Mann v. State's Attorney for Montgomery County

COUCH, Judge. The issue involved in this case is whether the Circuit Court for Montgomery County erred in ordering that the defendant in a capital murder case, who had been judicially determined to be incompetent to stand trial because of mental illness and ordered committed pursuant to Maryland Code (1982), Health-General Article, § 12-104(b), could nevertheless be interviewed, with his permission, by the media and the prosecution. Under the circumstances present here we hold the trial court was in error. In view of the narrow question before us a detailed recitation of the factual background of this case is unnecessary.

Suffice it to say that Edward Thomas Mann, a former employee of IBM, stands charged in a 75 count indictment of multiple murder, attempted murder, assault with intent to murder and use of a handgun in the commission of a crime of violence. The State has filed notice of its intention to seek the death penalty. During the pretrial phase of the proceedings the trial court held a hearing to determine Mann’s competency to stand trial. The trial court ultimately found Mann incompetent to stand trial and caused him to be committed to the Clifton T. Perkins State Hospital.

Subsequently, the State’s Attorney for Montgomery County filed, in the criminal case, a “Motion for Appropriate Relief” ¹⁶³ seeking permission to interview Mann. Gary Reals 1 and the Evening News Association moved for leave to intervene for the purpose of also being allowed to interview Mann. From the record it appears that Mann wanted to be interviewed. Following a hearing on these motions the trial court ordered that the interviews could take place.

An appeal was dismissed by the Court of Special Appeals, and we granted certiorari in order to consider the important issue involved. Prefatorily we observe that as no issue is raised in regard to the propriety of the procedure used here, we do not consider that issue. (1) Appealability Initially, we must determine whether the order of the trial court appealed from is an appealable order. We find that it is.

In a number of cases in recent years, we have had occasion to discuss the issue of appealability. See, e.g., Cant v. Bartlett, 292 Md. 611 , 440 A.2d 388 (1982); Montgomery v. State, 292 Md. 155 , 438 A.2d 490 (1981); Clark v. Elza, 286 Md. 208 , 406 A.2d 922 (1979); Estep v. Estep, 285 Md. 416 , 404 A.2d 1040 (1979); Peat, Marwick, Mitchell & Co. v. Los Angeles Rams Football Co., 284 Md. 86 , 394 A.2d 801 (1978); and Jolley v. State, 282 Md. 353 , 384 A.2d 91 (1978). In each of these cases we recognized that, as a general rule, to be appealable a judgment “ ‘must be so final as to determine and conclude rights involved, or deny the appellant means of further prosecuting or defending his rights and interests in the subject matter of the proceeding.’ ” Cant v. Bartlett, supra, at 614, 440 A.2d at 389 (citation omitted). We also recognized a corollary to the general rule, known as the “collateral order exception” engrafted to the final order requirement.

As we stated in Peat, supra: “This doctrine, recently applied in the criminal context by this Court in Stewart v. State, 282 Md. 557, 571 , 386 A.2d ¹⁶⁴ 1206, 1213 (1978), and Jolley v. State, supra, 282 Md. at 357, 384 A.2d at 94 , was first articulated by the United States Supreme Court in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545-47 , 69 S.Ct. 1221 [1225-26], 93 L.Ed. 1528 (1949), in dealing with the appealability of an order denying a motion for the posting of security for costs under the federal appeals statute that is similar to section 12-301. The concept is narrow in scope, however, for, as.the Supreme Court has articulated, if the order is to come within the ‘small class’ of cases included in the final judgment rule under Cohen it must meet four requirements: ‘[T]he order must [(1)] conclusively determine the disputed question, [(2)] resolve an important issue [, (3) be] completely separate from the merits of the action, and [(4)] be effectively unreviewable on appeal from a final judgment.’ Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 , 98 S.Ct. 2454 [2457], 57 L.Ed.2d 351 (1978) (footnote omitted); see Cohen v. Beneficial Industrial Loan Corp., supra, 337 U.S. at 546 [ 98 S.Ct. at 1225 ].” Peat, supra, at 91-92 , 394 A.2d at 804 . More recently in Sigma Reproductive Health Center v. State, 297 Md. 660 , 467 A.2d 483 (1983), Judge Smith, for the Court, made an exhaustive study of the appealability of interlocutory orders and the collateral order exception to the general rule of finality. In pertinent part Judge Smith stated for the Court: “Since the Cohen decision the Supreme Court has refined the collateral order doctrine, but has applied it only to a relatively few issues of law.

For example, in Coopers & Lybrand v. Livesay, 437 U.S. 463 , 98 S.Ct. 3454 , 57 L.Ed.2d 351 (1978), the Court stated that to come within the collateral order doctrine, ‘that order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment. . . . ’ ” Id. at 668, 467 A.2d at 487 . In the instant case those criteria are met by the order of the trial court. That order clearly determines a disputed ques ¹⁶⁵ tion, which obviously is an important issue. Furthermore, whether Mr. Mann is interviewed by the media or talks to the State’s Attorney is completely separate from the merits of the criminal proceedings.

