C. 249, 256 (1986)). This test
PAGE v. LEE 7
was applied by the North Carolina Supreme Court in evaluating peti-
tioner’s Ake claim on direct appeal. See Page, 346 N.C. at 696-97.
North Carolina’s test, considered in the abstract, is surely a reason-
able interpretation of Ake. Ake does not mandate that the trial court
be omniscient, nor does it require the trial court to divine without
direction what expert the defendant wishes, nor why such an expert
is needed. The phrase within the holding of Ake "assure the defendant
access to a competent psychiatrist" is of particular significance. If it
appears to the trial court that the defendant already has access to a
competent psychiatrist who can assist the defense, it follows that such
access has been "assure[d]," and thus that the State need do no more.
It is thus not unreasonable to conclude, as has the Eleventh Circuit,
that "a defendant must show the trial court that there exists a reason-
able probability both that an expert would be of assistance to the
defense and that denial of expert assistance would result in a funda-
mentally unfair trial." Moore v. Kemp, 809 F.2d 702, 712 (11th Cir.
1987). Or, phrased another way, Ake, reasonably read, permits the
dispositive inquiry on appellate review to be, "having heard petition-
er’s explanation, should the trial judge have concluded that unless he
granted his request petitioner would likely be denied an adequate
opportunity fairly to confront the State’s case and to present his
defense?" Id. at 710. This formulation of the question facing a review-
ing court is consistent with North Carolina’s approach to handling the
appointment of expert witnesses to indigent defendants.
As the North Carolina Supreme Court has formulated a legal test
that represents a reasonable reading of Ake, we now turn to the North
Carolina Supreme Court’s application of this test to the case before
us.
2.
Petitioner has presented to this court what can be understood as
two distinct arguments, one, that Ake mandates that petitioner have
access to a forensic mental health expert (as opposed to a non-
forensic expert) when a defendant has shown that his sanity will be
a significant factor at the trial, and two, that the availability of Drs.
Crandell and Pollock to testify for petitioner did not satisfy the State’s
duty under Ake to provide access to a mental health expert, as the two
8 PAGE v. LEE
experts could not or would not perform all the tasks (including the
non-testimonial tasks) required of a court-appointed defense expert
witness, as envisioned by North Carolina’s interpretation of Ake.2 See
Gambrell, 318 N.C. at 259 (defense mental health expert witness will
"assist[ ] defendant in evaluating, preparing, and presenting his
defense in both the guilt and sentencing phases"). For the reasons that
follow, neither of these arguments is availing to petitioner.3
2
Petitioner did not make this second argument, nor anything approxi-
mating this argument, to the North Carolina Supreme Court, as an exami-
nation of his brief to that court reveals. See Def-App’s Brief, Rec. on
App. Vol. 6, Ex. C, at 6-15 (contending only that petitioner’s expert wit-
nesses were incompetent because, one, Dr. Pollock was easily impeach-
able, and two, that neither witness was forensically trained).
3
A magistrate judge was assigned to petitioner’s case when it was
before the federal district court. Within ten days of submission of the
magistrate judge’s recommendation, petitioner filed his objections to the
magistrate judge’s recommendation. The sum total of petitioner’s written
objections to the recommendation of the magistrate judge was as follows:
Now comes petitioner, by and through undersigned counsel,
who respectfully objects to the recommendations of the United
States Magistrate Judge as required by Rule 72(b) of the Federal
Rules of Civil Procedure.
As undersigned counsel is unaware of any new authority for
the issues raised in the brief in support of the habeas petition
counsel relies on the argument presented in that brief.
Respectfully submitted this the 14th day of March, 2002.
Pet.’s Objections to Recomm. of Magis. Jud., Rec. on App. Vol. 1, Doc-
ument No. 20.
Federal Rule of Civil Procedure 72 (b) states that, "[w]ithin 10 days
after being served with a copy of the recommended disposition, a party
may serve and file specific, written objections to the proposed findings
and recommendations." (emphasis added). Petitioner obviously did not
satisfy the requirement of this Rule. As we have long held, the failure to
raise objections to a magistrate judge’s recommendations waives the
right to appellate review. See United States v. Schronce, 727 F.2d 91, 93-
94 (4th Cir. 1984). Although not yet specifically addressed by our circuit
in a published opinion, other circuits have held that the failure to raise
an objection "sufficiently specific to focus the district court’s attention
PAGE v. LEE 9
The first of these arguments is easily dismissed. Ake speaks only
of the aid of a "competent psychiatrist," not a "forensic" psychiatrist.
