Morrow v. State

Thompson, J., delivered the opinion of the Court. Joseph Gerald Morrow, the appellant, was convicted by a jury in the Circuit Court for Baltimore County of manslaughter by automobile in the death of John Albert Hughes, Sr. He was sentenced to a term of 15 months, which was later suspended. The appellant raises here the following questions: 1. Did the trial court err in ruling that appellant’s amnesia did not preclude him from receiving a fair trial? 2.

Did the trial judge err in denying appellant’s request for a corrective instruction following the court’s misstatement that prosecution witnesses testified as to the manner in which appellant’s car was being driven? 3. Was the evidence sufficient to sustain the conviction of manslaughter by automobile? FACTS At approximately 2:36 a.m. on October 7, 1978, Officer Frank Rongione, Jr. of the Baltimore County Police Department arrived at the scene of an auto accident on Belair Road, a four-lane highway running in a north-south direction. He observed that the collision involved a silver American Motors Pacer hatchback and a white Pontiac LeMans.

The Pacer had come to rest facing east in the right lane on the northbound side. The appellant, who was seriously injured, was pinned behind the wheel. The officer testified that he detected the odor of alcohol on the appellant’s breath. 1 In the right lane on the opposite side of ²⁹⁸ the road, facing southwest, was the Pontiac. Trapped in the front seat of that car was a woman identified as Constance Linn.

Each vehicle was heavily damaged in front. Officer Rongione also observed the decedent, John Albert Hughes, Sr., who had apparently been thrown from the appellant’s car by the impact, lying on the road in the right northbound lane, south of the Pacer. The officer testified that he later determined from gouges in the pavement that the point of impact had been in the left northbound lane. Officer Rongione read into evidence a statement obtained from the appellant following his arrest 12 days after the accident.

In that statement, the appellant stated that he was driving his silver Pacer at approximately 2:25 a.m. on October 7, 1978 on Belair Road. He admitted leaving Pecora’s Bar & Restaurant, after consuming three or four rum and cokes, and proceeding south on Belair Road, with John Hughes as a passenger. He also admitted that he had consumed one beer at about 10:30 p.m. that night. The appellant stated that he could not remember what occurred after he left Pecora’s.

Calvin M. Cason, along with his wife, was driving north on Belair Road in the right lane at the time of the collision. Ahead of Cason in the left lane was the Pontiac driven by Constance Linn. Cason testified that he saw the silver Pacer, which was southbound, cross over the double center line into the northbound lanes and collide head-on with the northbound Pontiac. The Pacer than struck the curb on the northbound side of the road while the Pontiac came to rest in the southbound lanes.

Several witnesses testified concerning their encounters, immediately prior to, the collision, with a car which resembled that driven by appellant. Wayne Dircks testified that he was northbound in the right lane on Belair Road on October 7, 1978, at approximately 2:15 a.m., when he was forced to swerve to the right to avoid a southbound vehicle which crossed over the center line. When he looked in his rearview mirror after the vehicle had passed, Dircks saw smoke or steam. He then turned his car around and observed that a silver Pacer had collided with a white LeMans some ²⁹⁹ 300 or 400 feet south of the point where he had been forced to swerve.

Scott Williams, a passenger in the car driven by Dircks, also testified concerning the vehicle which had forced Dircks to swerve, describing it as a small car, silver in color. Neither Williams nor Dircks was certain that the car which forced them to the side of the road was the appellant’s Pacer. Judith Gloria testified that, while driving north on Belair Road that morning at approximately 2:10 a.m., she was forced off the road and into a guardrail by a southbound vehicle which came over the center line and into the right northbound lane. She described the vehicle as a light-colored hatchback, "a little bigger than a Pinto.” Patricia McKenny recalled that, while traveling south on Belair Road that morning some time after 2:00 a.m., she was passed by a light-colored hatchback which crossed over into the northbound lanes.

She testified that the vehicle was exceeding the speed limit. I Amnesia Prior to trial, a hearing was held to determine whether the appellant was competent to stand trial. He claimed that he suffered amnesia as a result of the head injuries which he sustained in the collision. At the hearing, he produced a psychiatrist, Dr. Chester Schmitt, Jr., who testified that the appellant "had findings that were consistent with post-traumatic amnesia, that is, amnesia that follows head injury.” Dr. Schmitt stated that the appellant had reported that he had no memory of events occurring between the time he left Pecora’s Restaurant and the time he regained consciousness in the hospital later that morning.

