In the

Supreme Court of the United States

James Edmond McWilliamPetitioner,

v.

Jefferson Dunn, Respondent.

 

BRIEF FOR RESPONDENT

INTRODUCTION

One need not examine Ake in any great detail to answer the question in this case-a simple timeline will do. James McWilliams murdered Patricia Reyn­olds in 1984. In 1985, this Court held in Ake that the State's obligation to provide the "basic tools of an ad­equate defense" includes "access to a psychiatrist's assistance." In 1986, the Eleventh Circuit held that this obligation could be satisfied by a neutral non­partisan psychiatrist. That same year, the Fifth Cir­cuit agreed with the Eleventh. Other courts agreed; some disagreed. By 1993, commentators declared this question about the disinterestedness of the psy­chiatrist to be the "preeminent ambiguity in the Ake opinion."

This ambiguity in the Ake opinion remained in the early 1990s when McWilliams's conviction be­came final. In the years since Ake, this Court was asked to resolve this and other ambiguities in that opinion on at least four occasions. But, each time, the Court declined to grant certiorari over the dissent of Ake's author, Justice Marshall.

We submit that, against this backdrop, it strains both logic and common sense to suggest that federal law, as determined by this Court, "clearly estab­lished" a criminal defendant's right to a partisan mental health expert at the time of the relevant state court decision in this case. A split in the lower courts at the time of a state court decision is near ­conclusive evidence that the law was not clearly established for federal habeas purposes. And the court of appeals here was correct that Ake's dictates were, at best, ambiguous when the state courts affirmed McWilliams's conviction more than twenty years ago.

Nonetheless, even an independent examination of Ake shows that the court of appeals was right to re­ject this argument. Ake does not use the words "in­dependent," "partisan," or "consulting." Because the defendant in Ake was afforded no psychiatric assis­tance of any kind, the issue of what kind of psychiat­ric assistance due process required was not present­ed in that case. The Court suggested that the State must provide psychiatric assistance at sentencing "when the State presents psychiatric evidence of the defendant's future dangerousness." But the Court did not address the question pre­sented here: whether due process requires a continu­ance for counsel to consult a partisan psychiatrist about tests he ordered from a neutral expert.

In any event, McWilliams's trial was consistent with due process. At his request, McWilliams was evaluated before trial by three separate psychiatrists for over a month for the express purpose of develop­ing mitigating evidence. And, although McWilliams's brief elides this fact, a consulting psychiatrist assist­ed his counsel at the time of sentencing. At her sug­gestion, McWilliams asked to be tested by a fourth expert, with the results of those tests provided to his counsel and the court before the judicial sentencing hearing. Although the trial court declined to continue the sentencing hearing so that McWilliams's counsel could seek yet another round of expert assistance, the denial of that request did not violate due process.

STATEMENT

James Edmond McWilliams, Jr., raped, robbed, and murdered Patricia Vallery Reynolds in 1984. Reynolds was a clerk at a convenience store. McWilliams went into the store, locked the front doors, took Reynolds's money, forced her into a back room, brutally raped her, then shot her with a .38 caliber pistol. She had sixteen gunshot wounds (eight entrance and eight exit) and numerous other inju­ries. She bled to death early the following morning. Eyewitnesses placed McWilliams at the scene. He was later apprehended driving a stolen car with the murder weapon in his possession. McWilliams was found guilty and sentenced to death in 1986.

A. Three psychiatrists evaluated McWilliams, and he asserted mental ill­ness at the penalty phase of trial.

Before trial, McWilliams moved the court to "in­stitute a careful investigation" into his sanity and order a psychiatric evaluation "to contain statements relating to the statutory mitigating circumstances." The trial court granted his motion and ordered that McWilliams be evaluated by a "lunacy commission." The order expressly di­rected the commission to evaluate and report on "the Defendant's mental condition as it relates to the mitigating circumstances" referenced in McWilliams's motion.

McWilliams was transported to a secure mental hospital, where he was evaluated by three psychia­trists for more than a month. He "un­derwent a comprehensive, interdisciplinary evalua­tion," including a "Nursing Serving Assessment, Physical Examination, Psychological Assessment, and Psychiatric Mental Status Examination." The psychiatrists submitted a report to the court with a summary of their findings.