There is no suggestion in Ake that a non-forensic psychiatrist is "in-
competent" for purposes of aiding a defendant in preparing a defense
in which one’s sanity is at issue. Nor is it true that, as a matter of fact,
a non-forensic mental health expert is categorically "incompetent" to
assist a defendant. It is not unreasonable at all, then, to conclude that
Ake does not require a forensic psychiatrist, provided that the mental
health expert to which the defendant does have access is otherwise
"competent." Indeed, this is the only plausible reading of Ake.
Thus, because petitioner does not point to any evidence in the
record tending to show that Drs. Crandell and Pollock fell below this
standard of competency, the North Carolina Supreme Court’s refusal
to hold that the trial court erred in denying petitioner’s request for a
forensic mental health expert is clearly a reasonable application of
Ake.
The second argument is equally unavailing. As to this argument,
we need only look to the pre-trial hearing wherein the motion was
addressed and decided, to identify the arguments made to the court by
petitioner and the composite of information that was before the trial
court when it ruled on the motion for appointment of the additional
mental health expert.
At that hearing, the prosecutor initiated the discussion on the
motion for appointment with the following:
on the factual and legal issues that are truly in dispute" waives any appel-
late review. United States v. 2121 E. 30th Street, 73 F.3d 1057, 1060
(10th Cir. 1996). In particular, a general objection of the kind advanced
by petitioner is insufficient to avoid waiver. See id.; Howard v. Secretary
of Health & Human Servs., 932 F.2d 505, 508-09 (6th Cir. 1991); Loc-
kert v. Faulkner, 843 F.2d 1015, 1019 (7th Cir. 1988) ("Just as a com-
plaint stating only ‘I complain’ states no claim, an objection stating only
‘I object’ preserves no issue for review."); Goney v. Clark, 749 F.2d 5,
6-7 (3d Cir. 1984). Although, for the reasons that appear, petitioner’s
arguments are unavailing, petitioner’s failure to object to the magistrate
judge’s recommendation with the specificity required by the Rule is,
standing alone, a sufficient basis upon which to affirm the judgment of
the district court as to this claim.
10 PAGE v. LEE
The final motion that we want to hear today is a motion by
the defendant for a court to appoint a psychiatrist and/or
psychologist to assist them and I will just let Mr. Eubanks
[petitioner’s trial counsel] be heard. . . . He further has the
services of a private doctor, Dr. Jason Crandell, who’s
treated him for over a year, and Dr. Dan Pollock, who’s a
psychologist who I understand sees him practically every
week in the jail, although he’s not appointed and I’m not
sure whether he’s qualified to testify in court.
J.A. 201-202. Based upon this representation by the prosecution, it is
unquestionable that the trial court understood that petitioner already
"ha[d] the services of a private doctor" and "a psychologist" who
"sees him practically every week in the jail."
A short time later, petitioner’s trial counsel explained that the
motion for the additional appointment was made because it was
believed that petitioner’s two treating mental health experts would not
be "totally independent and impartial," because the State intended to
call them as witnesses:
Your Honor, Mr. Page — our information — the State is
using certain medical witnesses, I take it, to already have
them available. Dr. Crandell and Pollock have been — well,
it appears to me they will be State’s witnesses already. For
that reason, we believe we need the assistance of a psychol-
ogist and psychiatrist independent of either of those people
to review the medical records, which consists of boxes of
stuff, Judge, and advise us on what — you know, what their
findings might be. We would like to have somebody totally
independent and impartial.
