Thomas v. State

483 A.2d 6 Dоnald THOMAS Maryland. STATE Term, 1982, Term, Sept. Sept. 1983. Nos. Appeals Maryland. Court

Oct. 1984. Jr., Burns, R. Asst. George Michael Braudes and E. Defenders, (Alan Murrell, De- Public Baltimore H. Public fender, Baltimore, brief), appellant. for Rosenblatt, Gen., (Ste-

Richard B. Asst. Baltimore Atty. Sachs, Gen., Baltimore, brief), H. for phen Atty. on the appellee. MURPHY, C.J.,

Argued ELDRIDGE, COLE, before DAVIDSON,* COUCH, JJ., RODOWSKY and AL and W. (Retired), BERT MENCHINE Specially Assigned Judge. MURPHY, Judge. Chief

The appellant, Thomas, Donald guilty by was found jury the Circuit Court for Baltimore of the first County degree murders of Spurling wife, Donald and his Sarah. He was also found guilty raping at the same trial of Noel Wilkins, committing of degree two first sexual offenses upon fellatio), Ms. (cunnilingus robbing Wilkins and of her at knife point of earlier having given State $20. requisite the notice it statutory that would seek the death for the penalty degree murders, two first the ensuing sentencing hearing resulted in imposition the of the death murder, penalty for Sarah’s a life sentence for Donald’s murder, concurrent terms imprisonment rape of life for the offenses, degree and first sexual twenty-year and a consec- sentence utive for the armed Thomas robbery. appealed, challenging both the verdicts guilty and the death sentence imposed upon him. purposes

For the of appeal, parties agreed have to the following statement of facts:

* Davidson, J., participated hearing in the and in the conference of the decision, regard part case in to its but because of illness did not take adoption opinion. in the of the 2, 1981, of Joseph Bayer

“At 4:41 a.m. on Officer October Police County Department the Baltimore received call Road, a rape Chelwynd to a double at 5643 respond reported later, in Baltimore Five minutes County. residence located Already on arrived at that address. Bayer Officer officers; residence, scene, police were two other outside the thereafter. Of- immediately officer arrived almost a fourth door, through the house the front Bayer ficer enterеd the other officers. followed house, Bayer Officer observed “Upon entering doorway the floor in a Spurling lying Ann body of Sarah Spurling room. Ms. dining the kitchen and between pair of a exception down with nude from waist away. cut torn of which had been panties, crotch blood, and the pool in a Spurling lying Ms. was found multiple subsequently ascertained be cause death was wounds. stab house, encountered two other the officers

“Searching basement, body the officers located the In the persons. of Mr. death Spurling’s The cause Spurling. Donald Lee bedroom, In an upstairs wounds. multiple was also stab identified as an 18-month-old child later the officers found Jennie, unharmed. daughter who was Spurlings’ Ann Wilkins. was Noel principal “The witness State’s from the who rented a room Ms. was a student Wilkins testified the homicide. Ms. Wilkins at the time of Spurlings p.m. 11:00 on October approximately to at that she went bed Ms. she was awakened night, 1981. Later that alarm; cut off. cry in was then out Spurling crying bed, remained in where she awake, Ms. Wilkins Not fully noises’ from the downstairs ‘strange to hear continued of the house. portion that testimony, point at some to Ms. Wilkins’

“According door, a man her pass by she saw the silhouette evening close. open bedroom and door to Jennie’s and then heard the man she and a whom opened, door then Her own was her Threatening her room. entered Appellant identified as knife, appeared what to be a the man tied her with butcher her hands and forced in various activities. engage sexual area, Specifically, placed genital he his on her en- mouth gaged vaginal intercourse, to kiss and forced her He penis. lampcord then her asked for bound with and money. dish, She him candy told that there was in a $20.00 and he took the $20.00.

“Ms. Wilkins on to testify Appellant went that she told Spurling home; that Donald would coming Appellant be responded T taken have care him.’ He her asked about and him guns, she told about rifle case in the basement. left guns. He to loоk for the By point, this the bonds on loose, her hands had come she through and exited her window, bedroom climbed a drainpipe, down and ran for help.

“Kelly Gramm, who at living time was at 5638 Chelwynd Road, testified that 4:30 approximately or 5:00 a.m. she calling October heard Ms. Wilkins for help. in, invited She Ms. Wilkins the latter the police, and called stating that had been raped, she that there still a child house, in the and that T he think has killed Sarah.’ “The dispute Appellant defense did not had stabbed Spurlings. The defense theory was that he killed Don- Spurling ald him; self-defense the latter when attacked killed Sarah Spurling a frenzied attempt escape; and that the sexual encounter with Ms. Wilkins was consensual.

“Appellant testified on his behalf. own He related that during evening of October he was in downtown Baltimore video playing games. From a distance half a block, he observed a minor traffic accident in which Donald Spurling was involved. asked him Spurling to remain until police arrived as a behalf, witness on his he com Thereafter, plied. Spurling stated he wished to pay Appellant for but staying money had no with him. Spurling him asked him accompany home obtain some money, Appellant agreed. way, On the they stopped at the Houseman, residence of one where Spurling Sam demanded Houseman was unable to of a debt. repayment $20.00 and ground and latter threw him to repay Spurling, him.1 beat Arbutus, and Appellant Spur- a in stopping

“After at bar casti- Spurling to home. Sarah ling proceeded Spurling’s and up for her work failing pick her husband gated Spurling and upstairs, leaving Appellant ultimately went there, stated that he Spurling in kitchen. While alone developed to do. It Appellant ultimately for ‘job’ had kill someone for a ‘hit-man’ to who looking Spurling great money. Appellant him a deal of had cost apparently someone, willing fight that he would be but responded kill. not to basemant, Spurling to the where proceeded

“The two knives, and indicat- guns his collection of Appellant showed the ‘hit.’ weapon They he for ing provide would in the television and throw darts base- to watch proceeded ment, and ate a meal they prepared after which and then returned to the basement. kitchen impression this was under point, Appellant “At if had he acting speaking strangely, and Spurling was returned to the Quaaludes. The conversation using been [Spurling] someone had ‘cost topic Appellant killing who Spur- he did not like money.’ Appellant a lot of decided him, that he wished to attitude and stated ling’s toward get some go upstairs said he would Spurling leave. so that he could give Appellant from his wife to money return home. returned, that he Appellant he informed Spurling

“When money, him because his wife was still give any could not him giving him In lieu of give any. and refused to angry upstairs him a ‘chick’ Spurling told that there was money, Wilkins) sex black (Noel ‘indulged having with who her, willing and she was He had checked with guys.’ up to Noel’s Appellant sex went Appellant. have with room, relations. engage sexual they proceeded “Appellant Spurling then returned to the re- basement. cabinet, moved a knife from a gun again and raised the ‘hit subject job.’ Appellant that he could responded not kill anyone go point, and wanted to home. At that Spurling ‘toyed apparent with the knife and no reason for in my leg.’ he stuck me After Spurling Appellant, stabbed Spurling held the his own pointing knife inward toward chest,’ chest. Appellant ‘pushed it to his and knife fell onto Appellant a sofa. it ran grabbed steps and toward the leading upstairs him, from the Spurling grabbed basement. and Appellant, fear because had Spurling already stabbed himself, him and much than larger slashed continually him with the knife. room, then

“Appellant ran stating back Noel’s that he was in trouble and for He then asking money. ran down- stairs, saw Sarah’s and he had killed body, realized that her. (He testified that he had ‘blanked after subsequently out’ the fight Spurling with did encountering and not remember all.) Mrs. at Spurling He returned to Ms. Wilkins’ room for a time; third she voluntarily gave pair him and a $20.00 his jeans replace pants. up He then tied bloody her fled. rebuttal, a,

“In requested the State court call as Thomas, court’s witness Michael Appellant’s brother. The proffered 11, 1981, State that on October Assistant State’s Attorney Thomas Basham had telephoned the witness to him questions case, ask about the that he but had refused to cooperate. On October the witness a recanted state- given ment investigating officers on during October which he Appellant related what told him had after the basis, crime occurred. On this the prosecutors stated that they were unable to vouch for the witness’s credibility. Over objection, the court called Michael Thomas its own witness. During his testimony, read his witness state- ment to the jury. That statement indicated that on October 2, Appellant told his brother that he had to kill Mrs. Spurling because she had attacked him. The statement also included admission Appellant’s pair that he had stolen a chains, contradicting and some earrings gold

diamond the house. anything had not from testimony that he stolen statement, trial recanted the again “Michael at Thomas be- officers statement given he had testifying that time long held at the station for police cause he had been released. something them order to be needed tell all. Appellant not strike Houseman "1. testified he did altercation, during Appellant fact did in Houseman testified punch him." (1) (Hormes, trial appellant judge first contends that the J.) cross-examining him from two improperly precluded allegedly Donald concerning Spurling’s State’s witnesses chief, in called During its case the State violent character. Bortle, the for the Spurling neighbors, solely David of one weapon. the identifying of murder On cross-exam- purpose ination, the witness Donald’s appellant questioned about inquired “ex- “temperament” and whether victim was “crazy” or acted at times. court sustained plosive”. day line of On next of questioning. to this objections trial, testify Sarah’s the State called Naomi.Ward about cross-examination, of her On night activities on the death. lot into a appellant “getting asked whether Donald objection time to time.” the State’s fights Again, from raised that because he Appellant argues was sustained. argument, evidence during opening the issue self-defense prove of the victim’s violent character was admissible aggressor. which of them was the properly issue of has When the self-defense been case, in a character of victim is raised homicide Annot., 571, 1 A.L.R.3d purposes. admissible for two See § (1965); 1 236 596-603 Wharton’s Criminal Evidence § (Tillers (13th 1972); ed. 1A Evidence 63 rev. Wigmore on 1983). First, may prove be introduced to the defendant’s it killed. Specifically, the victim was state mind when may prove character be used to defendant evidence had to believe that he was grounds danger. reasonable Jones 659, (1944). State, 653, A.2d 916 The accused v. 182.Md. 35

307 introduce may evidence of the previous deceased’s violent prove acts to that he had perceive deadly reason to motive purpose in the overt acts of the victim. To use charac- (1) ter way, prove: evidence this the defendant first must knowledge violence; (2) of the victim’s prior acts an overt act demonstrating deadly the victim’s intent to- State, ward the defendant. Gunther v. 404, 410, 228 Md. State, v. (1962); 179 A.2d 880 supra, Jones 182 Md. at 659-60, Second, 35 A.2d 916. the violent character of the victim may be introduced to corroborate evidence State, victim aggressor. was the initial Williamson 25 338, Md.App. (1975). 333 A.2d 653 It is not necessary prove that had knowledge defendant of the victim’s Id. 25 reputation. at Md.App. A.2d 653. To use however, character evidence for this second purpose, proponent must first establish an foundation evidentiary tending prove that the defendant acted self-defense. Id. Md.App. 653; 1 Jones on Evidence 333 A.2d § Evidence, (1972); 4:40 at 463-64 Wharton’s Criminal § § 510-11; 236 at 40 Am.Jur.2d Homicide See Nixon v. (1954) 204 Md. 105 A.2d 243 (evidence concerning the “quarrelsome disposition” of the victim properly is proper excluded unless a foundation is laid).