After this month-long evaluation, none of the three psychiatrists diagnosed McWilliams with a mental illness at the time of the evaluation or at the time of the crime. Two of the psychiatrists specifical­ly concluded that he did not exhibit any "psychiatric symptoms" that "would provide a basis for mitigating factors at the time of the alleged crime." One of the psychiatrists concluded that he was malinger­ing. Dr. Fe Yumul reported that McWilliams "denied experiencing hallucinations or delusions," but he noted that "there was some indication from the defendant that he had previously experienced auditory hallucinations (heard imaginary voices) four years ago." Dr. Kamal Nagi described McWilliams as "evasive" and "overly dramatic," and he stated his "opinion that Mr. McWilliams is grossly exaggerating his psychological symptoms to mimic mental illness." He diagnosed McWilliams with drug and alcohol abuse and charac­ter disorder, mixed with antisocial features. Finally, Dr. Bernard Bryant noted that McWilliams reported amnesia at the time of the murder, but he found that "there was not evidence of psychiatric symptoms."

After McWilliams was found guilty of capital murder, there was a penalty phase proceeding before the jury. As aggravating circumstances, the State re­lied on the jury's guilt-phase findings that the mur­der was committed in the course of a robbery and rape. The State also presented evidence that McWilliams had previously been convicted of a sepa­rate robbery and rape.

After the State's presentation, McWilliams in­jected the issue of his purported psychological prob­lems into the case. McWilliams's mother testified about a head wound he received when he was six years old, after which he "started having headaches and things, and he went to the doctor." McWilliams himself described head injuries, which caused headaches when he was young. He testified that a doctor diagnosed him with "atypical paranoid disorder with schizoid features" and rec­ommended "inpatient treatment." McWilliams read a report from his medical records, in which a doctor diagnosed him as "a severely dis­turbed individual." The report also said that McWilliams's test score "on the surface" indicated "the test results" were "invalid due to faking."

The State called two rebuttal witnesses: (1) a psychiatrist who had evaluated McWilliams pursu­ant to the court's earlier order and (2) a psychologist who performed one of the tests ordered by the psy­chiatrist. The psychiatrist testified that McWilliams did not suffer from psychosis or a mental defect. The psychologist testified that McWilliams exaggerated or faked his symptoms on the Minnesota Multiphasic Personality Inventory ("MMPI") conducted during his evaluation.

The jury recommended a sentence of death by a vote of 10 to 2. Under Alabama law, a jury's verdict recommending a sentence of death is not binding on the trial court, although "the trial court shall consid­er the recommendation." The judge set a judicial sentencing hearing for a lat­er date, at which a probation officer would testify and the parties would present argument.

B. With the help of a partisan consulting psychologist, McWilliams requested, and the trial judge granted, additional testing before the judicial sentencing hearing.

At some point in the case, McWilliams's counsel consulted with a psychologist employed at the Uni­versity of Alabama named Marianne Rosenzweig. Dr. Rosenzweig had "volunteered" to help him on the case. In the words of trial counsel, she "assisted" him "with interpretation and under­standing of existing records." She be­lieved that there was "nothing" in the lunacy com­mission's records that "was going to be useful in mit­igation." But "through her efforts," trial counsel requested an additional "neuropsychological review" for potential "organic brain damage."

Specifically, after the penalty phase but before judicial sentencing, trial counsel moved the court "to issue an order requiring the State of Alabama to do complete neurological and neuropsychological testing on the Defendant ... and to order at least that the Defendant be given an EEG, Luria and Bender­Gestalt, with the results made available to the court." The court granted this motion the same day it was filed.

Dr. Paul D. Bivens, an employee of the prison system, administered the Bender Visual Motor Ge­stalt Test to McWilliams. In a letter to the trial court, Dr. Bivens stated that McWilliams's perfor­mance on that test was "equivocal" and could indi­cate malingering, a possible organic impairment, or a possible psychological impairment. Because the prison system did not have all the tests described in the court's original order, the court ordered fur­ther tests outside of the prison system.

Accordingly, McWilliams was re-admitted to a secure mental facility, and Dr. John R. Goff, a clini­cal neuropsychologist who was then serving as the Chief of Psychology at a mental hospital, evaluated him. In a report summarizing his find­ings and conclusions from his evaluation, Dr. Goff observed that McWilliams suffered from "left hand weakness, poor motor coordination of the left hand, sensory deficits including suppressions of the left hand and very poor visual search skills." Based on those symptoms, Dr. Goff found that McWilliams had "some genuine neuropsychological problems," and he explained that those problems likely were the result of "organic brain dysfunction that is localized to the right cerebral hemisphere."

