Treece v. State, 124

• Citation: 532 A.2d 175,72 Md.App. 644
• Decision Date: 05 November 1987
• Docket Number: No. 124,124
• Parties: James William TREECE v. STATE of Maryland Sept. Term 1987.
• Court: Court of Special Appeals of Maryland

Page 644

72 Md.App. 644

532 A.2d 175

James William TREECE v. STATE of Maryland

No. 124 Sept. Term 1987.

Court of Special Appeals of Maryland.

Nov. 5, 1987.

Mark Colvin, Asst. Public Defender (Alan H. Murrell, Public Defender, on the brief), Baltimore, for appellant.

Mary Ellen Barbera, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, Alexander Williams, Jr., State's Atty. for Prince George's County and Jay Creech, Asst. State's Atty. for Prince George's County, on the brief, Upper Marlboro), for appellee.

Argued before WEANT, GARRITY and POLLITT, JJ.

GARRITY, Judge.

This matter comes before us from the Circuit Court for Prince George's County (Chasanow, J. presiding), where the appellant, James William Treece, was convicted by a jury of second degree rape and false imprisonment. He asks us to review his trial and determine:

I. Whether the lower court erroneously allowed counsel to proceed on a plea over the appellant's objection;

II. Whether the lower court erroneously refused to grant the appellant a new trial;

III. Whether the lower court erroneously denied the appellant's motion to dismiss the indictment;

IV. Whether the Md. Health-General Code Ann. § 12-109(b) unconstitutionally releases the State of its burden of proof;

V. Whether the lower court erroneously limited counsel to ten peremptory challenges; and

VI. Whether the lower court erroneously refused to allow counsel to make a closing argument to the jury on the issue of criminal responsibility.

Facts

Over the appellant's objection, a plea of not criminally responsible was entered by defense counsel. As a result of this plea psychiatric examinations were ordered.

The evidence at trial revealed that on October 3, 1985, at approximately 12:15 p.m. the appellant went to the home of his neighbor Mary Garroway (Garroway), where he asked for boxes and to use her telephone. While they were in the family room looking for boxes the appellant grabbed her, removed her clothing and forced her to have sexual intercourse with him. Garroway testified that she was "completely surprised" by the appellant's behavior and that he had never made sexual advances to her prior to that day.

The appellant testified in his defense that he went to Garroway's home to use the telephone. While he was there Garroway offered him some boxes to use in moving. The appellant followed her to the basement to look for boxes and while in the family room Garroway consented to have sexual intercourse with him.

Dr. David Shapiro, a forensic psychologist, administered four psychological tests to the appellant which, Dr. Shapiro testified, indicated that the appellant had a mental disorder but was "desperately trying to deny it." Dr. Shapiro found "evidence of a lot of distortion of reality of an underlying basis that would be consistent with an underlying psychosis" and he noted that the appellant's paranoid state as well as his statements to Garroway were highly consistent with his having been in "an effective psychotic state" at the time of the offense. ¹

Forensic psychiatrist Dr. Neil Blumberg diagnosed the appellant as suffering from a "bipolar disorder, manic-type with psychotic features." Dr. Blumberg defined the appellant's disorder as "what used to be called manic depressive illness." Dr. Blumberg stated that as a result of his interview and examination of the appellant he felt that the appellant, "was essentially competent to stand trial" but that "on October 3, 1985, Mr. Treece lacked substantial capacity to both appreciate the criminality of his conduct and also lacked substantial capacity to conform his conduct to the requirements of the law."

In rebuttal the State called Dr. William M. Fitzpatrick, a staff psychiatrist at Clifton T. Perkins Hospital Center (Perkins). Dr. Fitzpatrick, as a result of his examination of the appellant, opined that the appellant "was not criminally exonerable because he did not have a mental illness."

A staff psychologist at Perkins, Dr. Lorraine W. McDermott, also testified for the State. Dr. McDermott stated that as a result of her interview with the appellant and review of information provided she believed that the appellant "was responsible at the time of the alleged criminal conduct."

The jury found that the appellant was responsible at the time of the offense and convicted him of second degree rape and false imprisonment. The appellant was sentenced to fifteen years on the second degree rape conviction, and the false imprisonment conviction was merged.

