                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-10-2002

Re v. Snyder
Precedential or Non-Precedential: Precedential

Docket No. 98-5458




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PRECEDENTIAL

       Filed June 10, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-5458

ROGER RE,
Appellant

v.

ROBERT SNYDER; M. JANE BRADY

On Appeal From The United States District Court
for the District of Delaware
(D.C. Civil No. 95-cv-00363)

District Judge: The Honorable Roderick R. McKelvie

Argued January 22, 2002

Before: NYGAARD and STAPLETON, Circuit Judges ,
and CAPUTO,* District Judge

(Filed: June 10, 2002)

       Andrew Grosso, Esquire (argued)
       2121 K Street, N.W.
       Suite 800
       Washington, D.C. 20037
        Counsel for Appellant
_________________________________________________________________

* Honorable A. Richard Caputo, District Judge for the United States
District Court for the Middle District of Pennsylvania, sitting by
designation.



       Loren C. Meyers, Esquire (argued)
       Delaware Department of Justice
       State Office Building
       820 North French Street
       Wilmington, DE 19801
        Counsel for Appellees

OPINION OF THE COURT

CAPUTO, District Judge:

Appellant, Roger Re ("Re"), was convicted of the first
degree murder of his wife. He was sentenced to life without
parole on the murder charge.1 He sought to defend the
charge with the partial defense of extreme emotional
distress,2 and he presented two psychiatrists who testified
in his defense. On rebuttal, the trial court permitted the
testimony of a state retained psychiatrist on the issue of
Re’s malingering. Re assigned this as error in the course of
his appeal and his petition for post conviction relief, each of
which was resolved against him. Re filed a Petition for Writ
of Habeas Corpus in the United States District Court for
the District of Delaware on May 19, 1995. On January 6,
1998, the District Court denied the petition, later issued a
certificate of appealability, and this appeal followed. For the
reasons which follow, we will affirm.
_________________________________________________________________

1. He was also convicted of possession of a deadly weapon during the
commission of a felony and possession of a destructive weapon.

2. Under Delaware law, the fact that the accused intentionally caused
the death of another person under the influence of extreme emotional
distress is a mitigating circumstance, reducing Murder in the First
Degree to Manslaughter. The defendant must prove that he acted under
the influence of extreme emotional distress by a preponderance of the
evidence and that there is a "reasonable explanation or excuse" for his
extreme emotional distress. The reasonableness of the explanation or
excuse shall be determined from the viewpoint of a reasonable person in
the defendant’s situation under the circumstances as he believed them
to be. See State v. Moyer, 387 A.2d 194 (Del. 1978).

                                2


I.

Since this is a habeas corpus petition and the District
Court did not hold an evidentiary hearing, our review is
plenary. Robinson v. Arvonio, 27 F.3d 877, 883 (3d Cir.
1994), vacated on other grounds, 513 U.S. 1186 (1995). See
also, Yohn v. Love, 76 F.3d 508, 515 (3d Cir. 1994) ("In a
habeas corpus proceeding, the district court’s legal
conclusions are subject to plenary review, but factual
conclusions are subject to review for clear error only; when,
however, the District Court does not hold an evidentiary
hearing and engage in independent factfinding and the
habeas evidence is limited to that contained in the state
court record, our review of the district court’s decision to
grant petition is plenary.")

II.

Re and his late wife, Jayne, had a tumultuous
relationship, and the two had appeared in court on several
occasions as a result of domestic disputes. They separated
in May, 1976. Re told an acquaintance that he was still in
love with his wife and that if he ever caught her with
another man, he would kill her.

On June 22, 1976, Re saw Jayne return home from a
date with Michael Riley, an off-duty New Castle County
police officer. Re entered the house through a front window.
As Riley was leaving, he heard Jayne screaming that Re
was in the house with a gun. Riley ran into the house. Re
had two guns and was arguing with Jayne about their
marriage. When Re moved to shoot Riley, Jayne informed
Re that he was a police officer, and Re requested
identification, which was produced.

When the front doorbell rang, Re and Jayne moved
towards the door, ordering Riley to stay in the kitchen.
Riley went to the car to get his pistol, told a neighbor to call
the police, and heard Jayne yell, followed by five shots in
rapid succession. As he ran to the door, he heard a
shotgun fire. Re climbed out of a window and disposed of
the gun. Police determined that a gun found in a nearby
garage was the gun used to kill Jayne. It had four live
shells and one discharged shell in the revolver’s cylinder.

                                3


Police determined that, based on the number of shots that
Riley heard from the house, Re must have reloaded the
gun. A sawed off shotgun was also found in the house. Re
surrendered to investigators on June 23, 1976, and had a
limited recollection of what occurred.

