Johnson v. State

• Decision Date: 07 January 1982
• Docket Number: Nos. 9 and 22,s. 9 and 22
• Parties: Lawrence JOHNSON v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 405

292 Md. 405

439 A.2d 542

Lawrence JOHNSON v. STATE of Maryland.

Nos. 9 and 22.

Court of Appeals of Maryland.

Jan. 7, 1982.

George E. Burns, Jr., Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender and Gary S. Offutt, Asst. Public Defender, Baltimore, on the brief), for appellant.

Deborah K. Handel and Stephen B. Caplis, Asst. Attys. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

DIGGES, Judge.

Lawrence Johnson was convicted, after removal of this criminal cause from Baltimore County, by a jury in the Circuit Court for Calvert County of first degree murder (both premeditated and in the commission of a felony), first degree rape, kidnapping, and use of a handgun during the commission of a felony or a crime of violence. The same jury subsequently sentenced Johnson to death for the murder. ¹ As is specified by the statute authorizing the sentence of death, we must, by this expedited appeal, scrutinize both the decision to execute the defendant as well as any claims of error properly presented by the parties. With the exception of the imposition of the death penalty, we sustain these convictions and sentences ordered, and remand this cause for a new hearing concerning the punishment to be given for the murder.

The sordid chronicle of this crime spree was related by the appellant, Lawrence Johnson, at trial. It began on the early morning of February 23, 1980, when he was suddenly awakened by a friend, Amos Batts, while perched on the couch at the home of his cousin, Dwayne Mayers. At the urging of Batts, Johnson followed his friend outside to a car being operated by the cousin. It soon became apparent to Johnson that Mayers and Batts had stolen the vehicle during the night and had abducted its owner, Betty Toulson, in the process. Although Johnson had earlier declined to participate when the other two decided to obtain some money through crime, the defendant this time joined them in the car with the victim. After a brief discussion, Mayers started the vehicle and drove around while the three men smoked "parsley flakes sprayed with some kind of embalming fluid." The victim remained silent throughout this journey "with her head down." Later, after driving to a remote area of Baltimore County, Mayers stopped the car and asked whether his companions "wanted to have sex" with their prisoner. Mayers and the appellant eventually raped the woman on the back seat of her car. The trio then drove the victim to another location nearby where Mayers stripped Ms. Toulson of her coat and pocketbook. After discussing the problem presented by the victim's knowledge of their identities, Mayers returned to the automobile, removed a pistol from under the seat, and presented it to appellant with instructions to kill the woman. Johnson led her into the woods and complied with the directive. Ms. Toulson's snow-covered body was recovered five days later; she had received fatal shots in the head and chest.

Following his trial, convictions, and sentencing, Johnson, because he received the death penalty, appealed directly to this Court, Art. 27, § 414, where he presents numerous contentions concerning the conduct of trial on the issue of guilt as well as the murder sentencing proceeding. We discuss in Part I below each of seven claimed errors relating to the guilt determining phase of the trial, and in Part II focus on the three issues relating to the subsequent sentencing hearing resulting in imposition of the death penalty by the jury.

I. The Convictions

a.

Johnson initially contends that, following entry of his plea of not guilty by reason of insanity and his referral to a state hospital for a psychiatric examination, he was further entitled to appointment of a private psychiatrist of his own choosing at state expense to assist in his defense. The record reveals that, upon the filing of this plea, Judge Haile in the Circuit Court for Baltimore County ordered that Johnson be transferred to the Clifton T. Perkins state mental hospital for an evaluation. After a staff examination, the hospital issued the following report, over the signatures of its superintendent and clinical director:

Mr. Johnson was admitted to the Clifton T. Perkins Hospital Center on June 16, 1980, and evaluated in accordance with your order of April 23, 1980.

On June 19, 1980, Mr. Johnson was interviewed at a medical staff conference, where results of the multidisciplinary evaluation were examined....

