Davis v. State

Howard Jimmy Davis v. State of Maryland, No. 51, September Term 2020, Opinion by Wilner, J. CRIMINAL PROCEDURE LAW – CP § 4-202(d) - When he was 16, petitioner participated in an armed home invasion in which shots were fired and one of the occupants was injured. Petitioner was charged with several crimes beyond the jurisdiction of the Juvenile Court but sought a transfer of the criminal court’s jurisdiction pursuant to Md. Code, Crim. Proc. Article § 4-202.

Stressing the seriousness of the crimes and looking at petitioner’s amenability to treatment in the juvenile system only in terms of his eligibility for possible programs, the court denied the transfer motion, whereupon petitioner entered a conditional guilty plea and was sentenced to 10 years, five without parole. The Court of Special Appeals affirmed. The Court of Appeals granted certiorari to clarify the meaning of amenability and its relationship to other statutory factors required by CP, § 4-202(d) to be considered by the court. The Court of Appeals reversed.

Section 4-202(d) requires the court to consider the defendant’s age, physical and mental condition, amenability to treatment in a juvenile institution, program, or facility, the nature of the offense(s), and public safety. Amenability is the factor to which the other four are uniquely connected, and it means more than mere eligibility for a juvenile program. The court needs to determine what programs are available to the defendant in the juvenile and adult systems, whether the defendant would be willing to participate constructively in the juvenile program, and whether he or she would benefit from it in a way that would reduce the likelihood of recidivism better than anything available in the adult system. The controlling principle is the 1966 legislative declaration that the protection of the public is the ultimate goal of any juvenile delinquency program and that the program that is most effective in treating, educating, and rehabilitating juvenile offenders will best protect the public in the long run.

Circuit Court for Baltimore County Case No. 03-K-17-001763 Argued: May 11, 2021 IN THE COURT OF APPEALS OF MARYLAND No. 51 September Term, 2020 Case No. 419686V Argued 1/7/19 HOWARD JIMMY DAVIS v. STATE OF MARYLAND Barbera, C.J. McDonald Watts Getty Booth Biran Wilner, Alan M. (Senior Judge, Specially Assigned) Opinion by Wilner, J. Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Filed: July 12, 2021 2021-07-12 10:04-04:00 Suzanne C. Johnson, Clerk On March 22, 2017, when he was just 16 years old, petitioner, along with two other young men, participated in an armed home invasion in Baltimore County. During that invasion, shots were fired and one of the family members was grazed with a bullet and battered with the butt of an assault rifle wielded by petitioner.

For that activity, petitioner was charged in a 14-count indictment that included two counts of attempted first-degree murder, home invasion, first-degree assault, use of a firearm in the commission of a crime of violence, and reckless endangerment. Upon his arrest, he was detained in the Charles H. Hickey School, a detention facility operated by the Department of Juvenile Services (DJS).1 Because of petitioner’s age and the nature of some of the offenses charged, the criminal division of the Circuit Court had exclusive original jurisdiction over petitioner, subject to a transfer of that jurisdiction to the Juvenile Court division of the Circuit Court pursuant to Md. Code, § 4-202 of the Criminal Procedure Article (CP). See Md. Code, §3- 8A-03 of the Courts and Judicial Proceedings Article (CJP). On June 15, 2017, petitioner moved for such a transfer (commonly referred to as a “reverse waiver”) and asked the court to order a study pursuant to CP § 4-202(e).2 1 With exceptions not relevant here, Md. Code, § 4-202(h) of the Criminal Procedure Article requires that, pending a transfer determination, the court shall order the child to be held in a secure juvenile facility. 2 CP § 4-202(e) permits the court, in making a determination whether to transfer jurisdiction, to order that a study be made concerning the child, the family of the child, the environment of the child, and other matters concerning the disposition of the case.

