Dubs v. State

Orth, J., delivered the opinion of the Court. On August 30, 1965 the appellant was convicted of murder in the first degree, without capital punishment, by a jury in the Circuit Court for Harford County. He was sentenced to imprisonment “for the rest of his natural life” on September 21, 1965. He noted an appeal on September 30, 1965.

Upon petition of the appellant on October 22, 1965 the time for transmitting the record to the Court of Appeals was extended to December 28, 1965 and upon petition on January 19, 1966 was further extended to March 1, 1966. By order of the Court ⁵²⁸ of Appeals of February 14, 1966 the appeal was remanded to the lower court for further proceedings to ascertain whether the appellant desired to avail himself of the relief afforded by the rulings of the Court in Schowgurow v. State, 240 Md. 121 , and its companion cases. At a hearing on March 9, 1966 the appellant offered a motion for a new trial and the motion was granted. When first charged with the crime, the appellant waived his right to indictment by a grand jury and requested an immediate trial under Code, Art. 27, § 592.

An information was filed against him and he was tried thereunder. Therefore, it was not necessary to indict him when he elected to declare his trial invalid and his subsequent trial could proceed under the original information. On May 18, 1966 the appellant filed a motion for a change of venue and by order of court the case was removed to Queen Anne’s County. On the same date the appellant moved to dismiss the information on the ground, among others, that he was denied a speedy trial.

On June 17, 1966 the transcript of the record and a certified copy of the docket entries were filed in the Circuit Court for Queen Anne’s County. On July 1, 1966 the appellant filed a pauper’s oath and counsel was appointed to - represent him. The motion to dismiss the information was heard and denied and the appellant pleaded “Not Guilty. Not Guilty by reason of insanity.

Not Guilty by reason of insanity at the time of the crime and Not Guilty for being a chronic alcoholic.” The case was assigned for trial on August 15, 1966 and trial before a jury commenced on that date. It concluded on August 19, 1966 and the jury returned its verdict: “Sane at the time of the trial. Sane at the commission of the alleged offense. Not Guilty of murder in the first degree but guilty of murder in the second degree.” On September 16, 1966 the appellant was sentenced to imprisonment for a term of 18 years from January 28, 1965 after motion for a new trial was heard and denied.

I On October 11, 1965 the Court of Appeals decided Schowgurow v. State, supra, and in reliance on that decision the appellant petitioned for a writ of habeas corpus in the Circuit Court for Harford County. On November 9, 1965 Judge Harry ⁵²⁹ E. Dyer, Jr. rendered an opinion in which he stated that the court was “inclined to agree” with the contention that the appellant’s fundamental constitutional rights had been “infringed under the reasoning of the Schowgurow decision” and that the court would order “the issuance of a Writ of Habeas Corpus and the release of the appellant from imprisonment unless the State’s Attorney for Harford County can re-indict the Relator by a properly constituted Grand Jury, within a reasonable time.” The appellant complains on appeal that the writ never issued although his attorney requested the court by letter of December 20, 1965 to consider signing the writ at that time as no action had been taken by the State’s Attorney for Harford County. We point out that the appellant had not been indicted by an illegally constituted grand jury but was charged under a criminal information filed at his request. The information was not affected by the Showgurow decision.

Further the appellant had an appeal then pending in the Court of Appeals which he made no attempt to dismiss and which was remanded by the Court for further proceedings as a result of Showgurow on February 14, 1966 after the administrative procedures necessary to be determined had been resolved. In any event, the appellant was legally detained on a valid information pending against him, and his detention was not rendered illegal by the petit jury which convicted him being unconstitutionally constituted, particularly in view of the fact that the conviction was not void per se but was voidable only at the election of the appellant. Even an illegal detention would not, in itself, entitle the appellant to a reversal of the judgment from which he here appeals or to a new trial. See Dixon v. State, 1 Md. App. 623 .

The contention that the lower court had the right to issue the writ of habeas corpus and the complaint that it did not do so is moot. It is not relevant to this appeal and has no merit with regard to it. II The appellant contends that he was denied a speedy trial. That this contention runs only to the trial resulting in the judgment now appealed was acknowledged by appellant’s counsel at the hearing on the motion to dismiss.

