Hill v. State

Menchine, J., delivered the opinion of the Court. Charles J. Hill (appellant) was convicted by a jury in the Criminal Court of Baltimore of assault with intent to rob. He was sentenced to imprisonment for a term of ten years. The trial had been commenced on March 3,1976.

The State rested its case after calling two witnesses. Trial counsel for the defendant moved for judgment of acquittal upon the ground that “the State has failed to make out a prima facie case requiring a defense in this case.” The motion was overruled. The court then recessed for further proceedings on the following day. When the case was resumed on the morning of March 4, 1976, trial counsel for the accused addressed the court as follows: “MR.

SCHAPIRO: Good morning, Your Honor. Initially, I wish to reiterate on the record what I advised you in chambers yesterday. The Defendant indicated at the conclusion of proceedings yesterday that his correct name is not Charles J. Hill but Brown J. Hill and the Defendant indicated to me further for the first time yesterday evening that one time in 1975 he had been at Clifton T. Perkins for seven months for some type of evaluation. He indicated he wishes me to interpose a plea of not guilty by reason of insanity at the time, not guilty by reason of insanity at the time of the alleged commission of the offense and is not competent to stand trial at this time.” (Emphasis added.) The trial judge responded as follows: “THE COURT: This is the first time the attorney ¹⁰⁰ or the Court or the State’s Attorney has learned of the Defendant’s desire to file an insanity plea.

The case is already in process and I don’t think the plea is filed timely, and I will therefore overrule the Defendant’s motion to be allowed to file an insanity plea at this juncture of the trial. We will proceed with the trial.” The trial judge did not respond to counsel’s statement that “[My] client wishes me to interpose a plea [that he] is not competent to stand trial at this time.” Appellant in this Court makes the following single contention: “The trial judge committed reversible error by refusing to determine whether Appellant was legally competent to stand trial after Appellant, in open court, alleged he was incompetent.” We agree. Article 59, § 23 reads in pertinent part as follows: “Whenever prior to or during the trial, any person charged with the commission of any crime shall appear to the court, or be alleged to be incompetent to stand trial, by the defendant himself, the court shall determine upon testimony and evidence preseyited oyi the record whether such person is unable to understand the nature or the object of the proceeding agaiyist him or to assist in his defeyise.” (Emphasis added.) We have pointed out that there is a marked difference in the tests to be applied with respect to the issue of “responsibility for criminal conduct” and with respect to “competency to stand trial.” Strawderman v. State, 4 Md. App. 689 , 244 A. 2d 888 (1967); Rozzell v. State, 5 Md. App. 167 , 245 A. 2d 917 (1968); Colbert v. State, 18 Md. App. 632 , 308 A. 2d 726 (1973). In Strawderman, supra, we set forth the competency test ¹⁰¹ and laid out the procedures to be followed when the latter issue was raised: “COMPETENCY TO STAND TRIAL The Test Under new § 7 [ijow § 23] the test for competency of an accused to stand trial is ‘whether such person is unable to understand the nature or the object of the proceeding against him or to assist in his defense.’ The Procedure By new § 7 [now § 23] the lower court shall determine whether the accused is competent to stand trial ‘upon testimony and evidence presented on the record,’ whenever prior to or during trial, the accused alleges he is so incompetent or it so appears to the court.

The court for good cause shown and after affording the accused an opportunity to be heard on his own behalf or through counsel may pass an order requesting an examination of the accused’s competency to stand trial by the Department of Mental Hygiene and a full report of the findings shall be forwarded to the court, the State’s Attorney and to counsel for the defendant. ‘If the court after receiving testimony and evidence determines that the defendant is competent to stand trial within the meaning of this section (new § 7) [now § 23], the trial shall commence as soon as practicable or, if already commenced, shall continue. The court may in its discretion at any time during the trial and until the verdict is rendered, reconsider the question of competency of the defendant to stand trial as otherwise provided in this section.’ ” (Emphasis added.) 4 Md. App. at 692-93 , 244 A. 2d at 890 . We added at 697 [892]: “With regard to competency to stand trial under new ¹⁰² § 7 [now § 23], we think that the court in whom the final determination of the matter rests, must determine beyond a reasonable doubt that the accused is able to understand the nature or object of the proceeding against him and to assist in his defense.” (Emphasis added.) We reiterated that Art. 59, § 23, supra, mandates affirmative action by the trial court when the issue arises. See Rozzell v. State, supra, wherein we said at 173-74 [920]: “COMPETENCY TO STAND TRIAL In Strawderman v. State, 4 Md. App. 689, we discussed the provisions of Chapter 709.