Appellant maintains that the testimony about Don ald’s violent character which he sought to elicit on cross-ex amination was to be introduced for the second purpose. However, he acknowledges that no evidence supporting his self-defense claim was introduced until he took the stand Thus, defense. own no foundation laid was for the introduction of during character evidence the cross-exami nation of the State’s witnesses. Consequently, the trial court did not err in sustaining the State’s objection to his line of questioning.1 laid,

1. unnecessary Because no foundation was it is to decide whether appellant’s testimony alone a would be sufficient foundation. 1 Jones 308

Moreover, the questions asked of the two witnesses concerned far subjects beyond scope of their direct It is testimony. accepted well that cross-examination ordi narily may only be used to matter explore subject covered witness his direct examination and for impeachment purposes. Md. Williams v. Graff, (1950). A.2d See also Comm’n on Med. Disci Stillman, (1981); v. 291 Md. 435 A.2d pline Shupe 238 Md. 208 A.2d 590 David Bortle’s testimony direct was limited to an identification of the weapon. Ward, murder Naomi in her testimony, direct gave an of her evening account activities with Sarah on the of the beyond murders. She did not discuss Donald ac knowledging Questions that she had met him. Don about ald’s character far afield from testimony were the direct Therefore, both witnesses. the trial court’s disallowance this cross-examination was reversible error.

(2) next Appellant claims that trial court erred when it expert admitted the of an F.B.I. improperly testimony agent chief, case on In its case in during State’s rebuttal. presented Spurling State had evidence that Sarah had been sexually During assaulted either or after she died. before Henry Wysham, cross-examination detective who su- pervised police investigation, appellant questioned him collected at the crimе scene and physical about evidence F.B.I. for At analysis. appellant’s request, sent to the reports containing analyses F.B.I. of this evidence were Among the in the findings reports admitted as exhibits. that a hair re- uniquely shaped public conclusion combings pubic region from of Sarah’s “could have trieved from No the con- originated” appellant. testimony about time. reports tents of the was introduced at this 464; Annot., A.L.R.3d, Evidence, 4(b); supra, supra, 4:40 at 1 § § Homicide, supra, 40 Am.Jur.2d 303. §

309 During rebuttal, its case on the State offered the testimo- ny of the F.B.I. agent prepared who on the report pubic comparison. hair After qualifying expert, as an the witness explained the process by which pubic hairs of the appellant and the victim were compared repeated and he conclusions outlined in the report. Appellant timely made objection to this testimony, claiming that it was improper rebuttal evidence. The objection ap- was overruled. On peal, the appellant contends that the admission of the agent’s testimony was prejudicial error requiring a new trial. disagree. We

Rebuttal evidence includes any competent evidence explains, which contradicts or replies to any new matter raised by defense. It inis the trial court’s discretion to decide whether particular testimony proper constitutes re evidence; buttal the court’s ruling will not be reversed unless it is shown to be both “manifestly wrong and sub stantially injurious.” State, 1, Huffington 14, v. 295 Md. 452 A.2d 1211 (1982),quoting State Hepple, 265, v. 279 Md. 270, (1977). 368 A.2d 445 State, See Mayson also v. 238 283, Md. (1965); A.2d 599 State, Lane v. 81, 226 Md. (1961), U.S, 172 A.2d 400 denied, cert. 368 U.S. (1962); L.Ed.2d 529 143 Md. 122 A. Kaefer Assuming arguendo that agent’s the F.B.I. testimony was not introduced in response to any new mat ter defense, raised we are nevertheless ‍‌‌‌​​​​‌‌‌‌​​​​‌​‌​​​​​‌‌‌‌​​​​​​‌​​‌‌​‌‌​‌‌‌‌‌​‍unable to find that the admission of such evidence warrants reversal. Unlike the prejudicial evidence admitted Huffington, this testimony was merely cumulative. Huffington, supra, 295 Md. at 452 A.2d 1211. It duplicated evidence already introduced at trial at request of the appellаnt; it did not additional, add different, “an and independent fact or cir cumstance upon which the could jury premise a finding of guilt.” fact, In Id. it clarified for the jury evidence al ready introduced at the behest of the defense. The agent merely repeated report’s findings. There no ele ment of surprise; unfair appellant was familiar with the report’s conclusions when he structured his case defense.

310 § (Chad 677-78 Wigmore VI on Evidence 1873 at See rev.1976). the agent’s of Additionally, impact bourne so mass direct testimony insignificant light was of the that we against appellant and circumstantial evidence a doubt that the beyond can “declare belief reasonable way error in no influenced verdicts.” Huffington, 16, 295 Md. 452 A.2d 1211. supra,

(3) Appellant contends that the trial court erred in for jurors to strike a number of cause. refusing prospective result, he that the tried him jury As a claims which was impartial to render an verdict. unable dire Voir was conducted counsel chambers over made six-day period. Both sides numerous motions cause, granted. for of which Of jurors many strike were appellant impanelled, twelve and three alternates jurors sixteen only only to strike for cause three. He used moved him challenges by Mary- twenty peremptory provided of the 1, jury Rule 753 a and he stated that the as constituted land acceptable to the defense. was appellant’s argument is in the The short answer to composition to the any objection of this case circumstances talesmen when he was waived jury panel acceptable to him. jury indicated that was unequivocally State, 719, (1984); 481 Md. A.2d 201 Calhoun v. 300 White 579-80, (1983); Glover, State, Md. 468 A.2d 45 297 v. State, 448, 452-53, 330 v. 273 Md. Robinson & Gilmore 149, 162, (1975); 156 Md. 143 A.2d 201 Neusbaum Furthermore, jury at the time the A. 872 challenges four re- appellant peremptory had impanelled, jurors of the He have removed all three maining. could for should have been excluded cause. he now contends who peremptory to exhaust all of his appellant Because failed refusing that the court errеd challenges, claims State, 4 are Bever v. jurors these for cause waived. strike (1968); Annot., 72 A.L.R.2d A.2d 634 Md.App. 243

311 § (1960); (1969); 50 C.J.S. Am.Jur.2d Jury § (1947).2 Juries

(4) Appellant next claims trial its court abused it discretion when called his brother Michael Thomas as a court witness at the request State’s during rebuttal phase the State’s case. The sought State elicit testi- from mony concerning incriminating Michael admissions made to him by appellant the the day the after Spurlings were killed. given Michael had a contemporaneous written police statement to the describing this incriminating conver- sation; however, he its He subsequently disavowed truth. police claimed that the extracted statement by the threaten- ing to incarcerate him he until talked.

Under the against witness, rule a impeaching party’s own the State could not vouch for veracity the Michael’s testimony and could not call him aas witness. Over appel- objection, lant’s the court called Michael as its witness and examination, conducted the during direct Michael which denied that of the incriminating some statements attributed to appellant the were made. Both ever and the State appellant permitted were to cross-examine witness. cross-examination, its During to prosecution attempted impeach reading Michael by jury prior to the written gave inconsistent statement that he to the police. Subse- on quently, court its own motion admitted written statement objection without from In appellant. its instruc- the jury, tions to the court said: will recall on one I occasion did indeed call a “[You] him questions my witness ask some You own. appellant 2. A review of the record reveals no indication that was by impartial jury. a fair jurors denied trial an All of the indicated in they lay any might preconceptions they voir dire that would aside only presented have and render a verdict based on the evidence in the State, 125, (1978), case. See denied, v. Couser 282 Md. 383 A.2d 389 cert. 852, 158, (1978); Kujawa 439 U.S. 99 S.Ct. 58 L.Ed.2d 156 v. Co., 195, (1961); Baltimore Transit 224 Md. 167 A.2d 96 v. Garlitz 293, State, (1889). 71 Md. 18 A. 39 way or feeling one questions any into my should read case, yоu nor are in this regarding the other the issues I feel what questions conduct my to ascertain from try this should be in case.” the verdict 342 A.2d 275 Md. Under Patterson of the trial (1975), the sound discretion it lies within court a person testify whether call judge witness a clear absent abuse and that decision will not be reversed State, Md.App. Id.; Scarborough v. of discretion. no there was abuse Clearly, 437 A.2d of the preventing case. Because rule discretion this witness, sys adversary own impeachment party’s of a about a statement evidence produce important tem failed to committed. after the crimes were shortly appellant made this found that evidence reasonably could have court justice. Patter miscarriage necessary prevent Furthermore, 342 A.2d 660. son, 275 Md. supra, preserve his “scrupulously careful” to Hormes was Judge ques he confined his jury; eyes impartiality Id. 275 Md. to factual matters. strictly of Michael tioning to draw jury He also instructed the 342 A.2d 660. by called the that Michael was from the fact no inference parties. the by court instead of one of the for court to that it was error also contends Appellant to jury to read the statement be Michael's written allow used that the statement was be an instruction without not as substantive evidence. for only impeachment instruction and we limiting requested never Appellant Maryland Rule 757 thus been waived. think the has point (1982). More- h; 441 A.2d 292 Md. Hall testimony at statement and his over, Michael’s written both most, At contradictory. the internally vague and trial were cumulative, it that unlikely and is been might evidence have any way. verdict in jury’s it affected the (5) it erred when that the court contends Appellant officer in cross-examining police the him prevented from the charge of Ms. investigation about a statement that might Wilkins have police. made the The photo- State called Detective Wysham identify the graphs of crime physical scene well as certain The evidence. witness did not testify on direct examination about Indeed, conversations with the any rape victim. testimony indicates that he had questioned her about incident; the she was interviewed other officers. On cross-examination, appellant asked whether victim had told the witness or other that officers she had resisted attack. court sustained timely objections by the State. Plainly, this line questioning was far beyond scope of subject matter raised on direct examination ruling court’s was correct. See Graff, Williams v. Md. 71 A.2d 450

(6) Thomas’ sixth claim of error concerns part court’s instructions to the jury wherein it was stated: return

“The of the indictment aby Grand raises Jury no presumption whatsoever on the part the Defendant. It is a mere formal charge place necessary the Defend- upon ant trial. Any person who is accused of a crime comes into this with presumption Court of innocence. presumption That remains with him throughout the trial. It is incumbent upon you the State to offer proof to show that the Defendant guilty is of the crime with which he’s charged, and the degree proof is necessary for offer you State to is Defendant is guilty beyond a reasonable and to a doubt moral certainty.

