Treece v. State

Citation547 A.2d 1054,313 Md. 665
Decision Date01 September 1987
Docket NumberNo. 174,174
PartiesJames William TREECE v. STATE of Maryland. ,
CourtCourt of Appeals of Maryland

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

Mary Ellen Barbera, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for respondent.


ADKINS, Judge.

The first question presented in this case is whether a criminal defendant or the defendant's counsel is entitled to decide to defend on the basis of a plea of not criminally responsible by reason of insanity. The Circuit Court for Prince George's County and the Court of Special Appeals agreed that, despite the objections of the client, the decision was for defense counsel to make. Treece v. State, 72 Md.App. 644, 532 A.2d 175 (1987). We shall hold that a defendant who is competent is entitled to decide whether the defense of criminal responsibility is to be interposed at that trial.

The second question before us is whether the defense is entitled to make the concluding argument on the issue of criminal responsibility when that issue is raised in a criminal case. Although we shall not decide the question, we shall refer it and related issues to the Standing Committee on Rules of Practice and Procedure.

Because the facts specific to each of these questions are somewhat different, we shall recount them as we analyze the issues. As an introductory matter it suffices to say that a jury in the Circuit Court for Prince George's County convicted petitioner, James William Treece, of second degree rape and false imprisonment after a trial at which defense counsel interposed on Treece's behalf a plea of not criminally responsible. Md. Rule 4-242.

I. Who Decides on the Plea--Defendant or Defense Counsel?

Treece's indictment was presented on 3 December 1985. On 14 January 1986 the assistant public defender assigned to represent him filed pleas of "not guilty" and "not responsible for criminal conduct" (Md.Rule 4-242) together with a request that Treece be evaluated "as to whether he is incompetent to assist in his defense and understood the nature of the charges."

Defense counsel retained a psychiatrist and a psychologist to examine Treece. After considerable delays caused by confusion as to exactly who was doing what, Treece was examined at the Clifton T. Perkins Center. All who expressed an opinion on the point agreed that he was competent to stand trial. On 24 November 1986, as that trial was about to begin, Treece announced that he would like to make a "pretrial statement...." With the court's permission he asserted:

... I have been incarcerated for 417 days and ... I have never accepted a not criminally responsible plea and fought against. 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....

Treece then proceeded with a remarkably articulate argument (extending over almost a page and a half of the transcript), replete with citations and detailed chronology, explaining why he had been denied the right to a prompt trial. At the conclusion of this address, he restated his initial position. The plea of not criminally responsible was not filed on his behalf. "It is a plea I am not going to accept."

There ensued a discussion between counsel and court, during which no one questioned the accuracy of the facts expounded by Treece; instead, the reasons for various delays were explained. The court again addressed Treece:

Let me say this. As to who decides to file the plea, think about this for a minute. Let me give you a hypothetical. It is not your case.

Assuming someone was really insane and couldn't make decisions and their attorney thought they were too insane to go to trial. Who do you think ought to make the decision as to whether or not to file an insanity plea, the person who is insane or the lawyer?

TREECE: I would say the lawyer, Your Honor.

THE COURT: I know that's not your case. But that's the case sometimes. That's part of the reason why a decision as to what plea to make is the lawyer's--it is the lawyer's and not the client's. When your counsel made the decision to file this plea, it is his decision. He has a right to make that decision, regardless.

The trial proceeded. During opening statement defense counsel emphasized Treece's asserted lack of criminal responsibility by references to delusions that Treece had suffered and to his paranoid condition. The State's case, presented largely through the victim, a neighbor of Treece's, was one of forcible rape. Treece, testifying in his own defense, asserted that the sexual intercourse had been consensual. His wife, also presented by the defense, spoke of some bizarre behavior exhibited by Treece, which included his statements that he was being watched by the FBI and CIA, that the victim's husband worked for one of those agencies, and that he had caught an FBI agent in his (Treece's) attic by nailing the attic shut. Dr. David Shapiro, a forensic psychologist, explained in detail why he thought Treece was paranoid, distorted reality, and was not criminally responsible at the time of the offense. Dr. Neil Blumberg, a forensic psychiatrist, reached the same conclusion. A psychiatrist and a psychologist produced by the State and a unanimous Perkins staff were of the opposite view.

