Jones v. State

• Decision Date: 05 May 1977
• Docket Number: No. 116,116
• Citation: 280 Md. 282,372 A.2d 1064
• Parties: Byron JONES v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 282

280 Md. 282

372 A.2d 1064

Byron JONES v. STATE of Maryland.

No. 116.

Court of Appeals of Maryland.

May 5, 1977.

Geraldine Kenney Sweeney, Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

Gilbert Rosenthal, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen., and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE and ELDRIDGE, JJ.

LEVINE, Judge.

We granted certiorari in this case after the Court of Special Appeals, in an unreported opinion, Byron (NMN) Jones v. State of Maryland, (No. 1222, September Term, 1975, filed August 17, 1976), affirmed appellant's conviction in the Circuit Court for Prince George's County on charges of attempted robbery with a deadly weapon and use of a handgun in committing a crime of violence.

The primary issue raised on appeal to the Court of Special Appeals was whether the trial court erred 'in refusing defense counsel an opportunity to obtain a psychiatric evaluation of Appellant's competency to stand trial, and in determining the issue instead on the basis of 'psychological reports' which were not made part of the record.' The Court of Special Appeals, however, declined to review that question because appellant had not included the psychological reports in the record on appeal. The question subsequently framed by the petition for certiorari was whether the Court of Special Appeals erred in holding that appellant was himself under an obligation to supplement the record. We reverse.

Appellant was indicted on various charges growing out of the attempted armed robbery and wounding of a cafeteria manager at Potomac High School in Oxon Hill. Because he was a juvenile when the crimes were committed, it first had been necessary for the juvenile court to waive exclusive jurisdiction over appellant, thus permitting him to be tried in the Circuit Court for Prince George's County as an adult. Shortly after being indicted, he filed written pleas of not guilty and of insanity 'at the time of the commission of the alleged crimes.' In consequence of appellant's insanity plea, the circuit court issued an order temporarily transferring him to the Clifton T. Perkins Hospital Center where he was to be examined by the Department of Mental Hygiene 'to determine whether he was insane at the time of the commission of the alleged crime and (was) competent to stand trial.' On appellant's withdrawal of the insanity plea several days later, however, the court rescinded its order providing for the examination at Perkins.

Some three months later, appellant appeared for trial. His attorney then moved the court (Taylor, J.) for a continuance 'to file certain pleadings and specifically to file a plea of insanity.' Counsel briefly related to the court the developments which had occurred before another judge earlier that morning. Appellant had apparently offered a plea of guilty to the first judge (Meloy, J.), but while appellant was offering his guilty plea, according to counsel's account of those proceedings, 'things went haywire.' As counsel explained to Judge Taylor, 'in my talking with him I have had great difficulty many times in communicating with (him).' Further, '(appellant) indicated (to Judge Meloy) he did not know what a jury trial was.' Counsel then stated:

'. . . I am in a perplexing situation because I feel after what went on in the other courtroom today that he may not understand what is going on. Because the plea was taken up to the point where Judge Meloy mentioned that he was waiving his right to a trial. And I don't think he understood what was going on. And he would say no. And then the Judge asked him if he wanted to plead guilty and he said yes. And he asked him if he wanted to waive his right to trial and he would say no. So I don't know. And I don't feel that he is intelligent enough to understand the proceedings. That is my problem.

'. . . I would ask the Court if the Court would grant us the continuance, give me a chance to file the insanity plea and he would be evaluated by the people at Perkins, then we would know where we stand. Because he has not been evaluated in that respect. . . .' (Emphasis added).

The prosecuting attorney objected to any continuance and urged that appellant be tried by a jury on that very day.

The court was then informed that appellant had been the subject of a psychological evaluation some nine months before, while still under the jurisdiction of juvenile authorities, which, according to appellant's counsel, revealed that 'his mental testing was below average performance, fourth grade level, and he was in the dull normal range of intelligence . . ..' After issuing a request for the psychological reports, the court stated:

'. . . If the psychological reports would tend to indicate that he is not competent, so to speak, to understand the nature of his activity here then I would favorably consider their motion. If it is silent or if it leaves me not so convinced, then we are going to trial.'

The court then recessed and, with counsel present, reviewed the psychological reports in camera. Although the record is something less than explicit, the following statement by counsel suggests that the court found appellant competent to stand trial:

'(Defense Counsel): If it please the Court, I have told my client that you have reviewed the reports and you feel there is no need for the continuance; that the continuance will be denied.'

The case then proceeded to trial, at the conclusion of which a jury found appellant guilty of attempted robbery with a deadly weapon and the handgun violation. The psychological reports, on which the trial court rested its determination of competency, were never presented on the record.

Maryland Code (1957, 1972 Repl. Vol.) Art. 59, § 23, which is controlling, provides in relevant part:

'Whenever prior to or during the trial, any person charged with the commission of any crime shall appear to the court, or be alleged to be incompetent to stand trial, by the defendant himself, the court shall determine upon testimony and evidence presented on the record whether such person is unable to understand the nature of the object of the proceeding against him or to assist in his defense. . . . The court for good cause and after affording the defendant an opportunity to be heard on his own behalf or through counsel may pass an order requesting an examination of the defendant by the Department of Mental Hygiene. . . . If the court after receiving testimony and evidence determines that the defendant is competent to stand trial within the meaning of this section, the trial shall commence as soon as practicable or, if already commenced, shall continue. The court may in its discretion at any time during the trial and until the verdict is rendered, reconsider the question of the competency of the defendant to stand trial as otherwise provided in this section.' (Emphasis added.)

We need not decide here whether the statements of defense counsel were sufficient allegations of incompetency, within the contemplation of the statute, to cast upon the court the duty to determine whether appellant was competent to stand trial. The trial judge himself regarded the statements as adequate for that purpose, and proceeded to make a determination of competency.

As we have indicated, appellant advanced in the Court of Special Appeals the twofold contention that the trial court erred in denying him an opportunity to obtain a psychiatric examination and by departing from the record in determining appellant's competency to stand trial on the basis of the psychological reports. For reasons that follow, we think the trial court erred in resting its determination of competency on matters outside the record in contravention of the statute, and shall reverse on that ground. But whether the court, in denying appellant's request for the psychiatric examination, abused the discretion conferred by Art. 59, § 23 is a question that we cannot reach, since it turns in large measure on the contents of the psychological report examined in camera and not 'presented on the record.' Art. 59, § 23.

Although the statute does not provide that a special or formal hearing be held to determine the competency of the accused to stand trial, it is unmistakably clear in its command that the determination be made upon testimony and evidence presented on the record. Hill v. State, 35 Md.App. 98, 369 A.2d 98, 102 (1977); Colbert v. State, 18 Md.App. 632, 640-41, 308 A.2d 726, cert. denied, 269 Md. 756 (1973). The statute employs the word 'shall' in regard to this requirement, and there is nothing in the context in which it is used to negate the mandatory intent which the word 'shall' ordinarily imports. See Blumenthal v. Clerk of Cir. Ct., 278 Md. 398, 408-409, 365 A.2d 279 (1976); Bright v. Unsat. C. & J. Fund Bd., 275 Md. 165, 169-70, 338 A.2d 248 (1975); Maryland St. Bar Ass'n v. Frank, 272 Md. 528, 533, 325 A.2d 718 (1974). Clearly, the psychological reports on which the trial court apparently relied for its ruling that appellant was competent to stand trial were never 'presented on the record' as...