I. Plea of Not Criminally Responsible

The appellant argues that the lower court erroneously allowed his counsel to proceed on a plea of not criminally responsible after the appellant made clear his wish not to proceed on that plea. He contends that as the plea was central to his defense he should have been permitted to decide what plea to make.

The importance of permitting the defendant to make decisions central to his or her defense is well established. One case on point is United States v. Robertson, 430 F.Supp. 444 (1977), where the defendant, Thomas L. Robertson, was convicted of second degree murder, assault with intent to kill while armed, and carrying a pistol without a license. Initially, Robertson expressed a desire to assert the defense of insanity but then decided against it and refused to permit his counsel to enter the plea. The Court in finding Robertson's decision was rationally and competently reached, reviewed a number of factors, including:

The quality of the evidence supporting the insanity defense; the defendant's wish in the matter; the quality of the defendant's decision not to raise the defense; and, the court's personal observations of the defendant throughout the course of the proceedings against him.

Id. at 446.

The Court found: that Robertson consistently expressed his desire not to invoke the insanity defense; that he was consistently found competent to stand trial and to participate in his own defense; that there had not been a past history or prior judicial finding of insanity or incompetence; and that there was no evidence that defense counsel had difficulty communicating with or obtaining assistance from Robertson. Id. at 447.

In the case at bar, on behalf of the appellant and without his consent, counsel interposed a plea of not criminally responsible. On the first day of trial, before the jury was brought in and sworn, the appellant made a pre-trial statement to the court. The statement encompassed the appellant's objection to the imposition of the not criminally responsible plea and issues raised in his pro se Motion for Writ of Habeas Corpus. The appellant's statement and the court's response are here repeated in pertinent part:

MR. DENTON: We are prepared to go forward at this time. I know Mr. Treece has filed a pro se request for writ of habeas corpus. I believe he wants to address the Court.

THE COURT: Let me suggest something, though. You've got a good lawyer there, so you might want to talk through him, but I will give you the opportunity if you wish to say anything.

THE DEFENDANT: I would like to make a pretrial statement, in other words.

THE COURT: Go ahead.

THE DEFENDANT: I would like the Court to know that I have been incarcerated for 417 days and that I have never accepted a not criminally responsible plea and fought against it. I was not present at my arraignment and the plea was entered by counsel for me and the fact that I was forced to undergo a mental evaluation, I perceive that to be a violation of my rights under the Civil Rights and Privacy Act. I feel my rights of due process have been denied and under the Sixth Amendment and rights to speedy trial have been violated due to the length of incarceration before trial.

....

In summary, I would request October 3, 1985 I was indicted, and I was arraigned December 20, 1985, and like I said before, my lawyer, Mr. Denton entered a not criminally responsible plea in my absence without consulting me. Trial date was set for May 12th, 1986, well within the 180-day court limit. New trial date was set for August 25, 1986, but before trial I was transferred to Perkins for mental evaluation and was returned on August 26th, '86. Case was continued on September 24, 1986, was continued on October 17, 1986 and again was continued on November 20, 1986. Due to the length of time involved, the number of postponements, about seven altogether, two trial dates set and now a third trial date, I feel this is a clear abuse of discretion and of good cause not showing for violations of my rights to a speedy trial as well as right to due process.

....

THE COURT: I guess where we are is, you are satisfied that, and I assume maybe Mr. Treece, you would be satisfied if the plea was properly filed then the delays were all reasonable. Is that correct?

MR. DENTON: That's my position. I am not sure that's Mr. Treece's position.

THE COURT: Let's get into whether or not it was properly filed.

If the plea was properly filed these are all reasonable delays, aren't they?

THE DEFENDANT: Not in my behalf. It is a plea that I am not going to accept.

....

THE COURT: The dates you have given me are correct.

There is good cause for the continuance if the plea was properly filed. You are not really contesting that, if the plea was properly filed, if you joined in the plea.

THE DEFENDANT: If the plea was properly filed I would say except it should be a clear violation of Hicks rule when trial date was set--

THE COURT: No. If the plea was properly filed that would be a good basis for continuance and that justifies going beyond the 180 days under the Hicks ruling.

THE DEFENDANT: Does it justify taking it up to this point after?

THE COURT: Yes, because some of these continuances, the last one was to get your doctors ready.

MR. DENTON: The last one was at our request.

THE COURT: There were joint requests for examination. So they were all joint requests for examination. So what...