Saul v. State, 265

• Decision Date: 22 April 1969
• Docket Number: No. 265,265
• Citation: 6 Md.App. 540,252 A.2d 282
• Parties: Thomas Everett SAUL v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 540

6 Md.App. 540

252 A.2d 282

Thomas Everett SAUL v. STATE of Maryland.

No. 265.

Court of Special Appeals of Maryland.

April 22, 1969.

Howard Goldman, Laurel, with Barry Silber, Laurel, on brief, for appellant.

John J. Garrity, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., and Arthur A. Marhall, Jr., State's Atty., for Prince George's County, on brief, for appellee.

Before MURPHY, C. J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

ORTH, Judge.

The appellant, charged with crimes against the person of an 8 year old girl, was tried in the Circuit Court for Prince George's County before a jury. He was convicted of murder in the first degree, assault with intent to rape and abduction. A life sentence was imposed on each of the first two convictions, to run concurrently, and a sentence of 20 years was imposed on the other conviction, to run consecutively with the life sentence. The appellant filed pleas of not guilty and that he was insane at the time of the commission of the alleged crimes. See Md.Code (1968 Repl.Vol.), Art. 59, § 9(b). The case went to the jury under both pleas. See Strawderman v. State, 4 Md.App. 689, 244 A.2d 888. At the close of all the evidence the court instructed the jury. The charge included the following:

'A question in this case has been raised, and there has been considerable testimony concerning the mental capacity of the defendant.

Under Article 59, Section 9 of the Code of Public Laws of the State of Maryland, a defendant is not responsible for criminal conduct and shall be found insane at the time of the commission of the alleged crime if, at the time of such conduct, as a result of mental disease or defect he lacked substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. Then it goes on to say that as used in this section the terms 'mental disease or defect' do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct. In other words, it is not to be considered a mental disease or defect if the only manifestation is by repeated criminal or antisocial conduct.

Now, the language in this statute is very important and should be borne in mind by you very carefully. The first consideration on the matter of mental capacity, in other words, whether he should be held responsible for his conduct, is whether or not there was a mental disease or defect. If you conclude from the testimony that there was no mental disease or defect then a necessary element of this defense would be lacking and it would not be proper to find the defendant not guilty by reason of insanity on that alone. There must not only be a mental disease or defect, as distinguished from an abnormality or personality trait or characteristic which fell short of a mental disease or defect, but there first must be found to be a mental disease or defect, and then if you are convinced beyond a reasonable doubt that there was a mental disease or defect, then-no, you must be convinced beyond a reasonable doubt that there was not a mental disease or defect, and unless you are convinced beyond a reasonable doubt that there was not a mental disease or defect then you would be justified in concluding that there was. Then you next go on to the question of whether such mental disease or defect caused him to lack substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.

So that there will be no misunderstanding, I will repeat that the burden is on the State to convince you beyond a reasonable doubt, in addition to the matter of the offenses with which he is charged, but also that he had the mental capacity. And you must be convinced beyond a reasonable doubt that there was not a mental defect or disease which resulted in his lacking substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.'

The court also explained the possible verdicts in its charge and before the jury retired they were given a written list of the possible verdicts as to each of the three indictments with the concurrence of the State and defense counsel and in the presence of the appellant. After the charge to the jury, the State and defense counsel presented closing arguments. The jury retired for their deliberations at 3:04 P.M., returned to the courtroom at 9:27 P.M. and rendered their verdicts. There is in the record by stipulation that while the jury were deliberating they sent a note to the court, signed by the foreman, reading, 'May the jury have legal code Article 59 section 9.' Counsel for the State and the appellant were called to the chambers of one of the two judges presiding at the trial. The other presiding judge was not present. Counsel examined the note, considered the request, and agreed that a photostatic copy of Art. 59, § 9(a) could be sent to the jury. It was delivered to the jury by the bailiff. Court did not re-convene and the jury did not return to the courtroom. The appellant was at no time present when the note was delivered to the judge, when the request was being considered by the judge and counsel or when the copy of the statute was delivered to the jury, as he was 'detained at the time in a lock-up portion of the sheriff's office located in the court house.' The appellant claims on appeal that this intercourse between the jury and the judge during his involuntary absence constituted reversible error.

The right of an accused-a person charged with a criminal offense, Md. Rule 702 c-to be present at every stage of his trial was a fundamental right at common law preserved in this State by Art. 5, Declaration of Rights of the Constitution of Maryland and stated with particularity in Md. Rule 775. It is an absolute right which is personal to the accused and cannot be waived by his counsel and it is clear that it inures to him from the time the jury is impaneled until it reaches its verdict or is discharged; there can be no valid trial or judgment unless he has been afforded that right. Midgett v. State, 216 Md. 26, 139 A.2d 209. We considered the question in depth in Young v. State, 5 Md.App. 383, at 390-391, 247 A.2d 751 at 756, and concluded:

'(1) it is reversible error for the court to charge or instruct the jury trying the case, on the facts, the law or the form of the verdict at any time during the involuntary absence of the defendant, even though the charge or instruction is a repetition of a charge or instruction previously given in whole or in part, prejudice being conclusively presumed; and

(2) it is reversible error for the court to communicate in any other manner with the jury trying the case, during the involuntary absence of the defendant unless the record affirmatively shows that such communication was not prejudicial or had no tendency to influence the verdict of the jury.'

Here the delivery of the note from the jury to the judge was merely a 'communication' as we construed that term in Young. See Brown v. State, 236 Md. 505, 204 A.2d 532. The reception of the request to have the statute, the conference with counsel and their argument pertaining thereto was not part of the trial. See Brown v. State, 225 Md. 349, 170 A.2d 300, 85 A.L.R.2d 1107. But compliance with the request by submitting to the jury a copy of Art. 59, § 9(a) was a charge or instruction to the jury, whether given to them in open court or delivered to them in the jury room. The communication to the jury was clearly as to the law on responsibility for criminal conduct and thus was an instruction. In the language of Art. 59, § 9(a) it read:

'A defendant is not responsible for criminal conduct and shall be found insane at the time of the commission of the alleged crime if, at the time of such conduct as a result of mental disease or defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. As used in this section, the terms 'mental disease or defect' do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.'

When the judge reached his conclusion and was about to deliver the copy of the statute to the jury the trial resumed and the appellant had the absolute right to be present. Palmer v. Commonwealth, 143 Va. 592, 130 S.E. 398, cited with approval in Brown v. State 225 Md. 349, 352-353, 170 A.2d 300. The court had previously explained this law to the jury in the presence of the appellant, but we believe it obvious by the request of the jury that they did not fully understand the explanation or at least desired further explanation of it or felt it necessary to have its precise language before them in their consideration of it. The primary defense of the appellant was that he was not responsible for his criminal conduct and the major part of the evidence before the jury was on that issue. It was immaterial that the statement of the law given to the jury out of the presence of the appellant was a repetition of a charge or instruction previously given in whole or in part in his presence and it is no answer to say that nothing was done which might lawfully have been done had the appellant been personally present. State v. Shutzler, 82 Wash. 365 367, 475, 144 P. 284 quoted with approval in Duffy v. State, 151 Md. 456, 135 A. 189. And the presence of the appellant's counsel and even his express agreement to the action taken did not obviate the requirement that the appellant be present, for as we have stated, the right to presence at all stages of the trial is personal to the accused and cannot be waived by his counsel. Young v. State, supra, 5 Md.App. 389, 247 A.2d 751. We hold that the delivery of the copy of Art. 59, § 9(a) to the jury out of the presence of the appellant was reversible error.

Although we have held that the submission to the jury of the...