Gray v. State

Men chine, J., delivered the opinion of the Court. Judith Rhoda Gray was indicted by the Grand Jury of Prince George’s County under a single, six count indictment charging the following offenses: First Count: That on October 16, 1972 she did murder Michelle Mulkey; Second Count: That on October 16, 1972 she did assault and beat Michelle Mulkey; Third Count: That on November 20, 1972 she did assault and beat Diedra Prophet, a minor child 23 months of age; Fourth Count: That on November 20, 1972 she did assault Diedra Prophet; Fifth Count: That on December 11, 1972 she did murder Kimberly Bush; Sixth Count: That on December 11, 1972 she did assault and beat Kimberly Bush, a minor child 6 months of age. Appellant filed a motion for separate trials, alleging, inter alia, that the counts dealt with separate and distinct situations as to victim, time and place; that the offenses were unrelated; and that they were not the result of a continuous transaction. The petition maintained that it would be prejudicial to be required in a single trial to defend three separate, distinct and unrelated offenses.

An order granting the motion was passed by the Circuit Court for Prince George’s County providing that “separate trials be granted to the defendant as to counts 1 and 2, counts 3 and 4, ⁷⁰³ and counts 5 and 6.” A plea of not guilty by reason of insanity was filed as to all counts. On September 17, 1973 trial as to counts 3 and 4 was begun before Judge James H. Taylor. At the conclusion of that trial on September 19, 1973, the trial judge rendered a verdict of not guilty by reason of insanity. On January 28, 1974, by agreement of counsel, remaining counts 1, 2, 5 and 6 came to trial before Judge William H. McCullough.

A motion was filed to dismiss all such counts upon the ground that the prior verdict of not guilty by reason of insanity in the first trial barred further prosecution of the accused. Ruling on the motion was reserved. At the conclusion of the trial on February 1, 1974 the motion to dismiss was denied and a verdict of guilty of second degree murder under counts 1 and 5 was rendered, the court declaring that the offenses charged by counts 2 and 6 were merged. Appellant was sentenced to a term of imprisonment of twelve years under count 1 and to a consecutive sentence of twelve years under count 5.

The questions presented by the appellant may be thus summarized: 1. Was appellant denied due process of law with respect to the use of a confession? 2. Did the verdict of not guilty by reason of insanity at the first trial operate as a final judgment barring relitigation on the issue in a second trial? 3. Was the court’s decision finding the appellant to be sane, beyond a reasonable doubt, clearly erroneous? 4.

Did the evidence presented in this case reduce the offense charged to manslaughter? 1. The Confession of the Accused On July 11,1973, (prior to the first trial on counts 3 and 4) Judge Taylor had conducted a preliminary hearing on a motion to suppress three statements made by the accused. ⁷⁰⁴ At the conclusion of that hearing, Judge Taylor had denied the motion as to statements 1 and 2, but granted the motion as to statement 3. 1 On November 8, 1973 Judge Taylor, (subsequent to rendition of the verdict of not guilty by reason of insanity in the first trial under counts 3 and 4) concluding that he erred in his prior ruling, found that statement 3 also was admissible in evidence. Appellant questions the propriety of that action. No issue stemming from that decision is before us.

The record of the subject trial before Judge McCullough shows that a new hearing was conducted upon the issue of the admissibility of statements 1 and 3 (the only two offered in the course of the second trial). He had a clear right to follow such a course in spite of a decision on the issue by another judge. Walker v. State, 12 Md. App. 684 , 280 A. 2d 260 . Statement 1, relating to the death of Kimberly Nicole Bush, was admitted without objection.

We have examined the record with respect to the admission of statement 2, relating to the death of Michelle F. Mulkey, and find that Judge McCullough’s decision that the same was admissible is firmly supported by competent evidence. 2. Effect of Prior Acquittal Appellant contends that the special verdict of not guilty by reason of insanity under counts 3 and 4 in the first trial operates to bar relitigation of the sanity of the accused in the second trial under the doctrine of res judicata or collateral estoppel. We do not agree. Early decisions summarily rejected contentions that a verdict of not guilty by reason of insanity as to one offense operated as a bar to prosecution of the accused for contemporaneous offenses against other victims.

Examples of such cases are: Hotema v. U. S., 186 U. S. 413 (1902) and People v. Cygan, 200 N. W. 967 (S. Ct. Mich. 1924). In Hotema the accused had been found not guilty by reason of ⁷⁰⁵ insanity in the killing of two persons. At a trial of the accused for the murder of a third person on the same day, a special plea that he had been once placed in jeopardy was filed by the accused. The Supreme Court rejected the special plea, saying at 422: “While the plea, on such facts, is wholly without merit, and need not be further noticed, it is only adverted to for the purpose of recognizing the fact that the defendant has been charged with the murder of three different persons on the same day, and that seemingly there was no motive shown for the killing of any of them, or, at any rate, there was none shown for the killing of the person described in the indictment in this case, as the charge of the court in substance concedes.

It also appears in this record that the first jury impaneled in this case was unable to agree upon a verdict. We are thus made acquainted, from the record, with the fact that one jury, upon the question of the insanity of the defendant, has, upon the trial of the consolidated indictments charging him with two distinct and separate murders, acquitted him of the alleged crimes on that ground; another jury has been unable in this case to agree upon the question; a third one has, in the case now before us, convicted him. Being unable to see any legal error committed by the trial court we are bound to affirm the judgment.” The current validity of those summary decisions may be doubted. In Benton v. Maryland, 395 U. S. 784 , the double jeopardy clause of the Fifth Amendment was made applicable to the states through the Fourteenth Amendment.

