MacK v. State

⁶⁷³ DAVIS, J. Clarence J. Mack, appellant, was tried on April 8, 2002, before a jury in the Circuit Court for Montgomery County (Woodward, J., presiding), on charges of Attempted Murder in the First Degree, Use of a Handgun in the Commission of a Felony, and Reckless Endangerment. On April 11, 2002, the jury returned verdicts of guilty as to all three offenses. On November 21, 2002, the first of two sentencing hearings was held and was continued, due to an emotional and physical outburst by appellant, until January 9, 2003. Appellant filed two additional motions to continue the sentencing hearing, which the court granted.

On April 10, 2003, appellant was sentenced to life imprisonment on the attempted murder charge, and five years imprisonment, to run concurrently, for each of the remaining charges. On April 9, 2003, appellant filed a motion for a new trial on the grounds of newly discovered evidence. A hearing on appellant’s motion for a new trial was scheduled for October 9, 2003 and, on that date, the hearing was rescheduled for February 5, 2004. On February 5, 2004, the court held a hearing to consider appellant’s motion; thereafter, the court postponed the hearing until June 17, 2004, to permit appellant’s expert to appear at the hearing.

The June 17, 2004 hearing was rescheduled by the court for June 24, 2004. The hearing on the motion for new trial proceeded on June 24, 2004. On June 12, 2004, the State filed a motion, which the court denied, for a psychiatric evaluation of appellant by a State-appointed psychiatrist. Thereafter, a petition for writ of certiorari was filed on that issue; the Court of Appeals denied the petition on September 20, 2004.

On November 18, 2004, the court denied appellant’s motion for a new trial. This timely appeal followed, in which appellant presents one question for our review: Did the trial court err in denying appellant’s motion for a new trial? We answer appellant’s question in the negative. Accordingly, we affirm the decision of the trial court. ⁶⁷⁴ FACTUAL BACKGROUND FACTS RESULTING IN APPELLANT’S CONVICTION On October 20, 2001, appellant, along with Abdul Fofana (referred to throughout the trial by his nickname “Doodoo”), the victim in this case and several friends had congregated in front of the home of Antonio White.

At the time, there was a party at a community center across the street from White’s home. Members of the group had been drinking alcohol and smoking marijuana and cigarettes that had been dipped in PCP, referred to as “dippers.” During this time, a drug transaction was arranged by appellant, between Fofana and an unidentified person attending the party, to purchase fifty dollars worth of cocaine. Appellant and Fofana agreed that appellant would receive a ten-dollar fee for “setting up” the transaction. Appellant and Fofana who, according to the record, knew each other for four to five years, deceived the unidentified purchaser of the cocaine by adding aspirin to the crack cocaine belonging to Fofana.

The ensuing transaction between Fofana and the unidentified purchaser, however, did not result in a fifty-dollar net, but rather only thirty dollars. Fofana then informed appellant he would not pay him the ten dollars, as they had agreed. According to White and another State’s witness, William Proctor, appellant was angry about not receiving the ten dollars, as promised, and proceeded to urinate in Fofana’s car window. Fofana, upon hearing from other members of the group that appellant had urinated in his car, became angry and challenged him to a fistfight to settle the dispute.

White testified that appellant and Fofana were going to fight, then shake hands, and go get a drink with the group. Appellant and Fofana, at the urging of the other members of the group, agreed to the fistfight at a location where the police were not present, in an effort to avoid being arrested. The group proceeded to the new location, the parking lot of the townhouse community where appellant’s now ex-girlfriend, Diane Kinzer, resided. The testimony of both Kinzer and White reflects that, upon arriving at the parking lot, appellant ⁶⁷⁵ told Kinzer to retrieve a gun.

Kinzer testified that she retrieved the gun and gave it to appellant. White testified that both he and James Kinzer, the brother of Diane Kinzer, attempted to persuade appellant not to use the gun. White also stated that James Kinzer wrestled appellant to the ground, but released appellant when he was threatened with the gun. White, Proctor and Fofana all testified that appellant then approached Fofana and began firing the gun at him, hitting him three times.

