*1 OF MARYLAND STATE LAWRENCE JOHNSON Term, 22, September 1981.] [Nos. 9 and January 1982. Decided *3 J., argued The cause was before and Murphy, C. Smith, and JJ. Digges, Eldridge, Cole, Rodowsky, Davidson Burns, Jr., Defender, E. Assistant Public George Murrell, Defender, whom were Alan H. Public Gary and S. brief, Offutt, Defender, appellant. Assistant Public on for Deborah K. Handel and Stephen Caplis, B. Assistant General, Attorneys Sachs, with whom was Stephen H. Attorney General, brief, appellee. on the
Digges, J., opinion delivered the of the Court. Eldridge, JJ., J., dissent. Davidson, Eldridge, filed a Cole dissenting infra, at opinion page 444 in which Cole JJ., J., filed a dissenting opinion concur. at Cole, Davidson, Eldridge infra, J., in which page 456 J concur. Davidson, convicted, Lawrence Johnson was after removal of this County, criminal by jury cause from Baltimore in the Cir (both County cuit Court for degree Calvert of first murder premeditated felony), and in degree the commission of a first rape, kidnapping, and handgun during use of a the commis felony sion jury of a or a crime of violence. The same subse quently sentenced Johnson to death for the murder.1 As is specified by death, authorizing the statute the sentence of must, by expedited appeal, we scrutinize both the deci sion to execute the any defendant as well as claims of error properly presented by parties. exception With the imposition penalty, of the death we sustain these convictions *4 ordered, and sentences and remand this cause for a new hearing concerning punishment given the to be for the murder. (1957, Vol., Repl. Supp.), §§ 1. Md. Code 1981 Cum. Art. addition, judge
414. In life in the trial sentenced Johnson to consecutive terms of prison rape, years kidnapping, years for the for the and 15 for the handgun offense. by the was related spree of chronicle this crime sordid early Johnson, began It on at trial. Lawrence appellant, suddenly 23, 1980, when he was morning February of perched on the friend, Batts, while by a Amos awakened cousin, Mayers. At the Dwayne at the home of couch to car Batts, friend outside followed his urging Johnson apparent became by It soon being operated the cousin. during the vehicle had stolen Mayers and Batts Johnson that Toulson, owner, Betty night had abducted its and partici- declined Although Johnson had earlier process. money to obtain some when the other two decided pate crime, joined them in the this time through the defendant discussion, Mayers started After a car with the victim. brief men smoked while the three the vehicle and drove around embalming fluid.” with kind of "parsley sprayed flakes some throughout journey this "with The victim remained silent Later, to a driving after remote area her head down.” County, Mayers stopped the car and asked Baltimore companions to have sex” with their whether his "wanted eventually raped the Mayers prisoner. appellant and of her car. The trio then drove woman on the back seat nearby Mayers stripped victim to another location where discussing After pocketbook. Ms. of her coat and Toulson problem knowledge their presented the victim’s automobile, identities, Mayers to the removed returned seat, appellant it to pistol presented from under the Johnson led her into the instructions to kill the woman. complied Ms. Toulson’s woods and with the directive. later; body days she had was recovered five snow-covered in the and chest. received fatal shots head Johnson, trial, convictions, sentencing, Following his appealed directly to penalty, because he received the death Court, 27, § he numerous con- presents Art. where guilt concerning tentions of trial on the issue conduct sentencing proceeding. as well We discuss as the murder relating Part I each seven claimed errors below trial, II on guilt determining Part focus phase sentencing relating subsequent the three issues *5 hearing resulting in imposition of the death penalty by the jury.
I. The Convictions a.
Johnson initially that, following entry contends plea of his of not guilty by insanity reason of and his referral to a state hospital for a psychiatric examination, he was further entitled to appointment of a private psychiatrist of his own choosing at expense state to assist his defense. The record that, reveals upon the filing plea, of this Judge Haile in the Circuit Court for County Baltimore ordered that Johnson be transferred to the Clifton T. Perkins state mental hospital for an evaluation. After examination, a staff the hospital issued following report, over signatures of its superintendent and clinical director:
Mr. Johnson was admitted to the Clifton T. Perkins Hospital 16,1980, Center on June and evaluated in accordance your order of April 1980. On June Mr. Johnson was interviewed at conference, medical staff where results of the multidisciplinary evaluation were examined.... It was the opinion of the psychiatrists present at the conference that:
1. diagnosis is Antisocial Personality;
Drug by History, Abuse (majority) 2. present time, At the Mr. Johnson is able to
understand the nature and object of the proceedings against him and to assist defense, his own (majority) 3. At the time of alleged offense, Mr.
Johnson was not suffering from a mental disorder which caused him to lack substan- tial capacity to appreciate the criminality his conduct or to conform his conduct to the requirements of the (majority) law.
Therefore, arrangements to return making we are *6 custody. your Mr. Johnson in the statement "majority” following
The notation each Clermont, director of Dr. the clinical report resulted because Perkins, [at] he "did not arrive join, stating declined to that as diagnosis responsibility and a definite conclusion about during him most of uncooperative was defendant the interview.” later, it attorney, arguing Johnson’s that was
Sometime by be evaluated "crucial to the defense .. . that the defendant in order to determine privately psychiatrist retained was, fact, time of the commission whether he sane at the crime,” appoint the court to alleged petitioned of the examine private "independent psychiatrist” to further (Bowen, judge expense Johnson at the J.) of the State.2 The trial he had petition noting denied Johnson’s after already by hospital been examined the staff at Perkins in the institutions under practicing that "the doctors various jurisdiction Department of Health and Mental Hygiene are 'independent psychiatrists’ within the context which that term is used this case.”
When, just began, appellant orally before trial renewed his motion appointment psychiatrist of an additional denied, it was again there an indication that Johnson’s was attorney insanity plea wished to withdraw the "after making following certain statements to the court.” The colloquy Judge between place: counsel and Bowen then took
[Defense Honor, Counsel]: Your basically we have been unable to secure the services of the psychiatrist Johnson, to evaluate Mr. the defen- dant, therefore, psychiatric we have no other testimony reports other than the from Perkins. during trial, 2. represented by private At all times the defendant was paid by parents. family apparently counsel Johnson’s either unwilling expend beyond or unable to additional sums on his behalf those already paid Although appellant’s disputes to counsel. the State here claim indigency, appeal, no such contention was made before the trial court. On pressed by public
Johnson’s claims are We defender. shall assume for purposes is, indeed, indigent. of our discussion that the defendant [The my Court]: It is understanding that he was examined the staff Hospital at Clifton T. Perkins Center and they have opinion an as to his mental condition? correct, your
[Defense That’s Counsel]: Honor. They found him competent to stand trial and com- petent at time of the offense. [The Very you Court]: well. do And have other —
evidence
[Defense Counsel]: We have no other evidence we present. could well,
[The Very Court]: permit you we will withdraw the motion. We think that there is no *7 plea, you evidence of the if to so. wish do Yes, [Defense your Counsel]: Honor. We would. Appellant now request asserts that this refusal his of for appointment of a private psychiatrist effectively denied him rights counsel, law, to the of process assistance of due and. the equal protection of law in violation of various State and Federal guarantees.3 Constitutional In making this argument, acknowledges Johnson that judge before whom an accused has a plea insanity entered has "full power and to authority order an examination of the mental condition of person by such the Department of Health and Hygiene....” (1957, Mental Vol., Md. Code Repl. 1979 1981 (b). 59, § Cum. Supp.), Art. 25 Johnson also that "the admits this, replies appointment required, 3. To the State such is not but in that any event, by withdrawing insanity trial, plea his before Johnson has any by waived claim of error based on the trial court refusal to authorize psychiatric an additional evaluation the accused. As we here determine psychiatric that the lower court’s refusal to authorize an additional evalua error, deciding appellant’s tion was not we shall assume without that claim properly preserved note, however, that, "ordinarily” is for review. We while questions properly preserved appeal pursuant we will not consider not Maryland 885, previous penalty to a Rule in death case we demonstrated application principle a less strict of this our exercised discretion questions argued consider and determine briefed and before us whether or 504, properly State, preserved Bartholomey See Md. for review. v. 260 (1971). 513, 164, 273 A.2d 169
413 expert,” goes but he further and Department impartial is an that, evaluation, in addition to such neutral an indi- asserts psychiatric expert, is entitled to another gent accused choosing, by solely own funded one of his assist the defense. Although there can be little doubt that an effective assistance,4 may defense require expert sometimes the issue posed by appellant as is a solely much narrower one. It concerns Maryland’s statutory whether scheme providing for court appointment psychiatrist Department of a from the Hygiene Health and Mental involving cases a criminal defendant’s insanity incompetency asserted or is inadequate appointment experts additional is constitutionally required. right a though appellant specifically
Even doesn’t claim advocate,” "psychiatric essentially reduces to position proposition; Burger, thus the of Chief Justice words speaking judge as a for the District of Columbia Circuit (D.C. Harris, 383, 1969), Cir. are Proctor v. F.2d particularly apropos here. only Supreme directly point 4. The United States Court decision on this Baldi, (1953), L.Ed. United States 344 U.S. 73 S. Ct. 391. say duty "[w]e [the
where the Court noted that
cannot
that the State has
appoint
psychiatrist
pretrial
examination]
to make a
constitutional
issue, however,
mandate.”
From no can really adequately "assist” him he agrees unless Appellant’s position. Stripped of its verbiage Appellant’s position is he is psy- entitled to a sufficiently sympathetic chiatrist so that he will in preparing favorably assist counsel his case to his claims, and, in accordingly, structuring of hospital cross-examination the so doctors as to testimony. their neutralize Common placed upon sense dictates that there be some limit the of right indigents to the of assistance State-funded experts. government This is not a case where the has refused provide psychiatric to of evaluation a criminal who accused insanity defense, wishes an interpose to the where resulting report is withheld from the defendant. Nor has in appellant produced this case evidence challenging professional competence or impartiality psychiatrists at the Hospital.5 designated Perkins The doctors by the Department of Hygiene Health Mental to examine partisans Johnson are thus "not of the prosecution, though their paid by State, any fee is more than is assigned counsel for the prosecution merely defense beholden because is ... compensated by he the State. Each given — purely professional job represent to do counsel ability, defendant to the of designated best psychia trists impartially report to examine into and upon mental O’Brien, condition of the McGarty accused.” (1st 1951), F.2d denied, Cir. cert. U.S. 928 (1951).
We attorney are sensitive to the of concerns the defense this case faced with the task one undertaking defend who had voluntarily grim confessed detail crime brevity report way complaints 5. about Defendant’s the facial no impugn Appended integrity of the in it. to the evaluation contained report Moreover, separate along summary competence on the of Johnson. was a staff deliberations Kamm, Perkins, psychologist Dr. Ernest a clinical at filed portions psychological report, trial which the defendant used at testimony with the Dr. Kamm.
415 of his overwhelming evidence possessed and where the state indeed acts. Counsel in the criminal participation client’s develop he could suffi prospect confronted a bleak unless insanity jury question. create a cient evidence of to at least indigent accused is at Certainly, in these circumstances wealthy with the defendant disadvantage compared when marshalling for the possesses who unlimited resources investigators experts. and It attorneys, cannot be batteries contended, however, seriously precisely that the must State equalize defendant and the position penurious of the counsel, wealthy right case of a to an indi one. Even gent attorneys rep- entitled to several accused is neither attorney him to be particular resent nor to select a State, A.2d appointed. Campbell v.
(1963);
Here,
was eval-
see Annot.
