Sigismund Nathaniel SANGSTER v. STATE of Maryland.
No. 70, Sept. Term, 1987.
Court of Appeals of Maryland.
May 27, 1988.
541 A.2d 637
For the foregoing reasons, the judgment of the trial court is affirmed.
JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AFFIRMED. APPELLANT TO PAY THE COSTS.
Arthur A. DeLano, Jr., Asst. Public Defender (Alan H. Murrell, Public Defender, on the brief), Baltimore, for appellant.
Richard B. Rosenblatt, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on the brief), Baltimore, for appellee.
RODOWSKY, Judge.
This case involves the procedure by which a trial court determines the competency of аn accused to stand trial. The issue is whether a trial judge may, over objection by the accused, consider in written report form the opinions as to the accused‘s competency expressed by psychiatrists who examined the accused pursuant to
In May of 1985 a team of Prince George‘s County police officers executed a search warrant for marijuana at an apartment occupied by the petitioner, Sigismund Nathaniel Sangster (Sangster), who barricaded himself in the apartment‘s rear bedroom. Through the closed bedroom door Sangster fired shots which wounded two of the officers. The police responded by shooting through the door, thereby wounding Sangster. After approximately five hours Sangster emerged from the bedroom, was disarmed and taken into custody.
He was indicted on twenty-one counts, including four counts of assault with intent to murder. Defense counsel moved for a determination of whether Sangster was incompetent to stand trial.1 Sangster also, through counsel,
pleaded that when the alleged crimes were committed he was not criminally responsible by reason of insanity.2 The circuit court ordered that Sangster be sent to Clifton T. Perkins Hospital Center (Perkins) for competency and responsibility determinations. Sangster was admitted to Perkins on January 23, 1986. According to a forensic conference note dictated February 3, 1986, each of four psychiatrists concluded that Sangster was competent and responsible. That forensic conference note, signed by one of the participating staff psychiatrists, was sent under cover of a letter dated February 4, 1986, signed by the Superintendent of Perkins and by that same staff psychiatrist, to the circuit judge who had ordered the examination. The letter аnd conference note were filed on February 19, 1986, in the court clerk‘s file of original papers in this case.3
The trial on the merits of this case was set for February 24, 1986. Prior to that morning‘s proceedings on the record defense counsel had advised the court that he intended to produce expert testimony as to Sangster‘s incompetency. On the morning of trial a competency hearing was held at which a psychiatrist called by Sangster testified that the accused was incompetent. Sangster then took the stand and testified on direct and cross-examination.
[STATE‘S ATTORNEY]: No, Your Honor, I don‘t have. If you have a copy of the report from Clifton T. Perkins—
THE COURT: I have it. It says that they are unanimously convinced that he understands the nature and the object of these proceedings, and he‘s able to assist in his own defense.
MR. SLATKIN: Your Honor, I‘m going to object to the Court‘s notice and reading of their evaluation. All we have is a one or two page conclusionary statement made by the doctors with no basis in facts. I certainly believe that an opportunity to cross-examine their conclusions is more than warranted in this case.
THE COURT: All right. Anything else?
MR. SLATKIN: No, sir.
THE COURT: I‘m convinced beyond a reasonable doubt that he does understand the nature and the object of these proceedings. And I—and he‘s able tо assist in his own defense.
In a jury trial Sangster was found guilty on a number of the charges against him and was also found to be responsible. The various consecutive sentences imposed on Sangster total 111 years.
The Court of Special Appeals affirmed. Sangster v. State, 70 Md.App. 456, 521 A.2d 811 (1987). On that appeal Sangster contended that the trial court had violated the mandate of
(a) Hearing.—If, before or during a trial, the defendant in a criminal case appears to the court to be incompetent to stand trial or the defendant alleges incompetence to stand trial, the court shall determine, on evidence
Sangster‘s point was that the report was not “evidence presented on the record.” Sangster further argued that, under Jones v. State, 280 Md. 282, 372 A.2d 1064 (1977), the report from Perkins could not be considered by the trial judge in making his determination.5 Absent that foundation, he contended, the finding of competency was not supported by sufficient evidence.6
The Court of Special Appeals viewed Sangster‘s argument as claiming a denial of the right of confrontation and held that that right did not attach because a competency hearing “is not a prosecutorial proceeding as contemplated by the State and Federal constitutions.” 70 Md.App. at 469, 521 A.2d at 817. That court further held that, even if the right to confrontation had attached
appellant did not act to preserve those rights. If appellant wanted to cross-examine the physicians concerning the opinions they exprеssed in the hospital report, he
Sangster petitioned for certiorari which we issued. The petition presents the single question: “Did the trial judge fail to determine competency upon evidence presented on the record?” In his petition, in his brief and at oral argument Sangster eschews relying on a constitutional right of confrontation but he does submit that due process gave him a right to confront and cross-examine the physicians from Perkins.
