Morrow v. State

Cole, J., delivered the opinion of the Court. The primary reason for granting certiorari in this case was to address a question of first impression in Maryland: Whether an accused’s loss of memory regarding the facts of the event for which he is charged renders him incompetent to stand trial? The details giving rise to this issue are as follows. On October 7, 1978 at approximately 2:20 a.m., Joseph Morrow was driving an AMC Pacer southbound on Belair Road where he collided head-on with a Pontiac LeMans being operated by Constance Linn, who was northbound on the same highway.

Morrow and Linn suffered extensive injuries as a result of the impact and John Hughes, Sr., a passenger in Morrow’s vehicle, was thrown from the car and killed. Morrow was charged with manslaughter by automobile, driving while intoxicated, and driving while ability impaired. 1 Prior to trial Morrow alleged that he was unable to remember anything about the accident and that, as a result, he was incompetent to stand trial. The trial court conducted a competency hearing at which Morrow produced Dr. Chester Schmidt, Jr., a psychiatrist, who testified that he had examined Morrow and concluded that Morrow suffered from amnesia, a loss of memory. Dr. Schmidt further testified that the period over which Morrow had no recall was just before he left Pecora’s Restaurant in the early morning of October 7, 1978, until he awoke in a hospital intensive care unit that morning; that the amnesia resulted from a severe head injury received during that ²⁴⁹ time; and that the amnesia was genuine and permanent in that Morrow would never recall the events that took place during this period.

Dr. Schmidt indicated that Morrow had information about certain events that occurred during the critical period but that it was the product of information the police and other people had supplied to him. He concluded by testifying that Morrow had fully recovered from the accident, could understand the proceedings, and would be able to consult with counsel the same as any normal individual, except that Morrow would be unable to answer counsel’s questions with regard to what happened before, during, and after the accident up until the time he was in the operating room. The trial judge ruled that Morrow was competent to stand trial. A jury trial followed where the State adduced testimony from several witnesses.

Judith Gloria, Scott Williams, and Wayne Dircks testified that they had seen a car driving erratically southbound on Belair Road a few minutes before the accident. Calvin Cason testified that he was driving northbound on Belair Road and saw Morrow’s vehicle cross the center line and strike the Linn vehicle head-on. Officer Frank Rongione of the Baltimore County Police Department investigated the accident and told the court he detected an odor of alcohol on Morrow’s breath and that a subsequent blood test revealed Morrow’s blood alcohol level to be .16 percent. The jury returned a guilty verdict on the count of manslaughter by automobile and not guilty verdicts on the counts of driving while intoxicated and driving while ability impaired.

Morrow was sentenced to fifteen months with the Division of Correction which was later modified to eighteen months of supervised probation. The Court of Special Appeals affirmed the conviction in Morrow v. State, 47 Md. App. 296 , 423 A.2d 251 (1980), holding, inter alia, that Morrow was competent to stand trial. Morrow contends that he was unable to assist in his defense and, therefore, it was error for the trial court to allow him to stand trial. The State’s retort is that amnesia, by itself, does not render an accused incompetent; that if the ²⁵⁰ accused at the time of trial has the present ability to understand the proceedings against him, to communicate with his lawyer, and, generally, to conduct his defense in a rational manner, then, absent extraordinary circumstances not present here, memory or want thereof is irrelevant to the issue of competency.

The right of an accused to' be mentally competent at the time of trial is embodied in Maryland Code (1957,1979 Repl. Vol., 1981 Cum. Supp.), Article 59, § 23. In pertinent part this statute provides that: 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 [(1)] such person is unable to understand the nature of the object of the proceedings against him or [(2)] to assist in his defense....

The court may in its discretion at any time during the trial and until the verdict is rendered, reconsider the question of the competency of the defendant to stand trial as otherwise provided in this section. In Raithel v. State, 280 Md. 291 , 372 A.2d 1069 (1977), we held that the extension of this protection "requires, at a minimum, that the defendant be sufficiently coherent to provide his counsel with information necessary or relevant to constructing a defense” and that "both [requirements of the competency test as set forth in the statute] must be established before the accused alleging incompetency can be brought to trial.” 280 Md. at 297 . Morrow does not argue for a rule that amnesia as to the facts of the crime renders a person incompetent per se. Indeed, he should not for the authorities are agreed in ²⁵¹ rejecting such a rule.