Md. App. (Murphy, 267 A.2d C.J.). We have found no case which broadens constitutional principles this far and defendant has cited none. Where an indigent already accused has received a competent psychiat- ric evaluation at expense, by state either the staff of a state institution, court, by private physician selected the cases throughout country unanimity are in virtual agree position upholding with our the denial of the indi-
gent’s request
psychiatric
for an additional
expert
his own
choosing
compensated
E.g.,
the state.
United States v.
Baldi,
561, 568,
391, 395,
344 U.S.
73 S. Ct.
b. the trial court erred Johnson next asserts he evidence at trial where admitting psychological certain information, legal not to establish sought to use rather, he a suffi- to demonstrate that lacked insanity, but to commit requisite to form the intent capacity cient mental understanding of As an aid to an degree. murder the first predicate. this issue we set out its factual Kamm, trial, At called Dr. Ernest a clinical the defense Center. Dr. psychologist Hospital at the Clifton T. Perkins examination of psychological Kamm had conducted a performed by part Johnson as ofthe court ordered evaluation *11 report findings. of his prepared Perkins staff and had Counsel that he wished to use Dr. proffered for Johnson testimony go to report mitigation Kamm’s entire and "to crimes,” Degree any specific [intent] First Murder and rather sanity. than to raise the issue of defendant’s The court only psychologist jury parts allowed the to read to the of his he administered to report relating intelligence tests had conclusion, tests, Johnson and his based on that the those (I.Q. defendant "functions at the borderline intellectual level 72) ...” Appellant urges report that the entire is relevant reproduce psychological report 6. We in full Dr. with here Kamm’s emphasis indicating portions jury: read to TESTS ADMINISTERED: WAIS Bender-Gestalt Holtsman Inkblot Technique Pyramid Color Test
TEST BEHAVIOR: youth height patient 19-year The is a old of medium and build presented appearance. extremely who a neat and clean He was hostile, cooperation sullen and and his for interview and test was poor. In view of this test results have to be considered tentative. TEST RESULTS: On the WAIS he earned a Verbal a Performance I.Q. I.Q. places and a Full Scale of 72 which him within the I.Q. range intelligence. potential, gauged by borderline His as average range. reasoning, abstract is at least within the low Intel- efficiency lectual deprivation is a combination of educational decreased negativism. signs point There are some which thinking reality. the direction of bizarre and a tenuous hold on E.G. — capacity” is, defense of "diminished
to his he did not capacity have sufficient mental form the requisite specific intent to commit some of the crimes with he which is charged. Consequently, the argument goes, it was error to keep that jury information from the when it determines the guilt issue. In order decide ruling whether on the erroneous, evidence was however, we must first examine whether the criminal defense known as capac- "diminished ity,” or as called, it is sometimes responsibil- "diminished ity,” recognized Only is in this State. if such a doctrine exists jurisprudence our arguably defendant pro- entitled to duce evidence in of it. support determine, Because we here however, recognize this State does not diminished capacity as a legal operating negate doctrine specific crim- intent, inal it error to exclude support evidence in of it. on expounding why principle
Before of diminished capacity rejected Maryland has been aas criminal defense devil,” Card on 22 of the Holtzman he saw "the and on Card 27 he interpreted saw "God over caution, contempt But water.” these should be they may attempts express as also be to embarrass and by giving for the examiner nonsensical answers. personality picture extremely deprived is that of an individ- any expect support ual who does not affection and emotional from parental figure. perceives figure either He the mother as domineering, understanding but distant and devoid of warmth figure threatening. father as hostile and Yet he has conjured up idealized, image loving of an all wise and all father *12 surrogate a any compare with he will whom male elder. such Since person apt equate fall is bound to short of his he is ideal to person figure negative with the real father he sees in whom terms reject only authority and him. result As a he not has trouble with figures, perceives inhospitable but the world about him as a cold place where he does have a chance. CONCLUSION: patient (I.Q. The functions at the borderline intellectual level 72), potential range. but average is at least within low He severely deprived can described as a individual with a hostile negative authority problem. and [sic.] orientation an severe reality poor is
Contact with difficult to on evaluate account of his productivity resulting negativism. from extreme Vol., (1974, Repl. § We note that Md. 1981 Sup_p.), Code 1980 Cum. 9-120 provides duly psychologist, of the Courts Article that a licensed and qualified witness, issues, expert "may testify including as an competency on ultimate insanity, trial, scope to stand within matters of that psychologist’s special knowledge....”
419 guilt, State, relevant to the issue of see Armstead v. 227 Md. 73, 175 (1961); 24 State, 533, 188 A.2d Allen v. A.2d now, may why 159 it position we adhere briefly our helpful explore understanding of the prove its of background. doctrine and basic outline diminished capacity been as has summarized follows: crimes, definition, by require
[S]ince certain
intent,
of a specific
any
existence
evidence relevant
intent, including
to the existence of that
evidence of
constituting
an abnormal mental condition not
insanity,
legal
competent
purpose
for
of
[negating]
purpose
[T]he
that intent....
actual
of
establish, by negating
such evidence is to
offense,
requisite
higher degree
intent for a
a
degree
fact
lesser
of the offense was committed.
(1969).]
1228,
[Annot. A.L.R. 3d
Thus, only after a defendant has been
to be crim
determined
sane)
inally
(legally
accountable
his actions
has the doc
trine
applied
expert
testimony
been
to admit
as to
defendant’s mental condition in
order
determine
degree
criminality
for which the accused will be held
(Del.
responsible.
State,
180,
See
v.
McCarthy
372 A.2d
1977);
DiPaolo,
v.
State
N.J.
A.2d
409-10
(1961); Annot.,
The states are less than
their
unanimous in
resolution
question
application
whether
of diminished
capacity
criminal
trials on
guilt
the issue of
represents a legally
sound resolution of
pressing problem
of how the criminal
law should treat
abnormality
evidence mental
that does
not establish the
legal
insanity.
e.g.,
actor’s
Compare,
(D.C.
(en
1972)
United
Brawner,
States v.
420 however, of dimin
recognized,
adoption
concept
of
fundamen
ished
as a
defense involves "a
capacity
separate
theory of [criminal]
tal
in the common law
change
463, 476,
States,
United
328 U.S.
responsibility,” Fisher v.
(1946).
1318, 1325,
This is true
S.
[t]he or even be limited to of unusual endowment those far may recognized few as so average powers. A the reach of entirely beyond as from normal to be criminal criminal law is justice, general but potentially that must be means of social control reaching population. the vast bulk of capable (1979). compen n.4, App. 57-58 407 A.2d 358-59 To dium, 2 72, 294 N.W.2d we add the recent of Steele v. 97 Wis.2d case rejects which the doctrine. *14 only is a that not responsibility concept Criminal the median line extends to the bulk of those below responsibility, specifically of but extends to those problem impair- who have a realistic of substantial capacity. ment and ... The criminal law lack "vary legal cannot norms with the individual’s they capacity prescribe, to meet the standards verifiable, disability gross that is both absent a may such as the mental disease or defect that estab- irresponsibility. lish The most that it is feasible to proper do with lesser disabilities is to accord them weight in sentencing.”
A prior they review of our decisions in this area as interact legislative subject enactments on the demonstrates consistently this just State has adhered to the articulated view that the criminal law as an instrument of social control legally cannot allow a sane defendant’s lesser part disabilities to be guilt determining calculus. For determination, purpose guilt an offender is either wholly 1888, Court, In wholly sane or insane. following English case, lead of the McNaughten celebrated first responsibility. enunciated the test for criminal An accused was held to be responsible sane and act if his "at the time offense, commission of the alleged capacity he had reason sufficient to enable him distinguish right between and wrong, and understand the nature and consequences of act, his applied as Spencer State, to himself....” v. 69 Md. (1888). 28, 37, 809, 13 A. Insanity, as defined Chief Judge Alvey for this Court in Spencer was an all or nothing proposition:
[T]he law is
metaphysical
not a medical nor a
sci-
ence. Its search is after
practical
those
rules which
may be
inhumanity
administered without
for the
McNaughten
8.
name,
"Daniel
spelling
was inconsistent
in the
(see
courts and
inconsistency,
commentators ever since have shared that
Frankfurter,
(1965)
3).”
Things
p.
People
Of Law and Life and Other
v.
(1978).
Drew,
275,
Rptr.
22 Cal.3d
149 Cal.
275 n.1
We follow the
spelling
Spencer
as used in
security society by protecting it from of civil inquires peculiar and therefore it not into the con accused, or weakness stitution of mind of the what with, solely or even he was afflicted but disorders have, having, and did capable whether he was pun If he had such intent the law criminal intent. not, him him, dispunishable. it holds but if ishes 814.] at 13 A. at [Id. did not offer to establish his Spencer
Because the accused
defined,
accept
the Court declined to
insanity as thus
*15
that he
proffered testimony of the defendant to the effect
idea,
long
that so
"nervous and restless ... haunted with
lived,
would have no rest or
[the defendant]
as the deceased
mind,
power
exercise no
of will or
peace of
and that he could
35,
if [the accused] lacked sufficient
capacity
mental
(in
instance,
commit a crime
wilful,
deliberate
murder)
and premeditated
as required by the stan
dard
in Spencer,
set
she would be
gen
entitled to a
eral
guilty by
verdict of not
insanity, but,
reason of
on
hand,
the other
if she did have sufficient mental
capacity to create criminal responsibility as the test
was set forth in Spencer, then
responsible
she is a
agent and must answer
for
the crime she
committed, unless ... the Spencer rule is broadened
or
[227
modified.
Md. at
In
expand
we declined
the common
insanity
law concept
encompass
capac
so as to
diminished
ity
recognize
but also
the doctrine
independent
as an
position
shortly
defense. This
was reaffirmed
thereafter
in
(1962).
Allen v.
A conduct responsible defendant is not for criminal at the time the commis- and shall be found insane if, alleged sion of the crime at the time of such disorder, mental he sub- conduct as a result of lacks stantial either the crim- capacity appreciate inality of his conduct or to conform his conduct to (1957, requirements [Md. of law. Code (a).] Vol.), 59, § Repl. Art. enactment,
Additionally, by that same
mental disorder was
(f)
in section 3
as
expressly defined
"mental
illness or
any other
form of
or
mental
retardation
or
behaviorial
any
resulting
psychiatric
emotional
illness
from
9 By
defining
redefining
thus
neurological disorder.”
(f)
recently been
has
of mental disorder
definition
This section 3
9.
*17
Vol.,
(1957,
infra;
Repl.
1979
slightly.
in text
Code
discussion
See
altered
(f).
59, §
Supp.), Art.
3
1981 Cum.
culpability
expressed
limits of criminal
as
in the definition
legal insanity,
of
Assembly
the General
has exercised its
unique prerogative to balance the interests of the commu
nity and the
regard.
individual accused
See Cole v.
supra. We here reaffirm
position
our
that "the
concepts of both diminished capacity
insanity
involve a
moral choice
community
to withhold a finding of
responsibility and
consequence
punishment,”
its
of
Bethea v.
States,
90, n.55,
United
supra, 365 A.2d at
and on this basis
indistinguishable.10
are
Accordingly, because the legisla
ture,
morals, has,
reflecting community
by its definition of
insanity,
already
criminal
determined which states of
mental
ought
disorder
to relieve one from
respon-
criminal
primary assumption
concerning
Given the
in the criminal law
10.
culpability regardless
abilities,
defendant’s criminal
of his lesser
whatever
be,
they may
"recognizing
unique position
concept
insanity
responsibility,”
States,
the framework of criminal
Bethea v. United
(D.C.
