Greco v. State

• Decision Date: 26 June 2012
• Docket Number: No. 86,86
• Parties: VINCENT T. GRECO , JR. v. STATE OF MARYLAND
• Court: Court of Special Appeals of Maryland

VINCENT T. GRECO , JR.

v.STATE OF MARYLAND

No. 86

COURT OF APPEALS OF MARYLAND

September Term, 2011

Filed: June 26, 2012

Vincent T. Greco, Jr. v. State, No. 86, September Term 2011

POSTCONVICTION RELIEF- RE-LITIGATION OF ALLEGATION OF ERROR - NEW CONSTITUTIONAL STANDARD- Under the Uniform Postconviction Procedure Act, codified in part at § 7-106(c) of the Maryland Code (2001, 2008 Repl. Vol.), Criminal Procedure Article, a convicted person may obtain the benefit of re-litigating an already-decided allegation of error under a subsequent, more favorable legal standard if a number of conditions are met. Among those conditions are that the standard be "not previously recognized" by law and that the standard "affect the validity of the . . . conviction." The legal standard set forth in Hoey v. State, 311 Md. 473, 536 A.2d 622 (1988), and Simmons v. State, 313 Md. 33, 542 A.2d 1258 (1988), is not new because it does not reflect a square overturning of a prior standard. Moreover, the Hoey and Simmons standard does not affect Petitioner's conviction because Petitioner would not be entitled to move any more evidence into the record based on the Hoey and Simmons standard than he did under the alleged prior rule.

ILLEGAL SENTENCE - A fifty-year term-of-years sentence is an illegal sentence for a conviction of first degree premeditated murder. An illegal sentence may be corrected at any time, but may result in an increased sentence. Because no term of years sentence is authorized by law for a conviction of first degree premeditated murder, the lawful minimum sentence Petitioner may receive on remand is life imprisonment. The trial court, though, maintains discretion to suspend any portion thereof. Because the trial court previously sentenced Petitioner to fifty years of executed incarceration, that is the maximum length of executed sentence the trial court may impose. In addition, the trial court must also impose a period of probation to retain the characteristics of a split sentence. Petitioner's sentence of fifty years of incarceration for first degree rape, however, did not exceed the maximum sentence of life because it did not in any way hamper Petitioner's opportunity for parole.

Circuit Court for Baltimore County

Case No. 03-K-81-074022

Bell, C.J.,

Harrell

Battaglia

Greene

Adkins

Barbera

McDonald,

JJ.

Opinion by Barbera, J.

This matter stems from an order of the Circuit Court for Baltimore County granting Petitioner, Vincent T. Greco, Jr., postconviction relief by vacating his 1982 conviction for first degree premeditated murder and, as we shall see, leaving in place Petitioner's related convictions for felony murder and first degree rape. The Court of Special Appeals reversed that order and reinstated Petitioner's conviction for first degree premeditated murder. State v. Greco, 199 Md. App. 646, 24 A.3d 135 (2011). Petitioner filed a petition for writ of certiorari raising several issues and the State filed a conditional cross-petition. We granted both the petition and conditional cross-petition. Greco v. State, 423 Md. 450, 31 A.3d 919 (2011). The questions before us, consolidated and rephrased,¹ are: (1) Whether the Court of Special Appeals properly exercised jurisdiction when it decided the State's appeal; (2) whetherPetitioner is entitled to postconviction relief because this Court's decisions in Hoey v. State, 311 Md. 473, 536 A.2d 622 (1988), and Simmons v. State, 313 Md. 33, 542 A.2d 1258 (1988), established a new, constitutionally-based rule that was intended to apply retroactively; and (3) whether the sentences are illegal.

For the reasons that follow, we hold that the Court of Special Appeals had jurisdiction to entertain the State's appeal, Petitioner was not entitled to postconviction relief, and the term-of-years sentence he received for first degree premeditated murder, but not the sentence for first degree rape, was illegal and must be corrected on remand.

I.Background

In 1982, Petitioner was convicted by a jury in the Circuit Court for Baltimore County of first degree premeditated murder, first degree rape, and first degree felony murder. We adopt the summary of the facts of the crimes, which the Court of Special Appeals set forth in its opinion in the matter now before us. Greco, 199 Md. App. at 650-52, 23 A.3d at 137-38.

Greco was tried for killing 78 year old Leta Jeanette Larsen who he allegedly beat brutally before he strangled and raped her in her living room on April 17, 1981.

