McCloud v. State, 413

• Citation: 77 Md.App. 528,551 A.2d 151
• Decision Date: 01 September 1988
• Docket Number: No. 413,413
• Parties: Gregory McCLOUD v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 528

77 Md.App. 528

551 A.2d 151

Gregory McCLOUD v. STATE of Maryland.

No. 413, Sept. Term, 1988.

Court of Special Appeals of Maryland.

Jan. 4, 1989.

J. Michael McLaughlin, Jr., Assigned Public Defender, Towson (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

Audrey A. Creighton, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. Baltimore, and Alexander Williams, Jr. State's Atty. for Prince George's County, Upper Marlboro, on the brief), for appellee.

Argued before MOYLAN, KARWACKI and FISCHER, JJ.

KARWACKI, Judge.

Gregory McCloud, the appellant, was convicted by a jury in the Circuit Court for Prince George's County of second degree rape and storehouse breaking. He was sentenced to 20 years imprisonment for the second degree rape and given a concurrent one year term of incarceration for storehouse breaking. On appeal he raises three issues for our review:

I. Did the evidence show as a matter of law that appellant suffered from a mental disorder and was not responsible for his criminal behavior?

II. Did the court improperly refuse to permit appellant to rebut the State's argument as to the issue of criminal responsibility?

III. Did the court improperly deny appellant the right to testify on his own behalf?

We answer each of these questions in the negative and affirm the judgments entered below.

The facts which led to appellant's prosecution were not disputed at trial and can be briefly recounted. On Sunday, September 22, 1985, the victim was alone in a building on Central Avenue in Capital Heights which she was preparing for use as a children's day care center. Appellant broke into the building and raped her. After the sexual assault, she managed to escape from appellant and sought the assistance of residents of a home in the neighborhood. Appellant was apprehended by those persons as he attempted to flee from the day care center building.

I.

Upon his indictment, appellant pleaded not guilty or not criminally responsible under Health-Gen. Code Ann. § 12-108. In addition, he asserted that he was incompetent to stand trial under Health-Gen. Code Ann. § 12-101(d). After a hearing on January 24, 1986, the court ordered the Department of Health and Mental Hygiene to evaluate the appellant's criminal responsibility for his acts on September 22, 1985, and to determine whether he was competent to stand trial on the charges pending against him. Appellant remained at the Prince George's County Detention Center where he had been incarcerated since his arrest until August 8, 1986, when he was admitted to Clifton T. Perkins Hospital. He was evaluated by two psychiatrists and a psychologist on the hospital staff. One of the psychiatrists, William N. Fitzpatrick, M.D., and the psychologist were of the opinion that appellant was criminally responsible and was competent to stand trial. The third member of the evaluation team disagreed with both conclusions.

Richard S. Epstein, M.D., a psychiatrist retained by the defense, examined appellant in July of 1986 at the Prince George's County Detention Center. He was of the opinion that appellant was not criminally responsible for his conduct on September 22, 1985, and that he was incompetent to stand trial.

A hearing on the issue of appellant's competency to stand trial was held before Judge G.R. Hovey Johnson on November 12, 1986. Judge Johnson concluded that appellant was not competent to stand trial at that time and ordered that appellant be committed to the Department of Health and Mental Hygiene for in-patient treatment. It was further ordered that appellant's criminal responsibility and competence to stand trial be re-evaluated within the ensuing six month period.

That re-evaluation was conducted at Clifton T. Perkins Hospital between February 2, 1987 and March 2, 1987. Dr. Fitzpatrick, who had examined appellant in August of 1986, was again a member of the evaluation team. He was joined by two psychiatrists who had not previously evaluated the appellant. The evaluation team was unanimous in its opinion that appellant was criminally responsible and presently competent to stand trial. At the request of the defense Carol Kleinman, M.D., a psychiatrist, examined appellant on April 3, 1987. At a hearing on April 15, 1987, to resolve the competency issue, Dr. Kleinman agreed with the staff at Clifton T. Perkins Hospital that appellant was capable of understanding the nature and object of the pending proceeding and able to assist in his own defense. Based upon this uncontradicted expert opinion and the testimony of the appellant at the hearing, Judge Robert J. Woods found appellant to be competent.

