Gregg v. State

BELL, Chief Judge,

dissenting.

“It is well established that the Due Process Clause of the Fourteenth Amendment [to the United States Constitution] prohibits the criminal prosecution of a defendant who is not competent to stand trial.” Medina v. California, 505 U.S. 437, 439 , 112 S.Ct. 2572, 2574 , 120 L.Ed.2d 353, 359 (1992), citing Drope v. Missouri, 420 U.S. 162, 171 , 95 S.Ct. 896, 903 , 43 L.Ed.2d 103, 112-13 (1975) (“It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial.”); see Pate v. Robinson, 383 U.S. 375, 378 , 86 S.Ct. 836 -838, 15 L.Ed.2d 815, 818 (1966). See also Roberts v. State, 361 Md. 346, 359 , 761 A.2d 885, 892 (2000). “[Fundamental to an adversary system of justice” is the way that the Supreme Court has characterized the right of a criminal defendant to be tried only if competent. Drope, 420 U.S. at 172 , 95 S.Ct. at 904 , 43 L.Ed.2d at 113 . Indeed, it has been said that “[t]he right to be tried while competent is the foundational right for the effective exercise of a defendant’s other rights in a criminal trial.” Medina, 505 U.S. at 457 , 112 S.Ct. at 2583 , 120 L.Ed.2d at 371 (Blackman, J. dissenting).

In Maryland, a defendant is incompetent to stand trial if that defendant is unable “to understand the nature or object of the proceeding” or “to assist in one’s defense.” Maryland Code (2001) § 3-101(f) of the Criminal Procedure Articles. 1 *556 The responsibility for ensuring that the prohibition against trying a defendant who is incompetent is placed on the trial court. See § 3-104. That section provides:

“a) In general. — If, before or during a trial, the defendant in a criminal case appears to the court to be incompetent to stand trial or the defendant alleges incompetence to stand trial, the court shall determine, on evidence presented on the record, whether the defendant is incompetent to stand trial.

“(b) Court action if defendant found competent. — If, after receiving evidence, the court finds that the defendant is competent to stand trial, the trial shall begin as soon as practicable or, if already begun, shall continue.

“(c) Reconsideration. — At any time during the trial and before verdict, the court may reconsider the question of whether the defendant is incompetent to stand trial.”

It is the trial court’s responsibility to notice indications that the defendant is incompetent to stand trial and when it notices those indications, or either the defendant or his counsel so alleges, 2 to make the competence determination on the record and on the basis of the evidence presented. To this point we, the majority and I, are not in disagreement.

Our disagreement concerns whether, on this record, the trial court should have, sua sponte, conducted an inquiry into the competence of John Leon Gregg, the petitioner, to stand trial. In other words, it is whether the record reflected a *557 sufficient basis for a “bona fide doubt,” Pate, supra, 383 U.S. at 385 , 86 S.Ct. at 842 , 15 L.Ed.2d at 822 , as to that issue. In my opinion, there is plenty in the record to support an inquiry into the petitioner’s competency, namely: his history of mental illness; the finding of incompetence by the staff at Crownsville Hospital Center (“Crownsville”), where the petitioner had been sent for just such an evaluation; 3 the petitioner’s conduct during his two appearances in the Circuit Court; the information from the victim, her mother and community members detailing the petitioner’s bizarre behavior and urging that the court order evaluation and treatment.

The petitioner’s history of mental illness consisted, at least, of an admission to North Arundel Hospital for ten days for evaluation two years before his appearance before the Circuit Court and a sixty-six day admission to Crownsville for a competency evaluation, of both of which the petitioner informed the court. As the Supreme Court in Pate, supra, 383 U.S. at 385-86 , 86 S.Ct. at 842 , 15 L.Ed.2d at 822 , pointed out, evidence of the mental alertness and understanding displayed by a defendant in “colloquies” with the trial judge “offers no justification for ignoring the uncontradieted testimony of [the defendant’s] history of pronounced irrational behavior. While [the defendant’s] demeanor at trial might be relevant to the ultimate decision as to his sanity, it cannot be relied upon to dispense with a hearing on that very issue.” In fact, the Supreme Court has made clear “that evidence of a defendant’s irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant in determining whether further inquiry is required, but that even one of these factors standing alone may, in some circumstances, be sufficient.” Drope v. Missouri, supra, 420 U.S. at 180 , 95 S.Ct. at 908 , 43 L.Ed.2d at 118 .

