McCloud v. State

• Decision Date: 06 October 1989
• Citation: 317 Md. 360,564 A.2d 72
• Parties: Gregory McCLOUD v. STATE of Maryland. 18 Sept. Term 1989.
• Court: Maryland Court of Appeals

Page 360

317 Md. 360

564 A.2d 72

Gregory McCLOUD v. STATE of Maryland.

18 Sept. Term 1989.

Court of Appeals of Maryland.

Oct. 6, 1989.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, JJ.

ADKINS, Judge.

Before us is a criminal case in which a plea of lack of criminal responsibility was filed. We are asked to decide whether the Circuit Court for Prince George's County erred when it refused to allow the defense to make the concluding argument to the jury on that issue. The same question was raised in Erdman v. State, 315 Md. 46, 59-60, 553 A.2d 244, 250-251 (1989), and Treece v. State, 313 Md. 665, 683-687, 547 A.2d 1054, 1063-1065 (1988), but we reached it in neither case. We address it now and hold that, under the circumstances of this case, the trial court erred when it rejected defense counsel's request to argue last on the question of criminal responsibility.

I.

On 22 September 1985, petitioner, Gregory McCloud (McCloud), broke into a building that was being prepared for use as a day care center and raped a woman therein. Charged with various offenses based on this incident, McCloud filed pleas of not guilty and not criminally responsible. Maryland Code (1982, 1988 Cum.Supp.), § 12-109 of the Health-Gen. Art.; Md.Rule 4-242(a). After several evaluations of both his competency to stand trial and his criminal responsibility, McCloud eventually was found competent to stand trial. His jury trial in the Circuit Court for Prince George's County (Woods, J., presiding) began on 20 July 1987. The victim testified; her testimony was supported by police and other witnesses. McCloud's counsel did not cross-examine the victim at all; cross-examination of other prosecution witnesses was, for the most part, limited to questions designed to elicit evidence of eccentric and irrational behavior on McCloud's part. When the State rested, defense counsel announced that "based on the evidence that has been submitted in this case ... it would be frivolous to make motions for judgment of acquittal...."

McCloud did not testify on his own behalf. Indeed, the defense presented no evidence whatsoever to contradict the facts of the criminal episode, as recounted by the State's witnesses. McCloud's mother explained that her son had been shot sometime before 22 September 1985, and that since the shooting, he had behaved violently and strangely. Another witness testified about McCloud's bizarre conduct while he was incarcerated pending trial. The bulk of the defense case consisted of the testimony of two psychiatrists, both of whom opined that the defendant was not criminally responsible.

The State's rebuttal consisted solely of the testimony of another psychiatrist, who explained at length why he believed McCloud to be criminally responsible. Judge Woods instructed the jury on the issues involved in both guilt or innocence and in criminal responsibility. As to the former, he made it clear that it was the State's burden to prove guilt beyond a reasonable doubt. As to the latter, he explained that the defense was required to demonstrate lack of criminal responsibility by a preponderance of the evidence. At the conclusion of the instructions, defense counsel asked that he "be allowed to rebut the State and go last on my rebuttal presentation limited to the issue of criminal responsibility, having had the burden of proof placed upon me on behalf of the Defendant." The judge rejected the motion:

That's an interesting argument and I think one that has a lot of merit. However, I'm not going to venture into that yet. I'm going to allow the State to open and close and I'll deny your request.

The jury convicted McCloud of second degree rape and storehouse breaking; it found him criminally responsible. Sentenced to a total of 20 years of imprisonment, he appealed to the Court of Special Appeals, which affirmed. McCloud v. State, 77 Md.App. 528, 551 A.2d 151 (1989).

II.

When the Court of Special Appeals rejected McCloud's contention that he should have been allowed to argue last on the issue of criminal responsibility, it relied on its decisions in Erdman v. State, 75 Md.App. 560, 579, 542 A.2d 399, 408 (1988), rev'd on other grounds, 315 Md. 46, 553 A.2d 244 (1989), and Treece v. State, 72 Md.App. 644, 661, 532 A.2d 175, 183 (1987), rev'd on other grounds, 313 Md. 665, 547 A.2d 1054 (1988). Quoting its Treece, the intermediate appellate court reasoned that "[b]ecause the State at all times carries the burden of proving guilt beyond a reasonable doubt, it is entitled to final argument." McCloud, 77 Md.App. at 533, 551 A.2d at 154.