64,
1976),
App.
agree
A.2d
easily
ment is
accused
we cannot
with those
which
courts
legally
impair
declare that evidence of a
sane defendant’s mental
always probative
question
particular
on the factual
of whether a
requisite
See,
e.g.,
DiPaolo,
entertained the
mental state.
State v.
279,
(1961).
denied,
34 N.J.
426 authority impose our views
sibility, this court is without See, State, v. 386 they if differed. Bates regard even (Del. States, 1978); supra, United 1139, 1143 Bethea v. A.2d 72, 2, State, N.W.2d 92; v. 97 Wis.2d 294 A.2d at Steele 365 (1980). 13 test, McNaughten insanity
In
criticism of the
light of
viewed as a solution to some
capacity
diminished
has been
to criminal
approach
of the traditional
inadequacies
of the
333, 149
Drew,
Rptr.
22
Cal.
v.
Cal.3d
responsibility, People
(1978) (en
Henderson,
banc);
275, 280-81
People v.
60 Cal.2d
77,
many
allowing
482, 35
82
decisions
Rptr.
Cal.
arise
a sane defendant’s mental abnormalities
evidence of
insanity in terms of the
jurisdictions
define criminal
which
Gramenz,
E.g., State v.
256 Iowa
McNaughten principle.
279,
(1964);
DiPaolo,
134,
v.
34 N.J.
N.E.2d on Perkins Law ed. 1969) *19 878-79, pp. it amend- appeared foregoing that the precluded insanity ments on defense based that mental When, Attorney condition. in 1978 the of General this State that, expressed the in light statutory changes, view of these Legislature "the insanity intended that the of defense based upon mental retardation would be unavailable to defendants future,” 230, 63 Op. Att’y. Md. Gen. 235 Assembly, General in response, disorder,” redefined "mental expressed as (1957, Vol., in Code Repl. 1979 1981 Cum. Supp.), 59, (f), § Art. 3 purpose including "[for] the of mental retardation in the definition of mental disorder” when that term is insanity used define to as a defense criminal cases. Laws, Thus, 1980 Md. ch. 823.11 readjusting concept of insanity criminal mentally include retarded defen dants, legislature has any made manifest such (a) mentally deficient persons having met 25 the section definition insanity are not held accountable for behavior in breach of societal norms precepts as those are expressed in the criminal law. how Assembly, The General ever, expressed has not a similar determination that a lesser condition, defined, mental of insanity, short however will suffice to relieve the accused of the full measure of criminal responsibility by mitigating specific crimes, intent and we again legisla- decline impose essentially our views on this changes 11. The 1980 "mental added the definition of disorder” proviso to the exclusion of mental of Code retardation. The last sentence (f) (1957, Vol., Repl. 59, Supp.), § "[t]he 1981 Cum. Art. now reads: [mental except disorder] term in shall not include mental as used retardation through insanity §§ regulate inclusive.” referenced sections as a defense in criminal cases. prerogative. State, five Cole v. supra; State, Armstead v. State, supra; Young supra.12 v. just mean,
What has been however, iterated does evidence of abnormality a defendant’s mental which does not insanity establish totally has been precluded from the consideration of those operating machinery of our crim justice inal system. typically Such evidence part constitutes range data upon following which the trial judge, guilt, establishment of focuses attention when sentencing the individual accused. Such use of this information squares practice prevailing jurisprudence in our permitting judge making wide latitude in individualized sentencing after decisions consideration of information both in aggravation mitigation recently As we so penalty. noted in Logan 480-81, 425 A.2d (1981): exercising "[in] the discretion vested in [the sentencing judge], the procedural policy of the State him encourages to consider concerning information person’s offenses, the convicted reputation, past health, habits, mental propensities, and moral background any social other judge matters that a *20 ought to have before him in determining the sen- tence that imposed.” should be Consequently, although capacity the diminished defense has not been written into our defining laws criminal guilt, evidence of a defendant’s abnormality mental which does 12. We note that the of some states have enacted the dimin legislatures (1980); capacity § ished Ann. See doctrine. Alaska Stat. 12.45.085 Ark. Stat. (1) (1947, (1973, § Supp.); § 41-602 1979 Stat. Colo. Rev. 16-8-103 (1976 Supp.); Stat., Vol., Repl. § 1980 Supp.); Haw. Rev. 18-208 704-401 1979 (1) (1) (3) (1979,1981 Supp.); § § Idaho Code Ann. Mo. Stat. 552.030 (Vernon) (1981 (1979). § Supp.); Ann. Mont. Rev. Codes 46-14-102 however, Recently, California, legislature abrogated of the of the defense (a) (b) (Chapter 409, 54, capacity, § diminished see Cal. Penal Code 28 S.B. Í981), 10, Legislature adopted Sept. providing prior and the Delaware of enacted a statute repealed recognition capacity provision but for diminished the 203, 36; § to the code’s effective date. See 59 Bates v. Del.L.Ch. (Del. 1978). 1139, 386 A.2d 1143 sentencing.13 at insanity can be his considered establish demonstrated its Indeed, Assembly has the General considerations legal policy moral and of the awareness culpability by in limits of criminal defining the involved the that, in cases such as penalty death expressly providing consider, authority, judge be it or sentencing the we now one mental abilities may impaired the defendant’s jury, consider (c) Article Section mitigation punishment. in of any relating admission evidence authorizes of specifically sentencing the for mitigating circumstance consideration penalty, mitigation that in body. provides The statute "[t]he murder was jury or court must evaluate whether to appreciate capacity while the the defendant committed or conform his criminality of his conduct conduct substantially impaired as a requirements of law disorder, emotional incapacity, result of mental mental (1957, disturbance, Repl. Code or intoxication.” Md. (4). Vol., 27, § (g) Clearly, 1981 Cum. Art. Supp.), Assembly penalty had commanded that death General weaknesses, insanity, particular mental short cases considered, determining are to not in whether the accused be act, criminally responsible is to held his but defendant be rather, considering appropriate penalty be set for Therefore, punishment determining stage crime. at the case, penalty testimony impaired of a death of a defendant’s full mental mental abilities should admitted adduced, by the may be uninhibited profile prisoner of the insanity. at It is thus requirements legal of the definition sentencing hearing experience where common the defendant’s judge jury upon is called to assess cir- mitigating where this impaired capabilities mental whether, in order to determine cumstance evaluated held mercy, ought culpa- defendant to be less fairness ble for criminal act. 2950, 2956, Texas, 428 U.S. 96 S. Ct. 13. See Jurek v. that, "in order to meet the L.Ed.2d 929 where the Court noted *21 Amendments, cap-
requirement Eighth and Fourteenth system sentencing authority ital-sentencing allow to consider must mitigating circumstances.” c. judge
We now consider Johnson’s contention that the trial testimony allowing committed reversible error in which the "purely prejudicial” accused characterizes as to be adduced very at daughter. trial to the effect that the victim had a sick Assuming, solely testimony arguendo, case, superfluous prosecution’s to the a reversal of the evidentiary if underlying justified convictions is not vio lation constitutes harmless error. standard for error, determining thoughtfully by harmless as laid out Judge Dorsey O’Donnell for this Court in 638, 659, 350 A.2d "a reviewing whether court, record, upon its own independent review of the is able belief, doubt, beyond to declare a reasonable error way in no influenced the verdict. . .” Upon . such a review of the trial difficulty declaring record this case we have no beyond a reasonable that the doubt verdicts were not influ- enced testimony concerning daughter’s health. glutted The record is overwhelming support evidence jury’s determinations, of the guilt including the defendant’s prior voluntary confession to the crimes as well as his testi- monial admissions at A trial. reversal on this basis is thus not warranted.
d. Immediately following the jury court’s instructions to the at guilt trial, determining phase appellant’s it became known panel that one of the member’s father had been stricken ill hospital. and was in the After a bench confer- ence, at which attorney expressed both Johnson and his consent, Judge juror, Bowen McCamey, excused Mr. replaced him with the first alternate. The proceedings con- court, tinued with the at request prosecution, briefly amending jury its concerning instructions to the first interlude, and second degree rape. Following this and before closing argument began, McCamey Mr. returned to the checking courtroom after on his during father’s condition *22 brief expressed absence and jury desire to return to service. In response request, to this judge called another bench appellant, attorneys, conference with and the excluded juror, and McCamey returned Mr. panel; both counsel expressly reinstatement, approved of the although the defendant himself was this time silent on the matter. The court, for the benefit juror McCamey, repeated then verbatim its short amendatory instruction concerning the rape given law of in his absence. presented Counsel then their closing arguments jury. to the
Johnson here asserts that juror the reinstatement of McCamey "patently was a illegal procedure” which requires reversal. merit, This contention has no for we do not agree with defendant’s claim that temporarily reinstatement of a juror prior excused only deliberations can be made affir matively by the accused every himself. It is clear that not matter touching a right jury defendant’s to a need be decided by the personally. accused recently As we held State v. Magwood, for example, the right to a sequestered jury during deliberations is not so fundamental it only can by be waived the defendant personally, and either consent of jury counsel to a separation or object failure to to the dispersal constitutes a right. 615, 628, waiver of the (1981). A.2d If counsel can consent to a continuation jury deliberations following overnight an dispersal of the group, entire he certainly agree can in the presence of the accused and objection without his to the juror return of one to service following a separation brief from the proceedings trial before deliberations have begun. All jury deliberations occurred with the panel same that was originally selected and defendant attempt does not to dem onstrate that he was in any way prejudiced by juror McCamey’sbrief absence from the courtroom. Consequently the trial judge committed no error in exercising his discre tion to juror reinstate McCamey to the panel with the express consent of Johnson’s counsel.
e. Appellant, in an effort explain the effects of the drugs riding car,
he was ingesting while the victim’s secured Mr. Glazer, Gordon "an employee dealing Center with problem ...,” testify of abusive on his substances behalf. Glazer, however, Defendant did not Mr. subpoena and the present day witness was not on the second of trial when sought testimony. defendant to a search Responding judge, witness instituted the trial Mr. Glazer’s office contacted the court with information that had he left for *23 Alaska that attempts being were him stop made at the airport or to hold plane. judge his that declared such action necessary would not be and Mr. did appear. Glazer not In an provide effort to the defense a witness who could testify the subject on of Mr. Glazer’s proposed testimony, however, the trial judge informed counsel that Dr. Spodak, "an independent employee Maryland” medical the State of was present substantially "and had better credentials for testifying ... than did Mr. Dr. Spodak present Glazer.” testify and, order to in rebuttal for the State after interviewing witness, the Johnson’s elected counsel not to have him the his take stand on client’s behalf. readily duty
Johnson the trial had judge admits that no missing him, make efforts to locate the witness for but he complains nevertheless once the judge that undertook the assisting task of the defense he could regard, not abandon quest. Appellant authority cites no for this imaginative claim it. reject and we As no had subpoena been witness, issued legal court had no basis for commanding presence his trial. at
f. that, additionally Johnson contends because the evidence trial adduced at he was present demonstrates when his initially victim, accomplices guilty seized the he cannot be It is kidnapping. argued regard in this seizure of actual the victim is an element essential of the offense of is, kidnapping. essence, We do not agree. Kidnapping false imprisonment aggravated carrying victim to law, some place, although early other at common accused country into another kidnapped carry person had 26, 38-40, State, Md. v. Midgett offense. constitute the (14th (1958); Law Wharton’s Criminal 139 A.2d 215-16 Hockheimer, 210; § American Criminal Law 1979), ed. restraint of merely § imprisonment 41. False author without against his will freedom of locomotion one’s victim is carrying the law, id., element of ity of and the Vol.), (1957, Art. Repl. Code self-explanatory. Md. follows: § reads as concerning kidnapping abettors, counsellors, aiders or Every person, kidnapping of the crime who shall be convicted causing to carrying or forcibly fraudulently any person ... of or within this State be carried out . .. or ... person such carried with intent to have felony.. .. guilty of a concealed . .. shall 216 Md. at supra, Midgett As this Court noted in 39-40, reflects "the basic 139 A.2d at the enactment kidnapping [as concept common law to constitute carrying there must be a opposed imprisonment] to false to some other person place from where he is seized *24 in place (emphasis this state.” either out of or within of the crime of original.) It is thus manifest that the crux today imprisonment in is false kidnapping jurisdiction this aggravated by of the victim. transportation some measure of State, State, 536, Midgett App. See Dean v. 46 Md. supra; 537-38, 288, (1980); State, App. 420 290 Tate v. 32 Md. A.2d (1976). Johnson, 613, 616-17, 622, by 363 625 his A.2d own testimony, in of participation transportation admitted County. the victim the of Baltimore It was to deserted area however, alone, led the blindfolded defendant who then evidence more victim into the woods to murder her. This appellant than of support suffices to conviction States, 565, F.2d kidnapping. Carpenter See v. United 264 (4th 1959) (immaterial 572 defendant first seized Cir. which they if kidnap driving; acting victim or which one was were concert, voluntarily pursuit joint purpose, of each was responsible but as a co-conspirator principal). not as
g-
As his final contention
concerning
rectitude of the
guilt determining phase
trial,
appellant asserts that he
was not afforded adequate assistance of counsel and that this
failure requires
on appeal.
