Gaither v. State

Carter, J., delivered the opinion of the Court. The appellant was convicted by Judge John E. Raine, Jr., sitting non-jury in the Circuit Court for Baltimore County, of the crime of rape on two separate occasions, in two separate trials and sentenced to life imprisonment and 21 years to run consecutively. His appeals from both judgments have been consolidated. The first case tried involved a charge of rape upon Mrs. Emily Ann Kirmil, a 52 year old housewife on August 19, 1970, at her home in Baltimore County.

The second case involved a charge of rape upon Mrs. Loretta Rosendale, a 58 year old church attendant on July 16, 1970, at St. Mark’s Catholic Church in Catonsville. The appellant entered pleas of not guilty by reason of insanity and not guilty in both cases. He was subsequently examined at the Clifton T. Perkins State Hospital pursuant to Md. Code Art. 59 § 9(b). He was pro ²⁴⁷ nounced sane at the time of the incident and competent to stand trial by the unanimous opinion of the hospital staff.

Immediately following the filing of the hospital report, he filed written motions in both cases supported by an affidavit of his counsel. The affidavit set forth that one of the principal issues in the case was whether the ingestion of drugs rendered the appellant mentally incapable of determining the nature of the offenses with which he was charged. In presenting these motions, counsel proffered that inasmuch as his client had entered a plea of not guilty by reason of insanity, he desired the advice of a pathologist and/or a toxicologist as to whether a person who was under the influence of the drug mescaline and glue fumes was mentally capable of committing the crime of rape. His counsel further stated that he desired to have this expert advise him as to the outward manifestations of a person who was under the influence of these toxic agents.

These motions were promptly followed by further motions requesting a continuance of the trial date so as to give defense counsel an opportunity to confer with the expert. The court denied all motions. The appellant contends these rulings constituted prejudicial error. He further contends that the evidence in the second case was legally insufficient to justify his conviction.

The subject of supplying expert pretrial services to indigent defendants in criminal cases at public expense has been thoroughly treated in a recent annotation in 34 A.L.R.3rd 1287 (1969). It appears from the authorities there cited that the holdings in other jurisdictions are somewhat divided on the question of the absolute constitutional right to this type of service as incident to the right to counsel. The only decision of the United States Supreme Court on the question of which this Court is aware was rendered in United States ex rel. Smith v. Baldi, 344 U. S. 561 , 9 L. Ed. 549 , 73 S. Ct., (1953).

The Court in that case said: “We cannot say that the State has that duty by constitutional mandate.” Although the decision in Gideon v. Wainwright, 372 U. S. ²⁴⁸ 335, 9 L.Ed.2d 799 , (1963) does not speak directly of the question of providing indigents in state courts with pretrial assistance of this nature, the holdings in that case have been interpreted in some jurisdictions to encompass the assistance of experts and investigators so as to provide an indigent with effective assistance of counsel. (See cases cited, 34 A.L.R.3rd § 3(a) p. 1263-1266). Other jurisdictions decline to so extend the holding. (See cases cited, 34 A.L.R.3rd § 3(b) p. 1266-1269).

The majority of jurisdictions, including Maryland, have held the matter is one within the sound discretion of the trial court. (See 34 A.L.R.3rd § 3(c) p. 1269-1272); Avey v. State, 1 Md. App. 178 (1967) ; Swanson v. State, 9 Md. App. 594 (1970). In the exercise of this discretion, we have held that this type of pretrial service (investigators and experts) is required to be made available to indigents only when it is shown these services are necessary to afford the accused an opportunity to fairly present his defense. In Avey v. State, supra, this Court speaking through Judge Thompson, held that the accused was not entitled to have an investigator employed to assist in the preparation of his defense because it was apparent from the record that his assigned counsel “had left no stone unturned” in the defense of his client.

We further pointed out in Avey that the matter was one within the sound discretion of the court and there was no showing of an abuse of that discretion. The trial court’s action in denying the request was therefore not clearly in error. In Swanson, supra, this Court in effect held that an indigent defendant who asserts the defense of insanity and has had a mental examination afforded him at State expense