*1 A.2d TRIMBLE Russell James Maryland. STATE Term, 15, 98, Sept. 1982. Nos. Maryland. Appeals of
Court Aug. *5 Burns, Jr., Asst. and E. Christopher George W. Gary Murrell, De- Defenders, (Alan H. Public Baltimore Public Baltimore, brief), fender, appellant. on for Gen., (Stephen Lane, Baltimore Stephanie Atty. J. Asst. Handel, Sachs, Atty. Asst. H. and K. Atty. Gen. Deborah Baltimore, brief), appellee. on G;en., ELDRIDGE, SMITH, MURPHY, C.J., before Argued COUCH, COLE, DAVIDSON, JJ. RODOWSKY *6 COLE, Judge. 1982, 12, after a trial in the Circuit Court jury March
On James Russell Trimble was found County, for Baltimore murder, counts first-degree rape, two first-degree guilty offense, kidnapping, counts of sexual two first-degree insanity. His defense was one count of assault. and verdict, Trimble elected to be sentenced jury After the 19, 1982, sentenced March the Court Trimble the court. On count and three life terms imposed on the murder to death counts. The entire remaining on seventy years plus provision the automatic-review us to pursuant case is before §27, 414(a). affirm. Art. We Maryland Code July trial as follows: On facts adduced at were victim, the murder Nila Rae Newsom and Melanie parking In the tavern to a local tavern. Kay Rogers, went Hanna, friend, James who invited lot, Rogers met a school him and some of his in a van with to ride around them Trim- containing a van The three of them entered friends. Evans, Kordell. Previ- Anthony and ble, Joseph and Terry PCP, had taken and Kordell the Evans brothers ously, beer, had taken and and Trimble valium and marijuana, beer. van, Trimble tried to entered the
Shortly after the women and he screamed Newsom, and when she resisted kiss to inter- attempted clothing. Rogers off her began tearing into the her and threw her back cede, punched but Trimble to forced her van; severely, Newsom he then bit attempt by Rogers another futile fellatio. After commit Newsom, persuaded on the two women the assault stop out into a van, and Hanna took Newsom stop men to cornfield, to have intercourse unsuccessfully where he tried Meanwhile, raped Evans Joseph Trimble and her. with van, Rogers out of pull Kordell then triеd Rogers; head so, struck her on the with and, he did Trimble take the unsuccessfully tried to bat Kordell baseball bat. Trimble, to the other side of van then retreated from Trim- the bat. repeatedly Rogers struck with while Trimble into the dragged Rogers ble then cornfield slit her throat. Rogers’ body,
After
Trimble returned to the
disposing
He and the others could not locate Hanna and
van.
New-
som,
cornfield,
they got
were still
so
into the van
who
leave,
and left. Hanna and Newsom saw the van
and she
persuaded
accompany
him to
her to the side of the road.
then
her
flagged
passing motorcyclist,
She
down
who took
nearby
police.
to a
house where she called the
Baltimore
call and
County police
responded
officers
thereafter
body Rogers;
pronounced
discovered the
she was
dead at
July
the scene at 6:30 a.m. on
1981. The cause of death
*7
object.
was listed as severe head
from a
injuries
blunt
court,
Trimble’s
defense was
The trial
only
insanity.
witness,
expert
after
from Trimble’s
hearing testimony
generated
determined that
had
issue.1
insanity
Trimble
Spodak,
Dr. Michael
who testified “to a
produced
State
of medical
that
suf
degree
probability”
reasonable
Trimble
and mixed
personality
fered from antisocial
substance
despite
abuse
that
these disorders Trimble
by history, but
capacity
not
he did not lack substantial
was
insane because
criminality
either
the
of his conduct or to
appreciate
to
the
of the
Dr.
requirements
conform his conduct to
law.2
following
insanity-defense
1.
procedures
The trial court was
estab-
State,
505,
by
lished
(1964): First,
this Court in
234 Md.
Based returned verdicts indictment, on all Trimble’s rejecting seven counts insanity. waiving right affirmative After defense be sentenced was sentenced to death jury, Trimble trial judge. On this Trimble raises several appeal, *8 of out as arising guilt stage contentions error as well sentencing the shall address each of stage of trial. We his contentions in turn.
I trial of focuses on the error Trimble’s first contention court insanity. on The to the jury court’s instructions as follows: jury, pertinent part, instructed the I you legal Ladies and read to gentlemen, will of insanity Mary- definition as used in criminal cases in land, and this This you responsible by. are for and bound
is the of that is insanity your responsibility definition A is not for apply responsible in this case. defendant and shall found insane time of criminal conduct be at the if, at of such the commission of the crime the time alleged disorder, conduct, of he as a result mental lacked substan- his criminality tial capacity appreciate either to the requirements conduct or to conform conduct law.
Therefore, to made the first determination which has charged defendant the time of acts is whether the aby him or was afflicted mental disor- against der. as defined law means mental Mental disorder illness or other form of behavioral or emotional any or dis- any neurological illness from resulting psychiatric order. term shall not include mental retardation. [Emphasis supplied.] complete
Trimble that this was not a argues instruction argument statement of the law. He bases his accurate § Article, provides: on 12-107 of the which Health-General
§ criminal Insanity—Test responsibility 12-107.
conduct. if, A responsible defendant is not for criminal conduct conduct, defendant, at the time of that because of disorder, mental retardation or a lacks substan- mental tial capacity:
(1) conduct; appreciate criminality To (1) of law. requirements To conform conduct to the (Emphasis supplied). excluded
Trimble maintains that the court’s instruction as any jury consideration of mental retardation Trimble, for a Trimble is correct. finding insanity. basis however, Nonethe- object did not the court’s instruction. less, persists he failure recognize we should court’s properly jury Maryland error under plain to instruct *9 Rule 757h. appellate may, court its provides
Rule 757h that an discretion, plain and correct error cognizance any “take instructions, rights to the of the defendant in the material objected provided by error not to as though was even that the circumstances of Trimble maintains Rule 757f.” exercising such discretion. We disa case our justify this decline invitation. and shall gree Hutchinson, 203, 411 287 Md. said We State (1980), have characterized instanc- A.2d that “we take of unob- appellate cognizance es when an court should exceptional or compelling, extraordinary, to jected error fair trial.” We to assure the defendant of fundamental clear that in those circum- further made we would intervene so complained stances when error of was material rights as to amount to the kind of to accused Thus, we prejudice precluded impartial which trial. Id. examine the at the time of the court’s shall circumstances if was preju- instructions to determine the court’s omission dicial. § noted,
As we 12-107 includes both already plainly have potential mental disorders and mental retardation as causes 12—101(f)(3) that “mental legal Section states insanity. disorder” “mental retardation” and does include not, instruction did trial court’s instruction so stated. The however, could either affliction cause jury advise the substantially insane4 if either legally defendant to be found appreciate the capacity limited the of the defendant to provides: Rule 757 f 3. instructions, any party objection any If a has an omission therefrom, give shall or to the failure to an instruction he make objection jury on the record retires to consider its verdict before omission, distinctly matter or failure and shall state objects grounds objection. Upon instruct to which he and the of his objections request any party, the court shall receive out of the hearing jury. possible insanity Mental as a cause of retardation included Md.Laws 1982. See 1982 ch. 21. *10 criminality his conduct or to conform that conduct to the requirements law. then, question answer, we must is whether there was during
evidence adduced the course of trial which a generated jury issue as to whether the defendant’s mental
retardation caused him to legally insane. Dr. Spodak that I.Q. testified Trimble had a full-scale him placing in the mild range borderline or of mental retardation. Dr. Lehman made a reference passing that Trimble had a I.Q. below-normal of 64. Dr. Lehman did not state that this caused condition Trimble to lack capacity substantial either to appreciate the of his criminality conduct or to conform his conduct to the As a fact, law. matter of Dr. Lehman excluded mental virtually retardation from analysis his § responsibility Trimble’s under 12-107. Dr. Lehman stat- ed: review with Mr. he my Trimble complained no [of]
difficulty that appreciating fact what he was doing wrong. claims, was He knew that. He though, he was hallucinating night that gorillas saw that night. heWhen was swinging girl bat at he saw the face of a he was girl swinging the bat at. He knew it was wrong. stop himself, He said could he not which would second, is, part be a that he was saying he—not in these capacity words—he lacked the to conform his con- duct to the law. Antisocial personalities chronically have problem. difficulty conforming have their They con- law, duct to the though they know what the law is. Although retardation, he suffers from mental he did what he doing wrong. know was was Dr. time Lehman at no characterized Trimble’s retarda- tion his contributing as misconduct. Both Drs. Spodak and Blumberg found Trimble’s mild or moderate mental insignificant. retardation Dr. Lehman found despite his mental retardation Trimble knew what was doing he wrong was and that his failure to conform caused by was personality. his antisocial simply There was no evidence that linked Trimble’s misconduct to his mental retardation. was indicated that Trimble contrary, To the the evidence other normal social job perform hold down able to His antisocial handicap. any chores without substantial abuse, drug and alcohol intensified personality, reason he could not conform. it, mental retar question see of Trimble’s As we trial court’s to his defense and the dation was material for the basis failure to include mental retardation *11 at the time of deciding if Trimble was insane jury’s him of a fair deprive did not crimes under consideration for preserved The omission the instruction was trial. error. plain and was not review
II error is also based on contention of trial Trimble’s second Dr. insanity issue. After expert testimony on Trimble was not Blumberg State that testified he was may faking symptoms, have insane and been T. Perkins stay at Clifton cross-examined about Trimble’s had Blumberg acknowledged Dr. that Trimble Hospital. Thorazine, major drug and a antipsychotic given been exchange place: then took following tranquilizer. this you Do Q. approve [DEFENSE COUNSEL]: treatment of Thorazine and Artane?
