Barbera, C.J. Harrell, Battaglia, Greene, Adkins, McDonald, Wilner, Alan M. (Retired, Specially Assigned), JJ.
In the present case, we are asked to decide whether the Court of Special Appeals erred when it affirmed the trial court's conviction of Hubert Allen Wood ("Petitioner" or "Wood"). Petitioner presents two issues on appeal. First, Petitioner asks whether the trial court complied with Md. Code (2001, 2008 Repl. Vol.), § 3-104(a) of the Criminal Procedure Article (hereinafter § 3-104(a)) when it allowed Petitioner to withdraw his request for a competency evaluation and afterwards did not make a competency determination on the record. We conclude that Petitioner's withdrawal of his request for a competency evaluation, in conjunction with the minimal evidence on the record to support a finding of incompetency, supported the Circuit Court for Cecil County's acknowledgment that the issue of competency was moot and, therefore, the presumption of Petitioner's competency was not rebutted. Petitioner attempts to have it both ways, first refusing a competency evaluation because he believed he was competent to stand trial and then, upon a finding of guilt, reversing his position and maintaining that the trial judge should have made a competency determination on the record. Second, Petitioner asks whether his request for a jury instruction on the defense of provocation was properly denied. We conclude that the evidence presented did not generate such a defense, and the denial was proper. Accordingly, we affirm the judgment of the Court of Special Appeals.
FACTS AND PROCEDURAL HISTORY
On September 22, 2010, Petitioner was indicted in the stabbing death of Daniel Curran ("Curran" or "victim"). At a pretrial hearing on January 21, 2011, Petitioner's counsel indicated that he was considering whether to file a request for a psychological evaluation following a conversation with Petitioner's mother and requested to reschedule the pretrial hearing so he could explore the option "more in depth." The hearing was rescheduled for the following week and, at that time, Petitioner's counsel submitted a request for an evaluation of competence, which the court subsequently granted. The Court ordered the Department of Health and Mental Hygiene ("DHMH") to conduct an in-custody competency evaluation and for DHMH to submit a copy of the report to counsel and the court.
At a later motions hearing on May 10, 2011, the parties and the trial judge discussed the request for a competency evaluation. Defense counsel explained that he "had some questions about [Petitioner's] competency based on a history of prior admissions to psychiatric facilities and also after talking with his mother and her familiarity with her son." He further explained, however, that the doctor at DHMH went to see Petitioner to complete the evaluation, and Petitioner refused to speak with him because the evaluation would "cast doubts about [his] sanity." Defense counsel then emphasized that he "still ha[s] those concerns [about Petitioner's competency], and . . . even his current course of action in not talking to the doctor exacerbates those concerns, doesn't allay them." When the State commented that Petitioner's failure to submit to a competency evaluation might be grounds for appeal once he is convicted, the trial judge responded that "the only thing I can say is we ordered the examination, made it available to him." The prosecutor then made clear that "if there is something presented during this motions hearing [or if there is any indication that's observable] that the defendant is not of sound mind, I'm going to be making a request for an emergency evaluation."
On May 26, 2011 at another pretrial hearing, the following colloquy ensued:
[Petitioner's counsel]: Your Honor, we are here for an issue of competency to stand trial. And after further discussions with Mr. Wood, both substantively and about this particular issue, I have come to the conclusion that I should withdraw my request. And that is with Mr. Wood's concurrence. Is that correct, Mr. Wood?
[Wood]: Yes, sir.
[Trial Judge]: Okay. And you understand the consequences of withdrawing that motion?
[Petitioner's counsel]: And the consequences are there will be no such evaluation?
[Petitioner's counsel]: All right.
[Trial Judge]: Because it's my understanding [DHMH] attempted to perform an evaluation and they wrote back that at that time you refused to participate, so that's why we were going to send you for further evaluation at Clifton T. Perkins. But you are withdrawing the motion?
[Wood]: Yes, Your Honor.
[Trial Judge]: And that's ...