*558 In any event, in the case sub judice, the court’s inquiry on this issue was less than adequate, as the following colloquy on the subject demonstrates:

“COURT: ... Have you ever been a patient in a mental institution?

“[The Defendant:] Yes.

“COURT: When[?]

“[The Defendant:] Briefly at Crownsville for 66 days for competency. Two years ago, North Arundel Hospital for ten days evaluation.

“COURT: At Crownsville, did the doctors determine your competency? Did they write a report?

“[The Defendant:] Yes. I was competent when I went in. “COURT: Did they make a report[?]

“[The Defendant:] Oh, yes.

“COURT: What did they recommend?

“[The Defendant:] I don’t know.

“COURT: Oh, I see. And where are you detained now? In the Anne Arundel County Detention Center?”

Merely asking the right questions and getting an answer, particularly an incomplete one or one that is less than satisfactory, as occurred here on more than one occasion, is not enough. To be meaningful and to justify the conclusion the court draws from the answers given, that the petitioner was competent to stand trial, the inquiry must be seriously pursued and the information elicited, followed up and considered. That was not done here. Certainly, it is relevant what the Crownsville finding was and it should have been pursued more fully. It is also relevant what occurred and what was found by the staff at North Arundel Hospital, a matter that was not pursued at all.

After their evaluation of the petitioner’s competence to stand trial, the staff of Crownsville Hospital Center concluded that the petitioner was not so competent, although they also acknowledged that “competency is a day-to day issue. So, you know, on a day-to-day basis that could change.” The Crowns- *559 ville report stated that the petitioner suffered from Delusion-ary Disorder, Persecutory Type, Schizoid, Avoidant and Dependent Personality Disorder, as a result of which he “does not have a rational understanding of his charges [and] appears to not have the capacity to relate to an attorney and to participate in the courtroom process with appropriate courtroom demeanor ... [he] is not able to understand the nature and object of the proceedings against him and to assist in his own defense.... ” In addition, it recounted some of the bizarre behavior in which the petitioner engaged while at the Hospital: crawling about on his knees, rapidly pacing the hallway, shaving his beard kneeling on the floor, yelling and cursing when redirected, being isolative, guarded and secretive. The report also indicated that the petitioner was paranoid, believing that he was videotaped, his food poisoned by the government, which also harassed him, and his house was bugged.

The petitioner’s conduct when appearing before the Circuit Court was by no means the model of rationality. On his first appearance in that court, he appeared to have difficulty understanding his entitlement to public defender representation, if indigent. Moreover, it is not at all clear that the petitioner was being responsive. Note the following colloquy:

“COURT: Do you want an attorney? Do you want to represent yourself?

“[The Defendant:] I’m not going to pay the Public Defender, so I better just represent myself. My case—

“COURT: You don’t have to pay a Public Defender.

“[The Defendant:] My case is straightforward.

“COURT: Wait a minute. Who told you had to pay the Public Defender?

“[The Defendant:] The paperwork says if you can afford it, there could be charges. I will just represent myself. My case is straightforward.

“COURT: ... If you want a lawyer and can’t afford to hire one, the Public Defender will represent you at no cost to you. Do you understand?

*560 “[The Defendant:] Well it is not clear to me that [the] Public Defender — to be free. But I am going to—

“COURT: Well I am telling you, it will be, if you qualify. [The Defendant:] I — . If I qualify, that is a big if. I spoke to the Public Defender — me and he gave me a couple brief ideas about how it could go. So, I am willing to go by myself.”

