Cirincione v. State

MOYLAN, Judge. The appellant, Leonard P. Cirincione, was convicted by a Baltimore City jury, presided over by Judge Kathleen O’Ferrall Friedman, of 1) the premeditated first-degree murder of Baltimore City Police Officer Richard Miller, 2) the attempted murder in the first degree of Officer Paul Aires, and 3) an assault upon Officer Michael Parker. All three crimes occurred on 33rd Street in close proximity to Memorial Stadium at approximately 6:30 P.M. on June 12, 1986. The three officers were directing traffic as it converged on the vicinity of the stadium for a Baltimore Orioles baseball game scheduled for 8 P.M. that evening.

The dangerous and deadly instrumentality directed at all three officers was the 1977 Toyota sedan driven by the appellant. The evidence was sufficient to permit jury findings that the appellant had, on two occasions, aimed the Toyota at the three officers, hitting and killing one and narrowly missing the other two. Upon this appeal, the appellant raises the following seven contentions: ¹⁷⁰ 1. That Judge Friedman erroneously refused to permit Dr. Michael Spodak to offer an expert opinion as to whether the appellant had the specific intent to kill; 2.

That Judge Friedman erroneously refused to permit Dr. Spodak to testify as to conclusions formed as to the appellant’s intoxication by doctors on the staff of the Clifton T. Perkins Hospital Center; 3. That Judge Friedman erroneously granted the State’s request for a postponement of trial and erroneously denied the appellant’s motion to strike the State’s election to seek the death penalty; 4. That Judge Friedman erroneously permitted the State to offer photographs showing damage to the appellant’s automobile, notwithstanding an earlier informal agreement to stipulate as to the cause of damage; 5. That Judge Friedman committed plain error in her instructions to the jury; 6.

That Judge Friedman erroneously disallowed hearsay testimony from the appellant’s father consisting of an out-of-court declaration made to the father by a turnkey at the Northern Police Station; and 7. That Judge Friedman erroneously allowed the prosecutor to badger the appellant during the course of the appellant’s cross-examination. We see no merit in any of the contentions. Only the first two merit significant discussion.

Both contentions involve the effort of the appellant to prove that he was too intoxicated, by virtue of the use of drugs, to have formed a specific intent to kill. This would not, of course, affect the conviction for assault upon Officer Michael Parker, because simple assault requires only a general intent. Neither would it affect a subsumed conviction for murder in the second degree because voluntary intoxication, even sufficient to erode existence of a specific intent, will only lower the degree of guilt in a murder case from the first degree to the second degree. Chisley v. State, 202 Md. 87, 106-107 , 95 A.2d 577 (1953); ¹⁷¹ but see Mock v. State, 2 Md.App. 771, 774-775 , 237 A.2d 811 (1968). 1 It would, however, affect the conviction for first- ¹⁷² degree murder, which requires a premeditated and deliberate intent to kill.

It would, moreover, affect the conviction for attempted murder (of any degree), because any attempt requires proof of a specific intent to perpetrate the crime attempted. There is no issue before us as to the criminal agency of the appellant. There is no issue before us as to the legal sufficiency of the evidence to prove every element of the crimes, including the specific intent to kill. The key issues concern only the question of whether the appellant was erroneously inhibited in his effort to disprove, through a showing of lack of capacity, that specific intent.

The Facts in This Case On nights, such as June 12, 1986, when the Orioles are playing at Memorial Stadium, the traffic pattern on 33rd Street from Loch Raven Boulevard on the east to Charles Street on the west is radically rearranged. From Charles Street to the stadium, four lanes are eastbound to accommodate the heavy traffic flow toward the stadium and its parking lots. From Loch Raven Boulevard westward, only one lane is westbound and that is not for through traffic but is reserved solely for the use of parking permit holders. All other traffic is rerouted north or south at Loch Raven Boulevard.

