Colbert v. State

Powers, J., delivered the opinion of the Court. The only question of substance involved in this appeal is whether the trial judge, Perry G. Bowen, Jr., followed the required procedure in determining that the appellant, Thomas Augustine Colbert, was competent to stand trial. As we see it, he did, and we shall affirm the judgments. Appellant was indicted on 5 November 1971 in Charles County, and charged in five counts with committing, on 27 September 1971, the crimes of common law burglary, ⁶³⁵ assault with intent to rape, assault and battery, petty larceny, and receiving stolen goods.

A general plea of not guilty was entered. The case was thereafter removed to the Circuit Court for Calvert County. There, a supplemental plea of not guilty by reason of insanity was filed. Pursuant to that plea the court on 18 February 1972 ordered that an examination of the mental condition of Colbert be made by the Department of Mental Hygiene.

A comprehensive psychiatric evaluation of Colbert was made by the staff at Clifton T. Perkins State Hospital in early April, with psychological testing, social service investigation and other pertinent clinical and laboratory studies. Over the signature of Robert H. Sauer, M. D., Clinical Director, for John M. Hamilton, M. D., Superintendent, the Hospital reported by letter dated April 11,1972, filed in the record of this case on 18 April 1972, as follows: “Mr. Colbert was presented before a Medical Staff Conference on April 10, 1972 at which time it was the unanimous opinion of the medical staff that he was able to understand the nature and object of the proceedings against him and to assist in his defense. It was also the unanimous opinion of the medical staff that he did not suffer from a mental disorder at the time of the alleged offense of such severity as to cause him to lack substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. Our evaluation disclosed that Mr. Colbert is functioning in the Mild Range of Mental Retardation with a Full Scale I.Q. of 56 on the Wechsler Adult Intelligence Scale.

He shows evidence of mild brain damage and has an alcohol problem which we diagnosed as Habitual Excessive Drinking. These findings, however, do not adversely affect the opinions given above concerning his present competency for trial or his responsibility for his actions at the time of the alleged offense.” ⁶³⁶ Upon the receipt and filing of this report the court by written order set the case for trial 5 June 1972. Before the trial began appellant filed two motions. One asked the court to order an “independent psychiatric examination” of appellant.

It was supported by an attached report of an evaluation by two Ph.D. psychologists, and by the allegation: ‘That members of the Defendant’s family, who have been in close association with him since his birth are of the opinion, based upon close hand observations over a period of years, that the Defendant suffers from severe mental retardation causing him not to be responsible for his actions.” The report of the psychological evaluation concluded by saying: “In summary, two questions arise, (1) Mr. Colbert’s responsibility and appreciation of the criminality of his conduct, and (2) his competency to stand trial, aid in his defense and comprehend the proceedings of the court. As delineated earlier Mr. Colbert is functioning in the mild defective range of mental retardation. Ninety-nine plus percent of the population functions at a higher level than does Mr. Colbert. Mr. Colbert’s mental retardation leaves him with a handicap in many areas of functioning and thus decreases substantially his capability from that of a ‘normal’ individual.

(His alcoholic problem further retards his functioning.) There is no straightforward way of determining Mr. Colbert’s responsibility for his actions, it is subject to interpretation. In our best estimate and during our testing and interviewing, Mr. Colbert demonstrated that he could have been responsible and could appreciate the criminality of his conduct. It is also our opinion that because Mr. Colbert demonstrated mental retardation and limited vocabulary, articulation, reading and arithmetic skills (all of which are necessary to ⁶³⁷ comprehend and communicate affectively) he will have difficulty in helping in the preparation of his defense as well as understand the proceedings of the court.” The other motion asked the court to conduct a hearing to ascertain whether appellant was competent to stand trial. It alleged that based upon interviews with appellant, members of his family, and the two psychologists, it was believed that appellant did not understand the nature of the object of the proceedings against him and did not possess the necessary intelligence to assist effectively in his defense.