As already indicated, the petitioner displayed a poor knowledge of the status of the competency evaluation. In fact, his responses did not seem to be directed to the questions asked, or even to acknowledge that he considered them particularly relevant: in response to the two questions concerning the Crownsville report, the petitioner answered, “yes,’’adding “I was competent when I went in.” And, as also already mentioned, although he acknowledged that a competency report was prepared, he professed not to know what the conclusion was, a point on which he was not pressed.

Furthermore, the petitioner confirmed, explicitly, I would suggest, one of the observations the Crownsville report made, that the petitioner displayed paranoia, believing that his food was poisoned by the government. The court inquired whether the petitioner was under the influence of alcohol, drugs, medications or pills. When the petitioner responded, “[n]ot to speak of,” the court delved deeper, insisting on knowing what that meant. The petitioner stated: “There is a slight drugging of my food in jail, but it is not relevant.” Strangely, there was no further follow-up by the court.

After the court advised the petitioner of the advantages of having counsel and determined to have him consult the Public Defender, the petitioner indicated that he had been refused bail. 4 This prompted the following rather curious discussion:

“COURT: Well, have you had a bail review hearing?

*561 “[The Defendant:] Yes.

“COURT: When? In District Court.

“[The Defendant:] While I was in Crownsville. I wasn’t granted bail.

“COURT: Well, we are going to set this in for a bail review hearing. We will do that tomorrow.

“[The Defendant:] I probably won’t pay any bail.

“COURT: I didn’t hear you.

“[The Defendant:] I am sure that I probably won’t pay any bail.

“COURT: Well, look, if you want to be stubborn, that is all right. There is nothing wrong with that. It is your privilege to be stubborn. All I am saying is I want to give you a hearing where it will be determined whether or not you get bail. There is home detention. There are a lot of different ways in which a person can be released without putting up money.”

On the date of trial, the prosecutor informed the court that the petitioner “indicated to me ... that he intended on representing himself although he also indicated to me that he didn’t know that today was his trial date. He said he hadn’t been notified about that, but since he was here he was going to go ahead and get it over with and that he wanted to proceed by way of having a jury.” This prompted the court to address the petitioner and the following rather extraordinary discussion ensued:

“COURT: Okay, wait one second. Yes, sir, you may stand, sir.

“[The Defendant:] Standing is a problem for me.

“COURT: Are you able to stand?

“[The Defendant:] Not for long.

“COURT: Well, let’s do the best you can, let’s see if you can stand.

“[The Defendant:] I stood when you — okay, I’ll stand for a moment.

*562 “COURT: Yeah, see if you can’t stand. Are you John Leon Gregg?

“[The Defendant:] Yes, sir, I am.

“COURT: Okay, you can[’t] stand anymore?

“[The Defendant:] I can, but then I won’t be able to stand later.

“COURT: Well, I would like you can stand now, let’s see if you can do that.

“[The Defendant:] Can we get the handcuffs in front?

“COURT: I tell you what, you can take them off of him. “[The Defendant:] Thank you, Your Honor.

“COURT: You just stand and then we are going to talk turkey here....

What — does it hurt you?

“[The Defendant:] The handcuffs?

“COURT: Yeah.

“[The Defendant:] The last time I was here it got to be too long.

“COURT: Was it too long? All right, sir, you want to — you want to stand now? Can you stand up now?

“[The Defendant:] Not for long.

“COURT: Well, do the best you can.

“[The Defendant:] But then I won’t be able to stand to leave your court, Your Honor.

“COURT: That’s all right, 111 let you stand when you want to leave. Let me ask you a question, sir.

“[The Defendant:] Yes. sir?

“COURT: Stand, remain standing, sir.

“[The Defendant:] I’d rather not.

“COURT: I know, but that’s the way we run the court. That’s the way we run it. You address the Court, you stand, everybody does, you follow me?

