# Thomas v. State

> Court of Appeals of Maryland · October 31, 1984 · 301 Md. 294

URL: https://www.frixlaw.com/law-library/cases/9763658

## Case

- **Full name:** Donald THOMAS v. STATE of Maryland
- **Court:** Court of Appeals of Maryland
- **Decided:** October 31, 1984
- **Citations:** 301 Md. 294; 483 A.2d 6; 1984 Md. LEXIS 369
- **Precedential status:** Published
- **Opinion:** Concurring in part by Eldridge
- **Judges:** Murphy, Eldridge
- **Cited by:** 83 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9763658

## How later opinions describe it (automated extraction)

- stating that “[decisions on the relevance of evidence rest in the sound discretion of the trial court and will not be reversed absent a showing that such discretion was clearly abused.”

## Opinion text

ELDRIDGE, Judge,
concurring in part and dissenting in part:
Affirmance of the death sentence in this case cannot be squared with the Supreme Court’s decision in Estelle v. Smith, 451 U.S. 454 , 101 S.Ct. 1866 , 68 L.Ed.2d 359 (1981). *341 Estelle held, inter alia, that the admission of psychiatric testimony offered by the prosecution at a capital sentencing proceeding, based on a psychiatric examination oí the defendant performed without the consent or advice of the defendant’s attorney, violated the Sixth Amendment right to the assistance of counsel. With respect to the Sixth Amendment issue, the only difference between Estelle and the present case is that in Estelle there was no consent or guidance by defense counsel concerning the psychiatric examination, whereas here the “consent” of the defendant’s attorney was obtained through deception. Such difference has no legal effect.
Although I agree that the guilty verdicts in this case should be upheld, I would vacate the death sentence and remand the case for a new sentencing proceeding.
I.
In order to appreciate fully the position of defense counsel in this case, and how he was misled into “consenting” to aji examination by the prosecution’s hired psychiatrist for purposes of the capital sentencing hearing, it is appropriate to begin with this Court’s opinion in Johnson v. State, 292 Md. 405, 410-416 , 439 A.2d 542 (1982).
In Johnson the indigent defendant was charged with murder and the death penalty was sought. Johnson interposed a defense of insanity, and the trial court ordered that he be transferred to the Clifton T. Perkins Hospital Center for mental examination and evaluation. The Clifton T. Perkins Hospital Center is a state facility, “maintained under the direction” of the Mental Hygiene Administration of the Department of Health and Mental Hygiene. 1 Johnson was examined by the staff at Clifton T. Perkins, and thereafter the hospital filed a report finding that, at the time of the alleged offense, Johnson “was not suffering from a mental disorder which caused him to lack substantial *342 capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.” 292 Md. at 410 , 439 A.2d 542 . The report indicated that it represented the views only of a majority of the examining psychiatrists. One of the examining staff members had declined to join the report.
Johnson’s attorney then petitioned the trial court “to appoint a private ‘independent psychiatrist’ to further examine Johnson at the expense of the State,” but the trial court refused, holding that the staff doctors at Clifton T. Perkins were “ ‘independent.’ ” 292 Md. at 411 , 439 A.2d 542 . On appeal, this Court agreed with the trial court regarding the issue. Drawing a sharp distinction between doctors employed by the Department of Health and Mental Hygiene and expert witnesses hired by the prosecution, Judge Digges stated for the Court (id. 292 Md. at 414 , emphasis added, 439 A.2d 542 ):
“The doctors designated by the Department of Health and Mental Hygiene to examine Johnson are thus ‘not partisans of the prosecution, though their fee is paid by the State, any more than is assigned counsel for the defense beholden to the prosecution merely because he is ... compensated by the State. Each is given a purely professional job to do — counsel to represent the defendant to the best of his ability, the designated psychiatrists impartially to examine into and report upon the mental condition of the accused.’ McGarty v. O’Brien, 188 F.2d 151, 155 (1st Cir.1951), cert. denied, 341 U.S. 928 [ 71 S.Ct. 794 , 95 L.Ed. 1359 ] (1951).”