The original trial ⁵³⁰ was valid until declared invalid by the appellant. He made an election to invalidate it, after remand of his appeal from the judgment resulting from that trial, on March 9, 1966. Therefore the question of whether he was denied a speedy trial is limited to the period from March 9, 1966 to the date of his trial, August 15, 1966. The question of a speedy trial was not formally presented to the court until May 18, 1966 when the appellant filed a motion to dismiss the information, although on April 15, 1966, his counsel, under the mistaken assumption that it was' necessary that the appellant be indicted or another information be filed against him, stated in a letter to the State’s Attorney of Harford County, “I would appreciate your taking the necessary steps to expedite his trial in either having him indicted by the grand jury or presenting him under a Criminal Information Report so that his trial may be expedited as soon as possible.” But contemporaneous with the motion to dismiss on May 18, 1966, the appellant filed a motion for change of venue, to which he was entitled as a matter of right, Md. Code, (1965 Repl.

Vol.), Art. 75, § 44; Md. Rules, 542, 738, and the case was removed. On July 1, 1966 the trial judge stated that although he was supposed to go on vacation the following Wednesday, he would forego it and try the case. Counsel for the appellant replied, “We agreed some time the early part of August would be perfect.” Trial was set for August 15, 1966. Arrangements were also made at that time to refer the appellant to the Department of Mental Hygiene for examination.

In Jones v. State, 241 Md. 599, 608 , the Court of Appeals quoted 22A C.J.S. Criminal Law § 647 (4) : “A speedy trial is, in general, one had as soon as the prosecution, with reasonable diligence, can prepare for it; a trial according to fixed rules, free from capricious and oppressive delays, but the time within which it must be had to satisfy the guaranty depends on the circumstances.” We pointed out in State v. Long and Nelson, 1 Md. App. 326, 333 , that although an accused has the right to a speedy trial, if he does not demand the right, he waives it. “And even where a defendant had made a proper demand for trial or has moved ⁵³¹ for his discharge or dismissal of the proceedings against him, this does not necessarily prevent a ruling that because of subsequent conduct he waived his right to a speedy trial.” State v. Murdock, 235 Md. 116 at page 121. Under the circumstances here present, we think that the trial was held as soon as the State, with reasonable diligence could prepare for it, and feel that it was so free from capricious and oppressive delays as not to deny the appellant his constitutional rights. We find that the period of about 5 months and 6 days before trial commenced was not unreasonable, particularly in view of the actions of the appellant, and that he was in no wise prejudiced thereby. We hold that the appellant was not denied the right to a speedy trial.

Ill The appellant contends that the trial court erred in refusing to strike for cause a juror because “There was sufficient doubt as to whether or not (he) was a competent juror to try the case without prejudice.” The basis of the contention was the responses of the juror on the voir dire to the effect that “it would depend a little on the situation” whether he was prejudiced against anyone who has taken the life of another and that he would be a “little” prejudiced against “somebody who is shown” to have been the cause of someone else’s death, “before any proof of circumstances takes place.” He stated that he did not “think a person should take the life of another person other than self defense.” But he made it clear in response to inquiry by the court that any prejudice he may have did not extend to the point where he felt he could not render a fair and just verdict according to the evidence, that he would be able to give the accused the benefit of reasonable doubt, notwithstanding the victim was the accused’s wife, that there was no such feeling on his part as to prevent the accused from getting a fair trial at his hands according to all the rules of evidence, that he would be able to give the accused the benefit of a doubt as to whether the accused was sane or insane and that if he was convinced beyond a reasonable doubt that the accused was insane at the time of the commission of the offense, he could find that the accused was not responsible for ⁵³² the crime. The appellant supports his contention with a citation from M.L.E., Vol. 13, Juries, p. 473 : “A prospective juror who has such personal opinions with respect to the subject matter of the action or proceedings as would influence his verdict is incompetent.” The prospective juror demonstrated to the trial court’s satisfaction that his personal opinions with respect to the subject matter were not such as would influence his verdict. The court felt that the juror was not biased in favor of or against the guilt of the appellant in this case, and we agree. In Bristow v. State, 242 Md. 283, 288 , the Court quoted the definition of what constitutes impartial jurors as set out in Garlitz v. State, 71 Md. 293 , 300: “The minds of such men always remain open to the correction of former impressions, and remain entirely impartial, with power to hear and determine upon the real facts of the case, without the least bias in favor of former impressions, whatever they may have been.