“[The Defendant:] Yes, I’d rather — I’ll stand briefly when I begin—

*563 “COURT: I know that’s not what you would rather do, that’s the procedure here.

“[The Defendant:] Well, I have a problem with procedure.

“COURT: Well, it’s too bad, that’s the procedure here. Do you want to obey the Court order?

“[The Defendant:] I have an orthopedic restriction on walking.

“COURT: Well, you’re not walking, all I want you to do is stand.

“[The Defendant:] So you just want me to stand until my ankles collapse and then I can sit?

“COURT Yeah, until they collapse, you want to stand. I’m only going to be a couple of minutes, just a couple of minutes.

“[The Defendant:] Well, I have a — since I didn’t know I had a trial today I did my maximum walking at three this morning, so I would just as soon not do all this standing.

“COURT Okay, well I want to stand right now.

“[The Defendant:] I guess I don’t want to stand, Your Honor.

“COURT: You don’t want to stand? Take him back and we’re not going to fool with him.

“[The Defendant:] Thank you, Your Honor.”

Following this lengthy colloquy, the court simply asked the petitioner for his election of a court or jury trial. When he elected a jury trial, the court proceeded to inquire about his educational background and waiver of counsel. Once again, as to the latter, the petitioner seemed to misunderstand that if he qualified, he would not have to pay the Public Defender. Curiously, when asked whether he was aware of any mental condition that he had or physical disability which would prevent his understanding what he was doing, the petitioner replied “Just the walking restriction is all.”

Putting aside the petitioner’s performance, or, more accurately, ineptitude, at trial, considerable information concerning the petitioner’s bizarre behavior, over time, and more recently, *564 as exemplified by the very crime of which he stood accused, was presented to the trial judge. That evidence revealed a number of instances in which the petitioner displayed erratic and strange behavior, including, inter alia, the petitioner appearing naked at the community beach with a bag over his head, crawling through his house on his hands and knees, knocking other children, besides the victim, off their bicycles.

It is true that the petitioner appeared before two different judges in the Circuit Court and, therefore, that neither observed all of the petitioner’s aberrant behavior. The trial judge, for example, was the only one to be witness to, and in reality, was an essential part of the lengthy discussion of the petitioner’s ability, or lack thereof, to stand and the reasons therefor. Nevertheless, albeit the court missed, or ignored, its significance, there was a sufficient basis provided by the petitioner’s behavior, at each appearance, which the court observed.

During the first appearance, the court was told of the petitioner’s mental history, especially that he had been referred for a competency evaluation. Although the petitioner, apparently as well as everyone else, did not know what the report said, that referral resulted in a report being prepared and, we now know, that report determined that the petitioner was not competent. So far as the record reflects, the court did not further inquire into the Crownsville report; it certainly did not read the report, the least that one could have expected. In addition to the difficulty the petitioner displayed in understanding, or accepting, the role of the Public Defender, the petitioner stated that his food was being drugged a little, and that was the only substance whose influence he was under at that time. As indicated, the court let that comment pass without any follow-up questions at all.

The trial court, too, was aware of the petitioner’s mental health history. Although the knew that he had been referred to Crownsville for a competency evaluation, it appears that the trial court had no more idea of the contents of the report that evaluation generated than did the prior judge. The latter *565 point was emphasized by the Assistant State’s Attorney, who, before the commencement of trial, inquired of the court as to whether the evaluation was in the court file. Although the State’s inquiry came subsequent to the “ability to stand” debate, it certainly gave it a context and should have served to focus the court’s attention to the fact that it was, to say the least, extraordinary conduct. The record does not reflect that the trial court reviewed a copy of the Crownsville report. What it does reflect is that the trial court was satisfied with the fact that a District Court judge had held a hearing and determined that the petitioner was competent. And that was true despite the petitioner’s behavior, note the “ability to stand” colloquy, on the day of trial. Moreover, while initially not informed of the petitioner’s contention, made on his initial appearance in the Circuit Court, that the jail was drugging the petitioner’s food, the trial court was apprised of that contention by the petitioner just prior to trial. Amazingly, when the petitioner advised the court that he had “received involuntarily some minor amount of drugs in [his] food, but it is not affecting [his] perception,” the court’s only response was “Oh, that’s wonderful, that’s great, then we are ready to proceed then, aren’t we?” And proceed, they did.