Trial began on July 20, 1987, before Judge Woods and a jury. The prosecution offered evidence establishing that appellant broke into the day care center building on September 22, 1985, and that he raped the victim. The State then rested its case.

The defense offered no evidence to contradict the State's case. Rather, appellant's defense was limited to the issue of whether he was criminally responsible for his conduct. Appellant's mother testified to her observations of his bizarre behavior prior to September 22, 1985. A member of the staff of the Prince George's County Detention Center recounted her experiences with appellant's eccentric conduct while he was incarcerated at that center prior to trial. The expert testimony to support appellant's defense was given by Dr. Epstein and Dr. Kleinman. Both opined that appellant was suffering from a mental illness on September 22, 1985, and that as a result of that illness appellant lacked the capacity to appreciate the criminality of his conduct and to conform his conduct to the requirements of the law.

The prosecution rebutted that evidence with testimony from Dr. Fitzpatrick. In his opinion appellant was not suffering from a mental illness which excused him from criminal responsibility on September 22, 1985. There was ample evidence to support that opinion. According to the victim, appellant acted and spoke rationally when he confronted her inside the day care center. He indicated his appreciation for the criminality of his conduct by attempting an escape from the scene of the crime. He had enough presence of mind when arrested to protest that he "didn't rape her" and to ask to see an attorney before making any written statement.

Health-Gen. Code Ann. § 12-109(b) (Supp.1988) requires that the accused prove his asserted lack of criminal responsibility by a preponderance of the evidence. Hoey v. State, 311 Md. 473, 491, 536 A.2d 622 (1988). The court in the instant case properly submitted the issue to the jury where the evidence material to a resolution of that issue was conflicting. Bryant v. State, 49 Md.App. 272, 283-84, 431 A.2d 714, cert. denied, 456 U.S. 949, 102 S.Ct. 2020, 72 L.Ed.2d 474 (1982).

II.

Appellant asserts that since he bore the burden of proving his lack of criminal responsibility, he should have been permitted the final closing argument before the jury. We disagree. Erdman v. State, 75 Md.App. 560, 579, 542 A.2d 399 (1988), cert. granted, 313 Md. 637, 547 A.2d 201 (1988); Treece v. State, 72 Md.App. 644, 532 A.2d 175 (1987), rev'd on other grounds, 313 Md. 665, 547 A.2d 1054 (1988). As we explained in Treece:

Notwithstanding the allocation to the defendant of the burden of proving lack of criminal responsibility, the State in such cases, as in all criminal cases, carries the ultimate burden of proving guilt beyond a reasonable doubt. See generally Pouncey v. State, 297 Md. at 266-68, 465 A.2d 475 [1983]. Indeed, only after having been convinced beyond a reasonable doubt that the accused is guilty of the crimes charged, does the jury need consider the defense of criminal responsibility and enter a special verdict thereon. Id. Because the State at all times carries the burden of proving guilt beyond a reasonable doubt, it is entitled to final argument.

Id. at 661, 532 A.2d 175.

III.

When the State's rebuttal witness, Dr. Fitzpatrick, completed his testimony on the third day of trial, the court conferred with counsel and then addressed the jury:

Mr. Foreman and ladies and gentlemen, we have concluded the testimony in the case. As I told you the other day, we will not be able to submit the case to you today, so we'll ask you to come in tomorrow. We'll be ready for instructions and closing arguments we hope at 10:00 o'clock.

The following morning the court delivered its instructions to the jury and then overruled certain exceptions of defense counsel to its charge at a bench conference. As the Assistant State's Attorney began his closing argument to the jury, he was interrupted by defense counsel who asked to approach the bench. At the bench conference the following transpired:

MR. NILAND [Defense Counsel]: Your Honor, I feel that it behooves me to bring this to your attention.

THE COURT: Uh huh.

MR. NILAND: When I just returned to counsel table, Mr. McCloud asked me is he going to be able to get up and say what he thinks happened in this situation and he wasn't there and things of that effect.

THE COURT: Uh huh.

MR. NILAND: Now, yesterday when we were presenting the defense, I discussed with Mr. McCloud the matter of his...