In arguing this latter motion appellant’s counsel based it in part on the views expressed by the two psychologists. The court denied both motions. In ruling on the motion for a separate hearing on competency to stand trial, the court accepted as before him everything that was proffered, and said: “Since there is no disagreement between the authorities as I see their written reports, the Court will permit you to raise whatever questions you wish to raise during the course of the trial, but determines as a preliminary matter that he is competent to stand trial.” Counsel then asked: “Do I understand then by your ruling Your Honor that you will not conduct a separate hearing prior to the trial of this case?” to which Judge Bowen replied: “I see no reason to have a separate hearing when there isn’t any dispute or disagreement to be resolved by that hearing. At least no dispute or disagreement in the evidence to be submitted as I understand it.” The trial proceeded before Judge Bowen without a jury.

A motion for judgment of acquittal was granted as to the charge of receiving stolen goods, and was denied as to the ⁶³⁸ other charges. Appellant was found guilty of burglary, assault with intent to rape, assault and battery, and petty larceny. Sentences of 20 years were imposed on each of the first three counts, to run concurrently. Sentence was suspended generally on the conviction of petty larceny.

In this Court appellant raises four questions: 1. Was it error for the Trial Court to Deny Appellant’s Motion for a Hearing on Competence to Stand Trial? 2. Was it an abuse of the Trial Court’s Discretion to allow the introduction of new matter on Redirect Examination over the objection of the Appellant? 3. Was there legally sufficient evidence from which the Trial Court could find the Appellant guilty beyond a reasonable doubt of the convictions herein appealed? 4.

Was it error for the Trial Court to convict Appellant of assault and battery and sentence him thereto in that it merges into assault with intent to rape? I In Strawderman v. State, 4 Md. App. 689 , 244 A. 2d 888 , we discussed at length the procedures to be followed by a trial court with respect to the questions, when raised, of competency to stand trial and of responsibility for criminal conduct, under the provisions of Code, Art. 59, §§ 7-12, as enacted by Chapter 709, Acts of 1967, effective 1 June 1967. We discussed these same procedures further in Rozzell v. State, 5 Md. App. 167 , 245 A. 2d 917 . The criteria by which insanity is determined have been changed since those decisions, by chapter 407, Acts of 1970, and chapter 345, Acts of 1972, but the procedures remain the same.

We pointed out in Strawderman that under the pre-1967 procedure an accused could plead not guilty by reason of insanity at the time of the commission of the alleged crime, or not guilty by reason of insanity at the time of the trial, or both. At page 695. We said that the sole issue of competency ⁶³⁹ to stand trial is not, under the 1967 statute, raised by plea, but as provided in the then new § 7, now § 23, of Art. 59, and that its determination is a matter resting exclusively in the court. In Rozzell we reiterated, “with regard to competency to stand trial, that the lower court, in whom the determination of the matter rests, must determine beyond a reasonable doubt that the accused is able to understand the nature or object of the proceedings against him and to assist in his defense”.

We said further in Rozzell , at page 175: “In the instant case there was direct expert evidence and other credible evidence from which a rational inference could be drawn sufficient for the lower court to find beyond a reasonable doubt that the appellant was competent to stand trial. Therefore its judgment on the evidence was not clearly erroneous.” With regard to responsibility for criminal conduct we pointed out in both Strawderman and Rozzell that the statute provided, in the then new § 9 (b), now § 25 (b): “When it is desired to interpose the defense of insanity * * * the defendant or his counsel shall * * * file 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.” 1 Section 25 (b) goes on to provide that when the plea of insanity has been entered the court shall have full power and authority to order an examination of the mental condition of the accused by the Department of Mental Hygiene. Section 26 requires the Department to forward a report of its opinions relating to insanity at the time of commission of the alleged offense and to competency to stand trial. ⁶⁴⁰ With respect to responsibility for criminal conduct an accused is presumed sane and responsible until, after a proper plea, he adduces proof of insanity, as set out in Strawderman , sufficient to overcome that presumption. It is then the burden of the State to prove sanity, as well as the other elements of the offense charged, beyond a reasonable doubt.

In passing we notice that appellant adduced no proof in support of his plea of insanity. While the plea was not withdrawn, we think it was implicitly abandoned. In any event, in the absence of proof to support the plea, the State