Wright, Graeff, Moylan, Charles E., Jr. (Senior Judge,
Specially Assigned), JJ.
would be a non-sequitur to insist on a speedy trial if one
were incompetent to stand trial at all, speedily or
otherwise. On the other hand, should the incompetency lapse,
the entitlement to a speedy trial would concomitantly revive,
but on a new and inevitably altered calendar. Its latter-day
calculation could not escape the shadow of the earlier
incapacity. This appeal presents an interesting interplay
between the thrust and counterthrust of speedy trial versus
no trial at all.
appellant, Steven Hogan, was convicted in the Circuit Court
for Carroll County by a jury, presided over by Judge Thomas
F. Stansfield, of the unlawful possession of a firearm and
the unlawful possession of ammunition by a person
disqualified from possessing either.
appeal, the appellant raises, in effect, six contentions. He
1.that at one point in the proceedings, Judge Fred S. Hecker,
over the appellant's objection, erroneously ruled that he
was incompetent to stand trial;
2.that the appellant was denied his right to a speedy trial
pursuant to Maryland statutory law and Maryland caselaw per
State v. Hicks;
3.that the appellant was denied his constitutional right to a
speedy trial pursuant to the Sixth Amendment;
4.that Judge J. Barry Hughes erroneously denied the
appellant's challenge to the constitutionality of Public
Safety Article, Section 5-113;
5.that the State was permitted to make an improper rebuttal
argument to the jury; and
6.that Judge Stansfield gave an improper instruction to the
the critical confrontation of July 14, 2016, between the
appellant and members of the Westminster City Police
Department, the appellant was a 66-year-old man who had spent
most of his adult life in law enforcement. As he told the
story at his trial, he spent two and a half years with the
Anne Arundel County Police.
I was a
cadet, and when I made patrol, then I quit and retired. Or I
quit and went with the state because it paid more.
State employment consisted of 23 years as a prison guard.
Q And you were with the Department of Corrections as a prison
A Yeah, at -- Institution.
Q How long were you there?
A Twenty-three years. I was the regional tactical commander
for the Jessup region.
Q And at one point you got hit in the head, correct, and had
injuries to your head?
State employment was followed by a job in Howard County
"in charge of central booking."
Q And did that cause your retirement eventually?
A No. No, that didn't. I just got tired of that kind of
work and went with Howard County and became in charge of
Q And then you retired from Howard County?
A Yes, I did. After 15 years.
14, 2016, the appellant's conduct was unsettling to the
police. From his home at 438 Spalding Court in Westminster,
the appellant called 911 and asked the dispatcher to have the
police respond to his home, but to do so "one at a
time" because of his broken front door. He specifically
asked the dispatcher to send "that Darby,"
presumably referring to Westminster Police Sergeant Radcliffe
Darby. Sergeant Darby, however, was committed to another
assignment and Sergeant Richard Lambert led the team that
responded to the appellant's call.
Sergeant Lambert was waiting for the appellant to respond to
his knocks on his door, he looked for damage to the door but
found none. When, after the third knock, the appellant
answered the door, he appeared distraught and was holding
what the sergeant believed was a silver cell phone in his
right hand. The appellant's first response was to ask if
Sergeant Lambert was the "real police" and then to
ask, "Where the fuck is Darby?" The appellant
revealed that the purpose of his 911 call was that he wanted
his property back and that "all Darby gave him was this
fucking Derringer." He was actually turning the object
referred to in his hand when Sergeant Lambert realized that
the appellant was holding a small gun and not a cell phone.
Sergeant Lambert attempted to grab the gun from the
appellant's hand, but the appellant said, "Hell
no," retreated into the house, and shut the door.
Sergeant Lambert called for backup, including the SWAT team
and hostage negotiators.
backup team shortly responded. Sergeant Darby heard of this
ongoing encounter over the police radio and also responded to
the scene. He had recognized the address mentioned on the
radio dispatch as the appellant's. He also knew that the
appellant was disqualified from possessing a handgun because
of a disqualifying criminal conviction in an assault case for
which Sergeant Darby had arrested him.
the backup team arrived, the appellant came out of the house
on several occasions. Sergeant Darby, Officer Michael
Beaumont, and Officer Martin Runk all testified that the
appellant was "agitated," "hostile," and
"argumentative." He was continuously
"demanding evidence" that he wanted returned.
Sergeant Darby tried to engage him in conversation and to
convince him to come down off the front porch. When the
sergeant got within 12 feet of him, he fired his taser and
hit the appellant. The appellant, however, was able to pull
out one of the probes and to run back inside the house.
shortly reemerged and asked to speak with Sergeant Darby
again. When Sergeant Darby convinced him to step off the
front porch, Officer Beaumont was able to come from the side
of the house and to fire his taser into the appellant's
back. As the appellant fell backward, a small Derringer .38
revolver fell out of his pocket. The appellant was arrested.
The Derringer was loaded with two rounds.
not normal for a party in a case to appeal from a ruling on
which that party prevailed. The appellant, however, now does
just that. On the day first scheduled for the trial of this
case, defense counsel, explaining his reasons for grave
concern, requested Judge J. Barry Hughes to order a
psychiatric examination and then to hold a hearing to
determine the competence of the appellant to stand trial.
