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Rowe v. State

Decided: April 7, 1964.

ROWE
v.
STATE



Appeal from the Circuit Court for Wicomico County; Henry, C. J., and Taylor and Duer, JJ.

Brune, C. J., and Henderson, Prescott, Horney and Marbury, JJ., and reargued before the entire Court. Horney, J., delivered the opinion of the Court. Henderson, J., filed the dissenting opinion, in which Brune, C. J., and Hammond, J., concur.

Horney

The primary questions posed by this appeal arise out of the acceptance by the trial court of the jury verdict of "not guilty of murder in the first degree but guilty of murder in the second degree" on the issue of guilt or innocence despite the fact that the jury had found on the issues of sanity and insanity that the defendant was insane at the time of trial ("insane now") in addition to also finding that he was sane at the time of the offense ("sane then").

The defendant shot and killed Bronza M. Parks on May 13, 1958. He was indicted for murder within less than a month and pled not guilty. Subsequently, he filed a special plea in writing that he was insane at the time of the commission of the crime. In June 1958, the lower court, pursuant to Code (1957),

Art. 59, § 7, required a pretrial mental examination of the defendant. In September 1958, at the suggestion of the defendant, the case was removed from Dorchester County to Wicomico County for trial. In October 1958, as a result of the pretrial mental examination, counsel for the defendant moved to stay the proceedings alleging that the defendant was unable to understand the character of the charge against him and to assist in the preparation of his defense or to testify on his own behalf. In November 1958, the motion to stay was granted and the defendant was committed to Spring Grove State Hospital until his recovery. In January 1960, he was transferred from Spring Grove to Clifton T. Perkins State Hospital and remained there until July 1962.

During his confinement in Perkins, the defendant wrote the lower court a number of letters in which, among other things, he denied his guilt, insisted that he was not insane, informed the court that he was no longer represented by the attorney who had pled him insane, protested his inability to obtain a change of venue from the Eastern Shore to the Western Shore, and, despairing his ability to obtain effective counsel and a fair trial, offered to change his pleas to nolo contendere in order to be transferred to the penitentiary.

At the same time, the defendant continued to assert his sanity to the hospital staff and to seek a certification to that effect from the Department of Mental Hygiene so that he could be tried. In January 1962, the defendant was successful in convincing the staff at Perkins that he was competent to stand trial and that he should be returned to the county jail for that purpose. Accordingly, the superintendent notified the State's Attorney of Dorchester County that the defendant had sufficient mental capacity to advise counsel as to the conduct of his defense and requested that he be transferred from Perkins to the jail at Salisbury to await trial. After some delay in bringing about the transfer (during which habeas corpus was sought in the courts of Anne Arundel and Montgomery counties), the defendant was returned to jail in July 1962.

Upon his return to Salisbury, the trial court appointed new counsel to represent the defendant, but when he became dissatisfied with counsel so appointed and demanded the appointment

of other counsel satisfactory to him, the court refused to do so and informed the defendant that any further petitions to the court should be submitted through court-appointed counsel. Subsequently, when the defendant refused to cooperate with such counsel, the court was advised of this fact in a petition for a sanity hearing and therein the court was further informed that counsel believed that the defendant was incapable of assisting in his defense and was insane, and that, for that reason, counsel would decline to present a "justification defense" as the defendant had demanded, because he (the attorney) was of the opinion that the plea of "insane then" was the only defense with a prospect of success. The trial began on February 4, 1963, and lasted five days. After the jury had been selected and sworn, the court conducted a hearing (out of the presence of the jury) and determined, on the basis of the testimony of the superintendent of Perkins, that the defendant was capable of standing trial and dismissed the petition of the court-appointed counsel. Thereupon, counsel for defendant filed an additional special plea of "insane now."