reversal
It is clear
appellant
did not object at trial or sentencing
the adequacy
of his
representation and that
judge
the trial
took no testimony or
any
made
findings
regard.14 Johnson,
nevertheless,
through
counsel,
new
appeal
strives in this
to portray his
former lawyer as ineffective by
that the
asserting
record as
a whole
develop
demonstrates
failure to
at trial a coherent
theory.
defense
Citing many alleged
errors
counsel
record,
on
appearing
the face
appellant
asks this Court
pass
on the
question
competence.
counsel’s
Zimmerman,
previously
11,
We
stated in State v.
261 Md.
24,
156,
273 A.2d
we consider to
"[w]hat
procedure”
desirable
for consideration
of claims
inadequate assistance of counsel when the
issue was
presented
court,
to the trial
adhere to
In
we
that view.
essence, it is
ordinarily
because
trial record does not
challenged
illuminate the basis for
acts
omissions of
counsel, that a claim
appro-
of ineffective assistance more
priately
post
made in a
proceeding pursuant
conviction
(1957, 1976
Vol.,
27,
Md. Code
Repl.
Supp.),
1981 Cum.
Art.
§
State,
406, 414-15
19, 36, 400
645A. Davis v.
285 Md.
A.2d
(1979);
Zimmerman,
State,
State v.
supra; see also White v.
64-67,
873,
(1973);
17 Md. App.
299 A.2d
Harris v.
(1967).
234 A.2d
Moreover,
Md.
App.
under
appellate procedure,
settled rules of
a claim of ineffective
presented
assistance
counsel not
trial court gen-
erally is not an
initially
issue which will be reviewed
on
Warden,
direct appeal, Berndt v.
435
State,
Zimmerman,
White v.
(1965);
see
supra;
State v.
(1969);
496,
State,
II. The Sentencing Proceedings
a. We turn now to examine concerning Johnson’s contentions death, imposed sentence of by jury same that deter- mined guilt his following a subsequent hearing sentencing pursuant held (1957,1976 to Md. Vol., Code Repl. 1981 Cum. Supp.), 413, § Art. which establishes bifurcated trial on the guilt issues of and sentencing whenever the state seeks the death penalty.17 Initially, appellant launches two-pronged attack on the constitutionality of this statute. He asserts penalty that the death per se cruel and unusual punishment as measured against the standards of Maryland Alternatively, Constitution. Johnson contends that the statute authorizing imposition of the death sentence places unconstitutionally the burden of proving mitigating circumstances on the arguments defendant. presented Both here were thoroughly rejected, considered however, our State, recent of decision Tichnell v. 695, 720-34, 415 A.2d 843-50 and we deem the matter settled.
b.
Johnson
jury
next asserts that the failure of the
expressly
to acknowledge the
that he
uncontroverted fact
had not been
any
convicted of
prior crime of violence demonstrates
he
that
was sentenced
death in
violation of section 413 which
requires
recognized
mitigating
this
factor be
and bal-
imprisonment....”
either
incarcerated
under
sentence of death
(emphasis supplied.) Clearly,
statutory provisions authorize decisions
these
Court,
ordinary
principles of
acting
of this
appellate review,
and settled
in accord with
penalty
determining which
a death
case are
issues in
properly presented
appellate
for
direct
and which are best left
review
post
proceeding. We note that
consideration at a
645A
conviction
section
conjunction
penalty statute,
construed in
section 414 of the
with
conviction
when
death
645A,
any post
imposed.
provides
Court
section
for direct review
penalty
proceedings
in a case where the death
has been
statute,
penalty
application
the death
17. For a
of the
full discussion
(1980).
In the interest
see
Md.
Section 413 structured to
stan-
sentencing authority
objective
"clear and
the
in
not inflicted
an
penalty
dards”
the death
to ensure that
in violation
arbitrary
capricious
and
manner
State, supra,
v.
287 Md. at
Tichnell
principles.
constitutional
722-29,
844-48;
Gregg
415 A.2d at
see
v. Georgia, 428 U.S.
153, 96
(1976);
Florida,
2909, 49
Proffitt v.
Ct.
L.Ed.2d 859
S.
(1976);
2960,
913
Jurek
428
Ct.
49 L.Ed.2d
U.S.
96 S.
(1976).
Texas,
428 U.S.
96 S. Ct.
the
—
either
whether, beyond
must
a reasonable
first consider
doubt, any
aggravating
of ten
circum
statutorv
(d).[18]
sentencing
§
stances exist.
413
If the
authority
beyond
does not find
a reasonable doubt
aggravating
the existence of one more of the
or
circumstances,
then
life
the sentence shall be
(f).If, however,
§
imprisonment.
sentencing
413
authority
beyond
finds
a reasonable doubt
case,
support
penalty
imposition
18.
in
To
of the death
this
state
circumstances,
upon
statutory aggravating
namely,
relied
victim
"[t]he
two
hostage
attempted
was a
taken or
taken
the course of a
be
abduct,”
kidnapping
defendant committed the murder while
attempt
kidnap
"[t]he
or
an
and
abduction or
or
committing
attempting
or
arson,
§
robbery,
rape
degree.”
commit
in the
or
offense
first
sexual
factors,
it
aggravating
existence of one or more
then
whether, by preponderance
must determine
a
of the
evidence, any
eight mitigating
one of
circumstances
(d).[19]
§
exist.
The
that a
requires
statute
if, by
sentence of life
imprisonment
imposed
evidence,
preponderance
sentencing
authority
mitigating
finds that
circumstances
(h)
§
outweigh
aggravating
circumstances.
(1)
(3).
If the mitigating circumstances do not
outweigh
aggravating
circumstances
evidence, however,
preponderance of the
then a
(h) (1)
§
sentence
imposed.
of death must be
(2) [Tichnell,
725-26,
supra
.
at
violence. As used abduction, arson, manslaughter, except escape, kidnapping, invol- murder, robbery, rape untary manslaughter, mayhem, or sexual or any attempt in the commission of degree, or an to commit offense in the first or second of these offenses, handgun or the use of a felony or another crime of violence. (2) participant conduct or in the defendant’s The victim was which the victim’s death. consented to the act caused (3) duress, domination or acted under substantial The defendant provocation tute a person, consti- but not so substantial as to of another prosecution. complete defense to the (4) capacity the while the defen- The murder was committed criminality appreciate of his conduct or to conform his dant to conduct to the a result of mental the substantially impaired requirements as of law was disorder, incapacity, emotional mental disturbance, or intoxication. (5) youthful age time of the crime. of the defendant at the The (6) proximate cause of was not the sole The act of the defendant the victim’s death. (7) unlikely engage will in further crim- It that the defendant is society. activity continuing threat to inal that would constitute a (8) jury specifically, Any sets which the or the court other facts mitigating writing in the in that it finds as circumstances forth case. sentencing author guided required consideration the constitution, the federal ity by section 413 as well as decision concerning sentencing the information adequate (i), (j) requires Consequently, must revealed. section be unanimous, sentencing determination be the writing, specifically and that it state:
(1) it Which, any, aggravating if circumstances exist; finds to
(2) Which, it any, mitigating if circumstances exist; finds to
(3) found any mitigating Whether circumstances cir- (g) outweigh aggravating under subsection (d); found under subsection cumstances (4) circumstances aggravating Whether (d) outweighed by found under subsection are not (g); and mitigating under subsection circumstances (5) sentence, with determined in accordance (f) (h). subsection impose
To further aid our review of the determination authority in accord vested penalty death adopted Maryland pursuant Court to section 413 we provides rule for a standard form verdict Rule 772A. This indicate, sentencing body required sheet where the of each marking appropriate spaces, its consideration statutorily determining proc required step penalty Moreover, report by ess.20 requires rule a detailed trial, judge providing trial additional information about the offense, defendant, All data and the victim. of this provides jury’s thus the basis for our review of the deter mination to end the life of the defendant. (as applied jury sentencing) aggravating 20. The form first lists the *29 provides panel respond "yes”
factors and
"no” to each
either
depending
factor
the
preponderance
factors. The
the
unanimously
particular aggravating
on
it
whether or not
finds a
found,
beyond
aggravating
a reasonable doubt. Should an
factor
whether, by
form
directs the
to consider in a similar manner
jui^
evidence,
any
statutory mitigating
of the
there exists
of the
whether,
jury
by preponderance
is next asked to indicate
evidence,
mitigating
"yes” outweigh
circumstances marked
aggravating
Finally,
jurors
must
circumstances so identified.
indicate
imposed
sign
the sentence
and each must
the form.
Johnson claimed at the sentencing hearing that several
mitigating
these,
circumstances existed in his case. Of
at
—
least one
that he had no criminal
prior
record of a
enumer
—
ated crime
thus,
of violence was not controverted and
as
law,
a matter of
defendant has met his burden and
jury
was required
recognize
Nevertheless,
its existence.
jury indicated that it found no mitigating circumstances and
the State acknowledges
panel
that the
was mistaken in this
regard.
may
It
be that
the jurors actually considered
Johnson’s lack
any prior
of a record of
crime of violence but
either did not feel
outweighed
that it
the aggravating factors
present in
inadvertently
this case or
marked the wrong
answer.
pretend omniscience, however,
We will not
partic
ularly when considering
death,
the fate of one sentenced to
penalty
and the
statute does not permit it. Our
review this
regard, of necessity, encompasses only what the sentencing
authority specifically states as its basis for imposing the
death penalty. We do
this case purport to control how
a particular mitigating
by
factor is used
the sentencing
authority in its penalty determining
Johnson,
calculus.
how
(and
ever,
constitutional)
statutory
does have the
right to
have such
specifically
information
by
considered
sentencing jury and
obligated
this Court is
to enforce that
procedure. Cf., Wash., B. & A.R.
Kimmey,
Co. v.