“Each and every element of the crime charged must be proven by the beyond State a reasonable to a doubt and moral certainty. does That not mean the must State prove person a guilty beyond all and doubt to a mathe- matical certainty. A reasonable doubt is not very a difficult term to explain, and I will make this explanation of reasonable you. doubt to you facts, all the can that

“If, considering you say after such abiding guilt have of the Defendant's an conviction an willing upon as be to act without hesitation you would affairs, relating your you matter to own then important have reasonable doubt. no differently: a The evi- thing the same little

“Stating a it to remove reasonable when dence is sufficient doubt ordinarily prudent of an judgment person convinces of a force he or proposition of truth with such in upon she act that conviction without hesitation would his affairs. is the important or her own most That in degree proof produce of that the State must a criminal guilty. case to a verdict of justify in order presumption due to the you give “As must force jurors, proceed in the evi- cautiously weighing of innocence to and to dence, you are not commanded be naive every glib suggestion, whether scrutiny without believe or An from the from the Defense. emanating State as ingredient judgment, Court as well indispensable it, is a of common sense. out of modicum only “I burden carried you instruct production, is a in a murder trial burden accused some evidence mitigating and means simply it blood, I hot which will comment circumstances such as excuse, or later, justification self-defense, or such later, either present comment on must be which I will to case in order State’s case or Defense’s determination. jury a justify himself herself is entitled decide for juror “Each he or have is reason- any may or not doubt she whether are not convinced doubt you beyond able. If reasonable Defendant, duty then have you guilt acquit him. required prove innocence.

“The Defendant is not in his favor every is entitled inference Defendant from evidence. reasonably which can be drawn facts, from the same may be drawn Where two inferences inno- and one consistent with guilt one with consistent 315 cence, inference the Defendant is entitled to the which is supplied.) consistent with (Emphasis innocence.” Later, court appellant instructed that the could jury beyond not be convicted unless the State a reason- proved doubt that he had acted in self-defense. able not

Appellant contends that the italicized instructions unconstitutionally shifted him of proving the burden that he acted in self-defense of principles violation enunciated in Mullaney Wilbur, v. 684, 1881, 421 U.S. 95 S.Ct. 44 (1975). note, however, L.Ed.2d 508 We appellant did object not at trial to the instruction and his objection is waived, therefore absent a finding “plain error” under State, See also Tichnell v. 695, Rule 757 h. 287 Md. 415 Hutchinson, (1980); State v. 198, A.2d 830 287 Md. 411 (1980). A.2d 1035

It is well settled that objection “when is raised to instruction, a court’s attention should not focused on be particular portion context, lifted out of but rather its ade quacy is by viewing determined it as a whole.” State v. Foster, 388, 397, (1971), 263 Md. denied, cert. 283 A.2d 411 406 U.S. 92 (1972). S.Ct. To L.Ed.2d 818 effect, State, see Poole v. same 167, 186, 295 Md. 453 A.2d (1983). Viewing the instructions as a and in whole context, course, we find no error. Of an stating instruction the defendant must prove self-defense would be im Squire proper. (1977). 280 Md. 368 A.2d 1019 case, The however, instruction this does shift the burden of proof defendant; portion under scruti ny only refers to the production.” “burden of Judge Hormes explicitly told the jurors that “the verdict cannot be murder you’re unless beyond convinced a reasonable doubt the Defendant did not act in self-defense.” in struction placing produce burden the defendant some evidence of generate self-defense order to the issue Evans, was a correct statement of the law. See State v. 197, 278 Md. 362 A.2d

(7) improperly court that the trial Appellant complains next it during which scope closing argument, his restricted find no We statements. objections sustained two reversible error. is the permissible

The law of clear: Maryland the is a matter for sound discre closing argument scope court, will not consti the exercise of which tion of the trial and to clearly prejudicial error unless abused tute reversible 404, 413, A.2d State, 272 Md. the accused. Wilhelm of defense counsel’s extensive Our review or prejudice no abuse of discretion closing remarks reveals appellant. (8) chief, Rudiger the called Dr. part its case in State As of Noel Wil- testify his examination Breitenecker to about the In connection with kins after the assault. shortly of her examination, aspects disclosed certain Ms. Wilkins the report in a which were recorded history medical stand, Breitenecker took Before Dr. examination. from appellant to preclude a motion limine State made in in the victim’s medical to certain items referring at trial inquiry sought prohibit history. Specifically, State (2) (1) virgin Ms. was a and whether into Wilkins whether In accordance with control device. she used a birth (1982 law, Maryland Repl.Vol.) shield Code Maryland rape § 27, 461A,3the conducted an camera review Art. court provides: 3. This section "(a) relating chastity. to a relating to victim’s Evidence —Evidence relating chastity reputation opinion for and evidence victim’s any prosecution chastity commis- are not admissible for victim's degree. rape first or second or sexual offense sion of a prior specific conduct instances of victim’s sexual Evidence of only may judge evidence is relevant and finds the be admitted if inflammatory case that its is to a fact in issue in the material value, outweigh probative prejudicial and if the nature does not its is: evidence Appellant of the argued history evidence. medical relevant to and contention Ms. probative him Wilkins consented to intercourse with and that she “liked sex with black men.” The appel- court ruled that proffer lant’s failed to demonstrate that the evidence was relevant and granted the State’s motion. The court indi- cated that change ruling it its if would evidence was presented which made victim’s subsequently prior sexu- activity al relevant. us,

Before appellant does not contend the trial court § § A. misapplied Nor he does claim that 461A is Rather, unconstitutional its face. he argues that the law, case, shield in this applied violated his sixth amend- ment right to confront cross-examine the witnesses against effect, him. In appellant claims that the exclusion of this deprived evidence him of the ability present an effective defense and that he consequently is to a entitled new trial. We disagree.

Decisions on the relevance of evidence rest in the sound of discretion the trial court and will not be reversed showing absent a that such discretion was clearly abused. State, 445, 453, See Durkin v. 284 Md. 397 (1979); A.2d 600 City Zеll, 23, 28, Baltimore v. 279 Md. 367 A.2d 14 of (1977); Hendrickson, 459, 468, Corbi v. 268 Md. 302 A.2d (1) past Evidence of the victim's sexual conduct with the defend- ant; or (2) specific activity of showing Evidence instances of sexual semen, disease, trauma; origin pregnancy, source or or or (3) supports Evidence which a claim that the victim an has crime; accusing ulterior the defendant of the or motive (4) purpose impeachment Evidence offered for the when the prosecutor puts prior the victim’s sexual conduct in issue. (b) hearing. Any (a) In camera evidence described in subsection — section, may any of this not be to jury referred statements to a holding prior nor introduced trial at without the court a in camera hearing admissibility to determine the of the evidence. If new during information may is discovered of the trial course that (a) admissible, make the evidence described in subsection the court may hearing order admissibility an in camera to determine the proposed (a).” evidence under subsection

318 is well (1973). find of discretion here. It 194 We no abuse prior sexual accepted specific that evidence of the victim’s not than the defendant is relevant persons acts with other with the defend prove that she consented intercourse Johnson, State, v. 199, 206, Md. 192 506 Jr. 232 A.2d ant. State, 370, (1962), v. 380, A.2d Giles (1963); 229 Md. 183 359 dismissed, 372 767, 1102, 83 10 L.Ed.2d appeal U.S. S.Ct. See 149, (1885). Shartzer v. (1963); 63 Md. 152 137 Annot., 94 257 That not to A.L.R.3d is generally however, prior sexual acts of the victim say, specific 27, See Art. purposes. relevant for other may not be § 461A(a)(1)-(4). sought But to of appellant the evidence concerning relevance. Evidence clearly fer was without of a does virginity Ms. Wilkins’ or use birth control device liked sex with prove disprove not tend to she black appellant. with the This men and consented intercourse irrelevant and excluded. properly evidence was correctly court ruled Since trial exclusion not violate irrelevant, appel its did evidence was course, rape Of shield laws rights. lant’s constitutional evidence may probative used to exclude violation be rights constitutional of confrontation defendant’s Harrison, 670 (6th Cir.1982). Bell v. 656 process. due F.2d right present has no constitutional But defendant States, Doe v. United 666 F.2d irrelevant evidence trial. Parratt, (8th (4th Cir.1981); F.2d Pratt 43 615 486 denied, cert. Cir.1980), 101 S.Ct. 449 U.S. Kasto, (1980); United States v. 584 F.2d L.Ed.2d 64 denied, cert. (8th Cir.1978), 99 S.Ct. U.S. State, 267 Ark. 345, v. (1979); 590 Marion L.Ed.2d 486 McKenna, v. 367, People (1979); 196 Colo. 585 S.W.2d 288 Arenda, 1, People v. (1978); Mich. P.2d 416 330 N.W.2d 275 v. 31, Fortney, State (1982); 301 N.C. 269 S.E.2d 110 814 § (1980). (1980); Annot., 1 287 A.L.R.4th at Where outweighed the probative value of the evidence is from harass protecting rape interest victim State’s trial, ment and humiliation its exclusion does not violate confrontation, right right present the defendant’s his to of an effective defense or right to due process law. See Alaska, Davis v. 415 U.S. 94 S.Ct. 39 L.Ed.2d 347 (1974); United Kasto, States v. supra; State, Marion v. supra; People Arenda, v. supra; Gardner, State v. Ohio St.2d case, N.E.2d 337 In this irrelevant, evidence was but assuming arguendo that it possessed relevance, some it was outweighed far by the § public sound policy supporting Furthermore, 461A. since this evidence had no bearing appellant’s contention that the victim consented to have him, intercourse with its exclusion caused him no prejudice. conclude, We therefore, § 461A, applied appellant in the circumstances of case, this is not unconstitutional.4

(9) Next, appellant claims that the court improperly admitted evidence tending prove good victim, character of the Spurling. Sarah The State called Naomi Ward to testify about Sarah’s prior activities just to her death. During examination, direct the witness was asked to describe Sarah “from your relationship with her.” Appellant’s objection inquiry overruled, after which the witness describ- ed Sarah as “a very person,” vivacious nurse, a dedicated and a friendly person, liked by all who knew her. Asked whether Sarah child, ever talked witness, about her over appellant’s said, “Yes, objection, she talked about her a lot.” Appellant’s Schockley (Tenn. reliance on 585 S.W.2d 645 4. Crim.1978), case, misplaced. is In that рrove the State tried to pregnant trial, the victim became rape. as a result of the At precluded by rape defendant was the Tennessee shield law from offering evidence that the victim had sexual relations with other men rape allegedly around the date that the occurred. The court held that it was error to way. construe the law in this There, Clearly, Schockley distinguishable. is the evidence was rele- disprove vant agency. type defendant’s criminal That this may 461A(a)(2) recognized by evidence be permits relevant is which § specific the introduction of activity "[e]vidence instances of sexual semen, showing disease, origin pregnancy, source or or trau- ma.”

320 new trial because Appellant argues that he is entitled to a disagree. this We prejudicial. evidence was irrelevant that, true the character of generally, It is unless, earlier, discussed is as we homicide victim irrelevant 1 of self-defense. See the defendant raises a claim Whar § (13th 1972). ed. 236 at 510 ton’s Criminal Evidence plead not in the death of Appellant did self-defense Sarah Nevertheless, challenged if testimony even Spurling. irrelevant, inconsequential meaningless it was so of the upon as to had no the outcome case. Of impact have course, “the of irrelevant evidence will not re admission it that not quire if the evidence was appears reversal State, 489, 499-500, Md. 69 prejudicial.” Hopkins v. 193 (1949), dismissed, 940, A.2d 339 70 appeal U.S. S.Ct. find that appellant 94 L.Ed. 1357 Because we evidence, this its admission does prejudiced by was not necessitate a new trial.