In anticipation of such a motion, four Reports were prepared for the court: a Reverse Waiver Report prepared by DJS case management specialists, a Mental Health Summary Form prepared by a Hickey mental health clinician, and a Detention Court Report and Detention Behavior Report prepared by Hickey case management specialists. The Reverse Waiver Report, dated May 15, 2017, addressed the five statutory factors that the court would be required to consider in determining whether to transfer its jurisdiction, namely: (1) the age of the child; (2) the child’s physical and mental condition; (3) the child’s amenability to treatment in any institution, facility, or programs available to delinquents; (4) the nature of the offense(s); and (5) public safety. See CP § 4-202(d). The Report gave petitioner’s age and details about his physical condition, including that he had a heart murmur and seasonal allergies and that he had suffered from asthma in the past but had not had an attack for five years.

His mother reported that petitioner had become withdrawn and depressed recently and had been drinking and using unlawful drugs, which petitioner admitted. Addressing petitioner’s amenability to treatment, the Report recounted three prior contacts with DJS. The first occurred in May 2010 when, at the age of nine, he was charged with a fourth-degree burglary that was resolved at intake. In June 2014, when he was 13, he was charged with motor vehicle theft, malicious destruction of property, and breaking and entering, for which he was put on probation and ordered to pay $50 in restitution.

In November 2015, while still on probation, he was charged again with motor vehicle theft and was placed on informal supervision. What actually occurred on those three occasions 2 is not at all clear; all that is reported is the fact that those events occurred. There is no indication whether any violence was involved. As to the nature of the crime(s) that led to this case, the Report stated that the initial home invasion occurred at night while the family was sleeping.

The family consisted of an adult male, his fiancé, and the fiancé’s three children. The adult male heard a loud banging noise coming from the kitchen, went down to investigate, and saw one man in the kitchen and two others coming in through the sliding door. All three of the intruders were wearing masks, gloves, and dark clothing. He began fighting with the one already in the house, whereupon all three left.

The adult male then returned upstairs to get dressed and directed his fiancé to call 9-1-1 when he heard gunshots coming from the kitchen area. Several seconds later, one of the men kicked in the bedroom door and entered the room with an assault rifle. The fiancé locked herself in the bathroom. The adult male grabbed the barrel of the rifle; several more shots were fired as they struggled, one of which grazed the adult male.

The struggle ended when the adult male was struck in the face with the butt of the rifle, knocking out some of his teeth. The three intruders then left the house. The fiancé’s 11-year-old son saw two of the masked men, one of whom pointed a long black gun at him. The Report recited that the three intruders were eventually arrested and that one of them told the police that petitioner was the one with the rifle and was the one who struck the adult male with it. 3 No recommendation was made in that Report.

The DJS case managers stated only that, if petitioner was transferred to juvenile jurisdiction, “evaluations would be requested to help determine appropriate services” and that “he will be eligible for behavior modification program in state and out of state.” They added that petitioner and his mother were willing “to participate in services offered by [DJS].” The Mental Health Summary Form, dated May 10, 2017, deferred a primary diagnosis but stated a secondary diagnosis of “Cannabis Use Disorder-Moderate-in a controlled environment.” The clinician stated that petitioner’s presentation was always stable and alert and that his behavior was appropriate. He said that petitioner “is open to individual therapy with mental health staff,” that he had not been involved in any incidents since arriving at Hickey, had not been aggressive or disrespectful towards peers or staff, and was forthcoming about the events that led to his detention. Regarding petitioner’s participation in therapy sessions, the Report stated that he “was always willing to participate in individual and group therapy sessions to discuss his moods and behaviors.” He regularly attended community meetings, thoughtfully contributed to the group discussion, was “very amenable,” cooperative, and tolerant of others. He said that he wanted to return to high school, which had been interrupted by his detention, and to attend graduation with his family present.