But Dr. Goff concluded that McWilliams was ma­lingering with regard to his alleged emotional and psychological problems. Indeed, Dr. Goff stated that McWilliams "is obviously attempting to appear emo­tionally disturbed and is exaggerating his neuropsy­chological problems" and that "it is quite obvi­ous ... that his symptoms of psychiatric disturbance are quite exaggerated and, perhaps, feigned." McWilliams performed so poorly on some of the tests that Dr. Goff concluded that McWilliams did not put forth "his best effort." Dr. Goff also noted that McWilliams, whose stream of thought otherwise was "logical and coherent," "tended to stop in mid-sentence and adopt a very wide-eyed look." Dr. Goff further noted that McWilliams "claimed to have forgotten the alphabet," which was "doubtful." Dr. Goff's report was provided to McWilliams's counsel, the prosecution, and the trial court two days before the sentencing hearing.

On the morning of the hearing, McWilliams's counsel orally moved for an indefinite continuance. McWilliams's medical records from the Department of Corrections had been delivered short­ly before the hearing. When trial counsel suggested that he needed time to review those records and Dr. Goffs report or "have the rec­ords reviewed by anyone else," the court delayed the sentencing hearing until the afternoon. The court explained: "The court will entertain any motion that you may have with some other person to review it. Otherwise, the court will pronounce sentence at 2 o'clock." McWilliams's counsel did not move the court to ap­point an expert, partisan or otherwise, to review Dr. Goff's report or the records. Instead, he filed a motion to withdraw.

The sentencing hearing resumed at 2:15 p.m., and McWilliams's counsel renewed the motion for an indefinite continuance. The trial court denied that motion. Dr. Goff's report was admitted into evidence. After closing argument, McWilliams's counsel again challenged the court's denial of a continuance, arguing that "we really need an opportunity to have the right type of experts in the field take a look at all of those rec­ords and tell us what is happening with him." The court responded that it had "given counsel the opportunity to make a motion to pre­sent someone to evaluate that," presumably referring to Dr. Goff's report and McWilliams's other records. Trial counsel never made such a mo­tion.

The trial court followed the jury's recommenda­tion and sentenced McWilliams to death. The court found three aggravating factors: (1) McWilliams's extensive criminal history, includ­ing his prior convictions for rape and robbery, (2) that the murder was committed during a rape and robbery, and (3) that the murder was especially hei­nous and cruel because of "the execution-style slay­ing of the victim," the "number of times the victim was shot after having been brutally raped," and McWilliams's "obvious lack of regard or compassion" for the victim. As to mitigation, the court "reviewed" the "results of neurological and neuropsychological testing." The court found "that the defendant possibly has some degree of organic brain dysfunction resulting in some physi­cal impairment," but that he was also "feigning, fak­ing, and manipulative." The court found that, even if McWilliams's organic brain dysfunction "did rise to the level of a mitigating circumstance, the ag­gravating circumstances would far outweigh this as a mitigating circumstance."

C. After the state courts affirmed his sen­tence, McWilliams presented additional psychological evidence.

McWilliams appealed his conviction and sentence to the Alabama Court of Criminal Appeals, which af­firmed in 1991. The court explained that the use of psychiatric testimony at the penalty phase followed the pattern that this Court had approved in Buchan­an v. Kentucky. There, this Court held that, if a capital defendant requests a psychological evaluation, "the prosecution may re­but" the defendant's assertions about psychiatric problems "with evidence from the reports of the ex­amination that the defendant requested." 

With respect to the Ake issue, the court explained: "the holding in Ake v. Oklahoma ... requires that, if a defendant makes a threshold showing that his sanity is likely to be a significant factor at trial, the State must provide access to a psychiatrist's assistance." The State "met this requirement" when it provided "a competent psychiatrist." The court recounted that the trial court had granted two motions filed by McWilliams: it had "granted his motion and ordered a lunacy commis­sion to evaluate" him, and it had granted another motion so that McWilliams "was examined by a neu­ropsychologist, Dr. John Goff. There is no indication in the record that McWilliams could not have called Dr. Goff as a witness to explain his findings or that he even tried to contact the psychia­trist to discuss his findings." Moreover, "the trial court indicated that it would have consid­ered a motion to present an expert to evaluate this report," but McWilliams chose not to file one. The state court also concluded that McWilliams "has demonstrated no prejudice by the trial court's denial of his motion for continuance."