Following the shooting, Fofana testified that appellant told him not to “snitch.” White also testified that he was called by appellant and told not to talk to the police and that he should instruct Proctor to do the same. At the scene, eight twenty-two caliber shells were collected, as well as Fofana’s clothing that had been cut off of him by the paramedics. The gun, however, was never recovered. The police searched Kinzer’s house and her room and recovered a box of twenty-two caliber ammunition from her closet.

A finger print from the box of ammunition was matched to appellant; however, no finger prints were recovered from the eight casings recovered from the parking lot. Appellant was arrested for the shooting after leaving Kinzer’s residence. FACTS PERTAINING TO THE MOTION FOR A NEW TRIAL At the first sentencing hearing held on November 21, 2002, a little more than seven months following the verdict in this case, appellant had an emotional outburst while his mother was testifying on his behalf. Following that outburst, in order to maintain control over appellant, he was placed in restraints, pursuant to a recommendation by the Sheriffs Office.

The outburst prompted the Psychiatric Social Worker testifying at the sentencing hearing on behalf of appellant, Pamela Taylor, to follow up with him upon his return to the Montgomery County Detention Center. As a result of her conversation with appellant, Taylor learned that appellant has suffered from “hallucinatory voice” — predating the offense for which appellant was convicted. Taylor also learned that appellant has written about his hallucinations in letters sent to Kinzer. ⁶⁷⁶ Appellant permitted Taylor to retrieve the letters from Kinzer and, after reviewing the letters, Taylor suggested that appellant be evaluated by Neil Blumberg, M.D. Dr. Blumberg examined appellant for a total of five hours and fifteen minutes over two days, January 9, 2003 and January 21, 2003. Based upon the examination of appellant, and several documents, including notebooks and diaries created prior to the current conviction, Dr. Blumberg testified at the June 24, 2004 hearing that, “to a reasonable degree of medical certainty [ ] on October 20, 2001, [appellant] was suffering from several different mental disorders, including schizophrenia paranoid type, alcohol dependence, poli[sic] substance abuse, cognitive disorder not otherwise specified, and anti-social personality disorder.” Dr. Blumberg also revealed that the first evidence of appellant’s hallucinations was contained in a record from Shady Grove Adventist Hospital from February of 1999.

Significantly, Dr. Blumberg testified “that at the time of the offense, [appellant], as a result of paranoid schizophrenia and other disorders ..., lacked substantial capacity both to appreciate the criminal [sic] of his conduct and to conform his conduct to the requirements of law.” On cross-examination, the State pressed Dr. Blumberg in an apparent effort to show that there was evidence that appellant suffered from a mental disorder that was easily discovered prior to the revelation of November 12, 2002. Specifically, the State pointed out that both the record from Shady Grove Adventist Hospital, and a pre-sentence investigation report from 2000, revealed that appellant had mental health issues. Dr. Blumberg, however, testified that appellant “made great efforts to hide evidence of his mental illness ... made great efforts not to look crazy, which is very consistent with someone who is living in the streets and want[s] to be portrayed as perhaps an antisocial kind of individual as opposed to someone who is mentally ill.” . Dr. Blumberg’s report indicated evidence of malingering, or deliberate exaggeration on the part of appellant.

When asked about the malingering, Dr. Blumberg said that appellant’s exaggeration of the illness was exaggeration of an already ⁶⁷⁷ severe illness, rather than appellant simply “making-up” the illness. Dr. Blumberg also revealed that he primarily relied upon appellant’s self-reporting of the illness, explaining that a mental illness in which a person hears voices is not capable of external verification. Dr. Blumberg stated, “The thing that really convinced me is the objective data, that is the earlier writings of [appellant] consistent with what he’s telling me now, as well as the documentation in the Shady Grove record of his report of hallucinations back in February of '99.” The court also questioned Dr. Blumberg, first on the basis of his opinion that “the shooting, on October 20, 2001, was a result of a command hallucination, directing appellant to kill and, secondly, on the fact that appellant reported the hallucinations only after he was convicted.” Dr. Blumberg responded that his opinion that appellant was suffering from command hallucinations on the night of the shooting is largely based upon the truthfulness of appellant in reporting the incident. With respect to the timing of the report, Dr. Blumberg stated, “an initial look at this might lead one to view this as fate, you know, and just a way to get out of his conviction or, ..., anticipation of a lengthy sentence.