(10) there was insufficient evi Appellant alleges degree for the first sexual dence conviction support him. perform upon fellatio forcing offense of Ms. Wilkins § Code, 554, as interpreted He Art. argues (1976), A.2d 90 re Md.App. Gooch v. the mouth. organ penetrated quires the sexual proof trial indicated that Ms. Wilkins presented The evidence no penis. “kiss” Since there was was forced to appellant’s argues he that the penetrated, that the mouth was showing degree first sexual support evidence was insufficient n conviction. offense 554 pertains meritless. Section Appellant’s contention is sexual perverted practices”; of “unnatural or crime Rather, violating appel- this law. charged he was not with as set degree sexual offense lant was convicted of a first § 464(a) provides: forth in which Art. degree in the person

“A offense first guilty is of a sexual if act: person in sexual engages (1) person With another force by force or threat of against the will and without other the consent person, and:

(i) Employs or a displays dangerous weapon or deadly or an article which ‍‌‌‌​​​​‌‌‌‌​​​​‌​‌​​​​​‌‌‌‌​​​​​​‌​​‌‌​‌‌​‌‌‌‌‌​‍the other person reasonably concludes is a dangerous or deadly weapon; or

(ii) suffocation, Inflicts strangulation, disfigurement, or serious physical injury upon the person upon other or in anyone offense; else the course of committing the or (iii) places Threatens or in victim fear that victim or any person known to the immi- victim will be nently death, subjected suffocation, stangulation, dis- figurement, serious physical or injury, kidnapping; or

(iv) The person commits the offense aided and abetted by persons.” one more other act,” The term section, “sexual as used in this is defined by §27, 461(e) Art. to include “fellatio”—a in word not defined the statute. We think that the legislature give intended to common, “fellatio” its ordinary and well-accepted meaning. (4th 1968) Black’s Law 743 Dictionary ed. rev. defines fellatio as an “offense committed with the male sexual organ and the mouth.” Sohmers, See also v. People 55 925, 714, Misc.2d 286 (Crim.Ct.1967); N.Y.S.2d v. State McParlin, 742, 422 A.2d 2 (R.I.1980). 743 n. Webster’s Third New International gives the Dictionary following practice definition: “the of obtaining sexual satisfaction oral stimulation of the penis.” view, Under general proof of penetration required; is not all that must be shown is some contact between mouth and the male organ. Carter v. 122 Ga.App. (1970); 176 S.E.2d 238 (La. State Phillips, 1978), So.2d 1304 denied, cert. (1979); U.S. 99 S.Ct. 61 L.Ed.2d 287 McDonald v. State, 513 44 (Tex.Crim.App.1974). Therefore, S.W.2d we § fellatio, hold that meaning 461(e), within the of encom passes the oral contact with the male organ sex involved this case. Since there ample evidence to support the jury’s offense, verdict on the first degree sexual we con- entitled to a new trial on this appellant

elude that is not issue.

Sentencing Issues (a) admitting judge contends that the trial erred Appellant expert, of the testimony report psychiatric State’s of sentencing phase proceed- Dr. Michael at the Spodak, He that the admission of this evidence violated ings. claims fifth, rights. amendment his sixth and fourteenth that Dr. of the Spodak, The record discloses member in the Hospital, T. Perkins State participated staff Clifton 4, 1982, appellant February evaluation pretrial following insanity incompetency to stand plea Earlier, January Spodak Dr. conducted trial. hospi- appellant one-on-oneexamination of at the psychiatric At workup full case “psychiatric report.” tal and filed a (a Judge jury Hormes deter- sentencing hearing before waived), that Spodak Dr. testified having mination been he him that examination of told prior appellant, to his initial confi- he would not be held in “any information revealed re- or in might testimony dence and be used written seeking penalty “the was death and that State ports”; me anything him that that he discussed with advised [I] might subsequent found used in guilty he to be were be testimony sentencing proceeding.” Asked whether at testified that explanation, Spodak understood that appellant seeking they he that “said did understand were appellant and that he told me anything the death would penalty fol- .Spodak further testified that held in confidence.” be willingly proceeded with lowing explanation, appellant this the interview.5 evidence, report, he Spodak’s also reflected that

5. written received any seeking penalty; appellant the death "that told that the State sentencing might phase of be testified to at a information he disclosed outcome"; prior psychiatric depending and that his trial on the evaluation, clearly that he understood "the defendant indicated might purpose." any be used for information he disclosed appellant After trial, had guilty been the State found petitioned the court for permission to conduct a “Presen- tence psychiatric appellant. evaluation” of the The State’s petition referred to the psychiatric earlier of the evaluation appellant at the Hospital appel- Perkins found that which lant was criminally responsible and competent stand trial. petition also stated that it was to supplement desirable appellant’s original insanity evaluation with further interviews “to develop material presentation for at sentenc- ing”; that Dr. Spodak, who participated in the insanity evaluation, could conduct the further psychiatric examina- tion; and that appellant’s counsel had no objection evaluation. The approved court petition the State’s and Dr. Spodak thereafter appellant interviewed on November 1982 at the jail, telling him at that time that he had been “retained the State’s Attorney’s Office ... to evaluate him on certain issues about the death penalty, depending on what he said and depending my findings, I might very well be called as a witness to testify at the sentencing phase.” Dr. Spodak appellant testified that indicated that he understood the explanation and was will- ing to be interviewed at that time.

At the sentencing hearing, sought the State to introduce Dr. Spodak’s report and testimony concerning post-trial psychiatric examination of appellant. Appellant’s coun- sel objected on the ground that he was under the impression Spodak that “Dr. would see appellant] as a member of [the the staff of while, Clifton T. Perkins” in actuality, he conducted the examination as “a paid doctor by State’s Office”; Attorney’s that had he fact, known of this he would not permitted have the examination and would have advised the appellant “not to discuss any matters with Dr. Spodak so long as he then in was the employ of the State’s Attorney’s Office ... longer Doctor is no a [because] pure objectionist, but paid person is a whose views obvious- ly more than likely reflect the sought by views his employ- er.” The court objection, overruled the stating that Dr. Spodak qualified was a psychiatrist forensic and “it makes and no nobody pays who him ...

no difference [since] change his him to going is to cause money amount of testimony Thereafter, and Spodak’s report Dr. opinion.” evidence; the existence of negated they received were 27, under Art. circumstances mitigating possible two § and (7), i.e., murders of Donald and 413(g)(4) capacity not committed “while Spurling were Sarah his conduct or criminality appreciate the defendant to requirements of law was conform his conduct to to incapacity, a of mental impaired as result substantially intoxication”; disorder, mental emotional disturbance engage defendant will “unlikely that it was not that the and constitute continu- activity in further criminal would ing society.” threat to State, 292 that under Appellant acknowledges Johnson (1982), are psychiatrists Perkins’ Md. 439 A.2d 542 experts partisans wholly impartial deemed to be The “cru- though paid by State. prosecution, even in the is that nowhere according appellant, cial to point,” would be suggested Spodak it petition was State’s he psychiatrist; as other than a Perkins’ functioning Smith, 451 U.S. upon relies for reversal Estelle v. 68 L.Ed.2d 359 S.Ct. prosecution’s use Estelle,

In the issue was “whether respon- sentencing phase at the testimony of psychiatric danger- his future murder trial to establish capital dent’s 451 U.S. rights.” violated his constitutional ousness trial, There, to sua judge, prior the trial 101 S.Ct. at 1869. counsel, or- the defendant’s sponte notifying and without psychiatrist the defendant be examined dered that psychiatrist to stand trial. The competency determine his that the defendant indicating filed a with the court report convict- the defendant was competent. Subsequently, was proceeding, the capital At the of the sentencing phase ed. precedent as a condition required prove was State given appellant prior copy Spodak’s report to the 6. A of Dr. sentencing hearing. imposition penalty probability of the death that there was a beyond a reasonable that the defendant would be doubt dangerous in the psychiatrist future. The State called the as its solely pretrial witness. Based on his psychiatric defendant, examination of the the psychiatrist testified af- as to the firmatively dangerousness. defendant’s future The Supreme whether, Court first addressed the issue circumstances, the psychiatrist’s violated the testimony defendant’s fifth amendment privilege against compelled self-incrimination because the defendant was not advised before pretrial psychiatric examination that he had right to remain silent and that any statement he made could be used against him at the capital sentencing proceeding. The Court concluded that the penalty ultimate of death was a potential consequence of what the defendant told the psychiatrist; effort any by compel the State to defendant to testify against his at the sentencing will hearing amendment; would contravene the fifth and thus the State’s effort to establish the defendant’s future dan- gerousness by relying on “the unwarned statements” made psychiatrist infringed the fifth amendment. Id. 462-63, 101 S.Ct. at In connection, 1872-73. this the Court pointed out that the psychiatrist’s diagnosis as to future dangerousness was not based solely on his observation of the defendant but rather upon made, statements and not made, by the defendant in his recital of the details of the crime. The Court emphasized that simply because the defendant’s statements “were uttered the contеxt of a psychiatric examination does not automatically remove them from the reach of Fifth Amendment.” Id. at examination, S.Ct. at 1874. The results of the said, Court were used the State for purposes far beyond merely establishing defendant’s competency to stand trial;7 they were used instead to establish the “critical indicated, 7. The Court U.S. at 101 S.Ct. at that the fifth implicated psychiatrist’s amendment would not have been had the issue” of respondent’s dangerousness, proof future beyond prerequisite impo- which a reasonable doubt was to Thus, penalty. sition of the death the Court said that proof by using because the State satisfied its burden of statements, unwittingly defendant’s “own made without an assisting awareness that he was the State’s efforts to penalty,” obtain the death the fifth amendment privilege applied 466, in such “distinct circumstances.” Id. at Arizona, 436, S.Ct. at 1875. Miranda v. 384 U.S. 86 S.Ct. (1966) 16 L.Ed.2d 694 was cited as authority, Court stating calling considerations for “[t]he accused to warned to prior interrogation apply be custodial pretrial with no less force to the psychiatric examination at Estelle, issue here.” supra, 451 U.S. at 101 S.Ct. at 1875. Court continued:

“That respondent questioned by psychiatrist desig- was a nated the trial court to conduct a neutral competency examination, officer, by police government rather than informant, prosecuting attorney, is immaterial. When psychiatrist] beyond simply went to the reporting [the court on the issue of competence and testified for the prosecution phase at the on the crucial issue of penalty future respondent’s dangerousness, changed his role like that essentially agent became of an of the State recounting statements made in a postarrest unwarned setting.” custodial Id.