Finally, in our judgment, the order would be effectively unreviewable on appeal from a final judgment in the criminal case since by that time it could well be too late to cure any damage done by whatever is revealed in the interviews. Accordingly, we hold the order to be in that “small class of cases included in the final judgment rule under Cohen” and is thus appealable. Peat, supra at 92 , 394 A.2d at 804 . (2) Merits Turning our attention to the merits of the appeal, we hold that the trial court erred in ordering that Mann could talk to the State’s Attorney and be interviewed by the media.

Central to our reasoning is a recognition that some five months prior to the instant order (February, 1983) Mann had been judicially determined to be incompetent to stand trial 2 after several days of testimony from many psychiatrists and psychologists. In his oral remarks at that time the trial judge, after reviewing the evidence, stated: “And the Court, therefore, concludes that the Defendant is suffering from a psychotic mental disorder known as paranoia, that he does have an understanding of the nature of the proceedings against him, but because of his delusional system he may not be able to rationally understand the object of the trial, and the object of the trial may be the statement rather than the determination as to his guilt or innocence on a 75 count indictment. The Court is also of the opinion the Defendant’s delusional system completely impairs him from assisting in his own ¹⁶⁶ defense. His mistrust, his feeling that the doctors, lawyers and the Court are a part of the conspiracy against him leads the Court to not only have a reasonable doubt as to his competency, but the Court is convinced that Edward Thomas Mann is not competent to stand trial and is dangerous.” Thus it is clear that the trial judge found Mann suffered from paranoia, 3 that he may not be able to understand rationally the object of the trial, and that Mann’s delusional system completely impaired him from assisting in his own defense.

In July, 1983, the trial court held a hearing on motions filed by the State, Gary Reals, and the Evening News Association. These parties sought an order permitting them to interview Mann. We note that Mann acquiesced and in fact initiated these requests. No evidence was received or testimony taken at this hearing, which consisted of argument of counsel for the State, the news media, and the public defender who appeared for Mann.

The trial judge recognized that in February he had found that Mann was not competent to stand trial. However, he found it necessary to balance claimed conflicting constitutional rights 4 and concluded that there would be no prejudice to Mann in permitting the requested interviews. This conclusion was based on the widespread media coverage of the underlying offense, and the fact that the State “probably knows more about what happened on May 28, 1982 [the date of the offense] than the defendant.” The trial judge also did not believe an insanity defense would be prejudiced. Significantly, the court stated that in view of his incompe ¹⁶⁷ tence, Mann “could not waive his Miranda 5 rights and, that any statement made to Mr. Mason [Assistant State’s Attorney] would not, therefore, be admissible in court. . . . ” In regard to the motion of Gary Reals the trial judge held that as Mann had the right to visitors under Maryland Code (1983 Cum.Supp.) Health-General Article, § 10-703, 6 and he wanted to talk to Mr. Reals, he should be permitted to do so.

Again, it was found by the trial court that no prejudice was likely to occur. The contentions of the parties on appeal may be succinctly stated: (1) The public defender contends that an incompetent defendant may not validly waive his Fifth Amendment right against self-incrimination. 7 (2) The State argues that it is premature to contend Mr. Mann is incompetent to waive any constitutional protection. It further contends that even if incompetence to stand trial in February equates with an inability to waive Fifth and Sixth Amendment rights in July, there has been no showing ¹⁶⁸ that Mann is still incompetent. Finally the State argues that any prejudice is speculative.

(3) Mr. Reals and The Evening News Association contend they have a right to visit with Mann under Sec. 10-702(a) of the Health-General Article. 8 Additionally, since no guardian has been appointed for Mann he should be able to exercise his First Amendment rights unfettered. Finally they contend that the First Amendment rights of these intervenors would be violated by a prior restraint. (a) In our view the overriding issue before us is whether a defendant in a criminal case, having been found incompetent to stand trial, thereby becomes incompetent to waive constitutional rights guaranteed by the Fifth and Sixth Amendments. Heretofore we have not had an occasion to address this issue directly.

However, in State v. Renshaw, 276 Md. 259 , 347 A.2d 219 (1975), we did observe that “[competency to stand trial and competency to make a knowing and intelligent waiver of the right to counsel are not necessarily the same.” Id. at 267 n. 3, 347 A.2d at 225 [citing Westbrook v. Arizona, 384 U.S. 150 , 86 S.Ct. 1320 , 16 L.Ed.2d 429 (1966); Massey v. Moore, 348 U.S. 105 , 75 S.Ct. 145 , 99 L.Ed. 135 (1954).] In Westbrook, supra, the Supreme Court imposed a “protecting duty,” id. at 151 , 86