A. In Mr. Trimble?
Q. Yes.
A. No.
Q. You do not?
A. No.
Q. Why you? don’t he symptoms that is A. I I believe the don’t because of a time are not the result manifesting present at the feigning of his behavior are the result psychosis. They I don’t believe geared psychotic. is look like he is which he from of mental illness suffering type is such treatment. would warrant Q. did he was psychotic? Who believe Objection.
[STATE’S ATTORNEY]: THE COURT: If you know, sir, prescribed who it? IA. can look at the order if you would like me to. Q. Yes, I would like you to look at it.
A. His medication for Thorazine signed Dr. Frei- nek. I would want to add— Q. I want to know who prescribed it? Dr. Freinek? A. That is correct.
Q. How do you spell that? A. F-r—and your guess is as good as mine—I him know I but am not sure whether it is e-i or i-e-n— Q. What is his position with the hospital?
A. He is a psychiatrist on the staff of the hospital. Q. Did he make an evaluation of patient? this A. When Mr. admitted, Trimble was he was the ward psychiatrist three, on ward which is the admission ward. The import of this exchange is that defense counsel was attempting to show that Dr. prescribed Freinek an antipsy- chotic drug for Trimble because Trimble was insane. *12 redirect,
On the State returned to this subject: Q. Dr. Blumberg, a just couplе [STATE’SATTORNEY]: of questions. Did Dr. Freinek participate the staff conference and evaluation of this defendant in Novem- ber? . No,
A. he did not. Q. To the best of your knowledge, did Dr. Freinek evaluate the defendant for responsibility the time of the offense? No,
A. he did not. Q. And the prescription for the Thorazine, defendant for would that come from symptoms observed members of the staff at Clifton T. Perkins?
A. Very possibly. Knowing Dr. Freinek and some of his prescribing policies on ward three— I object as to [DEFENSE what Dr. Frei- COUNSEL]: nek’s prescription policies are. He into it. got ATTORNEY]:
[STATE’S THE The doctor indicates that he is COURT: Overruled. them. familiar with
Q. You continue. may A. comes onto the and acts When individual ward behavior, agitated evidencing manner bizarre re- very Dr. gardless likely of its cause Freinek seems a lot more medi- psychiatrists prescribe than most other primarily cation to sedate the individual as opposed necessary any psychotic drug, benefit of the and ward three, ward, is the very, very which admission is a diffi- cult on. all place work We have the individuals who pretrial come in for are fresh jail evaluations who out of put plus and are all the are hospital patients who longer no treatable on the less wards. restrictive This is security maximum of the maximum unit. There is a great behavior, deal of and he is a disruptive lot freer members, many with medication than of the other staff including myself. of this object testimony negate was to the inference by showing pre-
that Trimble was that Dr. Freinek insane scribed Thorazine for Trimble as a sedative. Trimble maintains that the admission of this testimony was reversi- ble error because it was and it hearsay because violated the best-evidence rule. The that this testimony State contends neither the against violated best-evidence rule nor the rule hearsay, “opened that defense counsel the door” to the admission of this testimony by question on cross-exami- nation on that same very subject.
The examination of witnesses at a trial is left largely to the discretion of the trial error judge no will be recognized unless there is a clear of that abuse discretion. *13 scope This Court stated the rule as to the of cross-examina in in tion observed this State 194 Md. Graff, Williams 516, 522, (1950): 71 A.2d 452-53 testify particular a witness is called to on a point,
[W]here in party the adverse the cross-examination of the witness point to the which he testified and is restricted on cannot him in to other in question regard issues the case.
sjs s]s [*] [*] sfc % However, our not go rule does to the extent of restrict- to ing the cross-examination witness the specific examination, inquired details into on direct but permits into the matter into. inquiry subject full entered Where a has entered subject upon been in examination general chief, cross-examining may counsel ask any rele- subject. vant on the question general scope examination, As to the redirect this Court said in Alston, 51, 56, Division v. Fisher Md. 249 A.2d Body (1969): rule, As a redirect examination must general be con- fined matters on brought out cross-examination. How- ever, it within the court’s discretion to allow the intro- something forgotten duction of new if the purposes of it, seem to demand and this justice Court will not inter- fere unless there is a clear abuse of such discretion. Here, sought the State to establish direct by its examina- tion Blumberg of Dr. that Trimble was psychotic but faking rather person. was of an insane symptoms On cross-examination, counsel sought defense rebut this creating an inference that testimony by Trimble was insane Freinek prescribed because Dr. Thorazine as an antipsy- examination, drug. chotic On redirect proceeded the State to dispel this inference the usual demonstrating practice of Dr. Freinek prescribing tranquilizer Thorazine as a patients the admissions ward. objects inquiry
Trimble to the State’s on redirect it because he claims is tantamount to Dr. having Blumberg opinion Dr. testify Freinek’s as to whether Trimble it, psychotic. was As we see Trimble’s objection seeks to cloud the conveniently issue. What Trimble overlooks is that he opened door to such testimony eliciting from Dr. Blumberg inference that Dr. prescribed Freinek had Thorazine for Trimble because Trimble psychotic. On *14 examination, Dr. limited to Blumberg testimony direct his his on own examination Trimble. his conclusions based cross-examination, Then, expanded defense counsel the on to include Dr. Freinek’s scope Blumberg’s testimony Dr. sought on redirect examination then to action. State psychotic. that Trimble was Because disprove inference Dr. Blumberg the State established that was familiar with had a prescription policies, Dr. Freinek’s it sound basis for the inference to be from the fact Dr. explaining drawn prescribing Freinek’s Thorazine for Trimble. Defense coun- issue, sel, having created the cannot now be heard to sought complain significance. that State to rebut its find on point. We no error this on rule the best-evidence mis argument
Trimble’s to applicability. Generally, applies conceives its rule original to a document require party produce Md. copy. State, duplicate Gray instead of a (1943). McCormick, A.2d 744 C. McCormick on Evi (2d 1972). Here, maintains 559-62 Ed. Trimble that dence prescription Dr. about Dr. Freinek’s Blumberg’s testimony testimo is not because Dr. Freinek’s own policies admissible Obviously, Dr. policies his is the best evidence. ny evidence, not testimony documentary Freinek’s so would that purposes rule—to ensure best-evidence court writing of a to the terminology presented exact Gray, 181 guard against inapplicable. fraud—are See 746; Md. at 30 A.2d at at 561-62. We McCormick court the best-evi conclude that trial did violate Blumberg’s testimony. Dr. by admitting dence rule
Ill permit- court Trimble next contends the trial erred ting Attorney following to make the remark State’s during closing argument: on this put testify did defense defend-
[W]hom in fact at I ant was insane the time the offense? you nobody. Nobody submit to testified he was insane the time of the offense. Dr. Lehman testified Dr. Lehman has no formal training in forensic psychiatry. He has a practice limited to child and adolescent psychia- He try. is not affiliated with State any hospi- or mental tal, and he *15 in the past only has examined five defendants to determine their at the time responsibility given of a He, Spodak óffense. unlike Dr. Dr. and is Blumberg, eminently unqualified give opinion to an seven months after the occurrence of an offense as to what the defend- ant’s mental was at state the time of the offense. According argument, to Trimble’s the State’s Attorney’s beyond statements the permissible went bounds of closing argument the trial court because had previously qualified Dr. expert. Lehman as an We disagree. correctly questions
Trimble asserts that of the qualifications expert of witnesses for the are court to decide as a matter of preliminary law. But this does not mean expert’s the not be qualifications may minimized when expert’s that the arguing opinion should not be accepted. simply represents court’s threshold determination a finding expert that the has the minimum of degree exper tise him to state necessary opinion given to allow an as to a facts; set not the jury of it does mean that to bound Rather, part testimony. believe all or his any quali bias, basis, ty, and of an strength, sincerity expert opinion can still be attacked before the as matter of jury credibili ty-