J.A. 202.4 The third mental health expert was necessary, said trial
4
Of course, the mere fact that an expert might be called by the State
as a fact witness does not render him or her partial or "beholden to the
prosecution" as that term is used in Ake. 470 U.S. at 85; see J.A. 206
(prosecutor mentioning that State would possibly call both doctors as
they observed events surrounding the offense). A mental health expert is
PAGE v. LEE 11
counsel, to "advise [petitioner] on what . . . their findings might be"
after "a review of the medical records." Petitioner’s counsel did not
take any exception to the prosecutor’s statement that petitioner had
available the services of two mental health experts.
Later in the hearing, and tellingly, the following exchange
occurred:
THE COURT: I’m trying — in other words, it’s one
thing if you have no psychiatric witness
or no psychological witness and want
one, but I get the distinct impression
here that you know of at least one psy-
chiatrist and one psychologist who —
that the defendant intends to call or that
paragraph five wouldn’t be in this
motion.
MR. EUBANKS: That’s — all that’s true.
THE COURT: And, in essence, what you’re asking me
to do is appoint another one.
MR. EUBANKS: Yes.
J.A. 204 (emphasis added). At this point, again, it would appear to a
reasonable mind that the defendant was requesting a third expert who
would perform no tasks beyond those that were to be performed by
petitioner’s first two mental health experts.
At the conclusion of petitioner’s presentation, the trial court specif-
ically asked both parties if either had anything to add (thus giving
expected, amongst other tasks, to present testimony, to advise the defen-
dant’s attorney as to the viability of the insanity defense, and to assist in
preparation of cross-examination of State experts. See Ake, 470 U.S. at
82. None of these functions are inhibited if the expert in question also
happens to have observed some fact relevant to the case, independent of
his or her expert status.
12 PAGE v. LEE
petitioner yet another opportunity to present new arguments or to
object to anything the prosecutor or the court had said), to which peti-
tioner’s counsel stated "No, sir." J.A. 206. Given this total of informa-
tion, the trial court concluded:
Based upon the information brought out in argument and
the official records in this case, the Court finds the follow-
ing facts:
Number one, the defendant has available to him at this
time a psychiatric witness, to wit . . . Dr. Jason Crandell,
who was privately retained by the defendant and who has
been treating the defendant over an extended period of time
long before the present charges arose. No psychiatric wit-
ness — no other psychiatric witness is in a better position
to evaluate the defendant than his own psychiatrist who has
been examining him and treating him over an extended
period of time prior to this moment.
Next number, the defendant in a similar manner has had
the services of . . . Dr. Dan Pollock, a psychologist . . . who
has been privately retained by the defendant and has been
. . . evaluating the defendant over an extended period,
approaching nine years, prior to this moment. There is no
psychologist in a better position to have evaluated the defen-
dant than is Dr. Pollock, who is readily available.
...
The next number, it is apparent from the defendant’s own
documents that he has available at this very moment a psy-
chiatric witness and a psychological witness who have
treated the defendant over a long period of time and are
familiar with his mental and physical condition.
Next number, the defendant has failed to demonstrate to
the Court’s satisfaction the need for yet another psychiatric
witness or another psychological witness when it is apparent
to the Court that he has readily available to him at this time
PAGE v. LEE 13
both a psychiatrist and a psychologist who have treated him
over a long period of time and are familiar with his mental
state for some period of time prior to the fatal encounter and
prior to the trial of this action.
J.A. 207-08. At no point did petitioner object to any part of the court’s
findings, nor did he at any point present information contrary to this
finding and conclusion by the trial court.
To summarize, then, the trial court had before it a motion for the
appointment of a mental health expert, when petitioner already had
the actual and current assistance of two mental health experts, and the
only reason given by petitioner for why those two experts would be
insufficient was that the State would perhaps call them as fact wit-
nesses.
Petitioner did not contend (and does not now) that Ake requires the
appointment of a mental health expert by the State regardless of
whether the defendant has mental health experts, undoubtably
because Ake cannot possibly be read to require such. Ake does not
require the "appointment" of a mental health expert; it requires only
that the State "assure the defendant access to a competent [mental
health expert]" who will assist the defense. And this, only where the
defendant does not otherwise have a mental health expert who can
assist him.