Judge Hughes, over the vociferous protest of the appellant
himself, granted the defense request. The appellant, whether
he was aware of it or not, had the absolute constitutional
right not to be tried if he was incompetent to stand trial.
Medina v. California, 505 U.S. 437, 449, 112 S.Ct.
2572, 120 L.Ed.2d 353 (1992); Drope v. Missouri, 420
U.S. 162, 171, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975).
time when the appellant was alleged to be incompetent and
when the subsequent hearing confirmed that the appellant was,
indeed, incompetent, defense counsel was, of necessity,
authorized to speak for the appellant. Defense counsel made
the defense request, and the request was granted. At the
subsequent competency hearing, the defense prevailed and the
appellant was found to be and to have been incompetent. The
appellant was thus protected from going to trial under the
handicap of not being competent to stand trial. The appellant
was thus protected from himself.
are, to be sure, instances in the law where defendants
challenge positions earlier taken by defense counsel. Most of
those instances, however, occur in hearings pursuant to the
Post-Conviction Procedure Act. In most of those instances,
moreover, the defendants claim to have suffered inadequate
assistance of counsel. The appellant has made no such claim
in this case. In this case, of course, counsel's
suggestion of incompetency was confirmed as having been
correct. Defense counsel's judgment was thus fully
vindicated. The appellant's first contention, challenging
a procedure theoretically requested by him (through counsel)
and for his unquestioned benefit, is almost nonchalant with
no citation of authority for its unusual procedural posture.
We will not quibble, however, and will entertain the
contention as it is framed.
the appellant were, arguendo, to prevail on this
first contention, a very poignant question would then loom as
to what conceivable prejudice the appellant has suffered. He
now claims that he was competent to stand trial as early as
January of 2017. He was ultimately determined to be competent
and, thus competent, stood trial 11 months later. He was
only possible adverse impact would have been on his right to
a speedy trial. In the multi-factored analysis of a speedy
trial claim, both under Hicks and under the Sixth
Amendment, a pertinent factor would be the reason for the
extra period of delay to resolve the incompetency question.
To mount such an argument, however, the appellant would have
to attribute the reason for that extra delay to the State. He
would have to take a delay requested by defense counsel and
for the exclusive benefit of the defendant and, with
unquestionable ill grace, blame it on the State. Ironically,
almost hopelessly lost in the hurly-burly of the criminal
trial postponement hearing of January 17, 2017, is the
State's official position, from which it never wavered:
[PROSECUTOR]: No questions, Your Honor. I just want the
record to reflect that the State was ready to proceed
(Emphasis supplied). In all of the incompetency hullabaloo,
the State was simply an innocent and unobtrusive spectator.
as we stand before this strange threshold, the
appellant's primary contention about the competency
hearing loses all independent or free-standing viability of
its own and is reduced to a mere factor in the speedy trial
analyses. The oddity, moreover, remains that the appellant is
appealing from an aspect of the trial he himself, through
counsel, requested; that was granted for his exclusive
benefit; and that ultimately turned out to be of significant
benefit to him. It would have been outrageous to have tried
and convicted an incompetent defendant. Of which, more
answer to the appellant's first contention is easy. It is
the established law of the case that the finding of Judge
Fred S. Hecker on May 11, 2017, that the appellant was
incompetent to stand trial was erroneous is a moot question.
the May 11, 2017, hearing on competency and well before the
appellant's criminal trial on December 6, 2017, the
appellant filed an appeal with this Court raising precisely
the same issue he now raises in this contention. His question
in that earlier appeal of August 3, 2017, was "[w]hether
the circuit court erred in ruling that [he] was incompetent
to stand trial." Argument on that earlier single-issue
appeal was heard on April 5, 2018, and this Court filed its
unpublished opinion on April 27, 2018. Hogan v.
State, No. 1078, September Term, 2017, filed on April
27, 2018. We are chagrined that, in the current case, the
appellant made no mention of or remote allusion to that
Court there held that, because of the later December 5, 2017,
ruling that the appellant was competent, the earlier appeal
from an incompetency filing was moot. We held:
In this case, Hogan appealed the circuit court's May 11,
2017 finding that he was incompetent to stand trial. When
the circuit court found Hogan competent to stand trial on
December 5, 2017, it ended the controversy that was the
subject of this appeal, such that this Court can no
longer fashion an appropriate remedy. Cottman v. State,
395 Md. 729, 744 (2006) (a case is moot when "there is
no longer any existing controversy between the parties"
and the appellate court "can no longer fashion an
only impact that the competency evaluation and the respective
findings of first incompetency and then competency could have
had on the present appeal would be as a factor in the speedy
trial analyses. In that earlier appeal, Judge Stuart Berger,
writing for the Court, observed:
At oral argument, Hogan's counsel contended that this
appeal is not moot because the circuit court violated his
right to a speedy trial by ruling that Hogan was
incompetent, which prolonged his case beyond 180 days.