In light of the way in which the objection arose at the competency hearing, the issue before us is a narrow one. Sangster objected to consideratiоn of the content of the report from Perkins without an opportunity for the accused to cross-examine the opining experts. Consequently, the issue is whether the State is obliged to have the examining physicians available at a competency hearing in order to satisfy either a statutory or constitutional predicate for the court‘s use of the report in evaluating and ruling on competency. We shall consider the nonconstitutional issue first.
I
Determining the meaning of “evidence presented on the record” in
(a) Examination authorized.—(1) For good cause and after giving the defendant an opportunity to be heard, the court may order the Department [of Health and Mental Hygiene] to examine the defendant to determine whether the defendant is incompetent to stand trial.
(2) The court shall set and may change the conditions under which the examination is to be made.
....
(d) Report on examination.—(1) If a court orders an examination under this section, the Department shall:
(i) Examine the defendant; and
(ii) Send a complete report of its findings:
1. To the court;
2. To the State‘s Attorney; and
3. To the defense counsel.
(2) Unless there is a plea that the defendant was not criminally responsible under
§ 12-108 of this title , the defendant is entitled to have the report within 7 days after the court orders the examination. However, failure of the Department to send the complete report within that time is not, of itself, grounds for dismissal of the charges. On good cause shown, the court may extend the time for examination.(3) If the Department reports that, in its opinion, the defendant is incompetent to stand trial, the report shall state, in a complete supplementary opinion, whether, because of mental retardation or mental disorder, the defendant would be a danger to self or the person or property of another, if released.
The General Assembly by statute can modify the common law hearsay rule and permit the introduction at competency proceedings of reports from the Department without requiring a testimonial foundation similar to that required for business records. If the court orders an examination by the Department, the Department sends the report directly to the court which ordered the examination. Thus, authenticity and reliability are as well ensured as in the admissibility of business records. Cf.
The obvious purpose of the statutory scheme is to make available to a requesting court the expertise of the Department. The statute directs that the findings resulting from the application of that expertise are to be embodied in a
Further,
That the report, as a report, is “evidence on the record” is supported by decisions of the Court of Special Appeals under predecessor statutes. To demonstrate the pertinency of those decisions requires that we trace the history of the current statutory provision.
Present
Former Art. 59, § 23 in relevant part provided:
Whenever prior to or during the trial, any person charged with the commission of any crime shall appear to
the court, or be alleged to be incompetent to stand trial, by the defendant himself, the court shall determine upon testimony and evidence presented on the record whether such person is [incompetent].... Whenеver any defendant shall be referred to the Department of Mental Hygiene for an examination of his competency to stand trial under this section, he shall be examined and a full and complete report of findings shall be forwarded to the court having jurisdiction over the defendant, to the State‘s attorney and to counsel for the defendant within the time specified ... below. If the court after receiving testimony and evidence determines that the defendant is competent ... the trial shall commence as soon as practicable or, if already commenced, shall continue. [
Md.Code (1957, 1979 Repl.Vol.), Art. 59, § 23 .]
The above-quoted language was enacted by
Colbert v. State, 18 Md.App. 632, 308 A.2d 726 (1973) involved a competency issue which arose under the procedure enacted in 1967. Psychiatrists at Perkins had reported the accused to be competent. Before trial began defense counsel filed two motions, one asking for an “independent” psychiatric examination and the other asking the court to conduct a hearing to ascertain competency. 18 Md.App. at 636-37, 308 A.2d at 729. These motions were supported by the report of an evaluation of the accused done by two Ph.D. psychologists. The trial court considered the written reports from Perkins and from the defense psychologists and denied both motions. The Court of Special Appeals affirmed. In answer to a contention that there had been no “hearing” on competency, that court said:
The statute requires that the determination be made “upon testimony and evidence presented on the record“, but it does not require that such testimony and evidence be presented in a separate hearing, as appellant contends. We said in Strawderman [v. State, 4 Md.App. 689, 695,
In Rozzell v. State, 5 Md.App. 167, 174, 245 A.2d 917, 920-21 (1968), the Court of Special Appeals, after stating that the trial court had followed the statutory procedure, reviewed in detail the procedure utilized in that case. It included consideration of the report, as such, of the chief clinical psychologist at Perkins who had examined the accused. In Rozzell, however, the Perkins psychiatrist who had examined the defendant was produced by the State and testified about competency. 5 Md.App. at 174-75, 245 A.2d at 921.
Inasmuch as the procedure for determining competency has remained essentially unchanged since 1967, the legislative history of the 1967 enactment is also material to interpreting “evidence on the record” in present
If the court after receiving any other testimony and evidence determines that the defendant is competent to stand trial ... the trial shall commence....