His goal was to continue his training as a boxer and acquire employment as a carpenter. Under the heading regarding “issues of concern and/or recent incidents that would impact treatment needs,” the clinician wrote “N/A.” In addressing recommendations for 4 how to meet petitioner’s treatment needs, Hickey’s mental health clinician stated that, based on her interactions with petitioner, she believed that he “will benefit from individual counseling to address his poor decision making skill, substance use behaviors, and emotion regulation.” More specifically, she stated that sessions should focus on (1) anger management to help with self-regulation that he will be able to implement in the community, (2) developing positive prosocial habits to replace negative, delinquent ones, and (3) dialectical behavior therapy to provide coping strategies to reduce youth’s vulnerability, identifying emotions, and exploring opposite emotion actions. Added to that list were family counseling to improve overall family support, group counseling to provide him an opportunity to engage with his peers in a structured setting and learn how to interact in a healthy prosocial manner, and continuing with his education (noting that his most recent grades were 71 in English, 81 in geometry, 73 in biology, 90 in career research development, and 81 in office system management). Although a transfer hearing had been scheduled for June, petitioner requested a postponement in order to obtain a further evaluation.

With no objection from the State, the hearing was postponed and did not take place until January 2018. In preparation for that hearing, at the request of defense counsel, a psychological evaluation was made of petitioner by Dr. Kristen Zygala, a clinical psychologist at Spring Grove State Hospital who did assessments for the Public Defender’s Office, to assess his cognitive, emotional, and behavioral functioning and the potential risk for aggression in the future. As part of 5 her evaluation, Dr. Zygala reviewed the Reverse Waiver Report and the Mental Health Summary Form prepared by the Hickey clinicians. Dr. Zygala’s Report recited, in somewhat more detail, petitioner’s family life, substance abuse, and legal history, which was consistent with the Hickey Reports, but she noted several traumatic events in petitioner’s life not mentioned in the Hickey Reports – witnessing when he was seven or eight years old one man being shot and another stabbed, losing his grandmother, with whom he was very close, and his uncle and teenage cousin being shot to death, all when he was 11.

Following those events, he entered a mentoring program through school. Both as part of background information and her behavioral observations, Dr. Zygala also recounted that petitioner’s mother had stated that petitioner had been a “wonderful child” who never gave her problems, but that he changed when he began dating a girl whom the mother regarded as a negative influence. The girl introduced him to Percocet, Xanax, and Suboxone and had fabricated an “elaborate lie” that she was pregnant with twins (to the point of sending him fake ultrasound pictures). She then told him that she had been raped by a family friend and had lost one of the babies.

The mother said that petitioner’s “mood changed significantly as he became withdrawn and depressed,” with increased crying and drug use. That became important in calculating petitioner’s risk factors later in her Report. As part of the evaluation, petitioner underwent testing for cognitive functioning, achievement functioning, and emotional functioning. With one exception, he was 6 classified as “average.” The one “below average” was for “word reading” on the Wide Range Achievement Test.

From the Basic Assessment System for Children Self Report, Second Edition, that evaluates internalizing and externalizing difficulties, school problems, and personal adjustment, Dr. Zygala concluded that petitioner’s responses reflected “a need for social approval and minimization of psychological distress.” Dr. Zygala then addressed counsel’s request for a risk assessment. She used two risk assessment tools – the Chronic Violent Behavior Risk and Needs Assessment (CARE- 2) and the Structured Assessment of Violence Risk in Youth (SAVRY). She described the CARE-2 as being divided into two sections – Risk Factors and Resiliency Factors. Under Risk Factors, she identified intermittent contact between petitioner and his father, substance abuse, association with delinquent peers, deficient problem-solving, and a history of truancy.

Balancing that, she noted several Resiliency Factors – average IQ, supportive and nurturing caregiver (his mother), appropriate parental discipline, appropriate and achievable future goals, participation in positive activities, relates well to prosocial peers, and minimal conflicts with parents and siblings. Based on the scoring, she assessed petitioner’s level of risk as “within the Low Risk range at this time,” which means “not similar to youth with chronic assaultive behavior.” The SAVRY assessment measures four categories of risk factors – Historical Items, Social/Contextual Items, Individual Items, and Protective Factors. With respect to Historical Items, Dr. Zygala noted that petitioner’s parents separated when he was six years old, they got along well, his mother has been the primary caregiver, and she had been 7 supportive. The father had become less involved in petitioner’s life.