No court, having considered this issue, has so held. See Comment, Amnesia, a Case Study in the Limits of Particular Justice, 71 Yale L.J. 109 (1961). See also, United States v. Swanson, 572 F.2d 523, 526 (5th Cir. 1978). Rather, Morrow relies on Wilson v. United States, 129 U.S. App. D.C. 107 , 391 F.2d 460 (1981).

He advocates that this Court adopt the procedure enunciated in that case and, if adopted, he would be found incompetent. Several jurisdictions have followed the Wilson approach and a discussion of that case is appropriate here. In Wilson , the defendant in a robbery case ran the car he was driving into a tree during a high speed chase, fracturing his skull and rupturing several blood vessels in his brain. He remained unconscious for three weeks.

The trial court found he had a permanent loss of memory but nevertheless ordered him to be tried on the assumption that his counsel could secure from other sources the same information regarding the incident that the defendant could have supplied if he possessed the power to recall. The three judge panel reviewing his conviction remanded the case for a post-trial hearing to determine whether the defendant’s amnesia did in fact deprive him of a fair trial and the effective assistance of counsel. The majority opinion of the Wilson Court said that while the trial court should decide the question of competency before trial, he should nevertheless determine after the trial and before sentencing if, as a matter of fact, the defendant was able to perform these functions which are essential to the fairness and accuracy of a criminal proceeding. In making this determination, the trial court should consider certain factors: (1) The extent to which the amnesia affected the defendant’s ability to consult with and assist his lawyer.

(2) The extent to which the amnesia affected the defendant’s ability to testify in his own behalf. (3) The extent to which the evidence in suit could be extrinsically reconstructed in view of the defendant’s amnesia. Such evidence would ²⁵² include evidence relating to the crime itself as well as any reasonably possible alibi. (4) The extent to which the Government assisted the defendant and his counsel in that reconstruction.

(5) The strength of the prosecution’s case. Most important here will be whether the Government’s case is such as to negate all reasonable hypotheses of innocence. If there is any substantial possibility that the accused could, but for his amnesia, establish an alibi or other defense, it should be presumed that he would have been able to do so. (6) Any other facts and circumstances which would indicate whether or not the defendant had a fair trial. [Id. at 463-464.] In a concurring opinion, a second judge concluded that a fair trial had been conducted despite the amnesia and said that amnesia would be prejudicial only if it could reasonably be concluded that memory would have afforded the defendant an opportunity to present a defense otherwise precluded.

The third judge dissented, believing that memory was an essential element, per se, of competency to stand trial. The bottom line of Wilson is that it advocated that competency to stand trial was an issue which could only be determined on a case-by-case basis applying the stated factors. See Parson v. State, 275 A.2d 777 (Del. Supr. 1971) (adopting the six factor approach).

For cases applying a case-by-case approach see Aldridge v. State, 247 Ga. 142 , 274 S.E.2d 525 (1981); Commonwealth v. Lombardi, 378 Mass. 612 , 393 N.E.2d 346 (1979); People v. Francabandera, 33 N.Y.2d 429 , 354 N.Y.S.2d 609 , 310 N.E.2d 292 (1964); Jackson v. State, 548 S.W.2d 685 (Tex. Crim. App. 1977). The State, while recognizing this line of cases, emphasizes that this Court should initially follow the weight of authority and hold that amnesia, by itself, does not render an ²⁵³ accused incompetent to stand trial.

It cites as seminal authority for this proposition the English Court of Appeals case of Regina v. Podola, 1 Q.B. 325 (1959), which held that an amnesiac defendant is competent to stand trial if he is mentally normal at the time of the hearing of the proceeding against [him], and is perfectly capable of instructing [his] solicitors as to what submissions their counsel is to put forward with regard to the commission of the crime. [Id. at 356.] The rationale the State posits as the capstone for this position is that the amnesiac defendant is no worse off than the defendant who cannot remember where he was on a particular day because of the passage of time, or because he was drunk, drugged, unconscious, or asleep. In each of these