Further on in its said: opinion, Court defendant,

“A criminal who neither initiates a psychiat- attempts any psychiatric ric evaluation nor introduce evidence, may compelled respond psychia- be to a trist if his statements can be him against capital used at a sentenсing proceeding. respondent Because did not vol- pretrial consent to the untarily psychiatric examination being right after informed of his to remain silent and the statements, possible use of his rely State could not findings only competency been used determine defendant’s to stand criminally responsible. trial or whether he was what he said to future psychiatrist] to establish his [the dangerousness.” at Id. 101 S.Ct. at 1876.

The Court concluded that the defendant’s statements to psychiatrist “could be used penalty as the State did at the phase if only respondent apprised rights had been of his had knowingly decided to waive them.” at Id. S.Ct. 1876.

As to the sixth amendment right counsel, the Court said that the issue was whether right abridged when the defendant was not given prior opportunity to consult with counsel about his participation in the pretrial psychiatric examination. The Court held that as counsel was not notified psychiatric examination would encompass the issue of future dangerousness, and because the defendant was denied the assistance of counsel in making significant decision of whether to to the submit examination, and to what end psychiatrist’s findings used, could be the sixth right amendment to counsel was 471, violated. Id. at 101 S.Ct. at In 16, 471, 1877. n. id. at 1877, 101 S.Ct. the Court indicated that a waiver of the constitutional right the assistance of counsel could be found where there was a voluntary, knowing and intelligent relinquishment or abandonment of the known sixth amend- ment right.

We think it clear appellant’s objection to Dr. Spodak’s testimony and report was not based on constitu tional principles enunicated in Estelle but predi rather was cated solely on a basis, i.e., non-constitutional that in con ducting the post-trial evaluation, Dr. Spodak was not a neutral expert, as appellant’s counsel thought when he interview, consented to the paid but was prosecution; and because the psychiatrist was biased against the appel- 13, 469, 8. In n. 451 U.S. at 101 S.Ct. at the Court remarked: "Of course, we do not hold that the same Fifth Amеndment concerns are necessarily presented by types all of interviews and examinations that might upon be ordered sentencing or relied to inform a determina- tion." 328 course, well

lant, is, It the evidence was inadmissible. an delineated for specific grounds settled that “where are grounds to those the one will be held objection, objecting not grounds deemed to have waived ordinarily and will be State, 191, 196, 416 A.2d 288 Md. specified.” Jackson v. 548, 554, (1980). State, 283 Md. 391 278 v. Mays See also 32, 39, A.2d (1978); Kidd, 429 281 Md. 375 A.2d State v. State, Md. 368 A.2d (1977); von v. Lusch going one appellant’s objection We think was Spodak’s of Dr. weight, admissibility rather than the find no error testimony report; accordingly, we admission of this evidence. constitu

Assuming objection that the arguendo Estelle, in the we neverthe tionally grounded principles of this case. Mary less find no error the circumstances statute, statute land’s unlike the Texas capital penalty Estelle, the defendant’s future involved in takes account of of a circumstance— dangerousness only by way mitigating dangerous it is that the defendant will be unlikely whether the burden of in the future. The State does bear circumstances, mitigating Tich proving nonexistence 830; thus, appel A.2d nell 287 Md. against upon him on a matter lant’s words were not used which, Estelle, held the prosecution as in burden Moreover, during appellant’s original psychiatric proof. any Dr. he told that information by Spodak, evaluation held in psychiatrist he to the would be which revealed subsequent capital used at a sen confidence but could be Estelle, in law appellant’s counsel tencing hearing. Unlike by Spodak examinations Dr. prior had notice of both yer appellant to confer with before opportunity and had warnings given to Miranda-type each examination. The wholly initial examination were absent appellant prior to his feature between that and distinguishing in Estelle—another appellant’s is the fact that Equally case. clear present to the evaluation that agreeing priоr counsel was advised Dr. intended by Spodak was post-trial examination at the sentencing hearing. develop presentation material for circumstances, In the even if counsel was hon- appellant’s in estly Spodak mistaken the belief that Dr. would evaluate in his as Perkins’ appellant capacity psychiatrist, a require principles fact alone would not reversal under the of conclude, case, in Estelle. We thus on the record this fifth, appellant’s rights sixth and fourteenth amendment were by not violated the admission into evidence of Dr. Spodak’s report and testimony.

(b) The State called two witnesses to at the testify sentencing hearing appellant’s prior about crimi unrelated nal activity. appellant prosecuted Because was not occasion, either this testimony related crimes for which there were neither pleas convictions nor or nolo guilty Thus, contendere. appellant argues that this evidence was §27, 413(c)(l)(iii),9 inadmissible under Article interpreted in Scott v. 297 Md. 465 A.2d 1126 City

Baltimore Police Bruce Tyler Officer testified about shooting July appellant 1981. He said that had become store, involved at a liquor disturbance as a result owner; of which he was from ejected the store appellant thereafter threatened the owner pulled who pistol shot; out a warning fired a and that because the warning appellant, shot did not deter the the owner fired another appellant shot which struck the in the Ap- chest. pellant charged was not with crime. He any objected to the witness’ testimony ground on the that it was hearsay. The objection was overruled. provides:

9. The section “(c) Evidence; (1) argument; following type instructions. — proceeding: evidence is admissible this (0 ... (ii) ... (iii) convictions, any prior pleas guilty Evidence of criminal contendere, prior pleas, nolo of such absence convictions or sentencing procedures.” to the same in other extent admissible

330 observed, plain that already

As we have our cases make party specific grounds objection given, where for an are speci others not objecting grounds is held to those and all Here, on the appellant objection fied are waived. based his testimony hearsay. Any objec claim that the witness’ was § 413(c)(1)(iii) to the as under tion evidence inadmissible was Thus, this issue properly preserved waived. was not 563, 601, A.2d 297 Md. appeal. See Calhoun later, Several minutes after most of the details about disclosed, had stated to liquor appellant store incident been case,” referring necessary try the court that it was “to this by stating incident. The court again responded to the same so, only no intention of rather doing that it had but would indicated, the appellant’s objections. already rule on the As § 413(c)(1)(iii) grounds for objection specify failed to Calhoun, this We said in excluding supra, evidence. Md. at 468 A.2d 45: an on the objection focusing point

“In the absence of Scott, the evidence here was admissi- before the Court §27, 413(c)(l)(v), introduc- permits under Art. which ble of, other evidence that the court deems of ‘Any tion sentence, provided value and relevant to probative opportunity any defendant is accorded a fair to rebut ” statements.’ Later, proffered called Carol Alston and that she State in March of testify appellant attempted would counsel “to the whole purse. Appellant’s objected steal her go give.” line of ... that this witness is called questioning get that it had “to objection, stating The court overruled a time.” later indicated in a Appellant into one item at the court that the basis for the colloquy objection with “I testimony relevance. court said: don’t think this value at all other than at most any probative minimally has a little of cumulative stuff as to Mr. Thomas’ back- bit statement, supplemented The court its “I ground.” saying hesitant,” just get something really don’t want to into that’s appellant responded: why to which the “That’s I objected

331 Thus, that the evidence initially.” appellant did not contend § 413(c)(1)(iii). based objection under An was inadmissible § 413(c)(1)(v) does testimony to the relevance of § 413(c)(1)(iii). Scott, supra, under objection constitute an 1126; Johnson, supra, 245, 292 Md. at 465 A.2d 297 Md. at Thus, for 441, preserved A.2d 542. the issue is not 439 focusing In the of an appellate objection review. absence § 413(c)(1)(iii), by on the exclusion of evidence evidence conviction, activities that did not result in a prior unrelated plea of nolo contendere are admissible under guilty plea § 413(c)(1)(v). Calhoun, 297 A.2d 45. Md. at 468

(c) Appellant twenty-three years age was when youthful committed. He contends that his murders were mitigating ness should have been found to constitute a sentencing hearing, circumstance at the and that the trial court’s failure to so find was error. sentencing au- 413(g)(5) of Article 27 directs the

Section evidence, determine, thority by preponderance a of the time of age whether of the defendant at the youthful “[t]he Stebbing v. mitigating a circumstance. the crime” was Tichnell v. 331, 361, (1984); Md. 473 A.2d 903 State, 287 Md. 695, 730, first 415 A.2d 830 We ques- for this appropriate reviewing discussed standard analogous in an Stebbing. applied analysis tion We there Virginia, Jackson that used 443 U.S. S.Ct. (1979), legal for suffi- reviewing 61 L.Ed.2d 560 Stebbing, a conviction. ciency support the evidence supra, 299 Md. at 473 A.2d 903. We said: whether, viewing standard of review is after “[T]he light prosecution, in the most favorable to evidence concluded any sentencing authority rational ‍‌‌‌​​​​‌‌‌‌​​​​‌​‌​​​​​‌‌‌‌​​​​​​‌​​‌‌​‌‌​‌‌‌‌‌​‍could have mitigating the claimed prove the accused failed of the evidence.” Id. preponderance circumstance (emphasis original). case, claimed that appellant Stebbing

Like the instant it failed to find youthful court erred when sentencing age years circumstance. nineteen mitigating She was old at the time the crime committed. observed that We meas- mitigating youthful age

“the circumstance of is not As- age. Had the General solely by chronological ured at or which sembly age meant to establish an below it could have so imposed, death could not be penalty specified.” age, Stebbing’s In her extensive chronological addition to record, IQ, and her mar- prior average criminal her below ruled that riage seven months before were considered. We in to find that failing youthfulness there was no error was 369, Md. at 473 proved mitigating as a circumstance. 299 A.2d 903. case,

In introduced evidence that he appellant the instant IQ had suffered a serious head had a normal below teens; a early product that he was injury during abuse; had a victim of child that his broken home and been appellant died mother a chronic alcoholic who when was the family early and tht his father deserted teenager; was a children appellant fathered two on. It was also shown Prior to the and alcohol abuse. history drug and has a murders, robbery. convicted 1976 for appellant had been the court considered upon appellant, In sentence passing family background that his all of factors. It found these § 413(g)(8).11 under circumstance mitigating was a claim, during closing made accepted appellant’s court also of fourteen or age” he had a “mental argument, fifteen, presented. Upon no such evidence was though it, the court found weighing presented all of the evidence legislature rejected Stebbing had one amend- that the 10. We noted in penalty prohibiting imposition of the death on ment to 412-14 §§ application precluding its to individuals those under 18 and another 9, Stebbing, supra, Md. at 367 n. 473 years younger. old or (1978). Maryland Senate Journal 984-85 A.2d See 1 903. sentencing authority to consider provision requires the 11. That specifically jury or the court sets "[a]ny facts which other writing mitigating circumstances in the as that it finds forth in case.” as a youthfulness mitigating factor did not exist. We find no error in the court’s ruling. See Trimble v. 300 Md. 478 A.2d 1143 Oklahoma,

Appellant contends that 455 U.S. Eddings (1982), 102 S.Ct. 71 L.Ed.2d 1 a demands different case, disagree. result. We The defendant in that a sixteen- year-old, killing was convicted of a state highway patrol officer. He presented substantial amount of evidence background about his violent but the court refused consider it. The Supreme Court said: is clear that the trial judge did not evaluate the

“[I]t in mitigation evidence and find it as a wanting matter of fact; rather he found that as a matter he was lawof unable even to consider the evidence.” (emphasis original). 455 U.S. at 102 S.Ct. at 876 The Court held that the sentencer not refuse to con- may sider, law, as matter of any mitigating evidence. Id. 113-14, contrast, Judge at 876. In S.Ct. Hormes case present carefully appellant’s considered all evidence circumstance; a mitigating the issue of youthfulness he proved preponder- found that this factor aby Thus, ance of the evidence. the court’s conclusion is in no way inconsistent with Eddings.