The Court went on to point out that “Johnson was evaluated by a team of independent psychiatric experts” and that he could call as his witnesses “members of the examining team.” Id. 292 Md. at 415 , 439 A.2d 542 , emphasis added. 2
*343 Turning now to the facts in the case at bar, after the defendant Thomas filed an insanity plea the trial court, on December 8, 1981, signed an order that Thomas be examined “by the Department of Health and Mental Hygiene.” Thomas was then transferred to the Clifton T. Perkins Hospital Center where he was examined and evaluated by the staff. On February 4, 1982, the hospital sent a report to the court which contained the evaluations of four staff doctors, one of whom was Dr. Michael Spodak. According to the report, all four doctors were of the opinion that Thomas was competent to stand trial and had been responsible for his actions at the time of the offenses.
Following the trial on the issues of guilt or innocence, the prosecuting attorney filed the following petition with the court:
“PETITION FOR PRE-SENTENCE PSYCHIATRIC EVALUATION
“Now comes the State of Maryland, by Sandra A. O’Connor, State’s Attorney for Baltimore County, and by Thomas S. Basham and Alfred L. Brennan, Jr., Assistant State’s Attorneys for Baltimore County, and says:
“1. That the Defendant was evaluated at the Clifton T. Perkins Hospital Center following his entry of a plea of not guilty by reason of insanity;
“2. That the findings of the Hospital Center are contained in a report to the Court dated February 4, 1982;
“3. That it is desirable to supplement the original insanity evaluation with further interview(s) of the De *344 fendant to develop material for presentation at sentencing;
“4. That Dr. Michael Spodak, who participated in the insanity evaluation, can conduct such further interview with the Defendant at the Baltimore County Detention Center and can do so within a few days of a court order authorizing such evaluation;'
“5. That counsel for the Defendant has no objection to such an evaluation.
“WHEREFORE, the State prays that this Honorable Court pass an order directing Dr. Michael Spodak to conduct a further evaluation of the Defendant at the Baltimore County Detention Center for the purpose of developing material for use at sentencing.
"/s/ Sandra A. O’Connor SANDRA A. O’CONNOR State’s Attorney for Baltimore County”
The prosecuting attorney said nothing to defense counsel or in the petition intimating that the examination and evaluation by Dr. Spodak would not be done in his capacity as a staff member of Clifton T. Perkins Hospital Center and an employee of the Department of Health and Mental Hygiene. On the contrary, the petition seemed to suggest that Dr. Spodak would be examining and evaluating Thomas as a member of the hospital’s staff, as it referred to the prior evaluation “at the Clifton T. Perkins Hospital Center,” referred to the Hospital Center’s findings in the February 1982 report, referred to Dr. Spodak as one who participated in the previous Clifton T. Perkins evaluation, and stated that it is desirable to “supplement” the original evaluation.
Unknown to the court and to defense counsel when he consented to the supplemental examination and evaluation, was the fact that Dr. Spodak had changed hats. He would not be examining and evaluating Thomas as the “independent” psychiatrist employed by the Department of Health and Mental Hygiene. Instead, he would be acting as the prosecution’s , hired expert witness, paid by the prosecuting *345 attorney’s office to assist that office in obtaining the execution of Mr. Thomas.
During the sentencing hearing, after the prosecution called Dr. Spodak to the stand and the doctor acknowledged that at the time of the examination and evaluation for the sentencing hearing “I was retained by the State’s Attorney’s Office,” the prosecution sought to introduce Dr. Spodak’s report and testimony based upon that examination. Defense counsel then objected to the report and to Dr. Spodak’s testimony, explaining as follows:
“MR. KINSLEY [defense attorney]: I would object, Your Honor, not only to that but to the Doctor’s testimony. When the State’s Attorney requested an order of Court to have Dr. Spodak see the Defendant again on November 27th, the State’s Attorney in his requested Order of the Court indicated that counsel for the Defendant had no objection. Indeed, I had no objection because I was under the impression that Dr. Spodak would see him as a member of the staff of Clifton T. Perkins.
“I’m mindful of the Court of Appeals ruling that the Clifton T. Perkins staff, a governmental body, employees of the State of Maryland as is Dr. Spodak when he’s at Clifton T. Perkins, that they are neutral or should be neutral psychiatrists and other medical personnel. That the Defense in effect has no obligation to employ separate psychiatrists but can accept this puritan view of the psychiatrists employed by the State as is Dr. Spodak, but I have learned subsequent to my agreement that I had no objection to Dr. Spodak seeing the Defendant that he was now in the employee — he was a paid doctor by the State’s Attorney’s Office.