The majority takes the view that “there is nothing in the record that reasonably may be interpreted as a clear indicia of potential incompetence sufficient to trigger the trial judge’s sua sponte duty to evaluate.” Gregg v. State, at 542. I do not agree. To be sure, as the majority submits, the “fact that (1) there was a competency evaluation in the District Court resulting in a finding of competency, and (2) there may exist a report generated in the District Court proceeding assessing Gregg’s competency are not alone sufficient indicia of incompetency to trigger a sua sponte duty.” Id. at 543. I agree. When evaluating the trial court’s duty, we should view the totality of the circumstances, rather than merely base our decision on narrow facts.

As I have demonstrated, when properly viewed with other germane facts, justice demanded that the trial court order, sua sponte, that the petitioner be evaluated to determine his *566 competence to stand; such a duty is imposed on the court as a matter of justice. Inter alia, there was the fact that the petitioner had a mental history, there was a transcript of a Constitutionally mandated competency hearing missing, the “non-sequitur” dialogue with the court concerning the petitioner’s ability to stand, the petitioner’s statement about his food being drugged, the petitioner’s difficulty understanding the role of the Public Defender and his cost and the fact that the petitioner was proceeding without counsel. 5 These facts raise a reasonable uncertainty as to the competency of the petitioner to stand trial. Trial courts may not ignore common sense nor turn a blind eye to the totality of the circumstances.

The duty of the trial court to monitor the competency of a defendant to stand trial is a continuing one. Neither Circuit Court judge was bound by the determination of the District Court judge and the trial judge was not bound by the tacit determination made by the court on the petitioner’s first appearance in Circuit Court. Nor may the court rely on one factor relevant to, and affecting, competence to the exclusion of others. I submit that in this case, there are an abundance of factors, considering the totality of the circumstances, that required the court’s sua sponte action to determine the petitioner’s competence.

Judge ELDRIDGE has authorized me to state that he joins in this dissent.

. Maryland Code (2001) § 3 — 101(f) of the Criminal Procedure Code provides:

"(f) Incompetent to stand trial. "Incompetent to stand trial” means not able:

*556 "(1) to understand the nature or object of the proceeding; or

"(2) to assist in one's defense.”

Unless otherwise noted, all references are to the Criminal Procedure Article, Maryland Code (2001).

. In Thanos v. State, 330 Md. 77, 85 , 622 A.2d 727, 730 , citing Johnson v. State, 67 Md.App. 347, 358-359 , 507 A.2d 1134, 1140 (1986), this Court construed Maryland Code (1982, 1990 Repl.Vol., 1992 Cum. Supp.) § 12-103(a) of the Health General Article, the predecessor to § 3-104, as triggering the court’s duty to make a competency determination in three ways: "(1) upon an allegation by the accused himself that he is incompetent; (2) upon an allegation of the defense counsel that the accused is incompetent; or (3) upon the court’s sua sponte decision that the accused appears to be incompetent.”

. It is significant that, although the petitioner acknowledged being in Crownsville for a competency evaluation and that a competency report was generated as a result, the prosecutor also directed the court’s attention to the existence of the competency report, thus emphasizing it, after the luncheon recess following the court’s acceptance of the petitioner’s present competence and waiver of counsel.

. It is relevant that the staff at Crownsville was concerned about the petitioner’s dangerousness and that most likely explains the bail decision. The information from the petitioner’s neighbors, presented to the court after trial, was consistent on this point.

. Proceeding without counsel does not mitigate the petitioner’s being held to the standard of a competent attorney. Refusing representation is but one factor the trial court should consider when considering a criminal defendant’s competency to stand trial.