(1922) (no
243,
c.
at
because
the
sentencing issue
remaining
We
the
address
for the
punishment
Johnson’s
for
hearing
redetermination
it.
with At
murder,
again be confronted
the trial court will
objection,
over Johnson’s
sentencing,
judge,
trial
jury
explicit
confession
permitted the
to read to the
state
then
for which he was
to the murder
Ester Rosenblatt
urges
Johnson
yet
had
been tried.
under indictment but
not
Rosenblatt
highly prejudicial
that
the admission of his
"was
was error because the statement
murder confession
stat-
in the
any aggravating
factor” contained
unrelated
ute, and, moreover,
nothing.
not take such
We do
rebutted
range
properly
a
of information
limited
view
sentencing
author-
presentable
penalty
in a
case
death
(in
however,
analysis by
ity
begin
our
jury),
this case a
for which a
out
of criminal conduct
pointing
that evidence
clearly
has
been
is
admissible
defendant
not
convicted
by judge
performed
task
a
sentencing purposes when that
is
penalty pro
in
death
involving
a
not
a section 413
case
State,
460, 480-87,
A.2d
ceeding. Logan v.
(1981);
[i]n
what is
judge
this State that
now well-settled
by
may
by
trial court
problem presented
21.
be avoided
this case
accept
any
specifically instructing
jury
it must
and consider
that
(c) (3),
mitigating
which declares
factor
to exist. Section 413
conceded
law,
any
permitted
appropriate
"in
instructions
addition
other
findings
jury
... and the
as
it must make
court shall instruct
added),
giving
proof’
provides ample
such
(emphasis
basis for
burden of
guidance. Moreover,
counsel,
judge
before the
trial
we mention that the
jurors
penalty
imposed,
been
should
the death
has
are dismissed after
sentencing
any
carefully peruse
errors
verdict sheet so
process apparent
be corrected.
from the form can
reviewing past
limited to
conduct whose occurrence
established,
judicially
has been
but may view
may
"reliable
evidence of conduct which
criminal,
opprobrious although not
as well as
*31
circumstances
details and
of criminal conduct for
which the
has not
tried....”
v.
person
[Logan
been
(cita
supra,
There is no in principle concept reason sentencing apply should in a section 413 penalty death can, proceeding though sentencing authority by even defendant, election of the in reposed judge jury. be either nothing any way We observe in the enactment which in view, fact, reading contradicts this and in a fair of the stat- ute, (c), particularly section 413 it. That embraces section sets forth the in following "type [the of evidence admissible sentencing] proceeding:”
(i) relating any Evidence mitigating to circum- stance (g); listed in subsection
(ii) relating any Evidence to aggravating circum- (d) stance in listed subsection of which the State 412(b); § had notified the defendant pursuant to (iii) convictions, any prior Evidence of criminal pleas guilty contendere, or nolo or the absence of prior such or pleas, convictions to the same extent admissible in other sentencing procedures;
(iv) Any presentence investigation report. How- ever, any recommendation as to sentence contained admissible; report is not
(v) Any other evidence that
the court deems of
probative
sentence,
value and relevant
provided
to
the defendant
opportunity
is accorded a fair
to rebut
statements,
any
[(emphasis supplied).]
(v)
view,
In
part
our
in unambiguous terms authorizes the
trial court to admit into
sentencing jury
evidence before the
identical information
a
concerning
defendant’s criminal con
normally
by
duct as would
judge
be considered
if he were
is true
case. As
penalty
sentence in a non-death
imposing
in a
causes,
authority
sentencing
other criminal
all
range
presented
full
penalty
death
case should
particular penalty
as to fashion a
relevant information so
indi
penal philosophy
"the
modern
prevalent
accord with
State, supra,
Md. at
Logan v.
punishment.”
vidualized
must
The task that
the sentencer
In at least I do not respects, agree two with the First, opinion Judge this case. for the reasons set forth in dissenting opinion, representation Cole’s Johnson’s lawyer inadequate deprived was so that the defendant was of his right to counsel under the Amendment to the Sixth Maryland United States Constitution Art. Second, Rights. Declaration of for the reasons set forth below, I disagree majority’s holding with the that a criminal defendant, charged degree with first murder or other crime intent, requiring specific is not evidence present entitled to of his necessary mental condition to show that elements of alleged offense were absent. The convictions should be reversed, entirely and the for an case should be remanded new trial.
I. *33 regard admissibility concerning With to the of evidence condition, Johnson’s mental the background factual is as insanity withdrawn, only follows. plea After the was the attorney defense which in attempted present Johnson’s that, capital light this case in of Johnson’s mental condi- tion, degree specific the elements of first murder and other intent purpose, crimes were absent. For this defense counsel witness, a psychologist testimony expert anof offered trial experienced The Maryland. by the State employed law, held Maryland prior with judge, consistent psychologist purpose.1 for such evidence was admissible condition, tests which mental Johnson’s then testified about addition, portions In Johnson, his conclusions. he ran on to this appeal On admitted. report were psychologist’s of the concerning general any issue Court, side raised neither Instead, appellant type of evidence.2 admissibility of this of the allowing all in erred not judge that the trial contended jury. The to the report presented to be psychologist’s testimony, expert admissibility of disputing the without portion correctly excluded that the trial court argued concerning questioned his Ernest Kamm After Dr. 1. defense counsel place: qualifications, following colloquy took Honor, him an I offer as Your would "DEFENSE ATTORNEY: expert. objection. object I his No But ATTORNEY: "PROSECUTING testimony. "JUDGE What? BOWEN: object to his I don’t "PROSECUTING ATTORNEY: testimony. qualifications object I but his yet. He hasn’t testified "DEFENSE ATTORNEY: approach the I’d like to Bench. "PROSECUTING ATTORNEY: right. "JUDGE BOWEN: All "(Whereupon the Bench out a conference is held at Jury present, presence and the with the defendant had:) following proceedings were Honor, the defense has ATTORNEY: Your "PROSECUTING testimony. insanity pleas object his and we withdrawn their don’t intend to do that. "DEFENSE ATTORNEY: I you trying you proffer what are "JUDGE BOWEN: Do want to to do? Honor, trying to show how "DEFENSE Your I’m ATTORNEY: He ran cer- the defendant for the State. Doctor Kamm evaluated tain tests. incompetent mentally incompetent want the tion of intention of trying I the defendant was to show am I of the offense. at time go mitiga- report testimony Kamm to to the of Doctor specific Degree any I no First crimes. have Murder and — offering talking intelligence? about "JUDGE BOWEN: You’re Intelligence it. and the rest of "DEFENSE ATTORNEY: permit it.” we BOWEN: Within that limits will "JUDGE question general Although appellants’ attorneys did discuss the 2. Court, the discussion was connection footnote in their brief the inadequacy. question counsel’s trial
report simply germane because it "was to the issue of 23). diminished capacity.” brief, (Appellee’s p.
The majority opinion,
deciding
instead of
the issue which
presented,
by
and argued
parties,
briefed
the
now holds
that the
expert testimony
entire
the
and
entire report were
basis,
majority
inadmissible. On this
the
finds no reversible
error
the
portion
exclusion of a
psychologist’s
report.
course,
Of
will
appellate
an
court
ordinarily affirm a
judgment of the
any
trial court on
ground adequately shown
by
record,
though
even
the ground was neither relied on
by the trial
by
court nor raised
parties. Temoney State,
251, 261,
II. Turning to the merits of majority’s position, my correctly view trial court held that evidence of Johnson’s mental condition was admissible the purpose showing for the absence of degree certain elements of first murder the other specific intent crimes with which Johnson was charged. majority’s The contrary holding represents an abrupt departure prior Maryland from law as well as from the prevailing throughout country. Moreover, view it constitutes an unwarranted limitation upon a criminal defendant’s right constitutional to present relevant evidence in his own defense. majority by
The
holding
confusing
arrives at
its
two
(1)
entirely
con-
distinct matters:
the existence of criminal
when
particular
duct
mental
is an
state
element
(2)
charged;
responsibility
crime
criminal
conduct.
confusion is
majority’s
enhanced
use of the terms
"respon
interchangeably "capability”
"capacity”
"culpability.”
sibility”
*35
alia,
charged with
Johnson,
inter
The defendant
(1957, 1976
Maryland Code
degree
in the
under
first
murder
degree
first
27, §
to constitute
Vol.),
407. In order
Art.
Repl.
"wilful, delib
407,
must be a
§
under
homicide
murder
the State
Consequently,
killing.”
premeditated
and
erate
ele
three
existence of these
proving the
the burden of
had
1881,
684,
Wilbur, 421 U.S.
95 S.Ct.
Mullaney
See
v.
ments.
Evans,
197,
(1975);
362 A.2d
State v.
278 Md.
Accord: v. Md. 330 A.2d Gladden (1974), "Specific purpose and cases there cited. design knowledge "full kill” and and conscious purpose certainly to kill” a mental state. involve defendant’s designed particular Evidence to show defendant was incapable nothing having requisite mental state more or less he did not designed than evidence show that commit the charged. crime with which he was English language regard Unfortunately, 3. the careless use of See, e.g., majority’s opinion. is not limited to Scott, Jr., R. La Fave & A. W. W. (1972). Law, on 325-332 Handbook Criminal hand, Maryland the other under law On criminal respon sibility wholly due to mental condition is a different matter. concept Unlike the common guilty by law of "not reason of insanity,” Maryland statutory concerning scheme crim responsibility contemplates inal an initial determination the defendant did charged commit the crime before there is an inquiry responsibility into his therefore. This was recently made clear Langworthy Md. 399 A.2d defendant, we held which that a charged rape, appeal was entitled to take an even though successfully interposed he the defense that he was alleged Judge when crime was committed. insane Orth (284 598): there stated for Court unanimous Md. at Special "The Court Appeals dismissed Langworthy’s appeal, defendant, 'a holding that except under rare not here apposite, circumstances *36 right has no appeal acquittal.’ take an from an State, Langworthy v. Md. at App. 559-560. The fallacy reasoning in this Langworthy is that was found of guilty rape, appeal and the of dismissal the precluded appellate review of that conviction. As seen, we existing statutory have the pat scheme ently contemplates there first a that be determina tion guilt general of or under the innocence plea.
[*] * * short, "In legislative regarding clear intent interposition plea insanity successful of a of is not that an accused to be guilty is found not of committed, criminal it proved act was he but he shall be punished Rather therefor. than be punished, may or, go prescribed he free cir- under cumstances, provided treatment for his mental Thus, disorder. the Court of Special Appeals was not correct when it Langworthy indicated that by 'not guilty’ insanity reason of nor was trial judge spoke correct when he in those terms in indicating from the bench what he intended do.” mens between the Court went on to note difference crime, state rea, of the and mental which is an element n.12): (id. defense at insanity for an required guilty to 'not reason "We believe the reference concepts from law insanity’ is a holdover common insanity statutory provisions regarding prior light In clear the commission of crimes. §§27 do not §of we consider provisions 'not calling guilty for a authorizing as verdict insanity.’ by reason of theory of the Court of
"We do not to the subscribe defendant was Appeals finding that a that a Special of the a+ the of the commission crime insane time Langworthy v. means that is no crime.’ '[t]here (1978). 559, 561, 387 State, A.2d 634 Its App. insanity reasoning finding was that estab- lack mens We do not think lishes a rea. Id. light prescribed this is of the conditions so insanity, finding namely
for a 'as result of disorder, [a defendant] mental lacks substantial criminality capacity appreciate the of his either to require- conduct or to to the conform conduct Vol.) (1957, ments of law.’ Repl. Code art. (a).