“This came to me as a shocking revelation, and had I known it before, I would not have permitted it. I would have been to the Baltimore County Jail and would have advised my client not to discuss any matters with Dr. Spodak so long as he was then in the employ of the State’s Attorney’s Office, so I suggest that the alleged agreement by me of this whole proceed *346 ing was done without a full candid revelation. That I have been taken so to speak. That the Doctor is no longer a pure objectionist, but is a paid person whose views obviously more than likely reflect the views sought by his employer, Mr. Basham, so I move that his report not be considered and that his testimony be suppressed.” (Emphasis added.)
The trial court then gave the prosecution an opportunity to respond or rebut, but the prosecuting attorney stated that he had nothing to say. The court then denied the motion in a ruling which suggested a lack of understanding concerning the nature of defense counsel’s objection. The colloquy was as follows:
“THE COURT: Anything from the State?
“MR. BASHAM [prosecuting attorney]: No, Your Hon- or.
“THE COURT: The Motion will be denied. Dr. Spodak is an eminently qualified Forensic Psychiatrist. He has testified and he knows, not knows but—
“MR. KINSLEY: But all psychiatrists are eminent.
“THE COURT: Excuse me. Would you like me to make my ruling please, sir? He’s a qualified Forensic Psychiatrist, and as far as the Court is concerned, it makes no difference who pays him, and he knows it as well as I do. He’s a professional person and can give his opinion, and nobody and no amount of money is going to cause him to change his opinion, so the Motion will be denied.”
The defendant’s attorney again attempted to explain that the basis of his objection to the admissibility of Dr. Spodak’s report and testimony was not Dr. Spodak’s qualifications or objectivity but was the manner in which the attorney’s “consent” was obtained:
“MR. KINSLEY: Well, let me just simply say, I don’t think the Court is addressing itself to the nub of my objection, that is, had I known, whether the Court thinks he can be objective or not is immaterial. I say I would *347 not have permitted any subsequent investigation or any subsequent conversations the Doctor may have had with the Defendant had I known he was in the employ and pay of the State’s Attorney’s Office.
“THE COURT: Well, you misunderstand what I say. Irrespective of whether you agree or not agree, the Court permitted it on here, so the Motion will be denied, Mr. Kinsley.
“MR. KINSLEY: Well, maybe the Court permitted it because it saw there that I didn’t interpose an objection. The document that the Court used as a basis for permitting it was obtained improperly by the State’s Attorney’s Office.
“THE COURT: All right. I’ve considered your Motion and denied it again, Mr. Kinsley.
“MR. KINSLEY: Yes, sir.
“THE COURT: All right. Proceed.
“MR. BASHAM: The report then is admitted, Your Honor?
“THE COURT: Yes.”
Dr. Spodak went on to testify at length, with the continual objections of defense counsel being overruled. His testimony was devastating to the defense with regard to negating the existence of mitigating circumstances, particularly the statutory mitigating factors of whether the murder was committed while the defendant’s capacity to appreciate the criminality of his conduct or to conform his conduct to the law was substantially impaired and whether it was unlikely that the defendant would engage in further criminal activity that would constitute a threat to society. 3 For example, Dr. *348 Spodak specifically set forth his opinion that, “within a reasonable degree of medical certainty,” Thomas would engage in further criminal activities and would be a threat to society. The psychiatrist testified that when he examined Thomas for purposes of the sentencing hearing, Thomas was “more hostile” than he was during the earlier examinations at the Clifton T. Perkins Hospital Center. Dr. Spodak reviewed in detail the grounds for his opinion concerning Thomas’s future dangerousness, such as Thomas’s prior record of violence, his “poor impulse control,” his inability “to delay gratification,” his lack of remorse, his inability “to handle environmental stress,” etc. While acknowledging that “[t]here has been a lot of debate as to how well psychiatrists can predict dangerousness and violence,” Dr. Spodak reiterated his view, with regard to Thomas, that “you can certainly say that there’s a very high likelihood” of “future criminal behavior, future dangerousness and future violence.” The psychiatrist stated, and later reiterated, that Thomas was not “amenable to treatment.” Finally, when asked whether Thomas would engage in future criminal activity if he were incarcerated, Dr. Spodak replied: “I wouldn’t want to be his cell mate.”
The testimony of Dr. Spodak at the sentencing hearing furnished a principal basis for the prosecuting attorney’s arguments against the existence of mitigating circumstances. On the other hand, the defense attorney inter alia argued extensively that Thomas’s capacity to appreciate the criminality of his conduct or conform his conduct to the law had been impaired and that Thomas was not likely to engage in future criminal activity. The defense attorney *349 relied on the earlier report from the Clifton T. Perkins Hospital Center, which he contrasted with Dr. Spodak’s later testimony, as well as on other testimony and evidence.