And therefore, in our present state of society, all that can be required of a juror is that he should be without bias or prejudice for or against the accused, and that his mind is free to hear and impartially consider the evidence, and render a verdict thereon without regard to any former opinion or expression existing in his mind * * In Zimmerman v. State, 56 Md. 537 , a juror stated that he had formed and expressed an opinion in regard to the guilt or innocence of the traverser. Upon being sworn on his voir dire he said that the opinion he had formed would not prevent him from rendering a fair and impartial verdict in the case. The Court held he was a competent juror. We find no abuse in the refusal of the trial court to strike the juror for cause.

We note that the appellant exercised one of his peremptory challenges and excluded the juror. We further note that when the jury was sworn, the appellant had nine peremptory challenges remaining. ⁵³³ IV Although records of Spring Grove State Hospital pertaining to the appellant were admitted in evidence, the appellant contends that the court erred in not allowing the admission of three documents which were part of those records. The record shows, however, that the court did not refuse the admission of one of them, a voluntary treatment agreement signed by the appellant, dated August 28, 1964. At a conference at the bench, the court overruled the State’s objection to that document, saying that it was “simply a matter of corroborating the Defendant’s own statement that he went voluntarily to Spring Grove State Hospital.” It was designated “Defendant’s Exhibit No. 5 for identification.” It was handed to a witness for the appellant on one occasion and apparently considered by him in his testimony and on another occasion when defense counsel was reading the medical record into evidence, he said, “I will show you Exhibit No. 5 which has been offered, is that he (the appellant) voluntarily entered the hospital himself.

This is a Voluntary Treatment Agreement when he goes to the hospital and signs himself in and this is how he got into the hospital the second time.” The other two documents were a “Physician’s Certificate” dated December 12, 1963 signed by two physicians and a “Commitment Certificate” dated December 15, 1963 signed by one physician, whereby the appellant was committed to Spring Grove State Hospital. Both were forms of the Department of Mental Hygiene and certified that the physicians had personally examined the appellant and "do believe that the said Ronald Dubs is insane, and that the disease is of a character which, in my opinion, requires that the above mentioned person be placed in a hospital or institution in which the insane are detained for care and treatment.” That part of the quote here italicized is imprinted on the forms. At a bench conference, the trial court sustained the objection of the State to their admission and told counsel for the appellant that it would not be necessary for him to proffer them before the jury “now that I have ruled on those.” The appellant contends that they were properly admissible as records kept in the regular course of business under the provisions of Md. Code, (1965 Repl. ⁵³⁴ Vol.), Art. 35, § 59. Hospital records do qualify under the statute and are admissible in criminal cases.

Dunn v. State, 226 Md. 463 . The effect of the statute is to provide that such evidence is not inadmissible because it is hearsay, but it does not compel the admission of such evidence if it is otherwise inadmissible. In Old v. Cooney Detective Agency, 215 Md. 517 at page 524, the Court of Appeals quoted from Globe Indemnity Co. v. Reinhart, 152 Md. 439 , a case admitting hospital records as an exception to the hearsay rule prior to the passing of the business records statute: “* * * if its contents upon examination would be open to other objections, such as immateriality, irrelevancy, or that it was an expression of opinion by persons not competent to express an opinion; those objections are not precluded by what we have here said.” The trial court found that the bald statement of the certifying physicians that they believed the appellant to be “insane” contained no definition of the term and the mere admission of the documents provided no opportunity to cross-examine the certifying physician “on the question of insanity or his definition of it or anything about it.” We agree that the problem arising in regard to such a statement in the documents is whether or not a declaration that a physician believes a person is “insane” for purposes of civil commitment is relevant and material to the issup of the determination of a defendant’s responsibility for a criminal act. At the time of the appellant’s trial the definition of insanity to determine criminal responsibility was the the McNaughtenSpencer rule. 1 A person is a responsible agent “* * * if at the time of the commission of the alleged offense, he had the capacity and reason sufficient to enable him to distinguish between right and wrong, and understand the nature and consequences of his act, as applied to himself.” Spencer v. State, 69 Md. 28, 37 ; Thomas v. State, 206 Md. 575, 582 ; League v. State, 1 Md. App. 681 ; Bergin v. State, 1 Md. App. 74 .