However, when you factor in the other evidence that I found, it would suggest that he has suffered from a severe mental illness for a number of years prior to this that in fact he has hidden that from a variety of people ...” The court continued to question Dr. Blumberg concerning his assessment that appellant would attempt to conceal his illness and not report the voices. The court and Dr. Blum-berg engaged in the following colloquy: THE COURT: — I thought I heard you testify that he did not disclose these hallucinations prior to the offense and yet, at least as it’s been represented to me, that he disclosed these hallucinations prior to the offense to his girlfriend. Blumberg: Well, he disclosed them to the doctors at Shady Grove Adventist Hospital also. I’m aware that they were in the writings. ⁶⁷⁸ Blumberg: If the girlfriend was the recipient of some of those writings, then she would have been aware of it.

I’m not aware of any other — I don’t recall off hand whether she was the one who had, had received those and was aware of that or not. THE COURT: Okay. So if you assume that he, [appellant], disclosed the hallucinations to the doctors at Shady Grove, disclosed the hallucinations to his girlfriend prior to the offense, and failed to disclose any of the hallucinations or the presence of hallucinations at any time from the time he was charged with this, this crime through the preparation of the defense, through the trial, to the time that he was convicted, that doesn’t affect your impact, your assessment of his veracity? Blumberg: Well, actually, that would, I guess, improve the likelihood that he is being truthful because he’s doing what we could call reverse malingering, if that in facts [sic] is the case.

That is hiding the fact that he is severely mentally ill, trying to portray himself as being normal when he in fact he is, he is not. THE COURT: And so it would be safe to conclude that he was aware of the hallucinations that he claims to have had occurred on the date of the offense from the time of the offense through the time of conviction? Blumberg: He’s aware of these experiences. He doesn’t view them as hallucinations or signs of a mental illness.

He is convinced that this, at least initially, this was his spiritual godfather although he has later come to believe that this is a monster inside him that is in many aspects controlling what he thinks and what he experiences. THE COURT: Given the fact that there was [a] prior, report of the existence of hallucinations, at least to the doctors at Shady Grove and from what I’ve been represented (inaudible) to his girlfriend, do you see any psychiatric condition that would have prevented him from disclosing these hallucinations at any time after the offense? ⁶⁷⁹ Blumberg: I don’t know that I’d call it a, a psychiatric condition, but it’s not uncommon in individuals who suffer from unusual or bizarre symptoms to want to maintain the perception that they’re just as normal as everybody else. Finally, appellant’s counsel made a proffer 1 to the court that, although he had exercised due diligence, his efforts had ⁶⁸⁰ failed to uncover the evidence concerning appellant’s mental health. At a hearing held on November 18, 2004, the court denied appellant’s motion for a new trial based on newly discovered evidence.

The court concluded that appellant’s counsel had exercised due diligence, in that there was no way to discover that appellant suffered from command hallucinations, evidence exclusively within the mind of appellant, unless appellant disclosed that information. Appellant, however, had not exercised due diligence because he failed to report the hallucinations to his counsel from the date of the offense, through trial, and until after the first sentencing hearing. The court found that appellant was competent to stand trial, he understood the nature of the proceedings as well as the charges against him, and was able to assist his counsel in his own defense. The court stated that, based on Dr. Blumberg’s report, it was persuaded that appellant was aware of the hallucinations at all times from the date of the offense until the disclosure, after the first sentencing hearing.

Thus, the court determined that the question before it was whether appellant acted reasonably and in good faith, in not disclosing the command hallucinations to his counsel. ⁶⁸¹ In answering that question, the court concluded that it would be reasonable for appellant to fail to disclose that information if there were a mental or physical condition preventing disclosure. The court found there was no physical or mental condition preventing disclosure. Specifically, the evidence showed that appellant had disclosed his mental condition to Kinzer in his writings and to Taylor following the first sentencing hearing at Shady Grove Hospital. Unable to identify any psychiatric condition preventing appellant from disclosing the condition, Dr. Blumberg was also unable to determine if the illness would prevent appellant from reporting.