(d) next contends that the Appellant misap trial court § that, 413. The plied provisions the of record reveals with murders, the respect statutorily to both court followed establishing In the procedures. appropriate mandated sen murder, the court found beyond tence for each a reasonable § factor, aggravating by 413(d)(9), doubt the as authorized “committed more than one offense of appellant degree arising in the first out of the same incident.” murder murder, the court With to Donald’s did not find the respect statutorily of the enumerated presence any mitigating of kill,” “motive to demographic factors. It did find that background the defendant were miti characteristics and § killing in Donald’s under gating 413(g)(8) circumstances circumstance; and that they outweighed aggravating murder, life imposed. Regarding sentence was Sarah’s again statutorily court found that none of the enumerated mitigating proved factors had preponderance been It found that appellant’s family background evidence. demographic mitigating characteristics constituted fac- § 413(g)(8) under concluded that did not they tors but outweigh Accordingly, factor. statutory aggravating § that, 413(h)(2), under proper the court concluded sen- findings writing tence was death. The court’s made in were find no error in the trial signed. application We court’s §of 413.

(e) Proportionality Review §27, 414(e)(4), Article next consider required by As we question [imposed upon “whether the sentence of death for is excessive or appellant disproportion- Sarah’s murder] cases, imposed considering ate to the similar both penalty and the defendant.” the crime of a principles governing proportionality review death sentence in have been stated a number Maryland State, 299 Md. 473 A.2d 903 Stebbing our cases. v. (1984); (1984); State, 88,Md. 472 A.2d v. Colvin State, (1983); 297 Md. 468 A.2d 45 Tichnell Calhoun v. 468 A.2d 1 The fundamental 297 Md. process mandated statutorily appellate of the review object arbitrary capricious imposition is the of the avoidance affording similar treatment to similar penalty by the death Tichnell, 297 Md. at 468 A.2d 1. The capital cases. § 414(e)(4) cases in upon capital is which focus of impose determined to a life or death sentencing authority sentence; upon to assure that consider aims subsection the aggravating crime and the defendant ation of both the present capital one case circumstances mitigating to that reached under similar a result similar will lead to case, thus capital identifying in another circumstances aberrant sentence and avoiding imposition. its ultimate Id. 297 Md. at 468 A.2d 1. Our is to review all procedure reports cases, filed trial by judges sentencing as capital required by Maryland 772A, Rule and to select which those we deem “similar” contemplation within the of the statute.

The appellant’s case is the only one within the relevant inventory capital cases in sentencing authority which the found, circumstance, as the aggravating sole that the de- fendant had “committed more than one offense of murder degree the first arising out of the same incident.” § 413(d)(9). Hormes, Judge the sentencing authority, was unable to conclude that aggravating the other circum- stances upon by relied robbery attempt or to rob State — Donald Spurling and the attempted commission or commis- sion of rape sexual degree offense the first upon (§ 413(d)(10)) Sarah been beyond established a reason- —had doubt, able even though the jury had convicted the appel- lant both of premeditated murder, and felony the latter upon findings based aggravating these factors had In proved. been imposing a life sentence for Donald’s murder, Judge Hormes found the of several non- existence statutorily enumerated mitigating factors under the “catch- § provisions all” of 413(g)(8),i.e., “demographic characteris-

tics and background of defendant” and “motive to kill.” In Hormes, this latter finding, Judge in his sentencing re- marks, stated that the victim had the appellant invited to his night home on the of the crime and that the evidence that appellant attempted robbed or to rob Donald convincing beyond In imposing reasonable doubt. a death murder, sentence for Sarah’s Hormes Judge again found the existence of “demographic characteristics and back- ground of defendant” as mitigating In circumstances. remarks, sentencing Judge Hormes said that Sarah had been sexually appellant, molested but he could not find, doubt, beyond a reasonable that she had been raped or was the victim a sexual offense in the first degree while However, found, she murder, was alive. he as to Sarah’s outweigh circumstances did mitigating circumstances. aggravating im that the death sentence

The contends appellant excessive and him murder was upon for Sarah’s posed of a number penalty imposed to the disproportionate life sentences only where were repugnant other more cases that his death sentence was imposed. He also contends the two murders were not sub because disproportionate inequitable it to sentence different and thus was stantially for one murder and life for the other. him to death time of years old at the appellant twenty-three The Earlier, The robbery. had сonvicted of the crime. he been violence, by of as demonstrated great crime scene was one Spur- in the case. Donald pictorial numerous exhibits times; one wound twenty-two had stabbed stab ling been through inches his heart. Sarah penetrated six seven parts fifteen times over various Spurling had been stabbed except from the for her She was nude waist down body. away. had been cut or torn panties, her the crotch of which molested, Wilkins, as had Noel sexually had She been boarder, knife the same raped point during had been at who in the deaths of Donald episode criminal resulted rejected sentencing authority Both the and the jury Sarah. Donald. killing in the appellant’s claim of self-defense appellant’s testimony credence to Manifestly, they gave no Indeed, physi- killing that he did not remember Sarah. savage the crime scene attested to cal evidence at upon murdering intent upon attack Sarah one violent from attempt escape the frenzied Sarah hardly her— argument before us. suggested by appellant inventory the relevant carefully have reviewed We selected a number sentencing cases and have capital appellant, bearing to that of which we deem similar exist mind, course, dissimilarities simply because powerless that the Court is cases does not mean between contemplated by process review complete comparative § 414(e)(4). inappropriate- to so conclude would Manifestly, ly ascribe to the enact legislature an intention not to an operative Tichnell, effective or death penalty statute. See 297 Md. supra, 468 A.2d 1. defendant,

John nineteen Huffington. years almost crimes, old at the time of the and a dealer and user of drugs, together accomplice, with an abducted the victim from his mobile home and shot him in five times the back head, and thereafter stealing drugs from his person. Huff- ington immediately returned to the victim’s home where he murdered another individual while she asleep, by was strik- ing her with a bottle and stabbing her thirty-three times. The defendant then took money drugs and from the home and fled. Two statutory aggravating circumstances were charged established, i.e., and that the defendant committed more than one first degree murder arising out of the same incident and that he committed both in murders the course of a robbery. The mitigating circumstances were that the defendant was youthful age and had not been previously found guilty of a crime of violence. A death sentence was imposed.12 While the sentence has not yet as been reviewed Court, by this it is presumptively correct. See v. Stebbing State, supra, atMd. 473 A.2d 903.

Robert defendant, Brantner. The age forty-one at the offenses, time of the set fire to a home resulting death of three individuals. Two statutory aggravating cir- exist, cumstances i.e., were found to that the defendant committed more than one degree first murder arising out of the same incident and that the murders were committed in the course of an arson. The mitigating circumstances found were that the defendant had prior no record and committed the crimes while his mental capacity was sub- stantially impaired. Life sentences were imposed. offenses, Huffington At an earlier trial for the same was found

12. guilty aggravating and sentenced to death where mitigat- the same ing Finding evidentiary circumstances were established. error at the trial, Huffington See we reversed these convictions. 295 Md. 452 A.2d the time defendant, at age forty The Green. Willie murdered two crimes, accomplice, an together with The robbery. of a in the course of a restaurant employees had his death; victim one stabbed victims were both aggra- Two him his throat was slit. tied hands behind exist, namely, found to vating circumstances were degree in the first more than one murder committed Green murders were incident and that the of the same arising out The miti- robbery. of a the commission during committed was not the that the defendant were circumstances gating and that it of the deaths of victims cause proximate sole engage that he would age, of his unlikely, view was court, sentencing The trial activity. criminal further evidence preponderance found authority, factors. outweighed aggravating factors mitigating imposed. were Life sentences defendant, old years Evans, thirty-three Jr. Vernon Grandi- crime, by Anthony employed the time of against appear scheduled to to murder two witnesses son an automatic Utilizing trial. in federal criminal a Grandison silencer, entered the defendant with a equipped pistol worked. told the witnesses he was of a motel where lobby he whom persons shot to death two there The defendant statutory ag- Two witnesses. targeted to be believed established, i.e., charged and circumstances were gravating pursuant the murders committed an that the defendant of promise remuneration or for or contract agreement murders; that the defend- and to commit the remuneration arising murder degree first more than one committed ant circumstance mitigating The sole incident. out of the same was A death sentence “drug addiction.” to exist was found neither sen- murder. While for each by jury imposed are us, the sentences reviewed yet been tence has State, supra, Stebbing under correct presumptively 376, 473 A.2d 903. Md. at defendant, at the age twenty-five The

Howard Hines. college old crime, twenty-two year a accosted time of the forty the victim walking, stabbed she was student while strangled her times, ultimately and sexually assaulted fifty was aggravating circumstance statutory death. The attempt or murder was committed the commission was mitigating circumstance rape; to commit substantially he was Hines committed the offense while report judge’s The trial impaired incapacity. due to mental disorder, bearing schiz- “thought indicated that Hines had a imposed. A life sentence was ophrenic-like characteristics.” defendant, one-half nineteen and Theodore Wiener. crimе, twenty-two year raped old at the time of the a years times, victim, nearly he her 101 old after which stabbed degree rape her First causing her and death. decapitating factor. factors found aggravating Mitigating the only violence, crime of prior a lack of a record of a to exist were youthful age. and impaired capacity, mental substantially mitigat- that the upon finding imposed A life sentence was circumstance. outweighed aggravating factors ing Kevin Horton and John Additionally, the cases Elvis Johnson, appellant, relied bear brief especially upon by offense, Horton, at the time age thirty-six review. year old strangled and to death twelve raped, bludgeoned Johnson, the offense was age twenty-six when victim. year thirteen committed, and sodomized a kidnapped, raped her victim, death and threw and thereafter shot her to old sentencing In each of these cases bridge. over a body deadlocked, findings on matters preventing any thus jury one or mitigation’ suggesting aggravation As we observed mercy. determined to show jurors more 473 A.2d the individ- 299 Md. at Stebbing v. does not mean mercy cases to ualized decision those show dispropor- is under review excessive that the sentence tionate. in this appellant the by the crimes committed

Considering himself, light in case, appellant as the well cases, conclude that we cannot “similar” aforegoing or dispro- him excessive upon imposed death sentence way in no convinced are concluding, In we portionate. so for Don- upon appellant life sentence imposed imposed murder sentence be ald’s commands that the same § 414(e)(4). for Sarah’s murder under

(f) Other Contentions Appellant Maryland’s capital punishment argues rea- following unconstitutional for the facially statute is sons: §

(a) 27, 413(d)(10) creates an unconstitutional Article murder is not one felony factor aggravating because in of extreme cases” which of the “small number appropriate, Georgia, is v. Gregg deаth sentence (1976); 153, 182, 49 L.Ed.2d 859 U.S. 96 S.Ct. (b) 413(c) sentencing authority virtually gives section discretion;

unbounded the discretion (c) unconstitutionally restricts section 413 requiring imposition of sentencing authority by of the circumstances are mitigating if no the death sentence shown;

(d) unconstitutionally places burden the statute mitigating circumstances the existence proving defendant; Articles 16 (e) penalty the death violates imposition of Rights; Declaration of Maryland and 25 of the § 414(e)(4) for (f) provided proportionality review inadequate. is in these Calhoun arguments each of rejected

We Thus, 606-38, (1983). we consider 468 A.2d 45 297 Md. matters settled. these AFFIRMED, WITH COSTS.