There was no reported violence in the home, although petitioner had been exposed to neighborhood violence. Academically, petitioner had been an average student, but in the 10th grade his performance declined and truancy increased. Current test results reflected average verbal and nonverbal intellectual abilities, spelling, and math skills. He was achieving satisfactory grades at Hickey, and his goals included completing high school and attending college or trade school.

In terms of Social/Contextual Items, Dr. Zygala reported that petitioner got along well with peers and adults and with his parents and siblings but interacted with both negative and positive peers and, within the preceding year, his use of illegal substances had increased. She noted his prior legal involvement but also that a Hickey correctional officer had described him as “our best student.” There were no concerns regarding petitioner’s emotional functioning until the episode(s) with his former girlfriend who, it appears, was never pregnant and never raped. On a positive note, she found that he “exhibits a positive attitude, empathy for others, remorse for previous negative behaviors, compliance with the structure since being detained, and commitment to improving his future” and “does not have significant problems with inattention or anger management.” Given the absence of high-risk factors, Dr. Zygala placed petitioner in the Low Risk range for future serious violence. She opined: “Future aggression and violence does not seem consistent with his long- standing values, attitudes, and behavior.

Importantly, although past behavior is an important aspect when assessing future violence, it is only one part of a 8 consolation [sic] of factors as reflected in the variety of items on the risk measures. [Petitioner’s] potential for risk would further decrease if he is provided with the recommendations in this report.” Addressing then the transfer considerations, Dr. Zygala concluded that petitioner “would greatly benefit from involvement in the juvenile justice system where he can receive the necessary treatment for his academic and emotional struggles.” She added that, given petitioner’s strong desire to improve his situation, his significant remorse for previous negativity, and willingness to participate in recommended treatment, it appears that “[he] would greatly benefit from therapeutic and academic interventions as well as vocational training, substance abuse treatment, and mentoring in the juvenile system” and that that opportunity “is especially important because he has not been offered extensive services through DJS in the past.” Although his alleged crime was “extremely concerning,” she observed that it seemed out of character based on interviews and records. Dr. Zygala concluded her Report with 10 specific programs or therapies in the juvenile system from which petitioner could benefit. In addition to the above, the Office of the Public Defender prepared a Transfer Report that, in part, recounted what was in the other Reports but in the context of the five factors set forth in CP § 4-202(d) required to be considered by the court. It listed the various programs, both in-State and out-of-State, that would be available to petitioner if he was transferred to the juvenile system.

One final document was before the court – a letter addressed to the judge from Kimberly Turner, on behalf of unCUFFED Ministries, a faith-based organization offering 9 life skills training, monitoring, and spiritual encouragement to detained youth. Ms. Turner recounted in the letter, and later in testimony at the transfer hearing, petitioner’s participation in their program. She concluded that his commitment to receiving help, in her view, “is testimony to how amenable he is to treatment.” All of these Reports were in the record before the hearing judge and are in the record before us, although only Dr. Zygala’s Report and Ms. Turner’s letter were individually marked as exhibits. At the transfer hearing on January 23, 2018, the court acknowledged receiving and reading the other reports.3 Dr. Zygala testified regarding her Report as did Jenna Conway, a licensed social worker, regarding the Transfer Report for the Public Defender’s Office, which she had authored.

With respect to available programs, Ms. Conway stated that there were programs available for petitioner, who was 17 at the time, but that DJS would have to decide which particular programs would be suitable for him once he was committed to the Department. She was clear that he had needs that could be addressed through placements made by DJS, even after he turned 18. At the conclusion of argument by counsel, the court immediately announced its decision extemporaneously from the bench. Going through the five factors, it found that petitioner was 16 but less than a month away from his 17th birthday, that his physical and mental condition was good, and that his intelligence level was at least average.