We stated that the test for competency of an accused to stand trial is ‘whether such person is unable to understand the nature and object of the proceedings against him or to assist in his defense’ and we found that the procedure was that the lower court, when the issue was before it, shall make such determination 'upon testimony and evidence presented on the record. ’ See Code, supra, Art. 59, § 7.” [ 1 ] (Emphasis added.) We added at 175 [921]: “In Strawderman v. State, supra, we said, with regard to competency to stand trial, that the lower court, in whom the determination of the matter rests, must determine beyond a reasonable doubt that the accused is able to understand the nature or object of the proceedings against him and to assist in his defense.” (Emphasis added.) Again, in Colbert v. State, supra, we made plain that § 23 mandated special procedural action and necessary substantive determination by the trial court when an ¹⁰³ accused is “alleged to be incompetent to stand trial.” We said at 640-41 [731]: “In passing we notice that appellant adduced no proof in support of his plea of insanity. While the plea was not withdrawn, we think it was implicitly abandoned. In any event, in the absence of proof to support the plea, the State had no burden with respect to it, and there was no issue to be presented to the trier of facts. Strawderman, supra, at page 698. “However, the clearly different test for competency to stand trial, and the clearly different procedure for determining the issue, Strawderman, supra, at page 695, requires the court to make a determination when incompetency is alleged.

Code, Art. 59, § 23, provides, in part: ‘Whenever prior to or during the trial, any person charged with the commission of any crime shall appear to the court, or be alleged to be incompetent to stand trial, by the defendant himself, the court shall determine upon testimony and evidence presented on the record whether such person is unable to understand the nature of [or] the object of the proceeding against him or to assist in his defense.’ The statute requires that the determination be made ‘upon testimony and evidence presented on the record’, but it does not require that such testimony and evidence be presented in a separate hearing, as appellant contends. We said in Strawderman , at page 695, ‘Of course, in a jury trial, evidence with regard to it should be received out of the presence of the jury’, but we did not say, nor do we now say, that a judge with no jury present is required to use any magic words to designate as a separate hearing the presentation to ¹⁰⁴ him of testimony and evidence for his determination of the competency of the accused to stand trial. It is sufficient if the testimony and evidence are on the record.” The State suggests that “the record fails to demonstrate a per se refusal by the trial judge to make [a competency] determination” and that “all parties were directed toward the single aspect of the insanity plea as opposed to the alleged incompetency.” From this premise the State argues that “if the appellant intended his motion as an allegation of incompetency, he had the commensurate responsibility of bringing to the attention of the trial judge that he sought a determination as to such issue . . . .” The language used by trial counsel unequivocally directed the attention of the trial court to the dual issues (a) of insanity as a defense to the crimes charged and (b) of the competency of the accused to stand trial. The issues are statutorially distinct.

Compare § 25 with § 23 of Article 59. We think that the peremptory requirement imposed upon the court by § 23 was activated by the clearly stated request of trial counsel. ■ We consider Alston v. State, 11 Md. App. 624 , 276 A. 2d 225 (1971), and White v. State, 23 Md. App. 151 , 326 A. 2d 219 (1974), relied upon by the State, to be distinguishable. In both Alston and White , trial counsel had proceeded to trial without directing the court’s attention to pending unresolved motions. In the subject case, trial counsel specifically directed the trial court’s attention to an issue as to which its determination was mandated.

He was required to do no more. See Saunders v. State, 8 Md. App. 143, 146 , 258 A. 2d 776, 777-78 (1969). In the subject case the trial judge failed to follow the course prescribed in Strawderman, Rozzell and Colbert , all supra. We now repeat, that whenever the issue of competency of an accused to stand trial is raised during the course of a jury trial, the trial judge must determine upon testimony and evidence presented on the record, out of the ¹⁰⁵ presence of the jury, whether the accused “is unable to understand the nature or the object of the proceedings against him or to assist in his defense.” The provision of Article 59, § 23 that the court must make determination “upon testimony and evidence presented on the record” is mandatory.

Unless and until the trial court makes a determination beyond a reasonable doubt upon testimony and evidence presented on the record that the accused is able to understand the nature or the object of the proceeding against him and to assist in his defense, the trial may not begin or if begun may not continue. Because we are compelled to reverse and remand for a new trial at which proceedings to determine competency to stand trial may again become an issue, we feel obliged, for the guidance of trial judges in this or other cases, to retreat from certain dicta in Colbert v. State, supra. In Colbert , where we found that the trial court fully had complied with the mandate of Article 59, § 23, we stated in dicta at 641 [731-32]: “The clear difference in procedure is this: although a defendant is presumed competent until the issue is raised, that presumption is overcome when it ‘shall appear to the court or be alleged’ that he is incompetent to stand trial. The allegation may be made by the defendant himself, or by his counsel.

When the original presumption is thus overcome there remains no presumption one way or the other. The issue raised must be determined by the court, which must find beyond a reasonable doubt that the defendant is competent to stand trial.” (Emphasis added.) The above quoted language used in Colbert , unnecessary to decision in that case, went too far. We agree that there is a presumption that one