Thus, the here is whether the issue State’s Attorney’s statement to the constituted error because he jury charac- “unqualified.” Looking terized Dr. Lehman as at the prose- whole, as a questioned cutor’s statement his remarks Lehman’s He believability testimony: of Dr. noted that Dr. Lehman psychiatry, was not trained forensic that he had no affiliation a mental that he hospital, with had little experience in of criminаl responsibility, the area that he only diagnosed Trimble seven months after the event. pertain These to Dr. credibility remarks all Lehman’s as an expert witness, subject well range permissi- within the short, Attorney State’s argument jury. ble to testimony. Dr. Lehman’s to disbelieve urging jury was prej become do believe that these remarks We the word used Attorney the State’s simply udicial because was to import adjective of this The obvious “unqualified." though expert witness. Even question credibility expertise the minimum requirements Lehman met Dr. still free opinion, jury give expert needed to qualified” the “more disregard testimony believe discretion, both the trial court’s Subject expert. lati given counsel are wide and defense Attorney State’s right including closing argument, the conduct tude v. the case. Poole all the evidence explain or to attack (1983); 191-93, 1218, 1231-32 A.2d State, Md. 412-13, 326 A.2d State, 272 Md. Wilhelm here. (1974). no abuse discretion We see
IV the sen concerning arguments makes Trimble several to Md.Code pursuant tencing stage of the trial conducted § is that the The of these contentions Art. first aggravating found as an circum erroneously trial court § hostage was a 413(d)(4)5 victim stance under “[t]he 413(d) provides in full: 5. Section determining (d) aggravating circumstances.—In Consideration of be, sentence, may jury, shall first or as the case the court doubt, whether, following any beyond a consider reasonable aggravating circumstances exist: (1) murdered was officer who was The victim a law enforcement performance of while in the his duties. (2) when he was the murder at a time The defendant committed any in institution. confined correctional (3) furtherance of an committed the murder The defendant custody, escape attempt escape the lawful or an to from or evade arrest, guard by correctional an officer or a or detention of or or a institution law enforcement officer. (4) attempted taken in hostage or to be The victim а taken attempt kidnap or kidnapping or an to of a or abduction course abduct.
taken or attempted to be taken the course a kidnap- or ping attempt kidnap abduction or an to or abduct.” Trimble “hostage” claims that narrowly should be defined to person mean a iswho held to enforce demands a upon State, person. hand, third on the other maintains that the term refers hostage generally more a kidnap victim regard without any whether demands are on made third persons. task, therefore,
Our is to ascertain the meaning of the hostage term legislature as used in the context of § 413. Looking statute, first the face of the subsection (d)(4) is worded terms of the characteristics of the vic- tim—he or she must a “hostage taken in the ... course abduction____” of a kidnapping This structure seems to broader, a more support generic definition of hostage, be- being cause term is used to a person describe who victim of a or an kidnapping abduction. Yet this structure alone contention, does suffice to answer Trimble’s be- cause the wording would also support more narrow read- ing encompasses kidnap which if only they victims are held hostage to enforce on person. Thus, demands a third it is possible that legislature intended to ag- include gravating circumstance kidnap- small subclass of pings—those in which the defendant takes his victim to enforce demands on others. (5) The victim awas child abducted 2§ in violation of of this article. (6) pursuant agree- The defendant committed the murder to an *17 ment or contract for promise remuneration or the of remuneration to commit the murder. another, (7) engaged employed The person defendant or to com- mit the pursuant murder and the murder was committed to an agreement promise or contract for remuneration or the of remuner- ation. (8) murder, At the time the the defendant was under sentеnce imprisonment of death or life. for (9) The defendant committed more than one offense of murder in degree arising the first out of the same incident. (10) committing The defendant committed the murder while or arson, attempting robbery, rape to commit or or sexual offense in degree.
the first surrounding enactment of legislative history The § did not intend 413, however, legislature indicates that the circum kidnappings aggravating to out single certain kidnappings. include all Senate stances, intended to but § 413, 374, in 1978 as the current see Bill which became law originating a from proposal 1978 Md.Laws ch. was contained in language The Legislative Office. Governor’s § hostage attempted a taken or victim was 413(d)(4)—“[t]he kidnapping...”—is of a identical to in the course be taken legislative original proposal; in the language to the lan to amend this any proposals do disclose records meaning.6 its debate on guage any legislative Officer, Legislative who drafted Governor’s Chief But the bill, Assembly lengthy to the General a submitted The ex- the bill. memorandum explaining memorandum (d)(4) as follows: plained subsection kidnap murder of a victim. (4) relates to the Paragraph aggravating as an paragraph, to this The draft adds considered, of person the murder abducted. factor to be law, these offenses At the difference between common that, taking of a kidnapping involved was while a tak country, an abduction involved person outside The purpose for immoral ing person purposes. of a to deter the as enacted paragraph, this capital murdering hostage. his Absent from kidnapper (30 for years) punishment, kidnapping the penalty (life no so dissimilar as to imprisonment) murder are killing from witness kidnapper deter the years jail and death between crime. differences murder significant enough to deter the is believed to be hostage.7 deleting 413(d)(4) by the Acts of 1983 was amended Section hostage.” now reads: "a The section words attempted in the course of a taken The victim was taken or attempt kidnap kidnapping or an or abduct. or abduction Petticord, Jr., Legislative Offi- J. Chief 7. Memorandum from Thomas cer, 1977). (December Assembly to General *18 This memorandum significant is in a respects. number of First, (d)(4) it states that “relates the murder a kidnap Thus, victim.” it apparently uses the term hostage only to victim, describe a kidnap aas term to limiting narrow the class kidnappings eligible as aggravating circum Second, stances. it (d)(4) states that the purpose of is to deter kidnappers from murdering their victims. Obviously, purpose this is not confined to kidnappings which the kidnapper uses victim to make a demand on a third person, but applies equally to all kidnappings. Third, the memorandum no makes mention of a creating subclass Rather, it kidnappings. speaks in terms of the Maryland version of the crime of kidnapping, which does not define kidnapping terms of making persons.8 demands on third Thus, this explanation memorandum’s of the reach of sub (d)(4), section and the General Assembly’s adoption of that to, provision in to support inference that the General Assembly did not intend to limit this aggravating circum stance to kidnappings which the a kidnapper makes a person. demand on third
Trimble cites several cases that a more employed have but, restrictive definition of the term hostage, upon exami- nation, none is persuasive here. cases, three of the applicable kidnapping statutes kidnapping defined as the confinement or asportation of person a with of four any different purposes, one of which to hold the a victim as provides: 8. Section 337 Generally. § 337. counsellors, Every abettors, person, his aiders or who be shall kidnapping convicted of the forcibly fraudulently crime or carrying causing or to be any carried out of or within this State person, except person eighteen age, in the case of years under thereof, parent person with intent to have such carried out of State, or within this or with the person intent have such con- State, cealed within the guilty State without shall be aof felony and penitentiary shall sentenced to the for not more than thirty years. State,
See
v.
(1982);
Johnson
Midgett
292 Md.
After reading these findings, judge came to Section III of the report, which calls for the trier of weigh fact to the aggravating against circumstances cir mitigating § pursuant 413(h).12 cumstances point, At this the judge digressed into a discussion about some of the policies be hind the death penalty expressed Court, as by Supreme courts, other and commentators. He first quoted from a Ritter, case, 1930 Pennsylvania Commonwealth v. 13 Pa.D. 285, (1930): & C. the death
Only penalty gives protection; absolute if the prisoner receives a life again sentence “he may commit walls, murder within the prison or may escape again and 413(h) provides: 12. Section (h) Weighing mitigating circumstances.—(1) aggravating and If jury the court or finds that mitigating one or more of these circum- exist, whether, by stances evidence, it shall preponderance determine mitigating outweigh aggravating circumstances circumstances. (2) mitigating it If finds that the outweigh сircumstances do not circumstances, aggravating the sentence shall be death. (3) mitigating If it finds that the outweigh circumstances circumstances, aggravating life. imprisonment the sentence shall be even, cunning may prey, victims his innocent make govern- pardon from repentence, obtain simulation authorities.” mental Scott, Law & Criminal from LaFave quoted
He then (1972): reflected is emphasis rehabilitation upon
The current tendency inas the modern as well parole, and probation alcoholics, psychopaths and sexual drug addicts to treat delinquents misguided as juvenile persons, sick children.
