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Kennedy v. State

Court of Appeals of Maryland

February 21, 2014

Kivi KENNEDY
v.
STATE of Maryland.

Page 107

Deborah S. Richardson, Asst. Public Defender (Paul B. DeWolfe, Public Defender, Baltimore, MD), on brief, for petitioner.

Brenda Guss, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for respondent.

Argued before BARBERA, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, McDONALD, WATTS, JJ.

GREENE, J.

[436 Md. 688] At issue in this appeal is whether defense counsel's request to have Petitioner " evaluated," under the circumstances, was sufficiently clear to trigger Md.Code (2001, 2008 Repl. Vol.), ยง 3-104(a) of the Criminal Procedure Article, which requires the trial court to determine whether the defendant was competent to stand trial based on evidence presented on the record. We shall hold that defense counsel did not trigger the trial judge's duty to make a competency determination, and we therefore affirm the judgment of the Court of Special Appeals.

FACTS AND PROCEDURAL HISTORY

Petitioner Kivi Kennedy (" Kennedy" or " Petitioner" ) was charged with first degree murder, two counts of attempted first degree murder, and related weapons offenses stemming from a 2010 Baltimore City shooting death. The circumstances leading to the charges against Petitioner in this case are largely irrelevant to this appeal, and a brief recitation of those facts are included only to provide context. The

Page 108

State's evidence showed that on February 25, 2010, Petitioner arranged to meet his friend, Kevin Newsome, at the intersection of Fulton Avenue and Baker Street in Baltimore City. Newsome arrived with two people, Dejuan Green and Kelly Roy, in his truck with him. Petitioner got in the backseat of Newsome's truck and subsequently shot Newsome, Green, and Roy. Petitioner fled on foot. Newsome and Roy were treated for gunshot wounds and released, and Green was pronounced [436 Md. 689] dead at the hospital as a result of three close range gunshot wounds to the head.

Pertinent to this appeal are certain events that transpired over the course of Petitioner's jury trial. On the first day of trial, during cross-examination of Kevin Newsome, the State's first witness, Petitioner began crying. Defense counsel requested a break in the proceedings, and the trial judge dismissed the jury to the jury room. Counsel approached the bench, and the following colloquy ensued:

[Defense Counsel]: And, Your Honor, this is something that I showed Judge Peters that I couldn't relate to my client and he wouldn't come visit me when I would go to the jail and he refused to come to court one day and—
[Trial Judge]: Well, do you know what provoked his reaction?
....
[Defense counsel]: I can't, I can't tell if, I mean, as a layman, not as a professional doctor, I haven't been able to really communicate with this guy. He like, I'll say somethin' to him and he'll say the same thing over and over again, like he didn't hear what I said to him. And I tried to express that to Judge Peters before he sent us here. I'm not askin' for a mistrial or anything like that, but I did— you heard me tell Judge Peters that.
....
[Prosecutor]: Do you think there's something wrong with him?
[Defense Counsel]: Yes.
....
[Trial Judge]: If you are requesting any relief, do you want the evening break now?
[Defense Counsel]: Yes, if we could.
[Prosecutor]: Fine. That's fine.

When the trial resumed the following day, defense counsel made no reference to the day before, nor did he request any relief. The State continued to call witnesses on the second [436 Md. 690] and third days of trial, all without incident. Several times throughout the trial, Petitioner asked clarifying questions of the judge, including why his motion for judgment of acquittal was denied, and what it meant to impeach him. Following explanation by the judge, Petitioner stated that he understood in both instances. Petitioner, defense counsel, and the trial judge also engaged in a discussion regarding Petitioner's right to testify or not to testify. Ultimately, Petitioner decided to testify, and during his testimony, he explained why he cried on the first day of trial:

[Petitioner]: I cried because we all [sic] here today ‘ cause of me. That's why we here today ‘ cause of the situation and I'm sittin’ over there as somebody who committed these crimes. I cried yesterday ‘ cause I almost lost my life that night and I didn't shoot anybody. And I'm tellin’ ya'll that and I'm tellin' the family that I did not shoot your family.

Petitioner then testified about the events leading to his arrest. He stated that an unidentified man approached the vehicle where Petitioner was seated and pulled a gun on him, and thereafter, a struggle between Petitioner and the unidentified individual ensued. During cross-examination, the prosecutor asked

Page 109

Petitioner to re-enact this alleged struggle over the gun with her using a magic marker as a prop. In the process of re-enacting this struggle, Petitioner used enough force to cause the prosecutor to fall back several steps and collide with the courtroom easel. Immediately following the incident, Petitioner said " I'm sorry, I'm sorry" and " I didn't mean it." The jury was excused, and Petitioner continued to apologize and asked if the prosecutor was alright. The following colloquy then ensued:

[Defense Counsel]: Your Honor, at this time I would ask the Court for a mistrial. I believe the jury has been prejudiced. They now have an impression of my client based on the State's Attorney requesting him to demonstrate. I, I believe I noticed the jury's reaction. Everyone was shocked and I believe the jury's tainted. And I don't believe my client will be given a fair trial, not because of the [436 Md. 691] ...

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