The court determined that a reasonable person, in appellant’s position, facing charges for attempted first-degree murder, having command hallucinations directing him to kill the victim, would have revealed that information. The court also found that appellant did not act in good faith in not disclosing the information. This finding was based on the report of Dr. Blumberg, which showed evidence of malingering in appellant’s psychiatric evaluation. Dr. Blumberg’s report stated that appellant deliberately exaggerated his psychiatric condition, and that there were serious questions as to whether he had exaggerated his complaints.

The court concluded that appellant deliberately withheld the evidence of the command hallucinations until after the jury returned the verdict. He did so, in the court’s view, in an attempt to rely upon this evidence to avoid long-term incarceration. Ultimately, the court ruled: There is no question in this case that the proffered newly discovered evidence is material to the result of this case and the materiality threshold has been met. It is not merely cumulative or impeaching.

The issue revolves around the exercise of due diligence by the defendant. Since the newly discovered evidence was contained exclusively within the mind of the defendant, the court is convinced that the defendant’s counsel acted with due diligence and could not have discovered the evidence of command ⁶⁸² hallucinations at the time of the offense until the defendant disclosed that evidence. This conclusion, however, does not resolve the issue of due diligence. The question is whether the defendant himself failed to exercise due diligence by not reporting to his attorney the command hallucinations at any time, from the date of the offense, through trial, until after the first sentencing hearing.

Because the court made a factual finding that the newly discovered evidence was material, its ultimate decision devolved upon the question of whether appellant exercised due diligence in failing to disclose the evidence of the command hallucinations within ten days of the jury verdict. LEGAL ANALYSIS Appellant assails the court’s ruling that he “failed to exercise due diligence by not reporting to his attorney the command hallucinations at any time, from the date of the offense, through trial, until after the first sentencing hearing.” He further assails the ruling that the evidence demonstrated that he possessed knowledge that a reasonable person would have known was relevant to his defense. Aggrieved by the court’s determination that he was not incompetent or unable to reveal the evidence, appellant, in support of his thesis, points out the distinction between incompetence and mental illness, i.e., that “an accused may be suffering from a mental illness and nonetheless be able to understand the charges against him and to assist in his own defense, and the fact that the defendant was receiving medication and would require medication during the course of the trial does not render him incompetent.” Citing State v. DeAngelis, 200 Conn. 224 , 511 A.2d 310, 315 (1962), he then builds on his hypothesis by reiterating the well-established precept that a plea of not criminally responsible has no bearing on an accused’s competency to stand trial. Thus, he says, “There is nothing in the competency standard that requires a defendant be capable (either intellectually or ⁶⁸³ psychologically) of performing a psychiatric self-diagnosis and understand its significance in criminal proceedings.” Due diligence, of course, in most proceedings, is the standard to which we hold attorneys, rather than defendants, in determining whether evidence is truly newly discovered.

In the instant case, the newly discovered evidence, in essence, is the defendant’s state of mind. Maryland Rule 4-331, captioned Motions for New Trial, provides in pertinent part: (a) Within Ten Days of Verdict. On motion of the defendant filed within ten days after a verdict, the court, in the interest of justice, may order a new trial. (c) Newly Discovered Evidence.