The lanes are marked with orange plastic or rubber cone markers and each intersection is staffed by two or three police officers. ¹⁷³ On June 12, the appellant left his home on East 33rd Street and drove westward toward the stadium. As he approached Loch Raven Boulevard, he failed to obey the police officers’ direction to turn north on Loch Raven but continued westbound. He accelerated past a number of officers who were signalling him to stop. Officer Michael Parker was stationed at 33rd Street and Ednor Road to keep track of permit holders.

He was standing at the edge of the second lane of traffic when he saw the appellant’s Toyota coming toward him in the curb lane. As Officer Parker signalled the Toyota to stop, it moved into the second lane, accelerated, and swerved toward Officer Parker. He jumped back out of the way between the cones. As the appellant passed in front of the stadium, he was in the second lane of traffic from the north curb.

As he passed the stadium and approached the west parking lot, he turned to his left (south) and crossed three oncoming lanes of traffic. Both Officer Miller and Officer Aires were standing in the second lane in order to direct traffic onto the west parking lot. After both officers unsuccessfully waved for the appellant to stop, they began to run toward the south curb. The Toyota narrowly missed Officer Aires but struck Officer Miller, throwing him into the air.

He landed on the hood of another automobile and was thrown across the street. The appellant’s Toyota continued across the remaining lanes of oncoming traffic and struck two cars waiting to go onto the Venable parking lot (on the south side of 33rd Street next to Eastern High School). Officer Miller was severely injured. He was removed by ambulance to the hospital, where he died on July 21 as a result of his injuries.

As the police pulled the appellant out of his car and placed him under arrest, a number of television cameramen were in the area. A tape was made of the appellant immediately after the accident, and it was played in court for the jury. A number of witnesses described the appear ¹⁷⁴ anee of the appellant as normal and as showing almost no emotion. Others described him as angry and upset.

Several quoted the appellant as saying, as he was taken out of his car, “You can’t touch me, I didn’t do anything wrong.” He screamed that he had rights and that “This is the good old U.S. of A.” He protested that something was wrong with his car and that was what made him hit the officer. The Particular Mens Rea Here In Issue The appellant did not enter a plea of not criminally responsible, and nothing with respect to his sanity or his competence was before the trial court. The appellant did not attempt to assert a defense of diminished capacity, which defense, of course, is not recognized in Maryland law. After the State had rested its case in chief, the defense called Dr. Michael Spodak as an expert witness.

A chambers conference ironed out the ground rules for Dr. Spodak’s testimony. For the record, Judge Friedman made clear what Dr. Spodak would not be testifying about: “Because counsel has had a discussion with the Court in chambers, out of the presence of the defendant, I am not sure that the issue has been fashioned on the record the way it should be but I am going to try to fashion it and if I have not done so accurately then I want both counsel to say so after I finish. It is clear to me that the defense cannot attempt in any way to prove that the defendant is not criminally responsible. No plea of not criminally responsible has been filed.

If one had been filed, the proof to be shown would be that the defendant at the time of the incident and as a result of a mental disorder lacked substantial capacity either to appreciate the criminality of his conduct or conform his conduct to the requirements of the law. That’s not the issue in this case. And I trust that is understood by both counsel. Nor is diminished capacity an issue in this case because it’s not recognized under Maryland law and that is clearly set forth in Johnson v. State, 292 Md. 405 [439 A.2d 542 ¹⁷⁵ (1982)].

Just to make it very clear, the concept of diminished capacity is, as I understand it from the reading of Johnson v. State and specifically a footnote [at] page 425 [ 439 A.2d 542 ], allows evidence of a mental impairment of a legally sane defendant on the factual question of whether a particular accused had entertained the requisite mental state which attempted to establish that the defendant was generally, and I underscore generally, less capable than a normal person of forming requisite mens rea. That’s not what I trust the defense is attempting to show nor is it what the doctor will testify to. And I specifically rule that he may not, because that’s diminished capacity and Maryland does not recognize diminished capacity.” The Opinion of Dr. Spodak This brings us to the question of what Dr. Spodak would be testifying about. The defense in this case was based upon voluntary intoxication.