The ⁵³⁵ certificates here considered were under the provisions of Md. Code (1964 Repl. Vol.) Art. 59, § 31 and substantially the form as therein provided. 2 In Salinger v. Superintendent, 206 Md. 623 , a jury had found Salinger, at a criminal trial, insane at the time of the offenses for which he was charged and insane at the time of his trial. The testimony at that trial was that he was insane under the McNaughten-Spencer rule. He was committed to Spring Grove State Hospital as authorized by statute.

Some four years later he filed a petition asking to have a jury pass upon his sanity, pursuant to statute. At this civil proceeding it was stipulated that the five psychiatrists who testified agreed that Salinger knew the difference between right and wrong and understood the nature and significance of his acts as applied to himself. They said, however, that if he was freed, he would be a danger to himself and a menace to the person, safety and property of others. The court instructed the jury “that if they found that the petitioner did not have the power or the ability to distinguish right from wrong or to understand the nature and significance of his acts, as applied to himself, they must find him insane; further, that if they found from the evidence that he could distinguish right from wrong and did understand the nature and significance of his acts, as applied to himself, to ask themselves this question: ‘If he becomes a free agent will he be a danger to himself, to his own safety, or will he be a menace to the safety of the person and or the property of other people?

If you answer that question in the negative, having answered the first question positively, then you should find that he is sane.’ The jury were told by the court that if they answered the second question in the affirmative, they would have to find that the petitioner was insane.” The Court found that the charge correctly set forth the controlling law. Salinger •urged that he had been confined only because a jury found he did not know right from wrong; therefore he must be released now that another jury had found that he did. The Court did not ⁵³⁶ agree. It said that one found to have been and to be insane in a criminal proceeding is then confined because it is not safe for him or for the community for him to be at large and once a determination of insanity has been made in the Criminal Court, the status of one insane is the same as if the determination had been made otherwise.

It said, at pages 628 and 629: “This essential fact is not changed because, to avoid the consequences of his act, the accused, under Maryland Daw, must be suffering from a mental illness or a disease of a kind and to a degree which brings him within the Spencer rule. Other kinds and degrees of mental illness and disease are, of course, well recognized by medicine and the law and some of them make the victim a menace to society and himself if he is at liberty.” It announced its holding on page 631: “We hold that one who has been found not guilty of the charge of crime, because of due determination of insanity in a Criminal Court, has the same status as one confined as insane by virtue of some other procedure established by law and, in order to obtain release, must satisfy a judge or jury of his sanity, not only under the Spencer rule but under the tests generally applied as justifying confinement. This being so, the basis of appellant’s original commitment did not alone control the answer to the question of whether he should be released.” See Alexander v. Superintendent, 246 Md. 334 ; Keiner v. Superintendent, 240 Md. 608 . See also Md. Code (1964 Repl.

Vol.) Art. 59, § 8 as amended by Acts of 1963, ch. 43. We think it clear that a person may be committed as insane under the civil procedures esablished by law if he is a danger to himself or to the safety and property of others even if he is able to distinguish between right and wrong and understands the nature and consequences of his acts as applied to himself. So “insane” as it appeared in the certificates could be much broader than the McNaughten-Spencer rule and did not have the same ⁵³⁷ meaning as “insane” as a defense in criminal cases. There was nothing in the objectionable documents to show or support a rational inference that the term “insane” as therein used had the meaning of