Next, judge quoted Gregg the trial U.S. Georgia, 2909, 2929-30, (1976): 49 L.Ed.2d 880-81 96 S.Ct. principal The death is said to serve social penalty two deterrence of crimes purposes: capital retribution and offenders. prospective capital punishment expression society’s is an part, This outrage particularly
moral offensive conduct. may many, it is essential unappealing function but legal asks its on society rely an ordered citizens to self-help wrongs. rather than to vindicate their processes man, part The instinct for of the nature of retribution in the of crim- channeling that instinct administration *21 in the justice important purpose promoting inal serves an by people of a stability society governed law. When or begin organized unwilling believe that society impose upon punishment unable to criminal offenders the “deserve” then there are sown the seeds of an- they self-help law. archy—of vigilante justice, lynch and longer Retribution is no a forbidden nor one objective with for the The respect inconsistent our of men. dignity capital punishment may appropriate decision that the expression in is an commu- sanction extreme cases of the griev- belief that certain crimes are themselves so nity’s an ous affront to humanity that the re only adequate penalty of death.13 sponse may be the the of the of rape-murder The then recited details judge background, including and discussed Trimble’s Rogers and mental The problems. sadistic other prior behavior then judge concluded: can that the crime committed only
I conclude [James grievous humanity, Trimble so affront to was Russell] response impose the of this is to only adequate that Court penalty the of death. therefore, “no”, in
I, question the Part III answer complete the in III: If III form Section Section was enter completed and was marked “no” “death”. contends, on passages, Trimble the basis these § in trial court erred 413 in related applying the two (1) considering the ways: by impermissibly possibility sentence, or in parole probation determining proper (2) in “his standards” lieu of the by applying own standards § Upon our proceedings, set forth 413. review however, we hold that the trial neither considered judge § nor impermissible misapplied factors 413. pardon trial or because judge parole only mentioned Pennsylvania from the case mentioned it quotation society’s of a of the death penalty context discussion in the protection.” Nothing transcript indicates
“absolute actually that the trial considered the judge possibility § parole pardon determining the sentence under 413.14 Rather, the trial judge simply exploring some policies penalty. behind the death
Thus, this case does not come within the rule in Poole v.
State,
(1983) (Poole II).
453 A.2d
Md.
II,
prosecutor argued
to the
sentencing jury
Poole
following
13.
None
remarks
quote
is a verbatim
from
source
used
judge;
trial
language
some
was omitted. The omissions
not, however,
do
passages
take the
out of context.
Moreover,
passage
possibility
pardon,
mentions the
aof
*22
which can still be obtained even
judge
if the trial
sentences the
defendant to death.
of
because
penalty
receive the death
should
defendant
life
given
be
if
paroled
thаt he could
the possibility
improp-
held that such comments were
The Court
sentence.
also Poole
Similarly, instead of he his own standards applied applying cate that § in a applied need not penalty The death statute 413. vacuum; legal philosophical justifi of the consideration as long not inappropriate death is penalty cations Here, judge the trial disregarded. itself statute policies underlying of the basic recognized some simply retribution, and rehabilitation— punishment—deterrence, death-penalty Maryland them with the juxtaposed Moreover, reference material judge’s scheme. some law, of course drawn from Court case which Supreme statute. Considera very Maryland is the foundation of the § 413. with way tion of these factors is no inconsistent A indi- reading transcript proceeding close the details judge carefully cates that the trial considered weighing ag- background offense and Trimble’s pursuant to gravating against mitigating factors factors § challenged simply punc- Trimble quotations case, facts of the facts of the tuated a detailed examination hold, To as Trimble his conclusion. plainly support which do, have this conclusion should be reversed would us larger would picture, the trial looked at the judge because penal- of the death application a mechanical only encourage This we decline to endorse. ty.
VII sentence should be maintains that the death Trimble mitigat- as a proving, he vacated because had burden *23 414 §
ing circumstance under 413(g)(4),15that the murder was committed while his capacity appreciate either to crimi the of nality his conduct or to conform his conduct the law was substantially impaired by mental incapacity, a mental disorder, disturbance, an emotional or intoxication. Accord to this ing argument, the should State shoulder the burden of persuasion because, as this circumstance mitigating at trial, Trimble successfully satisfied his of production burden on the issue. insanity State, recognized
As we Tichnell v. 287 Md. (1980) (Tichnell I): A.2d does
Section 413 which explicitly specify party has the burden of evidence producing and the burden § Instead, persuasion. speaks in terms of requiring the sentencing authority findings make satisfy that either the reasonable doubt the preponderance evi- standard; dence a proce- section involves three-step First, a precedent dure. condition to the imposition the death penalty, the sentencing authority must find a beyond reasonable that at one doubt least aggravating § 413(f). this, circumstance has been proved. As to bears of nonproduction State both risk nonper- and suasion. The second step requires sentencing whether, authority consider of the preponderance § evidence, a mitigating circumstance exists. 413(g). provision This require does not prosecution to dis- prove mitigation, existence of thus on placing accused the risk of nonproduction nonpersuasion. 413(g)(4) provides: 15. Section (g) mitigating Consideration of circumstances.—If the court or finds, doubt, jury beyond a reasonable one or more of these exist, aggravating whether, circumstances it shall then consider evidence, upon preponderance any based following of the mitigating circumstances exist: result of mental ant to conduct to the (4) The appreciate murder was committed while the requirements incapacity. [*] criminality [*] lawof >V of his conduct or to conform his [*] substantially impaired [*] capacity [*] of the defend- as a 730, 415 A.2d 849.16 Id. at has the burden
Thus, held that the accused explicitly we mitigating all circumstanc- persuasion as to production es, impaired capacity” under including “substantially § 413(g)(4).
Nevertheless, urges that a different result Trimble successfully he had met should be reached here because during guilt production insanity on the issue burden *24 however, contention, has several of the trial. This stage §of 413 First, sentencing proceeding the flaws. analytical pro a the burdens of separate proceeding; is and distinct no guilt stage applica at the have persuasion duction and parties—especially sentencing proceeding. tion in the prove chance to facts given the defendant—are a second help This can a defendant helpful to their case. reject defense was position, insanity because his Trimble’s guilt stage. ed at the generated has
Second,
finding
a
that the defendant
not
either that
certainly
does mean
insanity
issue
trial
of the evidence
by preponderance
he
that issue
a
proved
has
on that issue should be
persuasion
the
of
or that
burden
To
the
meet
burden
sentencing proceeding.
shifted
the
issue,
must
a defendant
insanity
on the
production
of
in a reasonable
raise a doubt
evidence that could
present
State,
v.
of the defendant.
juror
sanity
the
Bradford
light
a
(1964).
relatively
This is
234 Md.
Therefore, satisfying the
of production
burden
during guilt stage
require shifting
does
the burden
of
persuasion
stage.
state at
different
The alloca
of
proof
tions
of
and persuasion
burdens
аre essentially
decisions,
policy
only by
constrained
constitutional consider
ations,
that are influenced
judgments about the risk of
error, the
positions
relative
the parties,
procedural
stage
In the
efficiency.17
guilt
trials,
of criminal
this court
held that
policy
has
such
considerations
require
shoulder the
of persuasion
State
burden
on the insanity
State,
issue.
234 Md.
(1964).
VIII
Trimble next maintains that
the death
imposing
penalty
eighteen
on
under
persons
years
age
constitutes cruel
*25
punishment
and unusual
in violation
the Eighth
Amend
20
ment
and
Maryland
Articles 16 and 25 of the
Declaration
York,
197,
2319,
17. Patterson v. New
432 U.S.
97 S.Ct.
417
not
decided
Rights.21
question
This
has
been
express
Court; it
to that Court but
Supreme
presented
was
104,
Oklahoma,
102
v.