It was the opinion of the psychiatrists present at the conference that:

1. The diagnosis is Antisocial Personality; Drug Abuse by History. (majority)

2. At the present time, Mr. Johnson is able to understand the nature and object of the proceedings against him and to assist in his own defense. (majority)

3. At the time of the alleged offense, Mr. Johnson was not suffering from a mental disorder which caused him to lack substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. (majority)

Therefore, we are making arrangements to return Mr. Johnson to your custody.

The notation "majority" following each statement in the report resulted because Dr. Clermont, the clinical director of Perkins, declined to join, stating that he "did not arrive (at) a definite conclusion about the diagnosis and responsibility as the defendant was uncooperative with him during most of the interview."

Sometime later, Johnson's attorney, arguing that it was "crucial to the defense ... that the defendant be evaluated by a privately retained psychiatrist in order to determine whether he was, in fact, sane at the time of the commission of the alleged crime," petitioned the court to appoint a private "independent psychiatrist" to further examine Johnson at the expense of the State. ² The trial judge (Bowen, J.) denied Johnson's petition after noting that he had already been examined by the staff at Perkins hospital and that "the doctors practicing in the various institutions under the jurisdiction of the Department of Health and Mental Hygiene are 'independent psychiatrists' within the context in which that term is used in this case."

When, just before trial began, appellant orally renewed his motion for appointment of an additional psychiatrist and it was again denied, there was an indication that Johnson's attorney wished to withdraw the insanity plea "after making certain statements to the court." The following colloquy between counsel and Judge Bowen then took place:

(Defense Counsel): Your Honor, basically we have been unable to secure the services of the psychiatrist to evaluate Mr. Johnson, the defendant, and therefore, we have no other psychiatric testimony other than the reports from Perkins.

(The Court): It is my understanding that he was examined by the staff at Clifton T. Perkins Hospital Center and that they have an opinion as to his mental condition?

(Defense Counsel): That's correct, your Honor. They found him competent to stand trial and competent at the time of the offense.

(The Court): Very well. And do you have other evidence-

(Defense Counsel): We have no other evidence we could present.

(The Court): Very well, we will permit you to withdraw the motion. We think that there is no evidence of the plea, if you wish to do so.

(Defense Counsel): Yes, your Honor. We would.

Appellant now asserts that this refusal of his request for appointment of a private psychiatrist effectively denied him the rights to the assistance of counsel, due process of law, and the equal protection of law in violation of various State and Federal Constitutional guarantees. ³ In making this argument, Johnson acknowledges that the judge before whom an accused has entered a plea of insanity has "full power and authority to order an examination of the mental condition of such person by the Department of Health and Mental Hygiene...." Md. Code (1957, 1979 Repl. Vol., 1981 Cum.Supp.), Art. 59, § 25(b). Johnson also admits that "the Department is an impartial expert," but he goes further and asserts that, in addition to such neutral evaluation, an indigent accused is entitled to another psychiatric expert, this one of his own choosing, funded by the State, solely to assist with the defense.

Although there can be little doubt that an effective defense may sometimes require expert assistance, ⁴ the issue as posed by appellant is a much narrower one. It solely concerns whether Maryland's statutory scheme providing for court appointment of a psychiatrist from the Department of Health and Mental Hygiene in cases involving a criminal defendant's asserted insanity or incompetency is inadequate and that the appointment of additional experts is constitutionally required.

Even though appellant doesn't specifically claim a right to a "psychiatric advocate," his position reduces to essentially that proposition; thus the words of Chief Justice Burger, speaking as a judge for the District of Columbia Circuit in Proctor v. Harris, 413 F.2d 383, 386 (D. C. Cir. 1969), are particularly apropos here.

From Appellant's posture, no psychiatrist can really "assist" him adequately unless he agrees with Appellant's position. Stripped of its verbiage Appellant's position is that he is entitled to a psychiatrist sufficiently sympathetic so that he will assist counsel in preparing his case favorably to his claims, and, accordingly, in structuring cross-examination of the hospital doctors so as to neutralize their testimony.

Common sense dictates that there be some limit placed upon the right of indigents to the assistance of State-funded experts. This is not a case where the government has refused to provide psychiatric evaluation of a criminal accused who wishes to interpose an insanity defense, or where the resulting report is withheld from the defendant. Nor has appellant in this case produced...