The crux of the issue for the court was a combination of the third, fourth, and fifth factors -- 3 There was some discussion at the hearing regarding the Reports from DJS and the Public Defender’s Office. The court stated that it had read them. 10 amenability to treatment in the juvenile system, the nature of the crime, and public safety. For clarity in understanding the issues before us, we shall recite verbatim the court’s findings and conclusions on those issues, but, for ease of reading, we shall break them into segments: [1] “With regard to amenability, amenability to treatment in the juvenile system – but the report from Juvenile Services indicates that they would, they would need to conduct another evaluation and that he, he would be eligible for behavioral modification.” [2] “They don’t mention that he could be held in a secure facility, although we know that and certainly that the experts testified to that.” [3] “The nature of this offense is horrific. It is probably the single most fact – concerning factor with regard to whether or not this young man should remain in the adult system.

Everybody’s very fortunate here today, that this did not result in a murder, because it very easily could have. But in any event, that it is a very serious, violent offense.” [4] “And I’m not persuaded, frankly, that the girlfriend is, is to blame here. But I have to say that, the presence of the girlfriend and her influence on this Defendant, that has been explained by the experts and, and counsel, frankly in my view does not favor transfer to the juvenile system, because, you know, there will be other girlfriends in the future and there will be other individuals in his life who will have an influence on him. And if those influences, influences can lead to behavior of this nature, that frankly, does not weigh in favor of transfer to the juvenile system.” [5] “In addition, while the expert that testified that kids are more impulsive is certainly true, and, and certainly most of that has to do with brain development, but it’s important to note that, the vast majority of teenagers don’t commit home invasion and attempted murder in spite of their impulsivity.” 11 [6] “It’s clear that when this young man is in custody, he does well, that he doesn’t commit any offenses, that he’s engaged in, in treatment, but when he’s not in custody he has committed an offense, a very grave, violent offense.

And in my view, he’s a considerable threat to public safety.” [7] “Therefore, the Request to Transfer Jurisdiction to the Juvenile Court is denied. He’ll remain in the adult system.” Following that ruling and facing trial in the criminal court, petitioner entered a conditional plea of guilty pursuant to Md. Rule 4-242(d) (and apparently Rule 4-243 as well), to two counts of first-degree assault and the one count of use of a firearm during the commission of a crime of violence, subject to (1) the State, upon a finding of guilt, dismissing the other counts and recommending a split sentence of actual incarceration with a cap of ten years, and (2) an understanding that the court had agreed to a cap of no more than ten years followed by a suspended portion of incarceration and a period of probation. The plea allowed petitioner to file an appeal limited to pretrial issues litigated in the Circuit Court, i.e., the transfer motion. The plea agreement was honored.

Petitioner was sentenced to concurrent prison terms of 15 years, with all but ten suspended for the assault convictions and a concurrent term of five years, without parole, for the firearm offense. The sentencing judge recommended that petitioner be admitted to Patuxent Institution for inclusion in its youth program, but that did not occur. Petitioner appealed his conviction to the Court of Special Appeals, arguing principally that the trial court did not properly consider the amenability-to-treatment factor 12 specified in CP § 4-202(d) but instead gave disproportionate weight to the nature of the crime and public safety. His complaint as to amenability was that the trial court took too narrow a view of what that meant and considered only whether he was eligible for programs that might be available upon a commitment to DJS and ignored whether he would be willing to participate in them and could benefit from them.

The Court of Special Appeals, in an unreported Opinion, found no merit in those arguments. It declared petitioner’s attempt to distinguish between eligibility and actual amenability – willingness to participate – to be little more than a semantic argument insufficient to rebut the strong presumption that judges know the law and are not required to “spell out in words every thought and step of logic.” Relying on some of its earlier decisions, the Court concluded that the five factors in CP § 4-202(d) need not be given equal weight and that it was permissible for a trial court, when the facts permit, to give predominant weight to the nature of the crime as it may affect public safety. On those conclusions, the Court of Special Appeals affirmed the Circuit Court’s judgment. We granted certiorari to clarify what is meant by “amenability” under CP § 4- 202(d) and how that relates to the other four factors listed in that statute.