In the course of passage the words “any other” were stricken. In its introductory form the bill would clearly have been read to mean that the report constituted testimony and evidence and that the court could receive any other testimony and evidence. The striking of “any other” does not alter this meaning. After providing by statute for a
The proposed revisions which resulted in
Viewed solely from the textual standpoint, another possible interpretation of the striking of “any other” is that the deletion was intended to prevent considering the report at the hearing, absent compliance with the strict rules of evidence. This position is the precise one advocated by Sangster in the instant matter. The legislative history, however, clearly demonstrates that that position could have been adopted by the General Assembly in 1967, but was not.
The 1967 revisions to former Art. 59 were intended to eliminate the confusion in earlier statutes which had been revealed in Rowe v. State, 234 Md. 295, 199 A.2d 785 (1964). In a dissent by Judge Henderson, joined by Chief Judge Brune and Judge Hammond, the General Assembly was
Responding to that request the Commission on Criminal Law and the Legislative Council considered the Model Penal Code, the Officiаl Draft of which had been adopted by the American Law Institute on May 24, 1962. The bill proposed by the Legislative Council used the Model Penal Code tests for responsibility and competency.8
The standard for competency proposed in Model Penal Code § 4.04 is the standard now found in
Section 4.06 of the Model Penal Code deals with the competency hearing. In relevant part it provides:
(1) When the defendant‘s fitness to proceed is drawn in question, the issue shall be determined by the Court. If neither the prosecuting attorney nor counsel for the defendant contests the finding of the report filed pursuаnt to Section 4.05, the Court may make the determination on the basis of such report. If the finding is contested, the Court shall hold a hearing on the issue. If the report is received in evidence upon such hearing, the party who contests the finding thereof shall have the right to
summon and to cross-examine the psychiatrists who joined in the report and to offer evidence upon the issue. [Emphasis added.]
The General Assembly chose not to adopt the procedure so clearly spelled out in the Model Penal Code. The result is that, if the court orders a report, that report, as a report, may be considered at the competency hearing as “evidence on the record” within the meaning of
II
Sangster also contends that due process guarantees him the right to exclude the Perkins report unless one, or perhaps all four, of that institution‘s examining physicians are made available by the State for cross-examination. The aspect of due process invoked here is the right to a fair trial. The failure of a state to observe procedures adequate to protect a defendant‘s right not to be tried or convicted while incompetent to stand trial deprives a defendant of due process. See Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966).
That the procedure employed here was adequate to protect Sangster‘s right not to be tried while incompetent may be demonstrated by comparison to the procedure employed in federal courts to deal with the competency issue.
By the
The statute did not specify the procedure to be followed when the psychiatrist reported to the court that the accused was competent.
Federal courts generally held that no hearing at all was required by
The procedure under the 1984 federal statute was involved in United States v. Williams, supra, where the defendant‘s pretrial competency proceeding was governed by the old statute but a post-sentencing competency determination was governed by the new statute. At resentencing the defendant asked for a competency hearing but was denied his request. The defendant then submitted records and reports from a federal psychiatric facility to which he had been committed for evaluation to support his request for a competency hearing. The trial court read those records to reflect that the defendant either previously or presently had “mental problems” but concluded that there was no showing of reasonable cause to believe that the defendant did not understand the prоceedings or was unable to assist counsel. The Fifth Circuit rejected the prisoner‘s post-conviction relief contention that the refusal to hold a hearing had violated procedural due process where the district court‘s factual finding based on the reports was not clearly erroneous.
The United States Supreme Court has also recognized, in effect, that an evidentiary hearing is not a per se due process requirement for a finding of competency. In Mag-
In the case sub judice the trial court heard the testimony of Sangster‘s psychiatrist. The court was able to evaluate his opinion not only in the light of Sangster‘s testimony and observed conduct, but also in light of the opinions expressed by the examining physicians at Perkins in their report. Sangster‘s counsel had been furnished a copy of the report. The defense could have subpoenaed one or more of the reporting physicians and cross-examined them concerning their conclusion that Sangster was competent. As the federal cases make plain, the fact that the trial court considered the opinions of the Perkins staff in report form does not, of itself, render the procedure inadequate to protect Sangster‘s right not to be tried while incompetent.