The trial judge, carefully and at length, instructed the jury on the law of criminal responsibility. During its deliberations the jury sent out three notes on the subject. At the end, as we have recounted, it found Treece guilty, rejecting his plea of not criminally responsible as well as his not guilty plea.

Treece filed a pro se motion for a new trial. Although raising other issues, its basic thrust was that evidence admitted and arguments made under the not criminally responsible plea had hopelessly prejudiced his defense; he reiterated that he had never accepted that plea. The court denied the motion, observing that Treece's lawyer had entered the plea despite Treece's objections and that "it was a reasonable plea under the circumstances...."

The State now insists that the trial judge was correct. It argues that the decision to enter a plea asserting lack of criminal responsibility is merely a tactical "trial decision" that a lawyer is entitled to make even in the face of the client's disapproval. It further asserts that we should treat this case as one involving allegations of ineffective assistance of counsel and relegate Treece to an attempt to obtain post-conviction relief. See generally Johnson v. State, 292 Md. 405, 434-435, 439 A.2d 542, 558-559 (1982); Md.Code (1957, 1987 Repl.Vol.), Art. 27, § 645A. We disagree with both of these arguments.

We address the second argument first. Quite simply, this is not an ineffective assistance of counsel case. Indeed, given the record here, a defense lawyer would expose himself to the very real possibility of post-conviction ineffective assistance charges if he did not, at minimum, fully advise his client to enter a plea of not criminally responsible. The issue here is not whether it was reasonable for Treece's lawyer to file the plea--it obviously was. The question is whether Treece was entitled to make an intelligent and voluntary decision to withdraw the plea of not criminally responsible.

On several occasions prior to this case, the Court of Special Appeals has suggested or held that the decision to plead not criminally responsible is one for counsel, not client, to make. See, e.g., White v. State, 17 Md.App. 58, 61-62, 299 A.2d 873, 874-875 (1973); List v. State, 18 Md.App. 578, 586-587, 308 A.2d 451, 456 (1973), vacated, 271 Md. 367, 316 A.2d 824 (1974); Riggleman v. State, 33 Md.App. 344, 350-351, 364 A.2d 1159, 1163 (1976). Its most fully articulated explanation for this view is found in Judge Scanlan's opinion in White. The position there expressed is that a plea of not criminally responsible does not entail the "severe, and usually, irrevocable consequences" of a plea of guilty. Instead, it represents the assertion of an affirmative defense and "[l]ike any defense, the question of whether an insanity defense should be raised remains a matter of trial strategy to be determined by counsel after consultation with his client." White, 17 Md.App. at 62, 299 A.2d at 875. The State espouses that same position here.

It is certainly true that "[w]hen a defendant is represented by counsel, it is counsel who is in charge of the defense and his say as to strategy and tactics is generally controlling...." Parren v. State, 309 Md. 260, 265, 523 A.2d 597, 599 (1987) [emphasis supplied]. "[A] lawyer may properly make a tactical determination of how to run a trial even in the face of his client's incomprehension or even explicit disapproval." Brookhart v. Janis, 384 U.S. 1, 8, 86 S.Ct. 1245, 1249, 16 L.Ed.2d 314, 319 (1966) (Harlan, J., concurring) [emphasis supplied]; see also Curtis v. State, 284 Md. 132, 145-148, 395 A.2d 464, 472-473 (1978) (tactical decisions made by competent attorney ordinarily will bind criminal defendant). Were it otherwise, indeed, the trial of a criminal case could become chaotic.

Thus, decisions "to forego cross-examining certain State's witnesses, to forego confrontation by non-objection to hearsay, to forego objection to illegally seized evidence or to involuntary confessions (provided some tactical benefit might be extracted from their admission into evidence)" have been said to be matters usually allocated to defense counsel alone. State v. McKenzie, 17 Md.App. 563, 585, 303 A.2d 406, 418 (1973); see also Henry...

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