At the trial there was testimony to the effect that the defendant, who had contracted with the victim (a boatbuilder) to rig a skiff as a skipjack, came to the conclusion, after the work was finished and he had been billed therefor, that the boatbuilder had defrauded him. Both parties employed counsel to represent them with respect to the dispute. As the result of a conference between counsel and their respective clients, the defendant with another boatbuilder went to the boathouse of the victim to inspect the skipjack. After inconclusive conversation between the disputants, the defendant left first and was soon joined by the other boatbuilder outside the boathouse, but at the suggestion of the latter, the defendant returned to further negotiate with the victim. It was during this interval that the defendant killed the victim. There were no eyewitnesses to the shooting except the defendant, but the physical facts indicated that a scuffle had taken place and that the victim had struck the defendant with a stick of wood.

Of the nine expert witnesses -- eight psychiatrists and one psychologist -- five of them testified that the defendant was unable to distinguish right from wrong and to realize the nature

and consequences of his act as applied to himself at the time of the offense, but two of them were of the opinion that the defendant was "sane then." Five of the experts testified as to the the mental condition of the defendant at the time of trial. Three of them were of the opinion that he was either psychotic or did not have capacity to distinguish right from wrong at that time, but one of the three, even though he thought the defendant was still psychotic, was of the opinion that he was competent to understand the charge against him and to participate in his defense. A fourth, who was of the opinion that the defendant was mentally ill but not psychotic, also believed that he was capable of participating in his trial. The fifth stated that the defendant was probably able to go through with a trial. None, however, was of the opinion that the defendant was "sane now." One of the jailers testified that the defendant appeared normal while in jail awaiting trial. Other non-expert witnesses testified as to the abnormal behavior of the defendant prior to the commission of the crime.

At the close of the State's case, counsel for defendant moved for a judgment of acquittal, which was refused. The motion was renewed and denied at the close of the testimony.

In instructing the jury on the issues respecting the pleas of insane at the time of the offense and at the time of trial, the court advised the jury that the test it should apply in determining the mental condition of the defendant then as well as now was whether or not he had sufficient capacity and reason to enable him to distinguish right from wrong and understand the nature and consequences of his act as applied to himself. The questions as to sanity and insanity were submitted to the jury on two issues: was he "sane or insane then?" and is he "sane or insane now?" The jury was also furnished with a list of possible verdicts ranging from guilty of murder in the first degree to "not guilty," including an additional possible verdict of "not guilty by reason of insanity." Among other exceptions, one was interposed to the instructions because the court failed to inform the jury that it should not return a verdict on the indictment if it should find the defendant sane then and insane now on the issues. No exception was taken to the fact that the court did not point out a difference between tests for determining

mental condition as of the time of the offense and as of the time of the trial (and the Legislature has never said there is a difference).

The jury found that the defendant was sane then and insane now on the issues of insanity and returned a verdict on the indictment of "not guilty of murder in the first degree but guilty of murder in the second degree." At the presentence conference in chambers (at which the defendant was present), the trial court decided not to strike out the verdict on the indictment and instead of committing the defendant to a mental institution until he recovered his sanity, it sentenced him to the penitentiary for a term of eighteen years, and stated that the sentence "is to begin as of today," which was February 27, 1963.

The questions presented by the appellant are: (i) whether the evidence produced at the trial was legally sufficient for the jury to have found beyond a reasonable doubt and to a moral certainty that the defendant was sane at the time of the offense; (ii) whether the defendant was denied a speedy trial; and (iii) whether it was illegal, inconsistent or an abuse of discretion to sentence the defendant to the statutory maximum period to run from the date of sentencing. Although an exception was taken to the instructions on the point, no question is raised on appeal as to the failure of the trial court to advise the jury that it should not return a verdict on the indictment if it found on the insanity issues that the defendant was insane at the time of trial. Nor are any questions presented as to the receipt by the trial court of the verdict of guilty of second degree murder or as to the failure of the court to thereafter strike out such verdict. The reasons for these omissions are clear. On instructions from the defendant, court-appointed appellate counsel refrained from presenting any question which might bring about a reversal and a new trial. For reasons best known to himself, the defendant seems to fear the risk of another trial.

As we see it, we need not consider but one of the questions presented by the defendant. Considering them in reverse order, we need not decide whether it was improper to sentence the defendant to the maximum statutory period without any credit for the time he had been incarcerated in jails and mental institutions because, for the reasons hereinafter stated, the defendant

should not have been sentenced to a prison. Since we shall hold that the trial was only valid to determine certain issues, we need not consider the question concerning the denial of a speedy trial. As to the question concerning the sufficiency of the evidence to go to the jury on the issue of sanity at the time of the offense, we think that issue was properly presented to the jury because the trial court could not take it away as a matter of law since there was some evidence that the defendant was sane then.