455 U.S.
ly
open
left
Eddings
Nevertheless,
869,
(1982).
discern
A
capital punish-
Supreme Court case law on
review of
Any
238,
92
Georgia,
with
U.S.
begin
ment must
Furman
Court, in
2726,
(1972). The
L.Ed.2d 346
Furman
S.Ct.
the capital-punishment
struck down
per
opinion,
curiam
Each
wrote an
Georgia
justice
and Texas.
statutes
dissenting
from
opinion
concurring
either
individual
the death
position
took the
justice
One
judgment.
impact rendered it unconstitutional.
penalty’s discriminatory
2727,
(Douglas,
at
240,
at
33 L.Ed.2d
See
at
92 S.Ct.
id.
to be
J.,
penalty
Two
found
death
concurring).
justices
in all circumstances. See id.
punishment
cruel and unusual
(Brennan, J.,
257,
2736,
J., 310, 2763, id. at 92 concurring); S.Ct. at 33 L.Ed.2d at (White, J., 390 concurring). later, years
Four
Supreme
the
Court’s
analysis
Eighth
applied
punishment
Amendment as
to capital
be
153,
came more
crystallized
v.
428
Gregg Georgia,
U.S.
2909,
(1976).
96 S.Ct.
49
859
L.Ed.2d
and its
Gregg
cases,22
companion
a plurality of the Supreme
upheld
Court
post-Furman
five
death-penalty statutes. Six
justices,
two different opinions, agreed that the
consti
statutes were
tutional
they
because
were carefully
give
drafted to
sentencing authority adequate
guidance
information and
158,
exercise of its discretion. See
at
id. at
96 S.Ct.
2918,
Stewart,
49 L.Ed.2d at
J.,
866
(opinion
joined by
Stevens, JJ.);
207,
2941,
Powell and
at
id.
More importаnt
here,
for our
Court
purposes
Gregg
began
develop
more of a
consensus
to a general
approach
Eighth
Reviewing
Amendment claims.
history of
Eighth Amendment,
noted
Gregg plurality
had
Court
early,
abandoned the
more narrow
approach of determining only
any given
whether
method of
See,
execution was torturous or
e.g.,
barbarous.
Wilkerson
Utah,
130,
v.
99
(1879);
Kemmler,
U.S.
419
Trop
874
v.
2925,
(quoting
L.Ed.2d at
173,
at
49
96 S.Ct.
590,
(1958)).
86,
This more
In
Gregg.
continued
after
Coker v. Geor-
solidify
claims
584,
2861,
(1977),
Finally,
Oklahoma,
v.
102
Eddings
455 U.S.
S.Ct.
869,
(1982),
Thus, our based on reading Supreme Court case law, we perceive analysis First, our here be as follows: ascertain, using we must objective indicia to extent possible, society’s “evolving standards of decency” with respect capital juveniles. Second, punishment we must then satisfy ourselves that capital punishment juveniles does fact serve a penological purpose and is not excessive in this instance.
B
Our first task is to determine
society
reject-
whether
has
ed capital punishment
enforcing
as a means of
the criminal
for juvenile
law
offenders.
probative
One
more
gauges
standards,
of society’s
legislatures,
the acts of state
is illuminative. We note first that the Maryland legislature
has not seen
prohibit capital punishment
fit to
of juveniles.
§ 3—804(d)(1);
See Md.Cts. & Jud.Proc.Code
Md.Code Art.
§27, 413.
legislative judgment,
This
like all others in our
review,
limited
judicial
exercise of
is entitled to
presumption
validity,
persuasive
but is
evidence that at
segment
least this
has not
society
rejected capital punish-
175-76,
ment of juveniles.
428 U.S. at
Gregg Georgia,
fact,
S.Ct.
substantial majority those states providing capital punishment. This jurisdictions canvass of provides proba- tive indication that contemporary society rejected has not capital punishment juveniles, chosen, but has through its elected representatives, to allow it in certain circumstances.
Another
gauge
standards,
relevant
contemporary
jury
cases,
in capital
verdicts
is more ambiguous. Although
arguably
probative
this source is more
society’s
actual
feelings
the death penalty,
toward
because it involves citi
actually imposing
zens
the penalty rather than vicariously
passing
through
abstract statute
elected representatives,
jury
may
empirical
verdicts
have
problems that cast some
doubt on their reliability.
Florida,
Enmund v.
Utah
(Supp.1983);
Code Ann. §§
76-3-207
Va.Code
16.-
§§
1-269,
13.40.110,
(Supp.1982);
19.2-264.4
Wash.Rev.Code Ann. §§
10.-
14-6-237,
(Supp.1984); Wyo.Stat.
95.070
(Supp.1982).
6-4-102
§§
24. Brief of
E),
(App.
Oklahoma,
Eddings
Petitioner at 19a
455 U.S.
104,
869,
(1982).
addition,
102 S.Ct.
On capital punishment, age a minimum 101 countries with age it at and 77 set age minimum 17 set the age minimum or did do not have a countries either Sixteen Patrick, The Status adequate information. provide of J.Crim.L., Perspective, A World Capital Punishment: hand, Interna- (1965). the other On & Pol.Sci. 397 Crim. Ameri- and the Rights and Political on Civil tional Covenant called for the aboli- Rights Human have on can Convention And, closer to juveniles. of capital punishment tion of that has recommended home, Model Penal Code offenders. See from juvenile withheld penalty be death § 210.6(l)(d) (1962). Model Penal Code conclude evidence, are unable to we Based on this re decency of have standards society’s contemporary though few of Even punishment juveniles. jected capital row, other on death several currently offenders are juvenile scholarly of it, body a significant countries forbid permit of still it, firm states thought rejects majority a 18. This under of certain offenders capital punishment view, probative most in our is the legislative judgment, Moreover, not lose we must standards. evidence societal in the context inquiry limited sight purpose of this are to determine of a statute: we judicial review juve capital punishment whether society rejected has it, niles, nor whether reject not whether should society legisla were we society eventually nor whether reject, will Thus, is it. the burden judges reject tors rather than would legislature’s judgment, seeking on those to overturn the has satisfied in this instance. not been burden Legislature’s juveniles treatment Maryland overall treatment country’s consistent with this entirely True, special juveniles very offenders. “have juvenile reflect,” v. Ander May in life which the law should place 840, 844, son, 536, 73 97 L.Ed. 345 U.S. S.Ct.
(1953) (Frankfurter, J., concurring), yet the law has long recognized that not all are juveniles susceptible to such Rather, benign Maryland pro treatment. like most states in juvenile vides its code that certain are to juveniles be § treated as adults. See Md.Cts. & Jud.Proc.Code 3-804. рolicy predicated This decision is on the that juveniles belief crimes, murder, who commit certain should especially fully only penologi accountable adults. This reflects not goals deterrence, cal and prag retribution but also the recognition matic that the overtaxed juvenile system simply cannot juvenile handle serious offenders. These judgments, in reached the course of democratic representative pro cesses, evolving are not inconsistent with standards of decency.25
C Eighth The second facet of the Amend Supreme Court’s ment for jurisprudence analyzes particular the offense relationship which the death and its penalty imposed purposes capital punishment. We note first that this case, inquiry presented light is different this slightly offender, offense, here it because not the is Thus, in focus. from the any guidance absence Supreme Court to the examine contrary, we will both offender and the offense the death to determine whether penalty is excessive in this instance.26 comparison, Supreme only In three Court in Coker found that 25. woman, states penalty rape sanctioned the death for of an adult persons that 72 particular had been executed for that crime between Enmund, 1955and 1977. And in states the Court found that nine capital punishment "nontriggerman" accomplices, authorized only six such offenders had been executed since 1954. These numbers rejected led the Court to conclude that societal standards the death penalty empirical in both instances. We view the data here—29 states, juveniles significantly and 17 on death row—to be different and they support thus a different result. Enmund, Supreme subjective culpa- In Court did examine the context, bility approach support of the accused in this so our here has Supreme Court case law. discussed Supreme Court Georgia, Gregg penalty: the death behind penоlogical purposes length *32 social principal said to serve two is penalty The death crimes capital and deterrence purposes: retribution offenders. prospective expression society’s is an capital punishment
In part, This offensive conduct. outrage particularly moral at but it is essential unappealing many, function may be rely legal its citizens to on society in an ordered that asks wrongs. their self-help rather than vindicate processes of the nature of part “The instinct retribution in the administration man, channeling that instinct in pro- important purpose of criminal serves an justice by law. moting stability society governed of a society is begin organized to believe that people When criminal offenders impose upon or unwilling unable ‘deserve,’ then there are sown the punishment they self-help, vigilante justice, seeds of anarchy—of at supra, lynch Georgia, law”. Furman v. U.S.] [408 308, (Stewart, J., concurring). at S.Ct. [92 2761] of the longer objective is no the dominant Retribution law, York, criminal v. New 337 U.S. Williams [69 1079, 1084, (1949), neither is it a 93 L.Ed. but S.Ct. 1337] respect inconsistent with our objective forbidden nor one for the of men. dignity at 394-395 S.Ct. at
Furman v. 408 U.S. Georgia, [92 C.J., id,., at 452-54 (Burger, dissenting); [92 2806-2807] J., (Powell, dissenting); Powell v. S.Ct. at 2835-2836] U.S., Texas, 302 535-536 S.Ct. at 2155- [88 Indeed, opinion). capital the decision that (plurality 2156] sanction extreme punishment may appropriate community’s cases is an belief that expression so an affront to grievous certain crimes are themselves response may that the be the humanity only adequate of death. penalty
[*] [*] [*] [*] [*] [*] Although some of the suggest studies that the death penalty may not function as a significantly greater deter- rent than penalties, lesser there is no convincing empirical evidence either supporting refuting this view. We may nevertheless assume safely there are murder- ers, such as in passion, those who act for whom the threat of death has little or no deterrent effect. But for others, many penalty the death is a undoubtedly signifi- cant deterrent. There are carefully contemplated mur- ders, hire, such as murder for where the possible penalty may of death well enter into the cold calculus that pre- cedes the decision to act. And categories there are some murder, such as murder a life prisoner, where other sanctions may adequate. not be
The value capital punishment as a deterrent of crime complex is a factual issue the proper- resolution of which ly rests with the legislatures, which can evaluate the results of statistical studies in their terms of own local conditions and a flexibility approach with that is not available to the courts. Georgia, supra, Furman v. [408 at 403-405 S.Ct. at (Burger, C.J. U.S.] [92 2810-2812] Indeed, dissenting). of the many post-Furman statutes reflect just responsible such a effort to define those crimes capital punishment and those criminals for which is most probably an effective deterrent. 183-86, 2929-31,