At common law, as a general rule, “voluntary intoxication affords no excuse, justification or extenuation of a crime committed under its influence.” Hopt v. People, 104 U.S. (14 Otto) 631, 633, 26 L.Ed. 873, 874 (1882); Saldiveri v. State, 217 Md. 412, 424-425 , 143 A.2d 70 (1958); Frank v. State, 6 Md.App. 332, 334 , 251 A.2d 249, 251 (1969). Even voluntary intoxication, however, may constitute a defense to a crime requiring a specific intent, “where intoxication exists to a degree that it deprives the accused of his capacity to form a specific intent.” Avey v. State, 249 Md. 385, 388 , 240 A.2d 107 (1968). An excellent discussion of the effect of voluntary intoxication upon specific intent crimes is Judge Eldridge’s opinion for the Court of Appeals in Shell v. State, 307 Md. 46, 58-63 , 512 A.2d 358 (1986). See also State v. Gover, 267 Md. 602, 606 , 298 A.2d 378 (1973); Biggs v. State, 56 Md.App. 638, 648 , 468 A.2d 669 (1983), cert. denied, 299 Md. 425 , 474 A.2d 218 (1984); Gover v. State, 15 Md.App. 163 , 289 A.2d 601 (1972). ¹⁷⁶ Shell v. State, supra, also made it clear that there is no logical and, therefore, no doctrinal distinction between voluntary intoxication induced by alcohol and voluntary intoxication induced by the use of drugs.

In Shell , as in the case now before us, the intoxicant was PCP. This was the defense theory in this case and this was the purpose for the expert testimony of Dr. Spodak. The critical issue before the jury, whether characterized as a question of ultimate fact or as a mixed question of law and fact, was whether the appellant had the specific intent to kill Officers Miller and Aires. That issue, of course, was for the jury.

Since “the test of admissibility of an expert’s opinion should be whether his testimony will be of real appreciable help to the trier of fact in deciding the issue presented,” Shivers v. Carnaggio, 223 Md. 585, 588 , 165 A.2d 898 (1960), it follows that the expert’s opinion must be based upon the same evidence of ingestion of intoxicating substances that was admitted before the jury. Waltermeyer v. State, 60 Md.App. 69, 79-80 , 480 A.2d 831 (1984). For this purpose, lay witnesses testified to the facts concerning the appellant’s intoxication, both for the direct benefit of the jury and to provide the predicate for Dr. Spodak’s expert opinion. The guidelines set out by Judge Friedman were clear: “The Court: I think you understand each other and I think the court understands you and just to make sure that we all understand, the defense is saying that it is presenting lay witnesses at this point to introduce the facts that will provide a basis for testimony by experts at the time of the alleged criminal acts the defendant, because of substance abuse, was so intoxicated that he did not possess reason or understanding and, therefore, did not have the requisite specific intent to commit first-degree murder; is that right, Mr. Cuomo?

Mr. Cuomo: Yes, Your Honor, in a nutshell that’s accurate. ¹⁷⁷ The Court: I have not gotten to the issue of what the expert can testify to. At this point, since there appears to be no dispute, you may call your lay witnesses and then I will rule on that issue when the time comes.” One witness testified that the appellant had told her four days before the fatal accident that he was going to buy some PCP flakes that night. Another witness testified that two days before the accident, the appellant had come to his store looking for PCP. A third witness viewed the videotape made of the appellant right after the accident and offered the lay opinion that the appellant was “high on PCP because of the mindless look in his eyes.” A fourth witness, the appellant’s uncle, testified that he saw the appellant at about 3 P.M. on the day of the accident and the appellant “appeared very hyper and talkative.” The appellant’s sister testified having had dinner with the appellant at about 5 P.M. on the day of the accident.