§ necessarily of these at Neither tests general variance with intent to commit a crime. 187, 396 41 Md. App. See Gardner v. A.2d 303 (1979).” today, distinguished has evi- regularly
Until this Court designed negate of a mental dence defendant’s state *37 insanity designed existence of a crime from evidence of responsible show that he was for a crime which was the of a particular fact committed. Whenever existence is of a offense which mental state an element criminal charged, consistently has the defendant has been the Court mental is capability held that evidence of the defendant’s element, of admissible show the absence that and thus of absence criminal conduct. 87, 107-109, example, Chisley State,
For
v.
Md.
(1953),
A.2d 577
involving a conviction
degree
of first
sentence,
murder
imposition
and the
of a death
evidence of
capability
defendant’s mental
due to drunkenness was
deemed properly
jury
admissible in order for the
to deter
degree
Court,
mine the
of
opinion by
homicide. The
in an
Judge Hammond,
quoted with approval Warren
on
Homicide,
1, 61,
§
Vol.
"[w]here
that
murder is divided into
the fact of
degrees,
drunkenness at the time of the homicide
may
by
be considered
jury
in determining
degree
murder.”
Later,
State,
380, 385,
Beall v.
203 Md.
451 intent under some of specific required of the the absence State, majority cites Armstead v. charges, other (1961) State, Md. and Allen v. 175 A.2d (1963). However, support these cases do A.2d 159 Moreover, the dis they clearly recognize majority position. blurs, the dis majority today tinction which the which is incapacity, of mental tinction between evidence deliberation, premeditation admissible to show lack In Armstead v. responsibility. for criminal and the test degree of first supra, the defendant convicted was trial, showing that murder. At the evidence was admitted who, occasionally, had epileptic was "an defendant Md. at 74. On grand type,” suffered seizures of the mal hand, a letter from the Chief Medical Officer the other Guttmacher, City, Bench ofBaltimore Dr. Manfred Supreme evidence, into in which Dr. Guttmacher was introduced memory "had too clear a of what stated that the defendant occurred transpired at the time of the offense for it to have in Id. 75. The defendant during epileptic an seizure.” at that she not insane under the Armstead conceded McNaughten insanity then in effect and conceded test second guilty the evidence showed that she was Nevertheless, trial court degree argued murder. she that the degree should have directed a verdict as to first murder on a diminished responsibility theory because she was an epileptic. Id. at recognized 74-75. The defendant that her argument in required insanity. a modification the test for recognized particular She further that her diminished close, responsibility theory, from the although was different principle determining that mental condition is in relevant capability premeditate. to deliberate and Id. at 75-76. Faced argument, with this Court Armstead refused mod- ify McNaughten insanity test for adopt the criminal responsibility theory propounded by plaintiff. At the time, same the Court forth "the Armstead did set well-recognized principle of law that when a statute estab- degrees lishes different of murder and deliberate requires premeditation in order to constitute murder the first (as does), degree question ours of whether the accused is *39 deliberate incapable as to be of
in such condition of mind
subject
con
necessarily
a material
premeditation
becomes
State,
631; Chisley v.
People, 104 U.S.
Hopt
sideration.
emphasis supplied.
The error and confusion in the view majority, very by was well described Chief Justice Weintraub Supreme Jersey for the Court of New State v. DiPaolo, 279, 294-296, denied, 34 N.J. 168 A.2d cert. (1961): U.S. 82 S.Ct. 7 L.Ed.2d
"Next defendant contends that evidence of mental competent upon illness is the issue whether degree the crime was murder in the or murder first in the degree. second is difficulty topic
"The seems to be that 'partial explored sometimes under the label or responsibility’ responsibility’ or 'diminished intended concept some other perhaps confused with Both of those characterizations to be so described. they tend to connote an 'affir- misleading since are State to defeat a case the designed mative’ defense suggest and thus to has otherwise established basis the established intrusion an amendment is accountability. Actually question for criminal evidence simply there shall excluded whether of facts which merely which denies existence murder to establish that the prove the State must in the degree. first * * * described category "We here áre concerned with 'willful, premeditated killing.’ as a deliberate construction, ele- the first judicial ... As settled premeditation, is which consists of ment plan kill. Next comes conception design does statutory word 'deliberate’ deliberation. The the word not here 'willful’ or 'intentional’ as mean it daily parlance. Rather frequently used a recon- requires imports 'deliberation’ kill, pros weighing design ofthe sideration 'willful’ Finally, it. the word respect to and cons with to kill plan execution of an intentional signifies . . . upon. had deliberated which been conceived *41 de- just have operations "The three mental we bar judiciary The cannot scribed are matters of fact. rationally the factual upon evidence which bears of capacity the has ordered. The inquiry Legislature deliberate, to will or premeditate, an individual to deficiency in design, any or execute homicidal upon whether capacity, may question that bear the defect, any in fact Hence evidence of he did so act. condition, trait, which deficiency, or illness question those rationally upon whether bears be in must operations mental did fact occur accepted. voluntary been settled long
"It has drugs may of voluntary or the use be intoxication respect to jury’s consideration with shown for in premeditate, a defendant did fact whether willfully kill. deliberate and
"Surely voluntary if intoxication use of is drugs respect degree murder, evidential with to the of mental or deficiency illness accepted should be aas ” legally competent 'cause.’ also, See (D.C. e.g., Brawner, United v. States F.2d 1972);
Cir.
Gould,
Commonwealth
As Justice Powell stated for
Supreme
Court
in
284, 302,
Chambers v. Mississippi, 410
U.S.
93 S.Ct.
mental than that an present of accused to witnesses in his By own holding defense.” degree one accused of first murder is longer no present entitled to testimony relevant his mental condition for purpose negating the ele ments degree murder, of first majority today imposes an unjustified limitation upon right of criminal defendant present evidence his own behalf.
Finally, majority adopts this new rule a case where seeking State is penalty. consequences the death not permitting of a evidence defendant’s mental condition support of his contention that the something homicide is less than murder, first degree may be extreme in cases like this. Even in murder cases where the penalty death not being sought, process due require would seem to that a defendant permitted to introduce evidence his mental condition as bearing upon degree case, a capital murder. In how- ever, I would extremely find it difficult to conclude that the
456 process consistent with due penalty imposed
death could be is not allowed to introduce requirements when the defendant indicating the absence of the elements relevant evidence degree first murder. me to state have authorized
Judges Cole and Davidson herein. they expressed with the views that concur Cole, J., dissenting: that the sentence of death agree majority
I with however, that agree, I cannot case must be vacated. that It clear to me from the record guilty verdict can stand. the effective assistance of right Johnson was denied his Amendment to the United States counsel under the Sixth Decla Maryland Article 21 of the Constitution and under Johnson, he, of his sole deprived ration of that Rights;1 where knew under circumstances his trial counsel defense insane, there that unless Johnson was should have known I for his conduct. would exculpatory explanation was no grant reverse and a new trial. guarantee
The law is clear that the constitutional
effec
means
prosecution
in a criminal
of counsel
assistance
116,
Olson,
271,
assistance,
326 U.S.
66 S. Ct.
Hawk v.
tive
759,
Richardson,
U.S.
(1945);
v.
2d
McMann
90 L. Ed.
(1970),
1441,
So
basic
originated
it
as a
to effective
of counsel that
assistance
Robinson,
Pate v.
corollary
right
process.
of due
See
(1966).
375,
836,
2d 815
In
U.S.
86 S. Ct.
15 L. Ed.
55,
Alabama,
45,
Ct.
The Sixth Amendment standard has however, years, evolution in recent and the farce and mockery justice universally standard has been almost (1976). rejected. See away 10 Val. U. L. Rev. 509 The trend from a due process analysis of the Sixth Amendment was given compelling impetus Supreme Court Richardson, McMann supra. In McMann a criminal defen dant challenged guilty plea the voluntariness of a based on what the alleged incompetent defendant was the advice of discussing Supreme counsel. In Court held competence, that a if guilty plea open to attack a defendant can demon- presented by experienced
is simple, orderly layman may That which is learned counsel. necessary lawyer, untrained to the to the intricate, complex mysterious. appear
strate
given
the advice
was not
range
within the
competence
attorneys
demanded of
in criminal cases. Id. at
also,
Henderson,
258,
771. See
266,
Tollett v.
411 U.S.
93 S.
(1973).
Ct.
The of effectiveness of again counsel arose Cuyler Sullivan, v. 446 U.S. 100 S. Ct. 64 L. Ed. (1980). 2d 333 Cuyler, In a criminal alleged defendant attorney his did not provide effective assistance of counsel because of a conflict of interest arising lawyer’s out of the representation simultaneous Court, of codefendants. The carefully while avoiding the application of the McMann test to a case of multiple representation, reiterated the language applied McMann as it to the guilty pleas. voluntariness of say Court went on to lawyer that "a represent forced to codefendants whose interests provide conflict cannot adequate legal required by assistance the Sixth Amend Cuyler Sullivan, ment.” supra, 446 U.S. at 345. The Court further held that once a defendant has established an actual conflict which would result in a Sixth Amendment violation he "need not prejudice demonstrate in order to obtain relief.” Id. at 349-50. provide by
These cases do not a bright line rule which the courts of governed, they the nation could be but do provide general guidance. It appears that establish a Sixth Amendment violation a defendant must demonstrate that given advice was not within the range competence demanded of attorneys criminal cases. See Marzullo v. Maryland, supra. Once the defendant has established that representation counsel’s failed to meet this standard the defendant prejudice; does not need to show prejudice the defendant’s conclusively presumed defense will be from the inadequacy representation. of his
Having gleaned
Supreme
general
from the
Court a
Sixth
test,
Amendment
problem
determining
remains
what
types
attorney
conduct
a defense
would render his
representation
ineffective. While Justice William H.
Erickson
Supreme
of the Colorado
Court has suggested that
the American Bar
Relating
Association Standards
to the
(1971
Function,
Draft),
Defense
Approved
can and should be
standard,
used as the basis for a uniform
17 Am. Crim. L.
Rev. most courts have not
tried to be so
A
definitive.
brief review
involving
of a few cases
facts
case,
analogous
however,
to the
point
instant
will
out that
*45
representation
undeniably
this case was
ineffective.
(4th
In
Zahradnick,
1978),
Wood v.
competence cases and the case for a determination remanded defendant’s competency at the time of the offense. mental Frierson, People supra, In v. defendant convicted of murder. At the time of the offense defendant was capacity under the influence of PCP and diminished was his only defense. The defense counsel called no witnesses to an express expert opinion on the PCP nor did effects of he by psychiatrist. have the defendant examined a The court determined, agreement based on the unanimous of several practicing attorneys, effective representation that type require investigative expert of case would assis regarding tance the use PCP and its effect and the appointment of psychiatrist a assist counsel his defense. steps The found court that because these minimal were not taken the defense that he had deprived counsel himself of the reasonable bases which to an informed upon make trial Giving up capacity tactical decision. the diminished defense, defense, where sole that was the was tantamount — any complete withdrawal of defense legal "a aban of the People Frierson, donment interest of the accused.” v. supra, P.2d at 599. Easter, supra, attorney
In States v. United the defense did search, challenge a warrantless residence which was the only "[i]t defendant’s defense. court held is fun damental, think, we to afford defendant fair trial on a charge, may criminal counsel which his assert that only defense.” Id. at 666. (D.C. States, Tillery In 1980), United 419 A.2d App. attorney pursue the defense failed to investigate an insanity psy defense and based of his own examination expert chiatric obsolete upon insanity an standard. The court held that where the defendant’s trial counsel’s actions "effectively defense, thereby [it] blotted out a substantial deprived] him of right his Sixth Amendment to the effective assistance of at 976. counsel.” Id. (6th Cowan,
In 1978), Wilson v. F.2d Cir. prosecution personal entire consisted identification of
461 sole defense by two victims. The defendant’s the defendant there,” id. at he was not guilty he was not because was "that witnesses who 168, to call two defense yet trial counsel failed alibi. The court the defendant’s would have corroborated concluded this record escape the conviction
[w]e cannot of counsel us to hold that ineffectiveness requires Even more only of his defense. deprived appellant that it escape the conviction important, we cannot to hear jury opportunity deprived also have been evidence which should arguably vital against the identification weighed the balance justice and the Sixth Amend- testimony. American require ment to the United States Constitution no [Id. less. at 168.] cases, cases,3
The element these
and a multitude of other
deprived
have
common is that
the defendant was
opportunity to
meritorious
potentially
assert
defense
because of the
or omissions of
defense
acts
counsel.
deprivation
Where counsel’s
have resulted in the
actions
a defense and there is no reasonable basis for the actions in
courts,
trial
strategy, appellate
tactics or
both state and
federal, are wont to find effective assistance of counsel.
support
point
3. For further
of this
in cases where a defendant was
deprived
Cannon,
Healey
of a meritorious defense see United States ex rel.
v.
