Turner v. State

• Decision Date: 30 December 1968
• Docket Number: No. 158,158
• Citation: 248 A.2d 801,5 Md.App. 584
• Parties: Morris D. TURNER v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 584

5 Md.App. 584

248 A.2d 801

Morris D. TURNER v. STATE of Maryland.

No. 158.

Court of Special Appeals of Maryland.

Dec. 30, 1968.

[248 A.2d 802] Robert W. Baker, Baltimore, for appellant.

Thomas N. Biddison, Jr., Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Charles E. Moylan, Jr., and Peter D. Ward, State's Atty., and Asst. State's Atty., for Baltimore City respectively, on brief, for appellee.

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

ORTH, Judge.

The appellant, convicted at a court trial in the Criminal Court of Baltimore of assault with intent to murder and sentenced to 15 years imprisonment, presents three questions on appeal from the judgment. Two of the questions relate to the guilt stage of the trial:

I 'Was the appellant, under all the circumstances of his case, denied the effective representation of counsel?'

II 'Does the failure of the trial judge to make a finding of sanity at the time of the offense after a written plea of insanity has been filed render the judgment void?'

The third question relates to the penalty stage of the trial:

III 'Did the lower court's refusal to consider the report of the Clifton T. Perkins State Hospital or to order a probation report on the appellant before sentencing deny him due process of law under the Fourteenth Amendment to the Federal Constitution?'

I COMPETENCY OF COUNSEL

The issue of the competency of trial counsel was not tried and decided below and thus is not properly before us. Md. Rule, 1085. We have repeatedly invoked this rule because, among other reasons, counsel has had no opportunity to defend

himself, Jordan v. State, 2 Md.App. 415, 234 A.2d 783, and because an appellant is not precluded from raising the point in other proceedings available to him, Harris v. State, 2 Md.App. 408, 234 A.2d 781. We are not persuaded from the record here or from the appellant's contentions with regard to the issue to entertain it now. Although it is, perhaps, possible that ineptness of counsel would be so apparent from the face of the record we could determine on an appeal that an appellant had been denied due process of law, such inadequacy is not apparent on this record. Thomas v. State, 2 Md.App. 645, 236 A.2d 747.

II THE VERDICT

Prior to trial the appellant filed a written plea of 'not guilty', 'not guilty by reason of insanity at the time of the offenses', and 'not guilty by reason of insanity now', and he went on trial under those pleas. At the time of trial and preliminarily thereto the State offered and there was received in evidence a copy of a letter addressed to the court from the Superintendent of Clifton T. Perkins State Hospital reporting the results of 'a comprehensive psychiatric evaluation with psychological testing, social service investigation, electroencephalography, and other pertinent clinical as well as laboratory studies' made of the appellant pursuant to an order of the court. It stated that it was the unanimous opinion of the medical staff that the appellant was 'currently able to understand the nature and object of the proceedings against him and to assist in his own defense' and that 'at the time of the alleged offenses (he) did not have a mental disease or defect which would have caused him to lack substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.' On the insanity issues the appellant submitted on this evidence. The court found that the appellant 'does have the capacity to be tried at this time.' It reserved 'further finding until the end of the case.' The docket entries read as to the verdict: 'Guilty 1st count (sane then and now)'; but the transcript of the proceedings does not disclose that the court made a specific finding in rendering its verdict at the close of the evidence and after hearing from counsel, as to the appellant's sanity at the time of the In Price v. State, 159 Md. 491, 151 A. 409 (1930), by a four to three decision, the Court of Appeals reversed a judgment on a conviction of murder in the first degree, holding that where a defense of insanity was raised the jury should have rendered a separate verdict on the issue of insanity, by a proper construction of the statute then in effect, Md. Code, (1924), Art. 59, § 6. This statute had been in effect for more than a century with a consistent practice contrary to the holding of the majority. Berman v. Warden of Maryland Penitentiary, 232 Md. 642, 646, 193 A.2d 551. Shortly thereafter, in 1931, the General Assembly amended the section to require a preliminary hearing on insanity and by Ch. 81, Acts of the Special Session of 1933, reinstated the former practice. Codified as Art. 59, § 7 the Act provided, among other things, that if a verdict does not contain a finding on insanity, a finding of sanity is conclusively presumed from the verdict of guilty of the crime charged. In Berman v. Warden of Maryland Penitentiary, supra, Berman, who had been convicted in 1928, raised under post conviction procedures the same issue which had been raised in Price and relied on that opinion. Denying the application for leave to appeal the Court assumed but did not decide that the statute, construed in Price and applicable at the time of Berman's conviction, required a separate verdict on the issue of insanity and that the failure to render such a verdict was not cured by a general verdict of guilty in which a finding of sanity would seem to be implicit. It held, however, that the failure to render such a verdict was '(a)t most * * * a technical error in procedure which did not nullify the judgment of a court of general jurisdiction having complete jurisdiction of the person and subject matter, or render it subject to collateral attack.' It said, at 646, 193 A.2d at 553:

commission of the offense, the verdict merely being that the appellant was guilty of assault with intent to murder. The appellant contends that the failure of the lower court to make a finding that he was sane at the time of the commission of the offense voids the judgment of conviction and sentence.

'We are not aware of any decision of the Supreme Court of the United States, or of any federal court, holding that the rendition of a general verdict or the It expressly overruled the holding in Price that the error was jurisdictional. Chapter 709, Acts of 1967, repealed former §§ 7-12 of Art. 59 and enacted new §§ 7-12 in lieu thereof. The Act, applicable to all cases tried on and after 1 June 1967, established new tests for competency to stand trial ¹ and of responsibility for criminal conduct, replacing the tests followed in Maryland theretofore. See Bergin v. State, 1 Md.App. 74, 227 A.2d 357; League v. State, 1 Md.App. 681, 232 A.2d 828. New § 9(b) requires, when it is desired to interpose a defense of insanity, that there be filed a plea in writing in addition to the plea or pleas otherwise required or permitted by law, alleging that the defendant was insane at the time of the commission of the alleged crime. It also provides: 'At the trial of any case where there has been theretofore filed a plea of insanity at the time of the commission of the crime, the court shall direct the jury to render a special verdict on the sanity of the defendant at the time of the alleged crime.' And it provides a sanction for the failure to file the plea as required: 'No such verdict as to insanity of the defendant at the time of the alleged crime shall be directed or accepted unless a plea in writing alleging that the defendant was insane at the time of the commission of the alleged crime shall have been filed by the defendant or his counsel.' Thus the provisions with respect to the special verdict and the sanction for failure to file the required plea apply only to jury trials and there is no provision for such a special verdict nor is there a sanction stated for failure to file the required plea in a court trial, although we think it clear that the requirement that the defense of insanity be interposed With that background we turn to the instant case. As the trial was held on 4 April 1968, the provisions of Art. 59, new §§ 7-12 were applicable. The appellant had filed a plea in writing interposing the defense of insanity as required. But at the hearing on the issue prior to trial the only evidence before the court was the unanimous opinion of the medical staff of Clifton T. Perkins State Hospital that the appellant was sane, reached after a thorough examination of him. There being no scintilla of proof that the appellant was insane, the court should have then determined that the evidence was insufficient to raise the requisite doubt and found that the appellant was sane at the time of the commission of the alleged offense. But the court We note that there was no objection below to the reservation by the court of its finding on the issue of sanity. Nor was the failure to make the finding raised and thus was not tried and decided by the lower court. Therefore, having found that the error was not jurisdictional, the question is not properly before us. Md. Rule 1085. We have considered it ex mero motu, however, as desirable for the guidance of the lower court.

entry of a judgment under such circumstances is a violation of due process.' by a plea in writing is applicable to both jury trials and court trials. See Strawderman v. State, supra, 4 Md.App. p. 695, note 6, 244 A.2d 888. In Strawderman, at 697-698, 244 A.2d 888, 893, we enunciated the rule to be followed under Chapter 709. We held that when the required plea had been filed, 'The court should determine preliminarily whether the proof adduced in support thereof is sufficient to raise a doubt as to the sanity of the accused, as defined, in the minds of reasonable men. If it finds that it is not, the State has no further burden with respect thereto and, in a jury trial, the question is not submitted to the jury.' So whether the trier of fact be the...