Gregg Georgia,
428 U.S.
96 S.Ct. at
(footnotes omitted).
Thus, the here is question society’s whether inter in ests and deterrence are by imposing retribution served capital punishment rape-murder for a committed by per son four shy eighteenth birthday. months of his Even though interest in society’s mainly retribution is focused on crime, defendant, not the we do not believe that consid eration age of the defendant’s is Society’s irrelevant. “mor al outrage” may tempered by youthful somewhat age of the perpetrator; hence the alternate “response” of in Nevertheless,' treatment the juvenile system. society’s in interest is no inapplicable retribution means in juve- cases, benign goals nile cases: In extreme are subordinated to the more juvenile system broad-based short, particu- interest retribution. In immediate juvenile protec- heinous act can take the outside of the larly juvenile system. tive umbrella of the such a crime was committed here. just We believe youthful prank; cold, crime was not a it was a Trimble’s act of and sadistic violence. The trial repeated judge brutal psychiatric indicating with presented testimony was Thus, prospects of rehabilitation were bleak. Trimble’s temper society’s justifiable one factor that could moral circumstances, outrage noticeably was absent. these penalty unjustified response solely death not because perpetrator shy of these acts was four months of his eighteenth birthday. contrast, found that
By
Supreme
society’s
Court
Enmunds,
not
interest
retribution was
served
where
the defendant
for the murder
only vicariously
liable
“Putting
under the
rule. The Court stated:
felony-murder
Enmund
that he
avenge
killings
to death to
two
did not
committing
causing
commit and had no intention of
does
end of
measurably
contribute to the retributive
ensur-
Enmund,
ing
gets
chat the criminal
his
deserts.”
just
Here,
U.S. at
The second
major purpose
capital punishment—deter-
different considerations. Addressing
rence—involves
mur-
in general,
der
concluded that
Gregg
capital
Court
punishment
“undoubtedly
significant
is a
deterrent.”
185-86,
2931,
utes to
interest
in
society’s
capital
deterrence so
punish-
ment in this case
not
a “purposeless
will
be
and needless
imposition
pain
suffering.” Coker at
at
S.Ct.
2866,
This is not a case like Enmund where the deterrent function- of the criminal operate law could not because defendant did not intend to kill the culpa- victim. Trimble’s bility unaffected age, level was which was four age majority. Imposition months from the of the death in send penalty message this instance will to others similar acts that will contemplating society respond harshly short, to their actions. we that seventeen-year- believe youths old can deterred from committing rape- be brutal murders, legislature’s judgment so the in that is not regard a purposeless act. of the death imposition penalty this instance mea-
surably society’s weighty serves interests both retribu- Thus, tion and deterrence. Trimble’s sentence is “more than the and needless purposeless imposition pain suffering.” at 53 L.Ed.2d at Coker S.Ct. 989. Nor capital “grossly is the sanction out of proportion crime,” id., severity this case a brutal rape-murder. Eighth For Amendment purposes punish- ment is therefore constitutionally permissible.
We emphasize wish narrowness of our consti tutional holding today. We do not hold that the death penalty is constitutionally permissible as applied juve to all niles, nor do we hold that any particular chronological age bright serves as a line under which the death penalty may imposed. We hold simply that on the facts of this case, age—17 years Trimble’s and 8 months—does not engage Eighth Amendment as a shield to capital punish ment. We believe that such a case-by-case approach not only affords accused the individualized consideration cases, warranted in death-penalty but it also avoids the arbitrary line-drawing that is endemic to any hard-and-fast juveniles distinction between and non-juveniles. See Coker
429
2870,
IX ground on the that challenges his sentence next Trimble in for this State penalty imposed the it is inconsistent with words, other who traits. share rape-murderers other disproportionate death is that his sentence he contends cases, considering in both the imposed similar penalty the the defendant. crime and in our is mandated Md.Code review procedure §27, articulat
(1957, 414. We first Repl.Vol.), 1982 Article State, v. 297 the for our function Tichnell procedure ed III). There, (1983) (Tichnell 1 we 432, 468 A.2d Md. review under recognized purpose proportionality that thе of § possibility that 414(e)27 substantially to eliminate “the is of an die the action person by will be sentenced to juries if the time comes “when jury,” aberrant so in a certain kind impose do not the death sentence generally case,” the death sentence. this Court can vacate of murder Georgia, U.S. (quoting at 468 A.2d Gregg Id. 893). L.Ed.2d at S.Ct. at no to con- find basis examined the record and We have the influ- under imposed the sentence was clude that death factor. any arbitrary other ence or passion, prejudice, 414(e) 27. Section states full: (e) Appeals.—In addition to the con- Considerations Court of appeal, Court any properly before the on sideration errors death sen- Appeals imposition shall consider Court sentence, regard determine: With to the the Court shall tence. (1) imposed under influ- Whether the sentence of death was factor; arbitrary any passion, prejudice, other ence of or finding (2) supports jury’s evidence or court’s Whether 413(d); aggravating statutory § circumstance under (3) jury’s finding supports or court’s Whether the evidence outweighed mitigat- aggravating are circumstances circumstances; ing disproportionate (4) Whether the sentence of death excessive cases, considering imposed penalty both crime to the similar the defendant. *36 Nor do find any we basis to conclude that the evidence is support insufficient to of the trial court’s the finding aggra- vating factors that the murder during was committed the course a rape hostage. of and that the victim was a victim, evidence is abundant that Trimble the forcibly raped vehicle, confined and the brutally restricted her to assaulted her with a baseball bat her head body, about and and then slit her throat from ear to ear to make of her certain death. satisfy finding These facts of these aggravating factors §§ (10). under 413(d)(4)and We further conclude that the trial court had a sound basis find these аggravating factors outweighed by were factors mitigating that crime, had no prior defendant record of violent that he youthful was of a that an age, and he had antisocial coupled with personality substance abuse.
However, Trimble maintains there are others who have committed more than rape-murders horrible his case reflects and these have offenders received life sen- tence. point, As illustrative of his Trimble cites cases Greco, Oliver, of Jones, Parker, Vincent Dean Jack William Johnson, Wiener, Horton, John Kevin Theodore Elvis all of brutally raped killing whom their victims them before and all whom of were sentenced to life He imprisonment. argues that his crime more than aggravating any is no of these crimes.
In Stebbing State, (1984), 299 Md. 473 A.2d we rape-murders established for inventory which included of these many Ordinarily, pool cases. of cases along any with additional cases considered since we decided Steb- bing would establish our inventory determining appropriateness the death sentence for Trimble. How- ever, because thrust of Trimble’s is that argument he was too young the time of his crime to sentenced die, we consider cases shall other where the State sought the death and the penalty youthful defendant was of age. though We do this even we have already decided that the imposition of death of youthful on one is not age per se Therefore, cruel and unusual punishment. having reviewed sen capital Maryland’s in each of judge’s reports the trial certain cases have selected we tencing proceedings, factor aggravating was an rape where victim similar arguably of the victim or the defendant in the murder crime, or both.28 at the time youthful age frame- similar within The cases selected as we have § and are eight in number 27, 414(e)(4)are of Article work as follows: eleven Age years Maziarz.