Re was indicted for first degree murder in July, 1976.
Since his mental competency and mental condition were an
issue at the time of the shooting, he was ordered
transferred to the Delaware State Hospital, and the hospital
was ordered to re-evaluate his mental condition every six
months. In May, 1978, a judge found Re competent to
stand trial, but in October, 1979, the Delaware Superior
Court declared Re mentally incompetent to stand trial.

In 1984, the Attorney General for the State of Delaware
requested that the hospital investigate Re’s privileged
confinement conditions because Re had allegedly
manipulated certain hospital employees into granting him
special hospital privileges while simultaneously being
unresponsive to his doctors and counsel. The State retained
Dr. Dietz, an outside expert, to conduct this inquiry. He
examined Re once in November, 1984 and again in May,
1985. He then wrote a report in which he expressed the
opinion that Re was malingering, and had been since 1982.
Based in part on this finding, Re was declared competent to
stand trial.

After Re was declared competent to stand trial, he
asserted a partial defense of extreme emotional distress. He
conceded that he had intentionally killed his wife, but
claimed that he had acted under extreme emotional
distress. Two clinical psychologists, Dr. Irwin G. Weintraub
and Dr. Cono Galliani, testified for the defense at trial. Dr.
Weintraub, who had examined Re twice (in 1975 and 1985),
testified that Re was limited in his ability to cope with
stress, noted the increasing intensity of the confrontations,
and concluded that Re had overreacted when faced with an
increasingly stressful and intolerable situation. He
concluded that Re was under extreme emotional distress
when he killed Jayne, though he had no mental illness or
personality disorder.

Dr. Galliani, the chief psychologist at Delaware State
Hospital, saw Re on several occasions, and interviewed Re
                                4


before and during trial at defense counsel’s request. Dr.
Galliani also concluded that, at the time of the homicide,
Re was under extreme emotional distress. In prior
interviews, Re had claimed no memory of the homicide and
insisted that he did not kill Jayne, but in an interview three
days into the trial, Re, under hypnosis, recalled the events
surrounding the homicide.

In rebuttal, the prosecution called Dr. Dietz, who had not
testified in the state’s case-in-chief and was a surprise
witness. The defense objected to Dr. Dietz’s testimony on
the ground that it violated the Sixth Amendment because
Dr. Dietz had not notified counsel of his 1984 interview
with Re. The objection was overruled. Dr. Dietz testified
that Re was a "malingerer" with an "anti-social personality
disorder." Dr. Dietz admitted that his malingering and anti-
social tendencies were not relevant to the issue of extreme
emotional distress, and indeed declined to express an
opinion about the existence of extreme emotional distress,
since the concept was a legal one and not a psychological
or psychiatric one. Dr. Dietz conceded that he had marginal
factual evidence to support his contention that Re was anti-
social, and admitted that Re’s malingering was unrelated to
his mental condition at the time of the shooting.

Malingering is "the voluntary production of symptoms . . .
The essential feature of malingering is the voluntary
production and presentation of false or grossly exaggerated
physical or psychological symptoms which are produced in
pursuit of a goal that is obviously recognizable to evade
criminal prosecution." (Dr. Dietz’s testimony, Joint App. at
67-68.) Dr. Dietz gave examples in support of his
contention that Re was feigning incompetence.3 The
defense’s objection to this line of examination was
overruled. The trial judge ruled that the defense had
opened that issue by calling Dr. Galliani as a witness. Since
Dr. Galliani based his opinion upon his contact with Re in
his role as the chief psychologist at Delaware State
Hospital, Dr. Dietz was permitted to testify about
_________________________________________________________________

3. The examples centered around the fact that Re did not appropriately
respond to Dr. Dietz’s questions, and uttered incoherent and nonsensical
remarks.

                                5


information he obtained through his investigation of Re’s
conduct at the hospital, and his conclusions based on that
information.

III.

This appeal involves whether or not Re’s counsel had
notice of Dr. Dietz’s examination in conformity with the
Sixth Amendment to the United States Constitution;
whether or not any notice he did receive was defective
because it did not notify counsel of the "expanded scope" of
the examination; and whether the lack of notice led to
prejudicial rebuttal testimony by Dr. Dietz and created a
structural defect in Re’s trial. Re contends that counsel was
not notified of the 1984 Dietz examination, and since the
examination concerned a subject beyond his mental
competency, viz malingering, his counsel should have been
notified. Estelle v. Smith, 451 U.S. 454, 471 (1980); Powell
v. Texas, 492 U.S. 680, 681-85 (1989); Satterwhite v.
Texas, 486 U.S. 249, 254 (1988).