JUDGMENTS dissenting concurring part ELDRIDGE, Judge, part: cannot this case be the death sentence

Affirmance of decision in Estelle v. Court’s Supreme with the squared 68 L.Ed.2d 359 Smith, 101 S.Ct. 451 U.S. alia, Estelle inter held, the psychiatric admission of by prosecution sentencing offered the testimony capital at on a proceeding, psychiatric based examination the de- oí performed fendant without the consent advice of the attorney, defendant’s violated the right Sixth Amendment to the assistance of counsel. to respect With the Sixth difference between Estelle and issue, the only Amendment Estelle present the case is that there no consent or was guidance counsel by concerning psychiatric defense examination, here the “consent” of the whereas defendant’s through deception. was difference attorney obtained Such legal has no effect. I

Although agree guilty verdicts this case I upheld, should be would vacate the death sentence and remand the for a sentencing proceeding. case new

I. In order to appreciate fully position defense coun- case, sel in this he misled “consenting” how into aji by prosecution’s psychiatrist examination hired for purposes capital sentencing hearing, of the it is appropriate Johnson v. begin this opinion with Court’s 405, 410-416, Md. 439 A.2d 542 Johnson

In the indigent charged defendant was with sought. murder and the death inter- penalty was Johnson posed insanity, defense and the trial court ordered that he T. Hospital be transferred to Clifton Perkins Center for mental examination and evaluation. The Clifton T. Hospital facility, Perkins Center is a state “maintained under the direction” of the Mental Administration Hygiene of the Department Hygiene.1 Health and Mental John- Perkins, son was examined the staff at Clifton T. report finding that, thereafter filed a hospital offense, suffering time of the Johnson alleged “was from a mental disorder caused him to lack which substantial 10-406(a) Maryland (1982), of the Health-General Code Article. § 1. appreciate of his conduct or capacity criminality requirements conform his conduct to the of the law.” 292 A.2d 542. The it report Md. at indicated examining of a of the represented only majority views of the had psychiatrists. examining One staff members the join report. declined to “to attorney petitioned then the trial court

Johnson’s further exam private ‘independent psychiatrist’ a appoint State,” the the trial court expense ine at the but Johnson refused, doctors at T. Perkins holding that the staff Clifton ” “ 411, Md. at A.2d 542. On ‘independent.’ 292 439 were the trial the agreed regarding this Court with ‍‌‌‌​​​​‌‌‌‌​​​​‌​‌​​​​​‌‌‌‌​​​​​​‌​​‌‌​‌‌​‌‌‌‌‌​‍court appeal, doctors em Drawing sharp distinction between issue. Hygiene the of Health and Mental by Department ployed hired the expert by prosecution, Judge witnesses (id. 414, for the 292 Md. at Digges emphasis stated Court added, A.2d 542): of Health Department the designated by

“The doctors to examine Johnson are thus ‘not Hygiene and Mental though paid by their fee is prosecution, the partisans of counsel for the any assigned the more than is he is merely to the because prosecution defense beholden purely Each is by given the State. compensated ... the defend represent to do—counsel to job professional designated psychiatrists of his the ability, ant to the best mental report upon into and the to examine impartially O’Brien, 188 F.2d McGarty of the accused.’ condition Cir.1951), denied, (1st 341 U.S. S.Ct. cert. [71 ” (1951). 95 L.Ed. 1359] that “Johnson wаs evaluat- point on to out The Court went and that psychiatric experts” of independent ed a team by examining “members of the call as his witnesses he could added.2 emphasis at 439 A.2d team.” Id. 292 Md. Hospital is T. Perkins Center court’s view of Clifton 2. The Johnson County, in which by trial in Baltimore a recent murder underscored penalty had seeking death and the defendant prosecution was the the case, Mooring, insanity. State v. the five In that raised the defense of Turning bar, now to facts in the case at after court, defendant filed an insanity Thomas trial plea 8, 1981, signed December an order that Thomas be exam- ined “by Department of Health Hygiene.” and Mental Thomas was then transferred to the Clifton T. Perkins Hospital Center where he was examined and evaluated 4, 1982, staff. On February report sent a hospital court which contained the evaluations of four staff doctors, one of whom was Dr. Michael Spodak. According report, to the all four opinion doctors were of the Thomas was competent respon- stand trial and had been sible for his actions the time of the offenses.

Following innocence, the trial on the guilt issues prosecuting attorney filed the following petition with court:

“PETITION FOR PRE-SENTENCE

PSYCHIATRIC EVALUATION “Now comes the State of A. Maryland, by Sandra O’Connor, State’s Attorney for Baltimore County, by and S. Brennan, Jr., Thomas Basham and L. Alfred Assistant State’s for Attorneys County, says: Baltimore

“1. That the Defendant evaluated at the Clifton T. Perkins Hospital following plea Center entry his of a of not guilty by reason of insanity;

“2. That the findings Hospital of the Center con- are in a report 4, 1982; tained to the February Court dated “3. That it is desirable to supplement original insanity interview(s) evaluation with further of the De- psychiatrists Clifton T. Mooring Perkins staff who examined unani- mously offense, believed that he was insane at the time of they testified as defense witnesses at the trial. At conclusion of trial, Mooring guilty, agreeing the court found not with the position Mooring’s of the T. Perkins doctors Clifton mental criminally responsible сondition rendered him not for the victim’s (Baltimore), D, 1; p. death. See The Sun October section (Baltimore), 9, 1984, D, 1; Evening p. Sun October section The Sun (Baltimore), 10, 1984, F, p. October section 1. for at sentenc- develop presentation material fendant to ing; Spodak, participated

“4. That Michael who Dr. evaluation, further interview can conduct such insanity County Detention with the Defendant at Baltimore days so a few of a court order Center and can do within evaluation;' authorizing such objection has no to for the Defendant “5. That counsel such an evaluation.

“WHEREFORE, that this Honorable prays the State Spodak Michael directing an order Dr. pass Court the Defendant at the evaluation of conduct a further purpose for the Detention Center County Baltimore sentencing. for use at material developing A. "/s/ O’Connor Sandra A. SANDRA O’CONNOR Attorney for

State’s County” Baltimore nothing defense counsel or attorney said The prosecuting and evalua- that the examination petition intimating in the as capacity done tion would be Spodak Dr. and an Hospital T. Perkins Center staff member Clifton Hygiene. Mental of Health and of the employee Department that Dr. suggest contrary, petition seemed On the as a evaluating Thomas examining and Spodak would be prior it to the staff, as referred hospital’s member of the Center,” Hospital T. Perkins “at the Clifton evaluation in the findings February Center’s Hospital referred Spodak participated one who to Dr. report, referred evaluation, stated and T. Perkins previous in the Clifton evaluation. original the “supplement” that it is desirable to he counsel when and to defense to the court Unknown evaluation, and examination supplemental the consented to hats. He would Spodak changed had that Dr. was the fact “indepen- the Thomas as evaluating examining not and be of Health Department the by psychiatrist employed dent” as the Instead, acting he would be Hygiene. and Mental , witness, paid by prosecuting expert hired prosecution’s attorney’s office to assist that office in obtaining execu- tion Mr. of Thomas.

During sentencing hearing, the prosecution after called Dr. Spodak to the stand acknowledged doctor that at the time of the examination and for the evaluation sentencing hearing “I was retained by State’s Attor- Office,” the ney’s prosecution sought to introduce Dr. Spo- report dak’s and testimony upon based that examination. Defense counsel then objected report to the and to Dr. Spodak’s testimony, as explaining follows:

“MR. KINSLEY I attorney]: object, would [defense Honor, Your not only that but to the Doctor’s testimo- When the ny. Attorney State’s requested an order of Spodak Court have Dr. see again the Defendant 27th, November requested State’s Attorney Order of the Court indicated that counsel for the Defend- Indeed, ant had no I objection. objection had no because I was under the impression Spodak that Dr. would see as him a member T. Perkins. staff of Clifton “I’m mindful of ruling the Court that Appeals staff, Clifton T. Perkins a governmental body, employees of the State is Maryland as Dr. he’s Spodak when Perkins, Clifton T. are neutral or should they be neutral psychiatrists personnel. other medical That the Defense has obligation effect no to employ sepa- psychiatrists accept rate can puritan but this of the view psychiatrists employed by the State is Dr. Spodak, but I my have learned I subsequent agreement had no to Dr. objection Spodak seeing the Defendant he that was employee paid now the by doctor the State’s —he Attorney’s Office. revelation,

“This came to me as a I shocking and had before, known it I I permitted would have it. would have been to the County Baltimore Jail and my would have advised client not to any discuss mat- ters with Dr. Spodak long so as he was then in the I employ Attorney’s suggest the State’s so Office, alleged agreement me of proceed- this whole That I withоut a full candid revelation. ing was done is no to That the Doctor speak. have been taken so paid a whose pure objectionist, person a but is longer sought reflect the views likely more than obviously views Basham, report I move that his Mr. so employer, his testimony suppressed.” and that his be not considered be added.) (Emphasis to opportunity then an gave prosecution

The trial court rebut, prosecuting attorney but the stated respond or The denied the motion court then nothing say. he had a lack of concern- suggested understanding ruling which colloquy objection. defense counsel’s the nature of ing as follows: was from the State? Anything

“THE COURT: No, Your Hon- attorney]: [prosecuting “MR. BASHAM or. Spodak Dr. The Motion will be denied.