(7th Cir.)
denied,
874,
Although depart the Fourth Circuit has found cause to test, stand, present it that our previous apparent from its properly applied, when will withstand constitutional scrutiny. longer parroting language no of federal While decisions, of defense the test focuses on acts omissions proceedings counsel rather than fairness of the as a right it Amendment to counsel whole. As such is a Sixth standard rather than a due standard and should still process acceptable. be
While we have not addressed a factual situation on all
case,
decisions,
fours with the instant
the Court’s
under the
formula,
genuine
par-
tend to
representation
and effective
allel
In
opinion.
similar cases referred to earlier
this
(defense attorney
pursue
Parte
failed
defendant’s intoxication at time of offense
(Tex.
defense);
Duffy,
App.
as a line
Ex
Our
willingness,
have indicated a
at
occasions,
subject
least on
on direct
some
to address the
State,
appeal. See
236 Md.
This is also in the number of options, collateral, direct and available to If Johnson. Court affirms Johnson’s conviction but remands sentencing then a sentencing proceeding new will have to be jury conducted either a new before trial court. Johnson alternative, will post still have the conviction whatever the outcome of the If sentencing proceeding. he is relief denied post court, then appeal conviction he will be able to sentence, if imprisonment, life to the of Special Court or, Appeals death, if to this Court. Once state court alter- natives are he exhausted will have available to him the possible relief corpus petition of a habeas If federal court. denial the effectiveness of assistance of counsel record, obvious from the then unnecessarily add to this formidable appellate process be an would abhorrent squandering judicial resources, not to mention the burden places it on the anxiety defendant who must endure the step each procedure.
The second
perhaps
compelling
and
more
reason to
this
delay
needlessly
confront
issue now is that
it
to
would
and
cruel
As
Brennan
inhuman.
Justice
noted
his con
curring opinion
238,
Georgia,
in Furman v.
92
408 U.S.
S.
2726,
346,
denied,
902,
Ct.
33 L. Ed. 2d
reh.
409
93
U.S.
S.
89, 34
Ct.
L.
163
prospect
pending
Ed. 2d
"the
of
execution
frightful
during
exacts a
toll
the
long
inevitable
e.g.,
Bosch,
(1st
1978);
United States v.
Having applicable legal examined the point at which to discuss the facts of case. propitious inescapable conclusion A me to the review of the facts leads representation was attorney’s Johnson’s defense (1) respects: constitutionally calling deficient in at least two testify defense, his own Johnson to witness stand (2) prior to the com- insanity plea withdrawing jury. two mencement of the case before the These actions chronologi- taken will be out of defense counsel addressed which, me, cal best demonstrate sequence reasons representation. trial counsel’s ineffective guilty; guilty by initial were not pleas Johnson’s insanity; insanity at guilty by reason of and not reason charged time but sane now. of the commission of the offense defense, insanity As a his of an Johnson result of assertion was sent to Clifton Hospital psychiat- T. Perkins Center for ric evaluation. from report Perkins indicated that a majority of the who interviewed Johnson felt he doctors time competent responsible was trial at the stand doctors, However, reporting Dr. offenses. one the four Clermont, J. said that he could not "arrive to definite responsibility as the defen- diagnosis conclusion about uncooperative during dant with him most of the Kamm, psychologist Mr. on the staff at Perkins interview.” Johnson, who also concluded that Johnson’s interviewed evaluate on account reality "contact with is difficult to poor productivity resulting negativism.” from Dr. extreme *50 he reported that "admitted that was Clermont also Johnson voices,” hearing still and that he "functioning on a borderline intelligence.” level of
Initially, represented by Johnson was counsel who moved for a postponement get another opinion, doctor’s moved to suppress a given confession police, Johnson had to the represented suppression at a hearing regarding Johnson the confession. Johnson adequacy does not fault the of this rep- resentation, nor do I. After the suppression hearing Johnson retained represented new counsel who him for the remainder of the trial and at the sentencing proceeding.
At jury stage the selection of the trial trial judge the requested and questions received from Johnson’s coun- trial sel to jurors the voir Despite addressed to on dire. the fact that the State was the seeking penalty death there were no questions regarding jurors’ the imposi- attitudes about the tion of the penalty death in the list of questions submitted examination, defense counsel. At voir however, dire judge did jurors ask whether the would be able to render an impartial in a penalty verdict death case.
Defense counsel moved for appointment of another psychiatrist expense at State assist defense and for a rehearing on the motion suppress the confession. Both motions were denied. Defense counsel then withdrew the pleas guilty by of not reason insanity, ostensibly because majority report from Perkins declared the defendant competent to stand trial and at competent the time that, He words, offenses. felt in defense counsel’s "[w]e have no other evidence we could on the present” question of com- petency (emphasis supplied). this,
After defense counsel made his opening statements to the jury. He deny told them that Johnson would "senseless, participation in totally senseless” offense. Rather, jury counsel directed the to focus its attention on the situation, defendant’s history, intelligence, his school family history. jury Counsel asked the to be aware drugs the had taking defendant been and their effects on him. requested jury Counsel also to be mindful of the part Dwayne Mayers played this offense effect he had on the defendant. *51 began present
The State then its case. first two victim’s, witnesses, regarding friends of the testified characteristics, laying personality victim’s that led beginning foundation for the of the chain of events police testimony from to Johnson. The State elicited very daugh- these was close to her witnesses that the victim ter and daughter recently undergone that the had major surgery. objected The defense to the introduction of the evi- daughter’s dence of the medical condition but made no mo- tion to strike or motion for mistrial after its introduction. No objection was made to the evidence of the victim’s rela- tionship daughter. with her witnesses,
After calling several other the State called Detective Jennifer Wehr to the stand. Detective Wehr regarding testified taking conditions of the of Johnson’s confession and read the contents of the statement for the court jury. and the The substance of the statement was that Johnson (Dwayne Mayers’) had been at his cousin’s house asleep his, Batts, when a friend of Amos in came and told Johnson Mayers gotten that he and had a car. Johnson went car, to the saw the in Mayers, victim the front seat with who was driving, got then in and the three men left with the victim. They drove to a in County they field Baltimore where stopped Wehr, the car. Detective reading Johnson’s statement then testified:
I car, lady [Johnson] had sex with the first in the Amos, then Dwayne, then all the car .... Then girl me and the got and Amos out of the car and... [m]e and the girl walked off... .1 had sex with her again outside. Then we walked off. had her She back turned. I shot once and it hit her in the back. Then again again. hit One them her head. Then when I she fell to her knees hit her in I front. went back and got the car and we drove off.
Detective Wehr also she asked Johnson testified that when if the victim resisted his answer was the sexual attacks
"yeah.” This was the State’s last witness. Defense counsel made judgments motions for of acquittal which were denied. Kamm,
The defense’s first psychol- witness was Ernest ogist from Hospital Perkins Center had oppor- who had the tunity, noted, as to interview Johnson while he at objected Perkins. The State testimony, Mr. Kamm’s as already insanity. defense counsel had plea withdrawn Defense counsel proffered to the judge that he was not *52 seeking testimony regarding Johnson’s competence mental but sought mitigate charges rather to the first degree of murder specific and other intent crimes. Mr. Kamm was then testify allowed to that Johnson a functioned at I.Q. borderline intellectual level with an of and he that was severely deprived a individual with a hostile and negative authority problem. orientation and severe sought Defense counsel to move report Mr. Kamm’s entire evidence, into objected, objection which the State and the bench, was argument sustained. In before out the and of the hearing the jury, of the State noted that there were "certain things, thinking” bizarre that report pertain the would sanity, premeditation. not At the of end Mr. Kamm’s testi- mony the defense called Gordon Glazer. Mr. Glazer failed to respond judge day. and the recessed the trial until the next day
On the second of trial defense counsel his called as first witness the why defendant. Counsel asked Johnson he living was with replied his aunt and Johnson that he had just gotten out jail "burglary charge” for a and on probation for that offense. Johnson then related some background regarding family history, history, school and his relationship Dwayne Mayers. He he testified that had variety used drugs, including PCP. Defense counsel then focused his direct night examination on the before and day the the Mayers offense. Johnson said that had asked him money if to go he wanted out and make some and Johnson, just gotten jail, had out repeating that he surrounding declined. Johnson then related the events the offense, they saying driving were with the that while around victim they treated with PCP. were flakes smoking parsley jury the that Johnson told killed the victim was Just before to have they going that were and Batts Mayers told Johnson Mayers argument An ensued which victim. to kill Mayers When became shooting. do that Batts insisted refused, said that he volun- Johnson Batts angry because into the victim he walked killing. to do He said teered saying woods, time, shooting, his hand kept one then fired stop. not would again defense
After State’s cross-examination was, again, Mr. Glazer to call Gordon Glazer. sought lunch. After lunch judge recessed for so the trial there following: judge on related the record reflect, I’m not sure ought I record think the transpired with what has stage, it at this does He witness, had Gordon Glazer. respect to the testify an agreed to as Court he had advised the request of defense counsel at the expert witness dangerous sub- of certain controlled the effect employee an Mr. Glazer is persons. stances on problem of abusive sub- dealing with the Center New stances, Leaf specifically Head general under the operates Center. That center *53 Pat Hawkins. supervision Doctor yesterday everybody here was Mr. Glazer did, going was assumed, I I that he apparently know up today I today. he didn’t show to be back When through the Sheriffs a search for him sent out Office, informed the Court of defense counsel when back at going that he was to be their information County. in Calvert 12:00 o’clockto his center here call from Doctor Pat Over lunch hour I received a Mr. was leav- who informed me that Glazer Hawkins in Alaska and was ing today on two vacation weeks leave on the vacation supposed plane to catch a to little It then a after at about 12:00 o’clock. was she informed the Court that was 12:00 o’clock.She or him stopped to attempting plane have I think I her didn’t that stopped plane. at the told necessary. try stay would be Mr. Glazer did to yesterday, although around he was not here as late as the trial ran. they
As soon as counsel returned were informed an Spodak, indepen- about this and that Doctor Maryland, employee dent medical of the State of substantially here was and had better credentials than did testifying this matter Mr. Glazer. given Counsel the opportunity were to interview —defense counsel given were the opportunity to inter- view Spodak Doctor in the Court’s chambers without anybody being present. else At the conclusion of that interview the Court was requested to state whether not the Court would limit his cross-examination Doctor if Spodak, defense counsel him, called and limited ques- their simply general tions customary offense of dangerous controlled question substance in aon person. The Court said at that time it that would limit the State’s specifically cross-examination to However, that area. it would not prevent the State from recalling Doctor Spodak in rebuttal and on direct inquiring examination of him if he had exam- ined the felt, defendant in this if case and he within medical, field of medical expertise, that he could express opinion an about what the effect of whatever chemical substances were involved on point everybody this defendant. At that knew that holding Spodak State was Doctor as a rebuttal testimony expected witness to the which was to be case, elicited the defendant’s and the Court felt deprive that right we could the State use this he simply rebuttal witness because going testify general way now in a as to the effects. All been having sifted down and through processes filtered go various *54 tactics, up defense, make as I trial understand it, point. has elected to its at this It close case is not Spodak. call Doctor correct, Your Honor. That’s Defense Counsel: thing is for the Yes, And the other Prosecutor: sir. I missed record, may have said this and the Court he was he knew about it, will concede State officially summonsed although he wasn’t a witness a wit- for state he knew he was the case. We will case, is no official summons. in the but there ness you Your on this. Thank position That’s the State’s Honor. testimony any to obtain attempt in the
Unsuccessful PCP, sought defense regarding the effects rested its motions and renew several of its unavailingly to case. emphasized the defense counsel
During closing arguments gist in Johnson’s life. The Mayers had dominant influence premeditation lacked the Johnson argument of the was that murder; enough that there was required degree for first and that there charge kidnapping; support evidence to charge to sustain the enough was not evidence of force rape. evidence, to me summary
In it seems light of this glaringly apparent that defense counsel’s ineffectiveness It is the issue forthwith. and this Court should address theory of the case was apparent to me that defense counsel’s thus, charged, guilty that the defendant was of the offenses plea with a of not present rather than a defense consistent jury persuade would be to guilty, his best course of action degree guilty of was second that the offense Johnson in counsel’s degree. first This is evident murder and not jury, where he admitted opening closing remarks to the at the bench guilt, colloquy and the defendant’s Kamm. regarding testimony of Mr. a defense
It to me that in order to build seems obvious murder, degree defense coun- reducing the offense to second of the State’s case first get prongs sel had to around both felony was the murder stat- degree prong murder. The first *55 (1976, ute. Md. Code § 1981 Cum. Supp.), pro Art. vides a that homicide committed during the course of certain crimes, enumerated including rape, robbery, ;, is murder in the degree. first prong second is tne premeditated standard of 27, § murder. Article provides wilful, that "any deliberate, kind of premeditated killing degree.” shall be murder in the first
Examining the State’s case for degree first murder it is obvious that a defense on a degree based reduction to second murder was It unsupportable. apparent is also that while a (a degree second arguably verdict could argument tenuous best) at have been testimony, realizable without Johnson’s such totally defense was untenable once Johnson took the stand.