The court may grant a new trial or other appropriate relief on the ground of newly discovered evidence which could not have been discovered by due diligence in time to move for a new trial pursuant to section (a) of this Rule: (1) on motion filed within one year after the date the court imposed sentence or the date it received a mandate issued by the Court of Appeals or the Court of Special Appeals, whichever is later; It is well settled that a new trial may be granted in a criminal case tried before a jury. Argyrou v. State, 349 Md. 587, 599 , 709 A.2d 1194 (1998) (citing In re Petition for a Writ of Prohibition, 312 Md. 280, 308 , 539 A.2d 664 (1988)); see also Campbell v. State, 373 Md. 637, 655 , 821 A.2d 1 (2003). “To grant or deny a motion for a new trial on the basis that a verdict is against the weight of the evidence is, of course a discretionary matter.” Yorke v. State, 315 Md. 578, 583 , 556 A.2d 230 (1989) (quoting In re Petition for a Writ of Prohibition, 312 Md. at 327 , 539 A.2d 664 ). Trial courts are vested with “wide latitude in considering a motion for new trial and may consider a number of factors, including credibility, in deciding it; thus, the court has the authority to weigh the evidence and to consider the credibility of witnesses in deciding a motion for new trial.” Argyrou, 349 Md. at 599 , 709 A.2d 1194 (citing In re Petition for a Writ of Prohibition, 312 ⁶⁸⁴ Md. at 325-26, 539 A.2d 664 ). A trial judge’s discretion, although broad, is not boundless, and abuse of that discretion occurs when it is exercised “in an arbitrary or capricious manner or when he or she acts beyond the letter or reason of law.” Campbell, 373 Md. at 665-66 , 821 A.2d 1 (internal citations omitted). “It may be said that the breadth of a trial judge’s discretion to grant or deny a new trial is not fixed and immutable, it will expand or contract depending upon the nature of the factors being considered, and the extent to which its exercise depends upon the opportunity the trial judge had to feel the pulse of the trial, and to rely on his or her own impressions in determining questions of fairness and justice.” Argyrou, 349 Md. at 600 , 709 A.2d 1194 (citing Buck v. Cam’s Broadloom Rugs, Inc., 328 Md. 51, 58-59 , 612 A.2d 1294 (1992)).

See also Campbell, 373 Md. at 666 , 821 A.2d 1 . Maryland Rule 4-331 provides the basis for the court’s consideration of a defendant’s motion for a new trial. Judge Moylan, writing for this Court in Love v. State, 95 Md.App. 420 , 621 A.2d 910 (1993), explained the proper operation of the Rule. “The Motion is available on three progressively narrower sets of grounds but over the course of three progressively longer time periods.” Id. Pertinent to our analysis is subsection (c) of the Rule, which provides, “The court may grant a new trial or other appropriate relief on the ground of newly discovered evidence which could not have been discovered by due diligence in time to move for a new trial pursuant to section (a) of this Rule: (1) on motion filed within one year after the date the court imposed sentence or the date it received a mandate issued by the Court of Appeals or the Court of Special Appeals, whichever is later.” Subsection (a) of the Rule states, “[o]n motion of the defendant filed within ten days after a verdict, the court, in the interest of justice, may order a new trial.” Appellant has met the procedural requirements of the Rule, i.e., the alleged new evidence was discovered more than ten days after the jury verdict and he filed a motion within one year of the date the court imposed sentence.

Satisfying these preconditions, however, is insufficient to warrant the granting of a new trial. ⁶⁸⁵ As the Rule makes clear, and as Judge Moylan explained in Love , “the exclusive predicate for new trial relief under subsection (c) is not merely ‘newly discovered evidence.’ It is, rather, ‘newly discovered evidence which could not have been discovered by due diligence.’ Even if, for stylistic reasons, we occasionally resort to the convenient shorthand form of ‘newly discovered evidence,’ it is nonetheless implicit that an indispensable part of the definitional predicate for this form of relief is the further and invariable proviso: ‘which could not have been discovered by due diligence.’ ” 95 Md.App. at 429 , 621 A.2d 910 . Additionally, in order for newly discovered evidence to warrant a new trial, it must be both material and persuasive. Campbell, 373 Md. at 666 , 821 A.2d 1 . For the evidence to be material it must be more than “merely cumulative or impeaching.” Argyrou, 349 Md. at 601 , 709 A.2d 1194 (citing Jones v. State, 16 Md.App. 472, 477 , 298 A.2d 483 (1973)).

Materiality is a threshold question for the court. Id. (citing Stevenson v. State, 299 Md. 297, 302 , 473 A.2d 450 (1984)). Moreover, for the evidence to meet the requirement of persuasiveness, the trial court must determine if “the newly discovered evidence may well have produced a different result, that is, there was a substantial or significant possibility that the verdict of the trier of fact would have been affected.” Yorke, 315 Md. at 588 , 556 A.2d 230 .

In this case, the