Re’s counsel did not have a right, under the Sixth
Amendment, to be present and observe the 1984 Dietz
examination. Estelle, 451 U.S. at 471, n.14. Counsel, by
virtue of the state court’s 1983 standing order directing
evaluations of Re’s mental competency every six months,
knew that Re would be subjected to continuing competency
examinations. It was not outside of the scope of such
examinations to consider whether or not Re was
malingering. In addition, at a hearing in April 1985, after
Dr. Dietz examined Re, Dr. Dietz testified as to his opinion
that Re was a malingerer based on his 1984 examination.
With defense counsel’s consent, another examination by Dr.
Dietz was held in May, 1985, but Re’s counsel declined to
attend. Therefore, Re’s counsel had adequate notice of the
examination for competence, and adequate notice that
malingering would be relevant and foreseeably related to
the issue of competency to stand trial.

Counsel likewise had notice of the Attorney General’s
investigation concerning Re’s potential manipulation of
hospital personnel. It is difficult to conclude that the
subject of malingering was not within the overriding subject

                                6


of the periodic examinations, viz mental competence to
stand trial. Whether Re was malingering was certainly
related and within the scope of that subject. This is not the
same situation presented by Estelle and Satterwhite. In
Estelle, the examination was expanded to consider the
defendant’s future dangerousness to society, and it was to
be used for the specific purpose of satisfying that element
in the death penalty phase of sentencing. The Supreme
Court held the failure to notify counsel of that subject
violated the defendant’s Sixth Amendment rights. Estelle,
451 U.S. at 463. In Satterwhite, the Supreme Court held
that a judge’s order for mental examinations in the case file
was insufficient notice to defense counsel that he would be
evaluated by psychiatrists, and violated the Sixth
Amendment. Satterwhite, 486 U.S. at 256. Here, there was
adequate notice, since his mental status had been at issue
since his arrest, and there is no such additional purpose;
whether Re was malingering was relevant to and part of the
determination of his mental competence to stand trial, and
it was an appropriate consideration in view of Dr. Galliani’s
reliance on interviews with Re conducted in the 1980’s. His
credibility in those interviews is fairly called into question.
Moreover, here counsel had notice there would be periodic
psychiatric examinations to determine whether Re was
competent to stand trial. The subject of malingering is fairly
within the scope of such examination. Thus, the notice of
the examination and its scope was satisfied, and there was
no Sixth Amendment violation. Buchanan v. Kentucky, 483
U.S. 402, 425 (1987) (holding that Estelle put counsel on
notice that, if he intended to raise a ‘mental status’ defense,
he would have to anticipate the use of psychological
evidence in rebuttal.)

Dr. Dietz’s rebuttal testimony did not constitute a Sixth
Amendment structural defect in the Re’s trial. It did not
contaminate the fairness of his trial.

At trial, Re put his mental state in issue with his own
evaluations and expert psychiatric testimony. He therefore
cannot challenge Dr. Dietz’s rebuttal testimony on Sixth
Amendment grounds. Buchanan, 483 U.S. at 425.
Moreover, Dr. Dietz testified that his conclusions of
malingering and anti-social disorder did not go to Re’s

                                7


mental state at the time of the commission of the crime.
The Sixth Amendment was not violated by these events at
trial.

Re claims that the lack of notice of the Dietz examination
and its scope effectively deprived him of his right to counsel
under the Sixth Amendment, because counsel did not have
the opportunity to change his strategy to eliminate the use
of Dr. Galliani’s testimony and simply rely on the testimony
of Dr. Weintraub. This, of course, begs the question of the
notice of the scope of the Dietz examination. Malingering
was a fair subject to anticipate in the Dietz exam given the
subject of competency to stand trial. Moreover, the 1985
examination, to which Re’s counsel consented, made him
aware, in advance of trial, of the results of the 1984
examination. Finally, we also hold that even if there was an
error in this case, it was a harmless error and not a
structural defect. See Satterwhite, 486 U.S. at 257-58.
Reversals are limited to cases where the deprivation of the
right to counsel affect and contaminate the entire criminal
proceeding, and not cases involving the erroneous
admission of particular evidence at trial. Id. at 157. It did
not have a "substantial and injurious effect of influence on
determining the jury’s verdict." Brecht v. Amrahamson, 507
U.S. 619, 637 (1993); United States v. Khalil , 1999 WL
455698 at *2 (E.D. Pa. June 30, 1999). Therefore, since
Re’s arguments regarding notice and scope of the 1984
examination fail, the substantial defect argument fails as
well.

The judgment of the District Court will be affirmed.

A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit

                         8
