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Hogan v. State

Court of Special Appeals of Maryland

March 29, 2019

STEVEN HOGAN
v.
STATE OF MARYLAND

          Wright, Graeff, Moylan, Charles E., Jr. (Senior Judge, Specially Assigned), JJ.

          OPINION

          Moylan, J.

         It 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.

         The 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.

         Contentions

         On this appeal, the appellant raises, in effect, six contentions. He claims

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 jury.

         Factual Background

         As of 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.

         The State employment consisted of 23 years as a prison guard.

Q And you were with the Department of Corrections as a prison guard, correct?
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?
A Yeah.

         The 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 central booking.
Q And then you retired from Howard County?
A Yes, I did. After 15 years.

         On July 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.

         While 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.

         The 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.

         After 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.

         He 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.

         A Topsy-Turvy Threshold

         It is 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).

         At a 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.

         There 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.

         Even if 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 found guilty.

         The 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 today.

(Emphasis supplied). In all of the incompetency hullabaloo, the State was simply an innocent and unobtrusive spectator.

         Thus, 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 infra!

         The Competency Hearing

         The 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.

         Following 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 earlier appeal.

         This 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 effective remedy").

(Emphasis supplied).

         The 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.

(Emphasis supplied).

         The 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.

         State v. Hicks

         A. The 180-Day Rule

         Maryland 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 of:
(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).

         Maryland Rule of Procedure 4-271(a) implements that statute, providing in pertinent part:

         (a) 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.

(Emphasis supplied).

         It was 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'[1] 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.

         B. Request For A Competency Evaluation

         In this 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 competency evaluation.

(Emphasis supplied).

         The 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 four months.
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 mind.

(Emphasis supplied).

         The 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, [2] 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 ...

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