Recognition of collateral estoppel as a constitutional right followed closely with the decision in Ashe v. Swenson, 397 U. S. 436 . In Holloway v. State, 14 Md. App. 703 , 288 A. 2d 652 , this Court discussed the meaning and effect of the decisions in Benton and Ashe , both supra, and outlined the procedures by which determination of the ⁷⁰⁶ existence vel non of collateral estoppel should be made. In Holloway we said at 711 [656]: “As the rule of collateral estoppel in criminal cases requires the court to examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter so as to determine whether the trier of fact could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration, we look to the record here to see what evidence was adduced relating to the proceeding* * *.” State v. Sanders, 229 So. 2d 288 (Dst. Ct. of App. 1st Dst.

Fla. 1969), although citing excerpts from Hotema and Cygan , both supra, with approval, went on to consider whether a verdict of not guilty by reason of insanity served to bar a subsequent prosecution for the contemporaneous murder of another victim under the doctrine of res judicata or collateral estoppel. That Court utilized much the same procedures for the determination as did this Court in Holloway, supra. In Sanders the trial court had dismissed the second indictment upon the ground that: (P. 289) “* * * the jury could not have reasonably rendered their verdict upon any other basis than a determination by them that the defendant was insane at the time and place, when and where, both [victims] was killed, * * * and therefore * * * necessarily found and concluded that the defendant was insane at the time of the homicide in the instant case* * *.” The Appellate Court then said at 290: “we too must go to the record in said [former] case, * * *, and analyze the testimony and evidence in order to show wherein we feel that the matter of the homicide of [the second victim] has not been litigated nor has the sanity or insanity of the ⁷⁰⁷ defendant at the alleged time of the killing * * * been necessarily concluded and become res judicata.” After declaring (P. 290) that the court did “not feel that the testimony of the psychiatrists need be analyzed for the purpose of decision,” the Appellate Court detailed at some length the testimony of the accused himself during the course of the second trial and then stated: (P. 292) “In the case of sub judice, we have two alleged homicides — occurring on the same date, but no one knows how closely together they occurred except the defendant. No element of the homicide of the Granger girl was necessary to a trial for the homicide of the Wood girl.

All we know is that the Wood girl was the first one shot and the doctors’ testimony was that the bullet entered one side of her chest and came out the other. Was she killed instantly by this shot? Who knows? Was it afterwards, after the homicide of Miss Wood that the defendant lost his mind?

Who knows? There are too many unanswered and frankly, unasked questions for the rule of res judicata, double jeopardy or estoppel to apply.” Examination of the Record in the Subject Case At the first trial, Judge Taylor, in announcing his verdict in the trial of the third and fourth counts of the indictment, found that the State had proved the elements of the offense charged beyond a reasonable doubt. He then recapitulated the testimony bearing upon the sanity vel non of Judith Rhoda Gray and declared his conclusion based upon that evidence in the following language: “Now, it certainly is not to say that any person who commits an irrational act at a given time, without any explanation of it, is insane, and it does not say that through the periods of time as mentioned in this indictment that Mrs. Gray was insane, but it ⁷⁰⁸ does say that the State has not shown beyond a reasonable doubt that Mrs. Gray was sane on the 20th of November, at the time that she committed the offense for which she is charged. So, in light of that, I have got to find her not guilty by reason of insanity * * *.” (Emphasis added.) Thus, there was a direct rejection by the trial judge that his decision in the first trial did or could determine the sanity vel non at other times than the date upon which those offenses had been committed.

This alone would demonstrate that such decision could not operate as res judicata or collateral estoppel as to the sanity of the accused on other dates. Evidence from the lips of the psychiatrist called by the defense further demonstrates that the doctrine can have no application here. Examples are: “Q What about what had gone on in October-December, 1972? A We also went over that ground again.

She also was able to talk about Spring Grove. Then between the first time I saw her and July at — I really had not particularly intended to see her again. I saw her when Mr. Bryan called me and raised the question about competency. And I went to see her and at that time she was again emotional, distraught, et cetera, but I felt she was competent. * * * A * * * schizophrenic reactions can be, they can come and go.

They can be fleeting in nature. One can exhibit some of the symptoms, part of the symptoms, none of the symptoms at various times. It was demonstrated, for example, during the course of World War II, the Korean War, the war in Vietnam, that anyone could become schizophrenic. For ⁷⁰⁹ example, under sufficient stress it was known when people spent a sufficient time in combat that they could then have acute schizophrenic reaction which might be transient in nature, which might be repetitive in nature, they could exhibit various of the symptoms of schizophrenia, et cetera.

Q Doctor, I noticed in there you read a passage where she said she had considered suicide but didn’t have the guts for it, is that correct? A That is what she said. Q Does that indicate to you a certain amount of judgment, reasonable judgment, ability to judge? A I don’t think that Judith Gray has at all times been devoid at all times of ability to judge things.

A I have to, again, say that I think it may be very difficult for lay people to understand that somebody is either not crazy — it is not a black and white thing — that somebody is either crazy or they are not. It is a very subtle process in which there are varying states of consciousness, varying states of judgment, varying times when they will exhibit these four A’s that