These are matters of statutory construction – issues of law. We are not looking at whether the trial court abused its discretion in its ultimate determination, but whether it applied the proper legal standards in exercising its discretion. DISCUSSION 13 The clear and overarching standard governing statutory construction is for the Court to “ascertain and effectuate the intention of the legislature.” 75-80 Properties v. Rale, Inc., 470 Md. 598, 623 (2020). All, or at least most, of the other canons recounted in the case law are in the nature of guidelines leading to that ultimate end.

If there is no ambiguity in the statutory language, we normally go no further and construe the statute as it is written, on the premise that the Legislature said what it meant and meant what it said. See Id. We do not, however, analyze statutory language in a vacuum. Rather, it “must be viewed in the context of the statutory scheme to which it belongs, considering the purpose, aim, or policy of the Legislature in enacting the statute,” and, in doing so, “we look to the statute’s legislative history, case law, purpose, and overarching statutory scheme in aid of searching for the intention of the Legislature.” Hoang v. Lowery, 469 Md. 95, 119 (2020).

That is what we must do here. As we indicated above, we took this case to clarify what is meant by “amenability” in CP § 4-202(d) and how that relates to the other factors in that section of the Code because neither of those things is presently clear, and that requires an examination of the legislative history and, with respect to the interrelationship of the five considerations, an analytical approach to what the General Assembly most likely had in mind. Statutory History Although there were precursors dating back at least to 1902, juvenile courts came formally to Maryland in 1943. It was then that the Legislature, by 1943 Md. Laws, Ch. 818, added to the jurisdiction of the Circuit Court of Baltimore City, which was one of the 14 several courts that constituted what was then known as the Supreme Bench of Baltimore City, jurisdiction in juvenile causes as set forth in the statute.4 The law required the Supreme Bench to assign a judge to exercise that jurisdiction.5 Among other things, the law gave that judge “original, exclusive jurisdiction concerning any child who is dependent, delinquent, neglected, or feeble-minded.” It added that, if the child was charged with the commission of an act that would amount to a misdemeanor or felony if committed by an adult, the judge, “after full investigation,” may waive jurisdiction and order the child held for action under the regular procedure that would follow if the act had been committed by an adult.

The jurisdiction over children charged with a crime had limits. The law defined “delinquent child” as excluding children whose conduct would constitute crimes punishable by death or life imprisonment if committed by an adult, and the court’s jurisdiction was limited to children under 16. Two years later, by 1945 Md. Laws, Ch. 797, the General Assembly extended that jurisdiction, although not all of the structure or procedure, to the Circuit Courts of the counties, except those in Allegany, Garrett, Prince George’s, Montgomery, and Washington Counties. Those counties eventually were brought into the State system, 4 This Court recounted the earlier history of juvenile proceedings in Maryland in Matter of Anderson, 272 Md. 85 (1974) and Wiggins v. State, 275 Md. 689 (1975). 5 The judge so assigned was Charles E. Moylan, Sr., who remained the Juvenile Court judge in Baltimore City until he retired in 1967. 15 Montgomery being the last holdout until 1975.6 As in Baltimore City, the law excluded from the definition of “delinquent child” crimes punishable by death or life imprisonment and permitted the Juvenile Court judge to waive jurisdiction “after full investigation,” but it gave those courts jurisdiction over children up to the age of 18.

In 1951, the Juvenile Courts lost their jurisdiction over traffic offenses. There was no provision in the State law for a “reverse waiver” – a transfer of jurisdiction by the criminal court to the juvenile court where the alleged crime carried a penalty of death or life imprisonment. Nor were there any standards or guidelines for the exercise of a waiver of the exclusive jurisdiction of the juvenile courts over all other offenses, other than to make a “full investigation.” That became a Constitutional problem in 1966, when the Supreme Court struck