“THE COURT: He has qualified Psychiatrist. Forensic eminently is an knows, but— and he not knows testified are eminent. psychiatrists But all “MR. KINSLEY: me like you Excuse me. Would “THE COURT: Forensic qualified He’s ruling please, sir? my make concerned, it far is and as Court Psychiatrist, him, it as and he knows pays who makes no difference give his person and can professional as I do. He’s a well money going amount of is and no opinion, nobody the Motion will be opinion, so change him to cause denied.” attempted to attorney again explain

The defendant’s of Dr. admissibility Spo- objection of his the basis qualifica- not Dr. testimony Spodak’s was report dak’s the attor- the manner which objectivity but was tions or ney’s “consent” obtained: I don’t Well, simply say, me just let “MR. KINSLEY: addressing my itself to the nub think the is Court known, the Court thinks is, I whether had objection, I I would say immaterial. or not is objective he can be permitted any investigation have subsequent any subsequent conversations the Doctor have had with may I the Defendant had he and employ pay known was of the State’s Attorney’s Office. Well,

“THE I you say. COURT: misunderstand what Irrespective agree agree, of whether or not the Court you denied, here, it on permitted so the Motion will be Mr. Kinsley. Well,

“MR. KINSLEY: maybe permitted Court it it there I interpose objection. becausе saw didn’t an The permit- document that the Court used as a for basis ting it obtained improperly was Attorney’s State’s Office.

“THE All right. COURT: I’ve considered Motion your and denied it Mr. again, Kinsley. Yes,

“MR. KINSLEY: sir.

“THE All right. COURT: Proceed. admitted, “MR. BASHAM: then report The is Your Honor?

“THE COURT: Yes.” Spodak Dr. on to testify length, went with continu- of objections al defense being counsel overruled. His testi- mony devastating was to the regard negat- defense with ing circumstances, mitigating existence of particularly statutory mitigating factors of whether the murder was committed while the appreciate defendant’s capacity of criminality his conduct toor conform his conduct to the substantially law was impaired and whether it unlikely engage defendant would further criminal activity that would society.3 constitute a threat to For example, Dr. (1957, Repl.Vol., Cum.Supp.), 3. Code 413(g)(4) Art. § (7), provide and as follows: "(g) mitigating Consideration circumstances. —If the court or finds, doubt, jury beyond a reasonable one more of these exist, aggravating whether, circumstances it shall then consider evidence, upon preponderance any based following of the of the mitigating circumstances exist: that, “within a opinion set forth his Spodak specifically certainty,” of medical Thomas would degree reasonable a threat further criminal activities would be engage he exam- that when society. psychiatrist testified Thom- sentencing hearing, ined Thomas for purposes the earlier during he was as was “more hostile” than Hospital Center. Dr. at the Clifton T. Perkins examinations opinion for con- grounds in detail the his Spodak reviewed future such as Thomas’s cerning dangerousness, Thomas’s violence, control,” impulse his “poor record of his prior remorse, lack gratification,” “to his inability delay stress,” “to environmental etc. While ac- inability handle a lot debate knowledging that has been “[t]here psychiatrists predict dangerousness can vio- how well view, lence,” regard Dr. reiterated his with to Spodak Thomas, can there’s a certаinly say very that “you behavior, dan- “future criminal future high likelihood” of stated, psychiatrist The and future violence.” gerousness reiterated, “amenable later that Thomas was not to Thomas would Finally, treatment.” when asked whether incarcerated, in if he engage activity future criminal were to cell “I wouldn’t be his mate.” Spodak replied: Dr. want sentencing the Spodak hearing The of Dr. at testimony prosecuting attorney’s a for the principal furnished basis against the of circumstanc- arguments mitigating existence inter hand, alia attorney the other the defense es. On capacity appreciate that Thomas’s to the argued extensively the of his conduct to law criminality his conduct conform likely not to and that Thomas was impaired had been The activity. attorney in criminal defense engage future "(4) capacity the defend- was committed while the of murder appreciate criminality conform of his conduct or to his ant impaired requirements substantially as a of law was conduct incapacity, mental disorder or emotional distur- result mental bance. “(7) unlikely engage It is that the will in further crimi- defendant continuing society.” activity a threat nal that would constitute report relied on the earlier from the Clifton T. Perkins Hospital Center, he contrasted Dr. Spodak’s which with later well as on testimony, testimony as other and evidence. judge, sentence,

The trial in death imposing specifical- ly found that to appreciate Thomas’s the criminali- capacity ty his conduct or conform his to the was conduct law substantially impaired engage and that Thomas “will activity continuing further criminal would constitute In society.” making threat to both of findings, these judge specifically trial relied testimony Dr. Spodak at the sentencing hearing. regard to With future criminal activity dangerousness, Spodak’s Dr. testimony at sentencing was hearing ground the chief for trial finding. court’s

II. In light facts, of the it clear above-reviewed is to me instant case is controlled Smith, Estеlle v. supra. The issue in Smith, case, Estelle v. the present was “whether the prosecution’s use psychiatric testimony at the sentencing phase of capital murder trial to [defendant’s] dangerousness establish future violated his constitution- al rights.” Estelle, U.S. 101 S.Ct. at 1869. In trial, prior to the court ordered defendant to undergo psychiatric examination order to determine his competen- cy to stand trial. It not clear whether defense counsel was informed of psychiatric the examination before it took place, 15, 15, id. at 471 n. 101 S.Ct. at 1877 n. this question was not by treated the Court as significant. What was significant was that defense counsel was not of notified the scope examination, the did consent to the exami- nation, and did not advise the defendant regarding his 465, to the 466-468, 471, submission examination. Id. at 1874, 1875, 101 at S.Ct. 1877. In Estelle the defendant was and, competent found to stand trial at the first the stage of proceedings, bifurcated Thereafter, was found at guilty. the capital sentencing prosecution hearing, the was permit- the on the objection psychiatrist to call a witness

ted over “ there is a that the defendant probability ‘whether issue acts consti- of-violence that would would commit criminal ” 458, threat to Id. at 101 S.Ct. continuing society.’ tute a in similar testimony The was psychiatrist’s at 1870. Estelle in testimony regarding the instant the Spodak’s Dr. case to to treat- dangerousness, amenability future defendant’s 459-460, upon ment, at 101 S.Ct. at 1871. Based etc. Id. the in Estelle sentenced findings, defendant was jury’s to death. in held the admission Supreme Court Estelle in- testimony hearing the sentencing at psychiatrist’s Fifth privilege both the defendant’s Amendment

fringed right and his Sixth Amendment against self-incrimination Amend- Regarding the assistance of counsel.4 Sixth held that the defendant “was denied right, ment the Court making significant attorneys the assistance of the examination and to of whether submit to decision could findings employed.” be psychiatrist’s what end “that at 1877. The Court stated 451 U.S. S.Ct. important to resolve such an should not be forced defendant ” guiding hand of counsel.’ Ibid. issue without ‘the сlear, matter is not at all I shall assume Although the holding is not arguendo that Estelle’s Fifth Amendment Nevertheless, case. present to the facts applicable denied the assistance obviously the defendant Thomas making decision of whether to submit of counsel sentencing connection with the Spodak’s Dr. examination examination attorney’s His “consent” this proceeding. a “con- deception.5 But prosecution’s was induced that, noteworthy majority awhile of the Court favored reversal 4. It is grounds, all nine members of the Court believed on both right Amendment to counsel had been violated. defendant’s Sixth decep- may that silence or nondisclosure constitute 5. It is axiomatic See, misrepresentation, depending upon the circumstances. tion or e.g., Equitable 410, 424-426, Co., Halsey, Stuart & 312 U.S. Co. v. (1941); Strong Repide, U.S. S.Ct. 85 L.Ed. 920 351 sent” induced by misrepresentation not consent. Bump- is er v. Carolina, 543, 548, North 1788, 1791, 391 88 U.S. S.Ct. 20 (1968). L.Ed.2d 797 As attorney emphasized Thomas’s below, to the court if he had known that Dr. Spodak’s role had changed and that the psychiatrist had become the prosecution’s hired “I expert, would not permitted have it. I would have ... advised my client not to discuss any matters with Dr. Spodak.”

III. The majority’s reasons for rejecting Thomas’s argument based on Smith, Estelle v. supra, will not withstand analy- sis.

Initially the majority suggests that Thomas’s attorney did not in the trial court raise the Sixth Amendment issue which formed the alternate basis for the decision in Estelle. But the entire thrust of counsel’s objection to Dr. Spodak’s report and testimony was that defense counsel was misled into “consenting” that, had he known of the doctor’s change, role he “would have advised not to dis [Thomas] cuss any matters with Dr. Spodak.” This was obviously an objection relating to the right to the assistance of counsel. I am aware of no principle of requiring law that a trial lawyer, order preserve issue, an must cite specific Supreme Court case point. Moreover, we have indicated cases, death penalty we shall consider issues “whether or not properly preserved for review.” Johnson supra, 3, Md. at 412 n. 439 A.2d 542.

The majority opinion next attempts distinguish Estelle v. Smith stating that in Maryland, Texas, unlike 430-433, 521, 524-526, Prosser, (1909); 29 S.Ct. 53 L.Ed. 853 W. Torts, (4th 1971); Law Gray, § ed. F. Misrepresen- James and O. tation, 37 Md.L.Rev. 524-527 Compare Estelle, 6. objection the nature of the 451 U.S. at n. 101 S.Ct. at 1876 n. 12. proving of the nonexistence

“State does not bear the burden “thus, and the appellant’s circumstances” mitigating which, upon used him on a matter against words not were Estelle, prosecution proof.”7 in the held the burden advised Thom- points Spodak then out Dr. majority he could be at as that information which used any revealed sentencing hearing. ‍‌‌‌​​​​‌‌‌‌​​​​‌​‌​​​​​‌‌‌‌​​​​​​‌​​‌‌​‌‌​‌‌‌‌‌​‍These factors subsequent capital for purposes or not the case may may distinguish Estelle issue. the Fifth Amendment self-incrimination Neverthe- less, to the Amendment they utterly are irrelevant Sixth I issue, and do not understand that right to counsel majority suggests otherwise. in that, out unlike the situation

Lastly majority points of Dr. Estelle, attorney prior Spodak’s Thomas’s had notice sentencing hearing for of the purposes examination course, fact that agreed entirely ignores to it. Of this Dr. concerning misled role of defense counsel was Spodak’s Dr. role Had defense counsel known that Spodak. have Thomas not changed, may had he well advised to the examination. submit misleading action in this prosecution’s of the

Because case, assistance deprived the defendant Thomas was Dr. submit deciding of counsel whether capital sentenc- Spodak’s examination connection with Smith, Dr. under ing Estelle hearing. Consequently, were admitted testimony improperly Spodak’s report I Thomas’s death would vacate sentencing hearing. sentencing proceeding. a new and remand for sentence me state that he concurs has authorized Judge COLE herein. expressed with views case, however, Maryland, prosecution the instant 7. In as shown matter, capital typically presents, as an initial evidence to cases negate upon mitigating which it believes that the de- circumstances rely. fendant will

Case Details

Case Name: Thomas v. State

Court Name: Court of Appeals of Maryland

Date Published: Oct 31, 1984

Citation: 483 A.2d 6

Docket Number: 151, September Term, 1982, 44, September Term, 1983

Court Abbreviation: Md.