Minimum due prоcess guarantees are “largely a function of the circumstances and the interests at stake.” Ford v. Wainwright, 477 U.S. 399, 411, 106 S.Ct. 2595, 2603, 91 L.Ed.2d 335, 347 (1986) (opinion announcing judgment). Sangster‘s interest in not standing trial while incompetent
The State is interested, both as a matter of justice and of economy, in not conducting criminal trials of incompetent persons. The State also has an interest in competency determinations not being wasteful to the taxpayers. Under Sangster‘s contention considerаtion by a court of written psychiatric reports requires, as a condition precedent, that the State have the reporting experts personally present in court in all cases in which there is no prior waiver of the claimed due process right. Nothing in the present Maryland statutes prevents one in Sangster‘s position from subpoenaing and cross-examining the reporting experts. Constitutional due process does not require more.
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED.
COSTS TO BE PAID BY THE PETITIONER.
COLE, Judge, dissenting.
The real issue in this case is whether in a competency hearing a court may base its ultimate ruling on evidence which does not comply with the statute.
The majority opinion holds that a cursory, one page “conference note” prepared by a team of doctors from thе Clifton T. Perkins Hospital Center constituted sufficient evidence on the record, in and of itself, to find the defendant competent to stand trial. Because I believe that the Perkins “report” did not meet the minimum evidentiary requirements set by statute, I dissent.
The inadequacy of this report and its failure to comply with the statute were the basis of Sangster‘s objection. At the hearing, his counsel stated:
Your Honor, I‘m going to object to the Court‘s notice and reading of their evaluation. All we have is a one or two page conclusionary [sic] statement made by the doctors with no basis in facts. I certainly believe that an opportunity to cross-examine their conclusions is more than warranted in this case.
The majority is wrong in summarily dismissing the issue of whether Sangster‘s competency should have been determined on the basis of this particular report. The Court brushes aside this issue and focuses on whether the defense should have been allowed to cross-examine the Perkins doctors.
As I see it, the majority misses Sangster‘s point that the trial judge failed to determine competency upon “evidence presented on the record,” as required by
The majority relies heavily upon cases applying
After recognizing that compliance with
We discussed the rationale behind such a requirement in Raithel v. State, 280 Md. 291, 372 A.2d 1069 (1977). There
a premium on a conclusory [psychiatric] opinion, which contributes little to the resolution of the difficult task confronting the trial judge. ‘To the extent that psychiatric testimony is utilized, ... it should be descriptive of the defendant‘s condition rather than conclusory.’ (Citation omitted).
The Perkins synopsis considered by the trial court at Sangster‘s competency hearing suffered from the same shortcoming that we disapproved in Raithel. Following a superficial description of the defendant, the report set forth as follows a series of purely conclusory “forensic opinions“:
FORENSIC OPINIONS:
Dr. O‘Brien: Passive-Dependent Personality Disorder. Cannabis Abuse, by history. Competent and responsible.
Dr. Mokhtari: Passive-Dependent Personality Disorder. Cannabis Abuse, by history. Competent and responsible.
Dr. Fitzpatrick: Passive-Dependent Personality Disorder. Cannabis Abuse, by history. Competent and responsible.
Dr. Rojas: Schizophrenic Disorder, Residual. Passive-Dependent Personality Disorder. Cannabis Abuse, by history. Competent and responsible.
FINAL OPINIONS: (1) Passive-Dependent Personality Disorder. (unanimous)
(2) Cannabis Abuse, by history. (unanimous)
(3) Schizophrenic Disorder, Residual. (minority)
The report concluded, without elaboration, that Sangster was able to understand the nature and object of the proceedings against him and to assist in his own defense. In the absence of any explanation or foundation for the above opinions, such as specific observations made and evaluative methods used, the report‘s bare-bones conclusions were of
The Perkins report stood in stark contrast to the testimony offered by Sangster‘s expert witness, Dr. Richard Epstein. Dr. Epstein testified on direct and cross-examination as to his medical training and experience in the psychiatric field, and provided a detailed factual foundation for his conclusion that the defendant was incompetent to stand trial. On the other hand, the Perkins report offered no such foundation for its bald assertions; moreover, it failed to set forth any particular training or experience which qualified these doctors to render expert opinions. Nevertheless, the majority gives its nod of approval to the trial court‘s consideration of the report merely because the judge requested the report‘s preparation and because it was filed with the clerk.
In summary, the Perkins memorandum did not constitute a “complete report” as required by statute. To the contrary, they were statements before the court unsupported by any case history information, psychiatric examination results, or analysis of any kind giving rise to the conclusions offered. Consequently, it did not qualify as “evidence presented on the record” and should not have been regarded by the trial judge as sufficient to support a finding of competence. In addition, given the Court‘s view that a competency report may be considered as evidence on the record even though the examining doctors are not made available for cross-examination, strict compliance with the statutory requirement of a full and complete report as an evidentiary prerequisite becomes all the more imperative. I believe the majority makes a grievous error in placing its imprimatur on such a slipshod response to a statutory procedure.
ADKINS, J., has authorized me to say that he joins in this dissenting opinion.