To application circumvent the of the felony murder stat- ute, Johnson’s defense counsel had to a raise reasonable doubt in the jurors minds the that Johnson incapable was the forming specific support charges intent needed to the testified, of rape, robbery, Johnson kidnapping. Before the defense could have offset the in the admissions testimony with regarding confession of Mr. Kamm intelligence impression Johnson’s low and the defense coun- create, through sel had tried to cross-examination State witnesses, drugs that was under the influence of Johnson alcohol when statement made. After Johnson was stand, however, took jury was aware that made night Mayers Johnson knew the before the murder that car; to planning they steal a that to looking were steal some money; her crying that the victim had head down and was car; when an got argument Johnson in the that Johnson had Mayers got presence before he in the car about the victim; gotten days a jail just that Johnson had out of few burglary conviction; before this offense occurred a Johnson knew there point against at this that the victim was will; her just that Johnson after made reasoned decision dispose property murder of some of the victim’s because it was evidence. None these facts was evidence By calling before Johnson took stand. Johnson to testify attorney literally witness stand to the defense drove foregone verdict guilty made a home case and the State’s conclusion. competent reasonably any expect
It is reasonable testimony gone a witness’ attorney have over defense would stand, particularly where calling that before witness therefore, is, It reasonable is the defendant. the witness recent bur- of Johnson’s counsel knew assume that defense *56 out in first since it came (especially glary conviction examination) that he on direct response question to a reveal. It of events would knew Johnson’s narration what follow Johnson’s reasonably remotely that does or even not the was stolen that car testimony that he knew apparently before, during, making was rational decisions that he getting Mayers before (arguing with and after the offenses Batts and victim when car, volunteering to shoot the into the pull going was Mayers arguing about who were immediately after the disposing of evidence trigger, and any way in detection, respectively) would murder to avoid Quite obviously premeditation. the State’s case attenuate gaps were left after contrary, it in whatever filled By calling reading of Johnson’s confession. Detective Wehr’s that Johnson proved defense counsel Johnson to the stand did it and intended doing he before he knew what whatever actions he took. resting his
Whatever slender thread defense counsel was to the stand. snapped case on when counsel called Johnson finding effectively He have ensured a could not more pros- guilty in if he been the degree to murder the first had By having testify thereby virtually ecutor. Johnson destroying finding whatever there was for a second hope degree only out murder defense counsel blotted defense had this he available. It cannot be more obvious that could strategy reasonably competent have been trial of a and, alone, deprived of attorney on this basis Johnson was the effective assistance of counsel.
Not assistance only deprived was Johnson of the effective stand, deprived he before took the witness he was counsel incipient stages of it of the trial when defense counsel insanity Insanity only plea.
withdrew the was Johnson’s viable from trial. beginning defense by guilty is not reason of plea the defendant’s
Where insanity, may one of eventualities arise from the plea is that
[i]f
general plea
guilty
the verdict on the
and the
special
plea
verdict on the additional
is that
accused was insane at the time of the commission of
offense,
he has
sought
failed what he
under
general plea
his
but attained what
sought by
he
additional
plea,
that he shall
held respon
not be
sible for
his criminal conduct. [Langworthy v.
(1979).]
593-94,
Md.
It has further been established Court that defense counsel is not testimony psychiatrists, restricted to the *57 any expert witnesses, insanity. lay to establish A witness may express impression an or conclusion that someone is normal or provided abnormal that he testify does not toas legal ultimate question of whether the defendant was crimi nally responsible. Conn, 406, 428, State v. 408 A.2d (1979). or Whether not such were witnesses available the record does insanity not reveal since the plea was withdrawn.
There absolutely was reason no for the withdrawal insanity plea in this case. The defense could not afford to its hire own psychiatrist to examine the defendant. How- ever, the report medical from was as Perkins divided to whether competent Johnson was to Three stand trial. doctors said was competent he and one doctor said that he could not make the conclusion of the because defendant’s poor cooperation. report The said that Johnson admitted hearing reality that voices and his contact with was difficult Clermont, report, to evaluate. The author of Dr. that was have expense and could at State to defense available at as a trial. been called witness Kamm, psychol- Mr. a
Furthermore, had defense counsel behalf. Perkins, testify on Johnson’s to ogist available at was defense counsel report that of Mr. Kamm’s portion withdrawn jury he had because get able to before signs were "some effect that there insanity to the plea was thinking and of bizarre direction point which had he had said that reality,” Johnson hold on that tenuous On over water. had seen God devil and that he seen the on opinion if had an cross-examination, he when asked said Mr. Kamm right wrong, from knew whether Johnson an there was opinion, implying had no that he any conclusions. insufficient basis to draw expert opinion favorable potentially Aside from the that was available incompetence regarding the defendant’s Glazer, counsel, an Gordon expert, to there was also defense regarding the counsel who defense had been contacted that PCP made testified drug of the PCP. Johnson effects standing hallucinate, somewhere you might him "like forget —,” made him you go your that it just out twenty days [jays?] things, "could about and that he smoke altering powerful mind something like that.” PCP is use continued effects from drug potential long term side counsel, how to. have Defense expert an could testified this ever, testimony to employ did not seek to Mr. Glazer’s fact, appear.6 end. In Mr. was not even summonsed Glazer key appearance witness of a 6. and secure This failure summons representation. Once the ineffectiveness Johnson’s further evidence of actually pursued insanity plea only defense counsel was withdrawn the murder, degree. degree To guilty not first of second that Johnson was testify support Mr. to Johnson’s called Kamm that contention defense regarding intelligence. testify the effects Mr. Glazer was borderline testimony with his account PCP. Johnson was left Without *58 support intelligence to his claim. low incident and evidence of upon availability judge to tell it himself As Mr. the trial took to Glazer’s Glazer, apparently try the the secretary on Mr. Mr. Glazer’s belief that the State’s rebuttal witness was not to to contact testify qualified to on better up object. It was He should have. effects of PCP. Defense counsel did not defense counsel not the trial defendant, testify for should decide what witnesses judge. Under these circumstances the withdrawal of the insanity plea way can in no justified as a reasonable trial tactic. It deprived only defendant of his defense. Even if one were to assume that pursuit of a degree second verdict (which possible bears a thirty years), sentence of was more advantageous to Johnson insanity defense, than the there could have been no evidence during adduced the course of the attending testimony on Johnson’s mental competence prejudiced would have an argument for degree. second Rather, the evidence would have served to bolster the case for a degree second verdict.7 excuse, There is no therefore, for failing pursue insanity plea, thereby depriving the defendant of this defense. Zahradnick, Wood v. supra.
Counsel’s failure to produce evidence of Johnson’s mental competence deprived jury also of the opportunity to hear arguably vital evidence which should have been weighed in the balance against the evidence of criminal agency. Cowan, Indeed, Wilson v. supra. in a case where the penalty death being sought justice demands that defendant have the opportunity present may what be his only jury. to the defense Such a deprivation potentially of a meritorious defense with no reasonable basis in trial tactics is unquestionable proof of ineffective assistance tantamount to a complete abandonment of the interest of the Frierson, accused. People v. supra.
There is one further should, reason that this Court on this record, judicial strike out the verdict. system has been often, and stridently, sometimes white-washing accused of the problem of inadequate representation by members bar. Chief Justice Burger has commented that "we are more casual qualifying about the people we allow to act as advo cates in the courtrooms than we are licensing about electri cians.” Burger, The Specialized Advocacy: Skill of Are Specialized Training and Certifícation of Advocates Essen tial System Justice?, to Our 42 Fordham L. Rev. 7. This is further evidence of ineffective assistance that it shows that by failing up adequately to cull this available evidence counsel failed to prepare present theory of the defense. *59 (1973). Cir the District of Columbia Judge Bazelon of Chief lengths system going great criticizes Court cuit "One of the representation. of ineffective bury problem of ineffective assistance has problem that the major reasons court’s remarkable appellate is the hidden remained of ineffective assistance ignore the issue propensity in the house that altogether paper and to over the cracks Counsel, Bazelon, Assistance of Gideon built.” The Defective (1973). subject 1, 21, n.3 Lest we also fall 42 U. Cin. L. Rev. responsibility meet its this Court should to this criticism by the record and resolvable presented squarely head on. It is by the evidence it contains.
Based, therefore, on the irrefutable facts the record any of a defense when deprived Johnson was semblance insanity plea and when defense counsel withdrew he hold, testify, I would to the stand to called Johnson earlier, authorities cited consonance with the numerous right his constitutional to the effective Johnson was denied judgment assistance of counsel. I would reverse the a new trial. trial court and remand for Eldridge and Davidson have authorized me to Judges expressed. here they state that concur the views