Even though a question as to the failure of the trial court to advise the jury with respect to not returning a verdict on the indictment in the event of a finding of insane now was not included in the assignment of errors, we think we must, under the unusual circumstances of this case, take cognizance of the plain error sua sponte. See Berman v. Warden, 232 Md. 642, 646, 193 A.2d 551 (1963); Wolfe v. State, 218 Md. 449, 455, 146 A.2d 856 (1958); Code (1957), Art. 5, § 16. Cf. Maryland Rule 756 g. And see Giles v. State, 229 Md. 370, 387, 183 A.2d 359 (1962), where, in commenting on the effect of Rule 756 g, reference was made in a footnote to Art. 5, § 16. The failure of the trial court to advise the jury that it should not return a verdict on the indictment if it found the defendant insane at the time of trial, as well as the acceptance of the verdict when the court knew that the jury had determined that the defendant was insane at that time, raises a vital question as to whether certain aspects of the trial were valid.

The statutes concerning insanity as a defense in a criminal case are codified as §§ 7 through 12 of Article 59 (Lunatics and Insane), in the Code of 1957. However, only §§ 7 and 9 are primarily pertinent here.

Although the methods or procedures for determining insanity have been extensively enlarged and improved from time to time in later years, the basic twofold purpose of what are now §§ 7 and 9 (and § 11 with which we are not presently concerned) -- to prevent an accused who is mentally incapable of forming a criminal intent from being tried until he has recovered his reason and to protect him from being punished for an offense as if he were sane -- has remained substantially the same as when §§ 7 and 9 were originally enacted as §§ 1 and

2 of Chapter 197 of the Laws of 1826. At that time § 1 (now § 7), concerning a person who had been indicted and had plead insanity, provided that the jury empanelled to try him for the offense should by its verdict "find whether such person was, at the time of the commission of such offense, or still is, insane, lunatic or otherwise," and further provided that if the jury should find that "such person was, at the time of committing the offence, and then is, insane or lunatic," then the court was required to commit him to the almshouse or a hospital until he recovered his reason. Section 2 (now § 9), concerning a person who had not then been indicted, provided for the empanelling of a jury "to inquire whether such person was, at the time of the commission of the act complained of, insane or lunatic, and still is so," and in that event, it was further provided that the court, as in § 1, should send him to the almshouse or a hospital.

In 1916, after the lapse of almost a century, when what are now §§ 7 and 9 (but which were then §§ 4 and 6, respectively, of Art. 59 of the Code of 1912), were repealed and reenacted by Chapter 699 of the Laws of 1916,*fn1 the trial court in which the indictment was pending was clothed with discretionary power and authority in § 4 (now § 7) to order a pretrial examination of the mental condition of the offender by the lunacy commission (which subsequently became the Board of Mental Hygiene but is now the Department of Mental Hygiene). In § 6 (now § 9), where an examination by the lunacy commission was substituted for the outmoded inquest by a jury, the court was further authorized, as it is now, to cause the commission (now the department) "to inquire whether such person is at the time of such inquiry insane or lunatic, or of such mental incapacity as to prevent such person from properly conducting his or her defense or advising as to the conduct of his or her defense." If such is found, the court "shall in its discretion direct such person to be confined" in a mental institution for the care and treatment of the criminal insane "until he or she shall

have recovered and shall stay the proceedings * * * until that time, and upon recovery the court shall proceed with the trial of the charge pending against such person."

In 1931, what was then § 6 of Art. 59 of the Code of 1924 was repealed and reenacted by Chapter 436 of the Laws of 1931 so as to provide for a separate trial of the insanity issues, and, if it need be, for a subsequent trial on the indictment with respect to the guilt or innocence of the accused. But two years later the 1931 amendment of § 6 (now § 7) was repealed and reenacted by Chapter 81 of the Laws of the ...


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