Indeed, we have scoured the appellant's brief, and we
find just one sentence alleging an infringement of his right
to a speedy trial. Hogan has failed to provide a modicum
of factual or legal support for his claim. See Van Meter
v. State, 30 Md.App. 406, 408 (1976) ("We cannot be
expected to delve through the record to unearth factual
support favorable to appellant and then seek out law to
sustain his position."). Further, we need not decide
this issue at this time because there is no record for which
we could decide this issue. The record is absent of any
reference to a motion to dismiss filed in the circuit
court and any indication whether the circuit court made
a good cause finding to extend the case beyond 180 days.
In our view, the far preferable course is to permit Hogan
to raise the speedy trial issue in the appeal from his
convictions, to the extent he has preserved that issue.
Accordingly, to the extent Hogan asserts that his right
to a speedy trial was violated because of an erroneous
competency finding, if preserved, he can make that
argument in the direct appeal of his convictions.
appellant does now raise speedy trial issues and,
accordingly, we shall address them. The contention concerning
the incompetency finding of May 11, 2017, however, is, as we
have already held, dismissed as moot.
The 180-Day Rule
Code, Criminal Procedure Article, Sect. 6-103(a) provides:
(a) (1) The date for trial of a criminal matter in the
circuit court shall be set within 30 days after the earlier
(i) the appearance of counsel; or
(ii) the first appearance of the defendant before the circuit
court, as provided in the Maryland Rules.
(2) The trial date may not be later than 180 days after
the earlier of those events. (Emphasis supplied).
Rule of Procedure 4-271(a) implements that statute, providing
in pertinent part:
Trial Date in Circuit Court
(1) The date for trial in the circuit court shall be
set within 30 days after the earlier of the appearance of
counsel or the first appearance of the defendant before the
circuit court pursuant to Rule 4-213, and shall be not
later than 180 days after the earlier of those events.
in State v. Hicks, 285 Md. 310, 318, 403 A.2d 356,
on motion for reconsideration, 285 Md. 334,
403 A.2d 368 (1979), that Chief Judge Robert C. Murphy said
for the Court of Appeals that time limits for conducting a
criminal trial such as those now spelled out in Criminal
Procedure Article, Sect. 6-103(a) and Rule 4-271(a) are
"mandatory and that dismissal of the criminal charges is
the appropriate sanction where the State fails to bring the
case to trial within the . . . period prescribed by the rule
and where 'extraordinary cause' justifying a
trial postponement has not been established." What has
been since 1979 the 180-Day Rule is also regularly known as
the Hicks Rule.
Request For A Competency Evaluation
case, counsel for the appellant first entered his appearance,
along with a demand for a speedy trial, on August 11, 2016.
Accordingly, the 180-day clock began to tick on that day and
the Hicks deadline became February 7, 2017. The
trial date was set for January 17, 2017, and all parties were
in court ready for trial on that morning. It was at the
appearance before Judge Hughes that morning that the issue of
the appellant's suspected incompetence first arose.
Defense counsel first raised the subject:
THE COURT: Good morning, sir. All right. This matter was set
for trial today. [Defense counsel].
[DEFENSE COUNSEL]: Yes, Your Honor. After speaking with my
client several times over the last couple of months, I
have serious concerns right now about his competency. On our
last visit on Friday I was talking to him and had certain
concerns the way he was responding to certain questions.
Your Honor, we met in chambers that afternoon.
Yesterday I went to see my client again in the Carroll
County Detention Center. He advised me that he wanted to fire
me after I told him about the competency.
I spoke with him again this morning. He advised me he
does not want to fire me, so that is a pending issue.
But I do feel that competency is an issue, so Defense
requests a postponement.
I know Mr. Hogan himself is going to be objecting to that
request, but I do have in my possession a request for a
appellant strenuously objected to a competency examination.
THE DEFENDANT: I object to the competency evaluation
because I had one by Dr. Katz, I had one by Dr.
Hightower that states I am competent. I had recently
had one done by my attorney . . . that says I am
competent. And this fact that he is talking about seeing
me, he only saw me two times, and that is within the past
I have not seen him since then, and I told him I -- he agreed
to go along with the trial, then suddenly he changed his
appellant then broadened the protest as he launched into an
unsolicited attack on the Assistant State's Attorney
prosecuting the case. In a Captain Queeg-like episode of
psychological unraveling,  he unwittingly demonstrated the likely
value of a competency evaluation.
And [the prosecutor] set me up with a lie saying that I
was suicidal from listening to a phone call. And I
have a witness here who I talked to who would tell
you that she's lying.
So, they put me on suicide watch for that, and the mental
health woman disagrees. She agrees with me that that
was not founded and untrue. And she did it deliberately to
keep this paperworks [sic] from me, to keep attorneys'
phone numbers from me, and they just now brought them
up. They would never let me have them the whole time I
was on this suicide watch, which I was taken off from
yesterday. Or stepped down. You have to step down on it.
This is all a set up. You have set me up. You took my
money, and you said you --
THE COURT: Sir. Mr. Hogan, speak to me, please. Is there
anything else that ...