On the eve of Larsen's death, Greco, who had steadily dated Larsen's granddaughter, Sheryl Fitch, received a call from Larsen. She allegedly told Greco that she did not want him to continue to date her granddaughter. Larsen expressed concern over Greco's use of drugs and alcohol. That night, at approximately 9 p.m., Greco, while at the Ridgley Inn, drank "a few beers" and smoked marijuana. Additionally, he "got some" caffeine pills. He then went to a party at the "Storeroom Bar" where he stayed until about 2 a.m. While at the party, Greco says he drank "about ten drinks-Jack Daniels and Coke and Molson's Ale." He also "had some marijuana cigarettes." When Greco left the party, he "took a six-pack of Michelob with" him.

While driving on Charles Street toward the City of Baltimore, Greco "remembered the conversation with Mrs. Larsen." Because he knew she stayed up late at night watching television, he decided to stop off to see her.

At Larsen's home, Greco testified, he and Larsen had a lengthy conversation about his relationship with Sheryl as well as his use of alcohol and marijuana. Larsen and Greco allegedly began to aggravate each other. Larsen, according to Greco, "started talking about sex." She then went to fix coffee. Greco reportedly went to the bathroom and when he returned, Larsen, allegedly with the top of her pajamas unbuttoned, approached him while he was drinking coffee and requested that they have sexual intercourse. Greco told the jury that he and Larsen engaged in copulation on the kitchen floor. Upon the completion of the coupling, Greco "dozed off." Suddenly, he was awakened by a feeling of pain in his chest. He observed Larsen standing over him with a knife in her hand.

A struggle ensued as Greco wrestled with Larsen to obtain the knife. During that struggle Larsen cut her hand and Greco is said to have fainted from the sight of blood. He regained consciousness when Larsen allegedly stabbed him in the side. He in turn grabbed her around the neck. They then stumbled into the living room and fell upon the sofa. Fearing that Larsen would kill him, Greco put a pillow over Larsen's face "because she looked so bad." He found later that she had ceased breathing.

Greco testified that while he was in a state of panic and frenzy, he rinsed the blood from the knife, washed his face and hands, cleansed his wounds as well as Larsen's, notwithstanding that she was obviously dead, bandaged Larsen's wounds, and then covered her with an afghan.

Ten year old Mary Lee Derrickson and eleven year old Joelle Myers, respectively granddaughter and great granddaughter of Larsen, were staying in the house that night with Larsen. Greco, realizing that they were there, awakened them from their supposed sleep and informed them that they were leaving the house with him.

The trio journeyed to College Park, Maryland, in order to find Sheryl Fitch. Greco told Sheryl what had happened. He asserted that Larsen had seduced him and then tried to stab him. He sustained several minor wounds. Sheryl returned to Baltimore with the trio and after dropping the two children at their parents' home, Greco and Sheryl proceeded to Larsen's house where Sheryl discovered that the police had arrived. Greco drove to his parents' house where he was subsequently arrested.

Petitioner's defense to the charges was that he acted in self-defense and, because he suffered from a blood phobia, misperceived the threat Ms. Larsen posed and overreacted inresponse. Petitioner called an expert witness, Dr. Leonard Rothstein, in support of his theory of imperfect self-defense.² Petitioner sought to examine Dr. Rothstein regarding Petitioner's phobia as well as the psychiatric effects of both Petitioner's specific phobia and alcohol consumption. Petitioner asserted that such evidence was "admissible to assist the jury in understanding what the effects of alcohol and what the effects of the phobia might have had on Mr. Greco's perception[,] which lends to credibility." Petitioner also sought to demonstrate "how the phobia and other factors affected his mental state at the time and caused him to act and how it is believable and credible that he perceived that he was acting in the manner he says he was."

The trial court ruled that, "[w]ith respect to the proposed expert testimony concerning the mental state of the defendant, that testimony will not be admitted to support the fact that the defendant honestly but unreasonably believed that he was in danger of injury or that the killing was the only way to prevent it." The court explained that its ruling was based on the court's understanding that Petitioner's defense theory was the equivalent of the impermissible defense of diminished capacity. The court added, though, that its "ruling [would] not preclude evidence of intoxication and its effects to negate specific intent." After further discussion about the permitted scope of Dr. Rothstein's testimony, the court clarified its ruling:

[E]xpert testimony from Doctor Rothstein that one: the phobia was combined with alcohol and drug consumption altered the defendant's judgment and impaired the accuracy of his perception causing him to improperly assess the seriousness of the victim's alleged attack and to overreact to the alleged bodily injury, that is specifically excluded. And two, that the defendant did not as a fact premeditate or deliberate, but believed himself to be acting in self-defense, that is still part of what I call the diminished capacity imperfect self-defense defense.

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