After the Alabama Supreme Court granted certio­rari and affirmed on other issues," McWilliams filed a petition for post-conviction review under Alabama law, and he was granted an evidentiary hearing. At the hearing, the state post-conviction court heard testimony from Dr. George Woods, a psychiatrist from California who was retained by McWilliams's state post-conviction counsel, and from Dr. Karl Kirkland, a forensic psychologist who was retained by the State.

After evaluating McWilliams for approximately seven hours, Dr. Woods diagnosed him with "bipolar affective disorder." Dr. Woods also explained that an MMPI test "has validity scales" that a clinician uses to determine if the subject (1) "is attempting to make themselves look worse" or "fake­bad," (2) is attempting to look better with a "fake­good," (3) has failed to understand the test, or (4) is exaggerating symptoms in a "cry-for-help." Dr. Woods concluded that, during his in­terview with McWilliams, "it was my impression that he was not being truthful, that he was being grandi­ose." Dr. Woods also agreed that McWilliams was "deceptive," "manipulative," and his records reflected that he was a malingerer. Dr. Woods expressly agreed with much of Dr. Goff's assessment of McWilliams: "I have to say I think that Dr. Goff did an excellent job of attempting to separate out what were in fact ex­aggerations and what was real impairment. Dr. Goff accurately looked at those neu­ropsychological impairments that he felt were feigned and those neuropsychological impairments that he felt were real, and he made that clear in his report."

On rebuttal, the State called Dr. Kirkland.

Dr. Kirkland diagnosed McWilliams with "an antisocial personality." McWilliams told Dr. Kirkland "about his choice to adopt a-what he described as a victim­less criminal lifestyle in his late teens." Dr. Kirkland testified that, aside from Dr. Woods, no mental-health professional had ever diagnosed McWilliams with bipolar disorder and that McWilliams's medical records revealed that he had never been prescribed "a primary drug for bipolar disorder such as Depakote or Lithium." Dr. Kirkland also testified that the month-long eval­uation McWilliams received at the secure mental hospital before trial would be "considered above the ninetieth percentile in terms of completeness among forensic evaluations at that time." McWilliams "would have been seen by multi­-disciplines and observed in a variety of different set­tings that far surpasses anything" that he or Dr. Woods would be able to do.

The state post-conviction court denied McWilliams's petition. The court found that "the credibility of Dr. Woods and the reli­ability of his findings are questionable." The court also concluded that, even if Dr. Woods's testimony were reliable, the "failure to present" this kind of evidence at trial did not "make a difference in the outcome." The state appellate court affirmed.

The federal courts denied McWilliams's habeas petition.

McWilliams filed a federal habeas petition in which he raised approximately thirty claims. In one claim, he argued that "he was entitled to the assis­tance of a partisan psychiatrist."

The magistrate judge reasoned that McWilliams "received the assistance required by Ake" because the trial court ordered "the psychological testing re­quested by McWilliams." The court ex­plained that there "is no evidence that Dr. Goff was unavailable to the petitioner for consultation or to call as a witness"; instead, "the record indicates that McWilliams never requested Dr. Goff's assistance" but "insisted that a different expert review Dr. Goff's findings." Because Dr. Goff performed "the specif­ic testing requested by counsel," the court was un­persuaded "that he could not understand these tests or their results."

The Eleventh Circuit Court of Appeals affirmed, rejecting the Ake claim for three reasons. First, the court held that Ake did not clearly establish a right to a partisan expert. Although some "circuits have held that the State must provide a non-neutral mental health expert," the court noted that "the United States Supreme Court has thus far declined to resolve this disagreement among the circuits." Second, the court of appeals held that, on the facts of this case, the state courts' "determination that Ake was satisfied" was "not contrary to or an unreasonable application of clearly established Fed­eral law." Third, "even assuming an Ake error occurred," it did not have a "'substantial and injurious effect or influence' on the outcome of McWilliams's case." The pre-trial eval­uation had "determined McWilliams was a malinger­er and a faker," Dr. Goff's report "indicated that McWilliams was malingering on some level," and, "even Dr. Woods, McWilliams's post-conviction ex­pert, admitted McWilliams has a history of malin­gering and can be deceitful and manipulative." The court of appeals concluded that "a few additional days to review Dr. Goff s findings would not have somehow allowed the defense to overcome" the aggravating circumstances of the case.

