Djadi v. State

WILNER, Judge. On the evening of January 24,1986, appellant went to the department of his former girlfriend, Teresa Whittle, and shot her four times in the head. He also caused some damage to her telephone when he pulled it off the wall. For those acts, appellant was tried, convicted, and sentenced in the Circuit Court for Baltimore County of and for attempted murder, use of a handgun in the commission of a crime of violence, and malicious destruction of property.

He makes three complaints in this appeal: “I. The trial court erred in refusing to grant appellant’s requested postponement in order to obtain an independent psychiatric evaluation.

II

The trial court erred in admitting statements not authenticated as appellant’s statements.

III

Appellant’s sentence for malicious destruction is illegal.” We find no merit in appellant’s first two complaints. The State concedes that, on the record in this case, the sentence imposed for malicious destruction of the telephone—six months in prison—exceeds the 60-day maximum authorized by Md.Code Ann. art. 27, § 111(b), and so we shall remand for resentencing on that charge. (1) Requested Postponement Appellant was charged by criminal information on March 6, 1986. On March 81, through privately retained counsel, he filed a barrage of motions, papers, and pleadings, including (1) a motion for pre-trial psychiatric evaluation to determine if he had a mental illness or retardation at the time of the offense and if he was competent to stand trial and (2) a plea that he was “insane at the time of the commission of ²²⁶ the alleged crime” and that he was incompetent to stand trial. 1 Pursuant to that plea, and in accordance with the applicable provisions of the Health-General article of the Maryland Code, the court, on April 24, 1986, ordered appellant transferred to C.T. Perkins State Hospital for evaluation as to both competence to stand trial and criminal responsibility.

The Report from Perkins was filed with the court on June 2, 1986; defense counsel acknowledges receiving a copy of it on June 10. The Report records the unanimous forensic opinions of two psychiatrists and two psychologists that appellant suffered from “dysthymic disorder,” but that he was both competent to stand trial and criminally responsible. 2 Their impressions from a mental status examination of appellant was that appellant’s “thinking was logical and association relevant. Affect appropriate. Memory for recent and remote events not impaired except that he claims amnesia for the offense.

Attention span and concentration adequate.” The covering letter, signed by the Superintendent and the Clinical Director of the hospital, stated that, “[a]t the time of the alleged offense, Mr. Djadi was not suffering from a mental disorder which would have caused him to lack substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law,” ²²⁷ that being the test for criminal responsibility set forth in the law (Health-Gen. art., § 12-108). Trial was scheduled for June 26, 1986. At the very outset of the proceeding, defense counsel informed the court that his client did not think that the C.T. Perkins evaluation was “a fair representative evaluation.” He gave no particular reason for that feeling but requested nonetheless that appellant “be re-evaluated at Perkins as to the issue of competence and responsibility____” 3 Noting that the four doctors (actually two psychiatrists and two psychologists) who had examined appellant were unanimous in their view, the court denied the request, whereupon counsel asked “that we be allowed to hire our own psychiatrist.” Recognizing that the granting of that request would require a postponement, the court recessed to allow counsel to take his request to the County Administrative Judge (.see Md. Rule 4-271(a)). Before the County Administrative Judge, the State opposed any continuance, arguing that its six witnesses were present and it was ready to proceed.

When asked what, if anything, counsel had done since receiving the Perkins report 16 days earlier, he responded that he “had made no arrangements to this point.” In response to the court’s inquiry of whether appellant had the funds to obtain a private evaluation, counsel represented that funds were available from appellant’s former employer. Dubious, the court told counsel that, if he could get an assurance from the employer in that regard, “then perhaps I’ll be more inclined to consider [the request].” Following a brief recess, the parties returned to the Administrative Judge, and this colloquy occurred: ²²⁸ “THE COURT: Once again, we’re back on 86-Cr-1256 for the postponement request. What have you been able to ascertain, Mr. Gitomer? DEFENSE COUNSEL: Your Honor, I contacted the doctor who I would use.

He informed me that it would be between a hundred ninety-five to two hundred seventy-five dollars, and I then contacted the T.V. Company, whose name was provided to me by the Defendant, Mr. Lee, and Mr. Lee informed me that neither of them were willing to put up any money, so at this point there is nothing that I can do. THE COURT: You don’t have any money to get a private examination? DEFENSE COUNSEL: No, I do not. THE COURT: I am not going to grant the postponement because I don’t know if I granted the postponement when he’d be able to get a private examination.

There has been a full psychiatric examination done at Clifton T. Perkins. You just have to go with that.” The parties then returned to court for trial, where, as a first order of business, appellant expressly withdrew his plea of “insanity.” Appellant now argues that he had a Constitutional right to seek independent psychiatric assistance, that such assistance “should have been made available at state expense,” and that the court’s conditioning a postponement on his ability to pay for the independent evaluation constitutes reversible error. There are several answers to these assertions. The first is that his alleged Constitutional entitlement to an independent evaluation at State expense was never presented to the trial court and has therefore not been preserved for appellate review.

Md. Rule 1085. Second, even if he had such a right, he could have pressed it before the day of trial. He was not entitled to sit back for 16 days, wait until the morning of trial when six witnesses were in court, and then demand a continuance. And third, on the facts of this ²²⁹ case, he was not denied any Constitutional right to psychiatric assistance.

The procedure authorized under the Health-General article and employed in this case—evaluation at C.T. Perkins State Hospital—fully satisfied any Constitutional right appellant had to the assistance of psychiatric experts. Johnson v. State, 292 Md. 405, 410-16 , 439 A.2d 542 (1982). As pointed out by the Johnson Court at 414, 439 A.2d 542 : “Common sense dictates that there be some limit placed upon the right of indigents to the assistance of State-funded experts. This is not a case where the government has refused to provide psychiatric evaluation of a criminal accused who wishes to interpose an insanity defense, or where the resulting report is withheld from the defendant.

Nor has appellant in this case produced evidence challenging the professional competence or impartiality of the psychiatrists at the Perkins Hospital. 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.’ ” (Footnote omitted.) Thus, at 415-16, 439 A.2d 542 , the Court held: “Whatever the amount of required State assistance for the appointment of defense experts to enable the indigent to place the issue of insanity before the trial court, we need not determine here, for it is certain that once an accused is evaluated by state funded, impartial and competent psychiatrists, that constitutional duty, if any, ends. ‘[T]he State has no constitutional obligation to