Additionally, despite numerous opportunities to do so, petitioner
did not suggest in any way to the trial court that the two experts
would be unable to assist him in his defense, nor did he argue that
Drs. Pollock and Crandell should be, or needed to be, paid by the
State. Petitioner also did not suggest that the purpose for the requested
appointment was to provide any assistance that would not be provided
by Drs. Pollock and Crandell, and specifically, neither did he contend
that he needed a forensic mental health expert in particular.5
5
Until this very appeal, in fact, petitioner has pointed to no evidence
in the record that Drs. Pollock and Crandell did not act as the defense
experts that North Carolina contemplates they should, as required under
Ake. Even the simplest form of evidence, such as an affidavit on this
point from either expert, from trial counsel, or from petitioner himself is
absent from the record.
14 PAGE v. LEE
As it was entirely reasonable for the trial court, after "having heard
petitioner’s explanation," to conclude that petitioner would not "likely
be denied an adequate opportunity fairly to confront the State’s case
and to present his defense," Moore v. Kemp, 809 F.2d at 712, were
the requested motion to be denied, the North Carolina Supreme
Court’s holding that the trial court did not err in its denial of petition-
er’s motion for appointment of a third mental health expert neither
constitutes an unreasonable application of Ake nor is contrary to that
decision, the relief sought by petitioner is barred under 28 U.S.C.
§ 2254(d).6
CONCLUSION
Petitioner’s request for a certificate of appealability on his Ake
claim is granted, and his request for a certificate of appealability on
his Simmons claim is denied. The judgment of the district court as to
petitioner’s Ake claim is affirmed, and the appeal from the district
court’s denial of petitioner’s Simmons claim is dismissed.
AFFIRMED IN PART, DISMISSED IN PART
GREGORY, Circuit Judge, concurring in the judgment:
I concur with the majority’s conclusion that petitioner has failed to
demonstrate that the state court’s rulings were "contrary to or
involved an unreasonable application of clearly established federal
law, as determined by the Supreme Court of the United States." 28
U.S.C.A. § 2254(d)(1) (West 2003); Williams v. Taylor, 529 U.S.
362, 402-03 (2000). I write separately to emphasize the requirements
of Ake v. Oklahoma, 470 U.S. 68, 82 (1985).
6
Given this conclusion, we do not need to address whether, even if the
burden of 28 U.S.C. § 2254(d) could be overcome, petitioner has shown
that any constitutional error that did occur had a "substantial and injuri-
ous effect or influence in determining the jury’s verdict." Brecht v.
Abrahamson, 507 U.S. 619, 638 (1993); see Tuggle v. Netherland, 79
F.3d 1386, 1392-93 (4th Cir. 1996) (applying Brecht harmless error stan-
dard to Ake errors).
PAGE v. LEE 15
Under Ake, "the State must, at a minimum, assure the defendant
access to a competent psychiatrist who will conduct an appropriate
examination and assist in evaluation, preparation, and presentation of
the defense." Ake, 470 U.S. at 83. The Supreme Court emphasized
that assisting in the preparation of a defense includes, but is not lim-
ited to: 1) examining the defendant; 2) testifying on his behalf; 3)
helping determine the viability of an insanity defense; and 4) assisting
in the preparation of the cross-examination of the State’s psychiatric
witness. Ake, 470 U.S. at 82.
Because the State must "assure" a defendant has access to a mental
health expert, we must consider all relevant factors to determine
whether such access has been assured. The mere presence of one or
multiple mental health experts does not satisfy Ake. See, e.g., United
States v. Crews, 781 F.2d 826 (10th Cir. 1986) (finding that a defen-
dant was entitled to the appointment of a psychiatrist, despite the fact
that he was examined by four treating or court-appointed psychia-
trists, all of whom testified to his mental condition). Regardless of
whether a defendant has access to one or multiple mental health
experts, when those experts cannot individually or collectively fulfill,
at a minimum, the duties contemplated by Ake, it is the State’s
responsibility to provide the defendant with a mental health expert
who can provide the requisite assistance. Here, petitioner alleges that
he did not receive the assistance of a mental health expert as required
by Ake, but fails to show how his existing mental health experts were
unable to satisfy Ake’s requirements. Because there is no evidence in
the record demonstrating that petitioner’s mental health experts could
not provide the requisite assistance, I concur in the majority’s deci-
sion.