The trial judge, in imposing the death sentence, specifically found that Thomas’s capacity to appreciate the criminality of his conduct or to conform his conduct to the law was not substantially impaired and that Thomas “will engage in further criminal activity that would constitute a continuing threat to society.” In making both of these findings, the trial judge specifically relied on the testimony of Dr. Spodak at the sentencing hearing. With regard to future criminal activity and dangerousness, Dr. Spodak’s testimony at the sentencing hearing was the chief ground for the trial court’s finding.
II.
In light of the above-reviewed facts, it is clear to me that the instant case is controlled by Estelle v. Smith, supra.
The issue in Estelle v. Smith, as in the present case, was “whether the prosecution’s use of psychiatric testimony at the sentencing phase of [defendant’s] capital murder trial to establish his future dangerousness violated his constitutional rights.” 451 U.S. at 456 , 101 S.Ct. at 1869 . In Estelle , prior to trial, the court ordered the defendant to undergo a psychiatric examination in order to determine his competency to stand trial. It was not clear whether defense counsel was informed of the psychiatric examination before it took place, id. at 471 n. 15, 101 S.Ct. at 1877 n. 15, and this question was not treated by the Court as significant. What was significant was that defense counsel was not notified of the scope of the examination, did not consent to the examination, and did not advise the defendant regarding his submission to the examination. Id. at 465, 466-468, 471 , 101 S.Ct. at 1874, 1875, 1877 . In Estelle the defendant was found competent to stand trial and, at the first stage of the bifurcated proceedings, was found guilty. Thereafter, at the capital sentencing hearing, the prosecution was permit *350 ted over objection to call the psychiatrist as a witness on the issue of “ ‘whether there is a probability that the defendant would commit criminal acts of-violence that would constitute a continuing threat to society.’ ” Id. at 458 , 101 S.Ct. at 1870 . The psychiatrist’s testimony in Estelle was similar to Dr. Spodak’s testimony in the instant case regarding the defendant’s future dangerousness, amenability to treatment, etc. Id. at 459-460 , 101 S.Ct. at 1871 . Based upon the jury’s findings, the defendant in Estelle was sentenced to death.
The Supreme Court in Estelle held that the admission of the psychiatrist’s testimony at the sentencing hearing infringed both the defendant’s Fifth Amendment privilege against self-incrimination and his Sixth Amendment right to the assistance of counsel. 4 Regarding the Sixth Amendment right, the Court held that the defendant “was denied the assistance of his attorneys in making the significant decision of whether to submit to the examination and to what end the psychiatrist’s findings could be employed.” 451 U.S. at 471 , 101 S.Ct. at 1877 . The Court stated “that a defendant should not be forced to resolve such an important issue without ‘the guiding hand of counsel.’ ” Ibid.
Although the matter is not at all clear, I shall assume arguendo that Estelle’s Fifth Amendment holding is not applicable to the facts of the present case. Nevertheless, the defendant Thomas was obviously denied the assistance of counsel in making the decision of whether to submit to Dr. Spodak’s examination in connection with the sentencing proceeding. His attorney’s “consent” to this examination was induced by the prosecution’s deception. 5 But a “con *351 sent” induced by misrepresentation is not consent. Bumper v. North Carolina, 391 U.S. 543, 548 , 88 S.Ct. 1788, 1791 , 20 L.Ed.2d 797 (1968). As Thomas’s attorney emphasized to the court below, if he had known that Dr. Spodak’s role had changed and that the psychiatrist had become the prosecution’s hired expert, “I would not have permitted it. I would have ... advised my client not to discuss any matters with Dr. Spodak.”
III.
The majority’s reasons for rejecting Thomas’s argument based on Estelle v. Smith, supra, will not withstand analysis.
Initially the majority suggests that Thomas’s attorney did not in the trial court raise the Sixth Amendment issue which formed the alternate basis for the decision in Estelle . But the entire thrust of counsel’s objection to Dr. Spodak’s report and testimony was that defense counsel was misled into “consenting” and that, had he known of the doctor’s role change, he “would have advised [Thomas] not to discuss any matters with Dr. Spodak.” This was obviously an objection relating to the right to the assistance of counsel. I am aware of no principle of law requiring that a trial lawyer, in order to preserve an issue, must cite the specific Supreme Court case on point. 6 Moreover, we have indicated that in death penalty cases, we shall consider issues “whether or not properly preserved for review.” Johnson v. State, supra, 292 Md. at 412 n. 3, 439 A.2d 542 .