Donald Thomas crimes, was convicted Mаziarz months at the time of his *37 and rape, murder, first-degree of first-degree two counts of the judge aby to death He was sentenced robbery. George’s County. Court for Prince Circuit and bar met a woman accomplice Maziarz and After and socialize. apartment to her to drink they all went the woman. made sexual advances a while Maziarz her, he and after which raped she refused beat When awith then bound raped her. The victim was co-defendant gas stove turned on the telephone cord. Maziarz A fire living in the room. and matches ignited kitchen the smoke de- destroyed deliberately Maziarz resulted and Maziarz then the blaze. tector, by had been activated which apartment and left. from her the victim’s television removed smoke died of either occurred and the victim An explosion aggra- The court found as or extensive burns. inhalation in the course committed factors that the murder was vating circumstances, arson, mitigating As rape, robbery. and no conviction prior had the defendant the court found that violence, capacity was that the defendant’s for a crime of not the sole was of the defendant impaired, that act defendant murder, that the was and proximate cause age. a youthful the cases us from our consideration cause to exclude These criteria cases the in each of these and William Parker because of Dean Oliver penal- authority aggravating thus the sentencing factors and found no cases of ty imprisonment. also exclude the life We shall for each was Jones, Horton, and Howard Hines be- K. Johnson Jack John Elvis they youthful age at time of their crimes. cause were not Theodore Scott At age Wiener. of 19 and years months, Wiener committed the crimes for he which was by convicted the Circuit Court for Baltimore County non-jury raped trial. He a 22-year-old and then female her stabbed 101 times. The aggrаvating factor of first-de- gree rape was found be outweighed by the mitigating factors of lack of a record of violent prior crimes, diminish- ed capacity, youthful age. and A life sentence imposed was judge. Greco, Tito Age years months,
Vincent Jr. and 11 raped strangled Greco to death a 78-year-old female. The trial court found aggravating rape factor outweighed (1) following mitigating factors: crimes; lack any prior (2) record violent substantially (3) (4) impaired capacity; youthful age; unlikelihood that in further engage Greco would criminal if he were activity (5) treated; successfully kindly Greco’s treatment of two committed; young (6) witnesses to the offense after it was evidence of a likelihood of amen- apparent rehabilitation A to treatment. life sentence was ability imposed. Age years Lawrence Johnson. and ten at the months *38 offenses, these time of Lawrence Johnson was found guilty murder, first-degree of premeditated robbery, daytime and he housebreaking. January Dwayne On and May- ers into a and brutally 78-year- broke residence murdered a old they during woman encountered course of the crime. sentencing held, A after proceeding was which the trial a for judge granted hearing motion a of an new because error in the jury hearing, instructions. At new sentencing jury aggravating found one circumstance: the defendant committed the murder in the course of the The found robbery. jury mitigating also one circumstance: that the act of the not defendant was the sole proximate The jury cause of murder. did not find age that his was a A mitigating circumstance. sentence of death was im- posed.
433 death sen In this case Johnson’s Lawrence Johnson. for the case remanded by this Court and vacated tence was mitigating find not as a jury did resentencing because a crime of prior conviction for any of the absence factor mitigating of this factor the existence although violence State, the record. Johnson uncontradicted on was (1982). two A.2d 542 Johnson29 was weeks Md. commit old when the crimes were years being short 23, 1980, companions and his Johnson February On ted. her car the (who had been abducted drove the victim to a area companions) his wooded where night by before each the victim. Dwayne Mayers raped one Johnson identification, shot in the Then, to Johnson the victim avoid head four times. the trial remand, sentencing was conducted
On factor he found that the murder aggravating As an judge. rape. judge The also during committed the course was any prior factors: lack of conviction mitigating five found violence, acting duress or a under substantial crime impairment the substantial person, of another domination con- criminality capacity appreciate Johnson’s in another duct, age, and that a co-defendant youthful The trial judge murder case had received life sentence. outweighed factors mitigating these concluded imprison- life imposed a sentence of aggravating factor and ment. Stebbing years old Stebbing.
Annette Louise assisting directly female victim while strangled she when her sodomizing of the victim husband. rape in the found as an sentencing proceeding, judge the trial At the during the murder occurred factor that aggravating mitigating sole factor was that rape. The course of a crime of violence. guilty not found Stebbing had been factor did mitigating determined that this court *39 rape-murder apprehended on and arrested the Johnson was 1980; robbery-murder on February he arrested for the March was 5, 1980. 434 aggravating the factor and sentenced
outweigh Stebbing death. Quinton Age the
Derrick White. 18 at time of the crime, guilty first-degree was found White murder for 61-year-old the death of a man shooting who was riding an aggravating circumstance, As the moped. jury found had committed the murder in the White course of an robbery. The found as attempted jury mitigаting circum- (1) stances that White had previously been convicted of (2) a crime of violence and lived a poor environment found, to unlawful which was conducive conduct. The jury however, these did not outweigh factors the aggravat- attempted ing robbery. Accordingly, factor of a death imposed. sentence was Age 16 at time Quickley.
Brian Keith of the of- fense, Quickley was convicted of first-degree murder and a deadly weapon. He and his two robbery with brothers a furniture store, entered into store. While in the Brian once the eyes again shot the victim between and then in the neck then took region. brothers several television sets aggravating and fled. The court found as an circumstance that the defendant committed crime in the course of a The court found robbery. mitigating circumstances the youthful age, defendant’s his low and intelligence, his im- poverished environment. A life sentence imposed. was summarize,
To of cases pool we have selected for comprises 5 3 comparison rape-murders robbery-mur- ages ders. The the defendants from 16 range to 21 In years. rape-murders penalty where the death imposed the defendants years were old. rob- cases bery-murder penalty where the death was imposed, were 17 years defendants old at time of their crimes. bright
We see line which can say no this Court when Moreover, imposed. death shall the guide- we believe lines legislature represent established the clearest course of action attempting problem. resolve this *40 has death Nevertheless, argues penalty that the Trimble Again we rape-murder. for imposed juvenile on a not been offender is a relevant age of the youthful while the say weighing pro- factor, it alone does not end mitigating it a wealth Here, had before sentencing authority cess. character. Trimble was information about Trimble’s grade 10th after severаl from school while expelled offense, he had been At the time of the suspensions. months. He airport an for seven employed at steadily In addi- girlfriend. a relationship a with steady maintained having diagnosed he was intelligence, to his low tion organic psychosis, possible temporary personality, antisocial re- criminally nevertheless schizophrenia but possible his exacerbated These characteristics were sponsible. and alcohol abuse. drug his criminal be- testimony,
According psychiatric to the (he Charles Man- regarded of his part lifestyle havior was freely Trimble model) and a matter of choice. as a role son entering breaking in ten his involvement admitted violation, assault, drug and several crimes, handgun sadistic behavior pattern He further admitted arrests. deter- psychiatrists and animals. girlfriend toward his to be bleak because for rehabilitation prospects mined his view, the In our rights of others. respect no he had reasonably could him to death who sentenced judge trial repair rather beyond an adult that Trimble was conclude in need of treatment. than a juvenile federal constitution said that under the We have from the death not, age, his shielded Trimble because presented no obstacle further see penalty. We § constitution, or the Declaration 414(e)(4), state our on penalty of the death imposition Rights prevent realize his actions ability to age. of his Trimble’s account to the letter to conform his conduct wrong and were the death hold that age. his We impaired by were not law excessive defendant was neither on this imposed sentence nor to the disproportionate penalty imposed in similar cases State. this
Trimble also maintains disproportion- that his sentence is ate plead because co-defendants were allowed to guilty first-degree murder and avoid death penalty. The *41 argument short answer to this is that Trimble’s co-defend- ineligible ants were for the death penalty they because were in principals degree not the first to the murder. See § 413(e)(1)of Art. Trimble places particular emphasis Kordell, Anthony on co-defendant who testified for the given suspended State and was a sentence. The sentences not, accomplices view, Trimble’s do in our render Trim- First, disproportionate. ble’s sentence the characteristics prime and conduct of each individual a are focus of propor- review, the tionality accomplices so that conduct the has bearing no on the heinous crime committed Trimble himself. The were far less than Trim- accomplices culpable Although accomplices raped women, ble. other it two was Trimble himself who beat brutally Rogers and slit her plainly distinguishes throat. This conduct from Trimble others, making appropriate. Second, different treatment of an mechanically linking sentence to Trim- accomplice ble’s own sentence has several unfortunate results: it sentence; limitation places an artificial on an offender’s it restricts the plea-bargaining process multiple-defendant cases; prevents it the individual consideration of each sen- Therefore, required capital tence cases. hold we sentence is proportionate notwithstanding Trimble’s accomplices. lesser sentences received his
X
lastly argues
Maryland
Trimble
capital-punish-
ment statute is unconstitutional on a
of grounds.
