Minovich v. State

Thompson, J., delivered the opinion of the Court. Stephen William Minovich was indicted for murder in connection with the shooting death of a close friend. After entering pleas of not guilty and insanity at the time of the alleged crime, he was tried before a jury in the Circuit Court for Montgomery County. The jury returned a verdict of murder in the second degree.

The questions raised on appeal will be stated separately. I Insanity Questions At trial, Minovich offered medical evidence that he was insane within the meaning of the Maryland statute at the time the crime was committed. There was also medical evidence that he was sane within the meaning of the Maryland law at the time the crime was committed. At the conclusion of his charge the trial judge directed the jury to return one of six possible verdicts: (1) “Not guilty”; (2) “Not guilty by reason of insanity”; (S) “Guilty of murder in the first degree”; (4) “Guilty of murder in the first degree without capital punishment”; (5) “Not guilty of murder in the first degree but guilty of murder in the second degree”; or (6) “Not guilty of murder but guilty of manslaughter.” There was no exception to this part of the instructions, but ³⁷⁰ on appeal Minovich alleges reversible error because the jury failed to render a special verdict on sanity of the defendant at the time of the alleged crime as specifically required by Md. Code, Art. 59, § 25 (b). 1 Under Md. Rule 756 g an appellant is entitled as a matter of right to assign error in any instructions to which he has ³⁷¹ particularly excepted at the trial.

We are enjoined, however, to notice any plain error in the instructions “material to the rights of the accused even though such error is not objected to.” We now consider whether the error was material to the rights of the accused. We held in Turner v. State, supra, there was no reversible error where the trial judge in a bench trial reserved the preliminary question as to the sufficiency of the evidence to raise the issue of insanity pursuant to a written plea filed therein and did not at trial render a special verdict under the plea. In that case the evidence presented was insufficient to raise the threshhold question as to sanity. Under those circumstances we found that although the violation of the statute was error, there was, on the record, no prejudice to the rights of the accused and the error was harmless.

In Tanner v. State, 9 Md. App. 462 , 265 A. 2d 573 , cert. den. 259 Md. 736 , where the trial judge improperly ruled that the appellant had failed to present sufficient evidence to permit the issue to be determined by the jury, we remanded the case for the sole purpose of determination of the question of the appellant’s sanity either before a jury or a judge as appellant might elect. We directed that the verdict of guilty should stand unless the trier of the fact found that the appellant was insane at the time of the crime in which event the trial court was directed to vacate the judgment of conviction. The question presented in the instant case is, of course, beyond the questions covered in either Turner or Tanner but based on their reasoning, unless some prejudice to the appellant’s rights are found in the record, there is no reason why the judgment of guilty should not stand. 2 The record shows that the trial judge read his instructions to the jury and furnished them with a typewritten copy thereof. The instructions were twenty-four pages in length, more than twelve pages of which were devoted to the ³⁷² question of the sanity of the appellant at the time of the crime.

The instructions included the following: “The first question with which you are confronted is, therefore, whether the Defendant, at the time of the act charged against him as a crime, was or was not afflicted by mental disorder.” “I have said that the first question before you is whether or not the Defendant suffered from a mental disorder at the time of the conduct charged. “If you are satisfied beyond a reasonable doubt that he did not, that is an end of the defense. “If, however, you find that he was suffering from mental disorder at the time, or if you have a reasonable doubt as to whether he was or not, the second question then arises.” “It is for you to judge on all the evidence before you whether the Defendant lacked substantial capacity to appreciate the criminality of his behavior when he acted as he did. “If you find that the Defendant as a result of mental disorder lacked substantial capacity at the time of his conduct to appreciate its criminality, or if you have a reasonable doubt as to whether he lacked such capacity or net, I charge you that it is your duty to return a verdict of not guilty on the ground of insanity, stating in your verdict that you base it on that ground.” “. . . I have had these possible verdicts typed up and your Foreman will be given a copy of them. You shall return only one of them.” “No. 2 verdict: If you are convinced beyond a ³⁷³ reasonable doubt that he unlawfully killed George Daugherty, but you’re not convinced beyond a reasonable doubt that he was sane when he did so, then your verdict will be ‘not guilty by reason of insanity.’ “If such a verdict is returned, this Court may commit Mr. Minovich to a mental institution for examination and evaluation to determine whether or not, by reason of mental disorder, the person is a danger to himself or to his own safety, or will be a menace to the safety of the person or property of others.” Additionally, while the trial judge was reviewing each of the six possible verdicts, he instructed the jury specifically it could return one of verdicts (3), (4), (5) or (6) if “you are satisfied beyond a reasonable doubt that he unlawfully killed George Daugherty and also that he was sane at the time he did so.” We indicated in Saul v. State, supra, note 2, one of the reasons why trial courts should comply strictly with the statute was so that the record would show that the jury had specifically considered the issue of insanity before making a finding as to guilt or innocence. On the record before us it is apparent to us that the jury did so.

Indeed, while the jury was deliberating it sent a question to the trial judge pertaining to the meaning of certain words used in the testimony as to insanity. We hold that on this record, although the trial judge was in error in failing to require a separate verdict as to sanity, no rights of the accused were prejudiced. 3 After the pretrial ruling that the accused had presented sufficient evidence to present a jury question as to sanity, the court ruled that the burden of proof was on the appellant as to insanity and the State could bring its evidence in by ³⁷⁴ way of rebuttal. The ruling of course was contrary to several decisions of this Court including Strawderman v. State, 4 Md. App. 689 , 244 A. 2d 888 , Turner v. State, supra, as well as prior rulings of the Court of Appeals, Bradford v. State, 234 Md. 505 , 200 A. 2d 150 . In accordance with the ruling of the trial court the prosecutor in his opening statement advised the jury that if the appellant produced evidence concerning the insanity of the accused at the time of the offense, the State would, in rebuttal, offer evidence that the accused was sane at the time of the offense.

On the second day of trial, the trial judge realized his error and so informed the parties, whereupon the State properly produced, during its case in chief, its evidence concerning sanity of the accused at the time of the offense. It is difficult for us to see how this confusion in the trial court could have in anywise been prejudicial to the appellant. We recently ruled in Powell v. State, 16 Md. App. 685 , 299 A. 2d 454 , that where the State withheld exculpatory evidence and opening statements were made accordingly, the error was corrected when the evidence was produced by the State prior to the conclusion of the trial and the accused had the benefit of that evidence. We think the question in the instant case is governed by the rationale of Powell .

II Sentencing Citing Bullock v. Director, 231 Md. 629, 633 , 190 A. 2d 789 and Duffin v. Warden, 235 Md. 685 , 202 A. 2d 597 , Minovich contends the trial judge, purporting to act under Rule 764, revised his sentence after an appeal had been noted in the case and when the trial court was without jurisdiction to do so. Under our view of the case, the action of the trial judge did not amount to a revision of the sentence. On January 29, 1972, after the jury rendered a verdict of guilty of murder in the second degree “with recommendation for mercy”, the trial judge revoked Minovich’s bond and placed him in the custody of the sheriff pending a presentence investigation. The docket entry on August 11, 1972, reads: ³⁷⁵ “. ..

Sentence of the Court that defendant be sentenced for a term of five (5) years Court suspends execution of all but One Hundred Seventy-nine (179) days of sentence, which is to be served in Detention Center — defendant placed on probation for balance of term if it can be demonstrated to Court the following: that defendant will be employed full time — that he continue psychotherapy with progress reports to probation