Judge Jordan concurred. He explained that "the Supreme Court has not addressed whether Ake is satisfied by the court appointment of a neutral men­tal health expert." He also agreed that McWilliams could not show prejudice, in part be­cause "McWilliams did not present Dr. Goff as a wit­ness at the state post-conviction hearing."

Judge Wilson dissented. He concluded that Ake requires, and that McWilliams was denied, "mean­ingful" expert assistance. In his view, the majority and concurrence's "focus on the 'neutral ex­pert' issue misses the point." Judge Wil­son reasoned that Dr. Goff's assistance was not "meaningful," in part, because he "provided his re­port to the defense and prosecution at the same time." Judge Wilson also would have found prejudice because McWilliams's post-conviction psy­chiatrist suggested that his MMPI test results were not necessarily "someone attempting to make them­selves look worse" but a "cry-for-help."

SUMMARY OF ARGUMENT

The court of appeals correctly affirmed the denial of McWilliams's habeas petition. Ake did not clearly establish the right to a partisan psychiatrist. But even if it did, the state courts reasonably denied Mc Williams's claim.

I. The right to a partisan psychiatrist was not "clearly established" when the state courts denied McWilliams's due process claim.

A. Ake did not hold that only a partisan psychia­trist's assistance can satisfy due process. Certain as­pects of the opinion suggest that a defendant should be appointed a partisan psychiatrist when the prose­cution hires a partisan psychiatrist of its own. But a neutral psychiatrist who reports to all parties can also satisfy due process.

First, Ake was directed at an altogether different question than the one presented in this case. The problem in Ake was not that the defendant had insuf­ficiently partisan assistance. It was that he had no psychiatric assistance at all. The Court emphasized this fact in the opinion, explaining that there was no testimony about the defendant's sanity at the time of the crime because no psychiatrist had ever evaluated him for that purpose.

Second, important parts of the Court's opinion in Ake suggest that a neutral psychiatrist can satisfy due process. The Court distinguished previous cases by noting that "neutral psychiatrists" had examined the defendant. The Court also expressly limited the right to a psychiatrist's assistance in ways that are inconsistent with requiring a partisan psychiatrist. It explained that a defendant does not have the right to the assistance of more than one psychiatrist, can­not choose the psychiatrist or otherwise hire his own, and that states have discretion in implementing the right.

Third, the Court in Ake expressly based its deci­sion on due process, not equal protection or the right to counsel. Due process requires fairness between the State and the criminal defendant in any particular case. Although fairness might require a partisan ex­pert for the defendant if the prosecution hires a par­tisan expert, fairness can also be satisfied by a neu­tral court-appointed psychiatrist who is equally available to both parties. Either way, the defendant will have the raw materials to craft a defense based on his mental health.

Fourth, a neutral psychiatrist can assist the de­fendant in evaluating, preparing, and presenting a mental health defense. To hold otherwise would anomalously require the appointment of a partisan psychiatrist even when a neutral psychiatrist pro­vides the defendant with a favorable diagnosis and testimony. Moreover, there is no certain confidential­ity advantage with a partisan psychiatrist. The scope of attorney-client privilege and psychiatrist-patient privilege are questions of state law. And this Court has held that, if a defendant puts his mental health at issue, the defendant cannot prevent the prosecu­tion from introducing the results of a mental-health evaluation that the defendant requests.

Fifth, Justice Rehnquist's dissent in Ake only heightens the ambiguity of the decision on this issue. He exaggerated the decision's implications by using terms, such as "defense advocate," that the Court it­self never used. And he suggested that the Court's entire discussion of psychiatric assistance at capital sentencing was dicta.

B. The subsequent treatment of Ake by this Court and the lower courts underscores that it did not clearly establish the right to a partisan psychiatrist.

First, despite the opportunity to do so, the Court has not granted certiorari on whether Ake requires a partisan psychiatrist. Instead, the Court has consist­ently declined to revisit this issue or any other issue about Ake. The Court's refusal to revisit Ake suggests that the issue remains open.