She said that “he appeared more friendly and outgoing as if nothing would bother or agitate him.” She attributed his calm behavior to his use of drugs “for the past eight years.” The appellant’s father described him as appearing “very solemn and quiet at dinner” that night and testified further that the appellant left the house without eating his food. The television footage made of the appellant at the time of his arrest was played for the jury. The arresting officers and other witnesses, as we have already mentioned, described his demeanor immediately after the accident. A search of the appellant’s vehicle revealed a partially burned PCP butt in an ashtray and two hand-rolled PCP cigarette butts (“roaches”) in a pouch behind the driver’s seat.

The appellant testified in his own defense. After describing his lengthy history of drug abuse, he recounted “going on a PCP binge” about a week before the accident and having smoked PCP “every day up to the accident.” He testified that on June 12 he started smoking PCP during the afternoon. He testified that after dinner and shortly before ¹⁷⁸ the accident, he smoked two joints of PCP in the general neighborhood of Clifton Park. He testified that as he was driving toward his friend’s home on 33rd Street, he went “into a dream state in which he was conscious of the increased traffic.” The next thing he remembered was “the thump, thump, thump and being slumped over in the car facing in the opposite direction and all the police and people around and he was being handcuffed and locked up and it dawned on him that he was the cause of the accident.” He testified that he “did not realize that he had hit a police officer and did not intentionally or deliberately run over Officer Miller.

The evidence bearing directly on the consumption of intoxicants and the degree of intoxication on June 12 was not overwhelming. Judge Friedman was very generous, however, in allowing the defense to develop years of earlier drug abuse as indications of likely present behavior. In addition to the direct evidence of intoxication on the day of the accident, the defense was allowed to roam far afield. Numerous witnesses testified to the appellant’s long history of drug abuse dating back to his last years in elementary school in 1974 or 1975.

Dr. Spodak, moreover, was permitted to base his opinion about the appellant’s intoxication in part upon his long history of drug abuse, in part upon the report of Dr. Richmond who had examined the appellant before trial, and in part upon his own pretrial examination of the appellant. In no sense was the opinion of Dr. Spodak austerely limited. He testified at great length. He was allowed to testify, in the abstract, as to the general effects of PCP on the mind and on behavior.

He fully explicated such phenomenon as “chemical dependence,” “craving,” “tolerance,” “distorted sense of reality,” “depression,” “euphoria,” “difficulty with impulse control,” “auditory hallucinations,” “extremes of violence in very high doses,” “catalepsy,” “a trance-like state where you have diminished responsiveness,” and “waxing and waning of the effects of the drug.” ¹⁷⁹ Dr. Spodak was then allowed to explore the appellant’s long history of drug abuse. He described the appellant’s “physical brain impairment” as indicated by school records and psychology tests showing a result of “half normal” in “organic mental function.” Dr. Spodak testified that the appellant’s “neurological impairment” made him “specifically susceptible to the effects of PCP.” He explained that the effect of PCP would be “even worse” on the appellant than on others. Dr. Spodak speculated that the appellant would become “more impulsive, go into one of those trance-like states, be more susceptible to losing touch with reality,” and that the waxing and waning effect would be “more prominent with him as a result of some of the brain damage that we found on these tests.” The examination then turned to Dr. Spodak’s expert opinion as to the effect of the drugs on the appellant’s mind on the evening of June 12. Judge Friedman had already made it clear what the limits of that testimony would be: “What I think that the defendant [is attempting] to do in this case is to present evidence demonstrating that the defendant did not as a fact, and I underscore as a fact, possess the requisite mental state for first-degree murder which is premeditation and deliberation.

I am sure that the State understands, as well as the defense, that the burden is on the State to prove every element of the crime of first-degree murder beyond a reasonable doubt and that will include specific intent. But the defendant had to rebut the State’s case; that’s what the defense seeks to do. I will allow the doctor to testify based on the evidence that is presently before the jury and not on any assumptions by the doctor, and that goes for Dr. Richmond if she testifies as well. So, I will say both doctors, each of them can give an opinion as to whether the defendant,