The majority opinion next attempts to distinguish Estelle v. Smith by stating that in Maryland, unlike Texas, the *352 “State does not bear the burden of proving the nonexistence of mitigating circumstances” and “thus, the appellant’s words were not used against him on a matter upon which, as in Estelle , the prosecution held the burden of proof.” 7 The majority then points out that Dr. Spodak advised Thomas that any information which he revealed could be used at a subsequent capital sentencing hearing. These factors may or may not distinguish the Estelle case for purposes of the Fifth Amendment self-incrimination issue. Nevertheless, they are utterly irrelevant to the Sixth Amendment right to counsel issue, and I do not understand that the majority suggests otherwise.
Lastly the majority points out that, unlike the situation in Estelle , Thomas’s attorney had prior notice of Dr. Spodak’s examination for purposes of the sentencing hearing and agreed to it. Of course, this entirely ignores the fact that defense counsel was misled concerning the role of Dr. Spodak. Had defense counsel known that Dr. Spodak’s role had changed, he may well have advised Thomas not to submit to the examination.
Because of the prosecution’s misleading action in this case, the defendant Thomas was deprived of the assistance of counsel in deciding whether or not to submit to Dr. Spodak’s examination in connection with the capital sentencing hearing. Consequently, under Estelle v. Smith, Dr. Spodak’s report and testimony were improperly admitted at the sentencing hearing. I would vacate Thomas’s death sentence and remand for a new sentencing proceeding.
Judge COLE has authorized me to state that he concurs with the views expressed herein.
. Maryland Code (1982), § 10-406(a) of the Health-General Article.
. The Johnson court’s view of Clifton T. Perkins Hospital Center is underscored by a recent murder trial in Baltimore County, in which the prosecution was seeking the death penalty and the defendant had raised the defense of insanity. In that case, State v. Mooring, the five *343 Clifton T. Perkins staff psychiatrists who examined Mooring unanimously believed that he was insane at the time of the offense, and they testified as defense witnesses at the trial. At the conclusion of the trial, the court found Mooring not guilty, agreeing with the position of the Clifton T. Perkins doctors that Mooring’s mental condition rendered him not criminally responsible for the victim’s death. See The Sun (Baltimore), October 9, 1984, section D, p. 1; The Evening Sun (Baltimore), October 9, 1984, section D, p. 1; The Sun (Baltimore), October 10, 1984, section F, p. 1.
. Code (1957, 1982 Repl.Vol., 1983 Cum.Supp.), Art. 27, § 413(g)(4) and (7), provide as follows:
"(g) Consideration of mitigating circumstances. — If the court or jury finds, beyond a reasonable doubt, that one or more of these aggravating circumstances exist, it shall then consider whether, based upon a preponderance of the evidence, any of the following mitigating circumstances exist:
*348 "(4) The murder was committed while the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired as a result of mental incapacity, mental disorder or emotional disturbance.
“(7) It is unlikely that the defendant will engage in further criminal activity that would constitute a continuing threat to society.”
. It is noteworthy that, while a majority of the Court favored reversal on both grounds, all nine members of the Court believed that the defendant’s Sixth Amendment right to counsel had been violated.
. It is axiomatic that silence or nondisclosure may constitute deception or misrepresentation, depending upon the circumstances. See, e.g., Equitable Co. v. Halsey, Stuart & Co., 312 U.S. 410, 424-426 , 61 S.Ct. 623, 630 , 85 L.Ed. 920 (1941); Strong v. Repide, 213 U.S. 419, *351 430-433 , 29 S.Ct. 521, 524-526 , 53 L.Ed. 853 (1909); W. Prosser, The Law of Torts, § 106 (4th ed. 1971); F. James and O. Gray, Misrepresentation, 37 Md.L.Rev. 488, 524-527 (1978).
. Compare the nature of the objection in Estelle, 451 U.S. at 459 , 468 n. 12, 101 S.Ct. at 1871 , 1876 n. 12.
. In Maryland, however, as shown by the instant case, the prosecution in capital cases typically presents, as an initial matter, evidence to negate mitigating circumstances upon which it believes that the defendant will rely.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9763658. Public record. Not legal advice.