Second, the lower courts were split at the time of the state court decision on review here. The split of authority is not limited to a single outlier circuit. In­stead, the Eleventh Circuit, the Fifth Circuit, six judges in the Sixth Circuit, and at least eight state courts of last resort have held that Ake does not re­quire a partisan psychiatrist. Even the lower courts on remand in Ake held that due process is satisfied by the assistance of a neutral psychiatrist. Such widespread disagreement about the meaning of Ake is near-conclusive evidence that it did not clearly es­tablish McWilliams's proposed bright-line rule.

Third, some lower federal courts have held that Ake requires a partisan psychiatrist, but a close ex­amination shows that they do not support the peti­tioner's claim in this case. Sometimes, those lower courts were bound to appoint an independent psychi­atrist by the Criminal Justice Act, not Ake. Other lower courts relied on circuit precedent to resolve the ambiguity in Ake. Ultimately, the lower courts on this side of the split are best viewed as extensions of Ake, not applications of its holding.

C. This CourtŐs precedents on the meaning of "clearly established" federal law support the court of appeals' decision to deny the habeas petition.

First, a federal court cannot grant habeas relief if it must extend the reasoning in one of this Court's cases to a new issue that the case did not directly address. This Court has reversed lower courts for committing this error in the past. Instead, the need to extend a precedent to reach the issue presented in a case is itself evidence that the law was not clearly established.

Second, a federal court must also focus on the specific question presented when evaluating whether there is clearly established law on point. The Court has reversed lower courts when they have stated the question presented in more general terms. Ake con­cerned the complete denial of any psychiatric assis­tance. It did not address whether the assistance of a neutral psychiatrist can satisfy due process.

Third, this habeas case is like the many cases where this Court has held that no clearly established law resolved the specific habeas claim. It is not com­parable to the two cases McWilliams cites on this is­sue. In one of those cases, the respondent never even disputed whether the law was clearly established. In the other, the Court had addressed the issue in five previous cases.

II. No matter whether Ake clearly established the right to a partisan expert, the court of appeals was correct to deny the habeas petition.

A. Even if Ake clearly established the right to an "independent psychiatrist," the state court's decision was not contrary to or an unreasonable application of that law. The state court concluded that McWilliams had been allowed to use psychiatrists as he wished. McWilliams had the assistance of a consulting psy­chologist at sentencing, and he used her assistance to order a battery of specific tests. Although defense counsel suggested that he needed a continuance to evaluate the tests he had ordered, the state courts reasonably denied a prolonged continuance.

B. The court of appeals was also correct that any due process error did not affect the outcome of the proceeding.

First, a second opinion on Dr. Goff's report would not have changed the result. This was a heavily ag­gravated case. The jury recommended death, and the trial court explicitly found that McWilliams's prior convictions for robbery and rape, as well as the bru­tal nature of the murder, outweighed any potential mitigating factor based on McWilliams's mental health. Dr. Goff's report is five pages long, has a list of conclusions at the end, and is easy to understand. Moreover, McWilliams's partisan expert, Dr. Woods, agreed with Dr. Goff's report and also testified that McWilliams was untruthful and manipulative.

Second, an additional review of McWilliams med­ical records would not have changed the result. Alt­hough McWilliams's post-conviction expert diagnosed him as bipolar, McWilliams's medical records reflect that he has been prescribed mostly antidepressants and has not been treated with the primary drugs for bipolar disorder. No expert diagnosed McWilliams with traumatic brain injury based on his records.

None of the experts who evaluated McWilliams found that he suffers from traumatic brain injury. McWilliams's partisan expert, Dr. Woods, diagnosed him with a personality disorder, not a brain injury. Dr. Woods cer­tainly never suggested, as McWilliams's brief does, that McWilliams suffered a traumatic brain injury that affected his performance on certain tests.

It simply does not matter whether Ake estab­lished the right to partisan assistance. The state tri­al court granted McWilliams's two motions for psy­chiatric assistance and volunteered to appoint yet another expert if he had requested it. But another round of expert assistance would not have changed the fundamentals of McWilliams's case. The court of appeals was right that, even if there were Ake error, it did not prejudice McWilliams.

CONCLUSION

The Court should affirm the court of appeals.