number
We
previously
rejected
have
addressed and
each of his
arguments, and consider the constitutional
issues to be
State,
v.
resolved. Calhoun
297 Md.
JUDGMENT DAVIDSON, Judge, dissenting: holds, things, that the among here other majority overruling his discretion did abuse judge trial closing Attorney’s of the State’s portion objection of the portion objected It finds that argument. more than an effort to attack argument nothing was closing view, my witness. expert of an credibility argument constituted closing objected portion that the judge’s previous ruling of the trial contradiction and, competent qualified was psychiatrist sole defense result of expert that as a opinion, that his consequently, conform unable to appellant disorders mental law, It also was admissible. requirements to the conduct binding that the instruction judge’s the trial contradicted *42 consider, psy- defense things, other among should jury law, Maryland established expert opinion. Under chiatrist’s such matters cannot be binding and instruction on ruling a I argument Accordingly, in to the disputed jury. counsel dissent. respectfully 17-years was appellant that the
Here the record shows The record of the crimes. old at the time commission insani- appellant’s sole defense was further shows that B. witness, one Dr. Robert called ty. appellant he (defense testified that was psychiatrist), who Lehman of Medi- of School University Maryland from the graduated practice 1971; in that he was licensed to year cine in that in trained Maryland; in the of he was medicine State psychiatry child adolescent and and general psychiatry had years that for he Sheppard-Pratt Hospital; seven in adolescent and child private practice specializing been of the Baltimore he was on the staff psychiatry; clinical instructor that he was a County Hospital; General psychiatry University in child adolescent at the and Medicine; and that his clinical and Maryland School educational in psychiatry skills were certified to American Psychiatry Board of and Neurology.
When defense that the psychiatrist counsel asked defense witness, qualified expert the State it indicated that had “no questions” and did not cross examine defense psychiatrist respect with to his qualifications. The trial judge then ruled that the defense psychiatrist qualified expert. as an not object The State did to the trial judge’s ruling.
The record further shows that the defense psychiatrist gave testimony oral and report submitted written which, among things, that, he expressed opinion other disorders, aas result of mental the appellant was unable to conform his conduct to the requirements of law. The State object did not to the admission this evidence. rested, After State the defense the trial judge the jury. instructed With respect expert testimony, the judge trial said:
“You will recall we have heard several doctors or psychiatrists’ testimony in this case. A witness who has special or training experience given field is permitted to express opinions based on observed assumed facts you in deciding aid the issues in this case. In weighing opinions experts you should the expert’s consider experience, skills, training, and and the expert’s knowl- edge the subject matter about which he expressing an opinion. give You should expert testimony weight you value believe it should have. You are not re- quired to accept any expert’s opinion. You should con- *43 expert’s sider an opinion together with all the other added.) evidence.” (Emphasis Additionally, the record shows that in closing argument, the State’s Attorney argued to the as jury follows:
“In regard whom did the put defense on to testify that this in defendant was fact insane of at the time offense? I submit to you nobody. Nobody he testified was insane at the time Dr. Lehman of offense. in foren- training no formal has and Dr. Lehman testified child and limited a practice He has sic psychiatry. any State with not affiliated He is psychiatry. adolescent examined past in the and he has hospital, or mental at the responsibility their to determine five defendants and Dr. Dr. He, Spodak unlike offense. given time of opinion give unqualified Blumberg, eminently is an offense as to of the occurrence months after seven at the time was mental stаte what the of defendant’s added.) (Emphasis the offense." argument to this of portion objection Defense counsel’s judge. the trial overruled was de- closing argument, the record shows Finally, of on the evidence heavy emphasis placed fense counsel Initially, psychiatrist. by the defense insanity adduced on the proof had the burden the State explaining that he said: sanity, question crazy. he is agree
“All the doctors Now, jury of this job he They agree crazy. all is will has to is he. The State crazy how really is to determine them, is not on on proof he sane. The is burden prove insane, but the that he already proved us. haveWe sane.” (Emphasis he was prove is on the State to burden added.) by the insanity adduced significance of the evidence the conclusion of stressed at psychiatrist again
defense he said: closing argument when defense counsel’s that is extreme- something “I with else you also leave Lehman’s copy I Dr. leave with ly important. you me, gave that he copy the same exact report, out, Con- edited, things good. as well not inked bad says, Dr. Lehman’s Attorney] trary to what State’s [the good. specialist He is a very, qualifications very are That is he is board certified. adolescent psychiatry, I a number of get prepared done. have very difficult to *44 440 you of this
copies
report
to take
the
into
room
jury
added.)
refer to.”
you
(Emphasis
with
to
agree
I
with
majority
“both the
Attorney
State’s
and defense counsel are
given wide latitude
the conduct
of closing argument,
including
right
to
explain
all
Nevertheless,
attack
the evidence in the case.”
under
law,
Maryland
upon
there are
general
limitations
scope
State,
closing
of permissible
Wilhelm v.
argument.
272
404, 413-23,
707,
(1974).
Md.
A.2d
326
714-20
Under Article 23 of the Maryland
Rights,1
Declaration of
Court,
construed
this
there
anis
established dichoto
my
of
between
role
the trial
judge
jury
with
respect
the determination of
of
law. Mont
questions
State,
84, 91,
gomеry
v.
Md.
654,
292
437
(1981);
A.2d
658
State,
Stevenson v.
167, 178-80,
558,
289 Md.
423 A.2d
(1980).
jury’s
564-65
authority is limited to deciding
“the law of
crime” or “the definition of the crime” as
Stevenson,
well as
legal
“the
effect of the evidence.”
289
178,
Md. at
423
A.2d
564. All
legal
other
issues are for
Stevenson,
the trial
alone to
judge
179,
decide.
289
atMd.
Here the trial judge ruled that the psychiatrist defense qualified competent and, consequently, expert opinion that as a result of mental disorders appellant was to conform unable his conduct to the require- ments of law was admissible evidence to be considered by Moreover, *46 jury. the the judge trial instructed the jury to consider that If expert opinion. the State’s Attorney was of the view that the defense psychiatrist qualified was not and that opinion his was and inadmissible should not have been considered by jury, the he should objected pre- have and However, served the issue for review. the Attorney State’s Instead, did not object. he argued to the the jury defense psychiatrist was “eminently unqualified” and that “[njobody appellant] testified the was insane at the [that essence, time of the offense.” In the State’s Attorney argued to the that the jury psychiatrist defense was not that, qualified and consequently, opinion was inadmissi- ble and should not be considered the jury. sum, the State’s Attorney’s argument merely was not
an attack on the credibility of the psychiatrist. defense Rather, it awas contradiction of the trial judge’s previous ruling binding was, therefore, instruction. It mislead- ing and confusing. The State’s had Attorney right no ought not to permitted have been to induce jury the not to consider the defense psychiatrist’s expert opinion on the question sanity inappropriate for reasons—reasons con- to trary judge’s the trial previous ruling and in- binding struction, and contrary view, therefore to In my law. the objected portion to of the State’s Attorney’s closing argu- ment exceeded the scope permissible closing argument. insanity. was case, sole defense appellant’s
In this the only witness that the was the The defense psychiatrist case, in this At the time the trial called. appellant reasonable doubt prove a beyond had burden State the criminal acts sane at the time appellant was 505, 513, 200 State, 234 Md. committed.3 were Bradford the moment (1964). Consequently, A.2d upon whether the evi truth, depended verdicts the jury’s sufficiently psychiatrist the defense presented by dence appellant’s as to the to raise a reasonable doubt compelling argument improper closing Attorney’s sanity. State’s it, and induced jury, confused have misled and may well reasons, evidence consider inappropriate a to raise reasonable doubt. appellant presented cannot, circumstances, upon reviewing I these Under doubt that record, beyond reasonable a belief declare closing Attorney’s argu portion State’s objected Accordingly, verdicts. jury’s influenced the ment in no way the case for and remand the convictions I reverse would trial.4 new *47 July Maryland, Chapter effective Laws of 501 of
3. pertinent provides part: Criminally Responsible—Plea and Verdict. Not “12-209. “(b) of Proof. Burden establish, by preponderance the burden "The defendant has evidence, criminally responsible.” of not the defense conclusion, consider the other issues light I need not of this majority opinion. in the addressed