There is no question that in a criminal case, including one in which a plea of not criminally responsible has been interposed, the State bears the burden of proving guilt beyond a reasonable doubt. Hoey v. State, 311 Md. 473, 491, 536 A.2d 622, 630 (1988). There is no question that, as a general rule, the party having the affirmative of an issue is entitled to open and close in argument to the jury. Harris v. State, 312 Md. 225, 255, 539 A.2d 637, 652 (1988). The difficulty is that on the issue of criminal responsibility, unlike that of guilt, the defense has the affirmative of the issue. On that issue, "the burdens of pleading, producing evidence, and persuading the fact-finder that criminal punishment should not be imposed are all borne by the defendant." Treece, 313 Md. at 684-685, 547 A.2d at 1064. It is the defendant who "must prove lack of criminal responsibility by a preponderance of the evidence." Id. at 686, 547 A.2d at 1064. ¹

Moreover, the facts relating to guilt or innocence, on the one hand, and to criminal responsibility or lack thereof, on the other, may often be quite distinct, unrelated, and provable through different witnesses. And the finding as to each may lead to very different disposition tracks: for example, indefinite commitment in the case of verdicts of guilty but not criminally responsible, as opposed to a fixed sentence of some sort in the event of verdicts of guilty and criminally responsible. Treece, 313 Md. at 686, 547 A.2d at 1065.

Because of the potential factual severability of these issues (as well as their legal severability), we concluded in Treece that under the present statutory provisions a trial court has discretion, in appropriate circumstances, to order bifurcated proceedings in a criminal case in which the issue of criminal responsibility is raised. Id. at 685-687, 547 A.2d at 1064-1065. Bifurcation is now governed by new Rule 4-314. ² But even absent the new rule, the divisible nature of proceedings of this sort means that a degree of flexibility exists with respect to the order of argument on the issue of criminal responsibility.

We recognized this situation in Treece, although we did not have to decide the order of argument question there, since we reversed on other grounds. Treece teaches that the distinct nature of the guilt/innocence-criminal responsibility issues "strongly suggests that the defense should be permitted to open and close argument, on the issue of criminal responsibility." Id. at 685, 547 A.2d at 1064. But we also recognized that to allow the defense to open and close on criminal responsibility in an unbifurcated trial "could present practical problems." Id. We envisioned a trial at which "the guilt/innocence and criminal responsibility proofs have all been placed before the jury at [an unbifurcated] criminal trial." Id. Under these circumstances, "[t]o have the prosecutor argue first and last (with defense counsel sandwiched in-between) on guilt/innocence and defense counsel speak first and last (with the prosecutor in-between) on criminal responsibility could produce overlap and confusion, just as the intermingling of these separate matters during trial could bring about that result." Id. Thus, we did not say that the order of argument should be varied in every case involving the question of lack of criminal responsibility.

We did intimate that a trial judge's discretion in allocating the order of argument, even absent a rule like Rule 4-314, may sometimes be exercised to allow the defense to go first and last on the issue of criminal responsibility. The question now becomes whether, on the record before us, the trial judge abused his discretion (or failed to exercise discretion at all) when he rejected McCloud's request to argue last on the subject of responsibility.

III.

During jury voir dire, Judge Woods characterized this case as one in which "the principal defense is that the Defendant, Mr. McCloud, was not responsible as a result of mental disorder at the time of the incident...." It was not surprising, therefore, that as the trial unfolded, this was the major topic of discussion. The defense's opening statement related solely to McCloud's asserted lack of criminal responsibility. The State's case-in-chief, for the most part, did not bring out facts bearing on the responsibility issue. As we have recounted in Part I of this opinion, the defense's case addressed only facts and opinions pertaining to lack of criminal responsibility, while the State's rebuttal was restricted to evidence tending to show the existence of criminal responsibility.

When the State began its argument to the jury, the prosecutor averred that the issue of guilt or innocence was "really no issue at all" and that McCloud's guilt had been proven "beyond all doubt in this case." The balance of the State's opening argument focused on criminal responsibility. ³ In response, defense counsel conceded that he had not "approached negating the evidence with respect to the facts of the occurrence." The rest of his argument was devoted to McCloud's lack of criminal responsibility. ⁴ In closing, the State canvassed only that subject. ⁵

It is plain that this case did not involve, at either the evidentiary or argument stages, a melange of guilt/innocence and criminal responsibility issues. The danger of overlap and confusion...