According to Dr. Schmitt, the appellant claimed that the police had been the source of the information contained in the statement he made 12 days after the collision. The doctor testified that the appellant understood the nature of the proceedings against him; he further agreed that the appellant would be able to consult with his attorney in the same manner as would any other defendant, except that he would be unable to answer questions concerning events ³⁰⁰ which occurred during the period of memory loss. The trial court held that the appellant was competent to stand trial despite the amnesia. We agree.

An accused is incompetent to stand trial if he "is unable to understand the nature of the object of the proceeding against him or to assist in his defense.” Md. Ann. Code art. 59, § 23 (1979 Repl. Vol., 1980 Cum. Supp.). The Court of Appeals has held that this requires "that not only must the accused have 'a rational as well as factual understanding of the proceedings against him’ but also he must at the trial have 'sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding.’” Raithel v. State, 280 Md. 291, 298 , 372 A.2d 1069 (1977). 2 In the instant case, the appellant’s ability to understand the proceedings is undisputed; the issue is whether his amnesia rendered him incapable of assisting in his defense.

This issue is one of first impression in Maryland, cf., James v. State, 31 Md. App. 666 , 688 n.9, 358 A.2d 595 , cert. denied, 278 Md. 725 (1976); 3 it has however been addressed by the courts in numerous other jurisdictions. See, e.g., United States v. Swanson, 572 F.2d 523 (5th Cir.), cert. denied, 439 U.S. 849 (1978); United States ex rel. Parson v. Anderson, 481 F.2d 94 (3d Cir.), cert. denied, 414 U.S. 1072 (1973); United States v. Borum, 464 F.2d 896 (10th Cir. 1972); United States v. Stevens, 461 F.2d 317 (7th Cir.), cert. denied, 409 U.S. 948 (1972); United States v. Sullivan, 406 F.2d 180 (2d Cir. 1969); Wilson v. United States, 129 U.S. App. D.C. 107 , 391 F.2d 460 (1968); Fajeriak v. State, 520 P.2d 795 (Alas. 1974); State v. McClendon, 437 P.2d 421 (Ariz. 1968); Reagon v. State, 251 N.E.2d 829 (Ind. 1969); State v. Pugh, 283 A.2d 537 (N.J. Super. 1971); ³⁰¹ Commonwealth v. Price, 218 A.2d 758 (Pa.), cert. denied, 385 U.S. 869 (1966); Jackson v. State, 548 S.W.2d 685 (Tx. Crim.

App. 1977). See, generally, Annot., 46 A.L.R.3d 544 (1972). Although "there are no definitive judicial explanations” of what constitutes the ability to assist in one’s own defense, 27 Md. L. Rev. 182 ,186 (1967), it is clear that the cases without exception reject the notion that an accused possesses that ability only if he is able to remember the circumstances of the crime with which be is charged. See, Jackson v. State, supra at 691: ("We find no case yet reported which has held that the inability to recall the event charged because of amnesia constitutes mental incapacity to stand trial.”) Amnesia does not prevent an accused from exercising "his rights under the Sixth and Fourteenth Amendments: his right to challenge jurors, to be informed of the nature and cause of the accusation, to confront the witnesses against him, to summon witnesses in his favor and to have the assistance of counsel.” United States ex rel.

Parson v. Anderson, 354 F. Supp. 1060, 1071 (D. Del. 1972), aff'd, 481 F.2d 94 (1973). "[Ajmnesia [does] not cause the accused to lie to his counsel, intentionally to hold out facts or hinder his defense; nor [does] it prevent him from understanding the nature of the oath, from truthfully answering all questions put to him on the stand, from answering questions rationally, or from comprehending the elements of the offenses with which he [is] charged and the facts set forth in the charges and specifications.” Amnesia: A Case Study in the Limits of Particular Justice, 71 Yale L.J. 109 , 121 (1961). Amnesia does not prevent an accused from rationally discussing his defense with counsel, nor from making rational decisions with respect to his defense. Indeed, the amnesic defendant is "denied only the ability to testify personally to certain facts, and this is a disability shared in greater or lesser degree by all defendants as a result of the normal attrition of memory or the lack of opportunity to observe important facts.” Id. at 121.

The practical effects of expanding the definition of incompetency to include amnesia must be considered. Several courts have indicated that they were unwilling to ³⁰² hold that limited amnesia was an adequate ground for a determination of incompetency because the effect of such a holding would be to free, without trial, persons against whom prima facie criminal cases had been established. See, State v. Johnson, 536 P.2d 1035, 1036 (Ariz. 1975); Commonwealth v. Price, 218 A.2d at 763 . It has been noted that, if amnesia were held to render an accused incompetent then, if the amnesia were permanent, the accused would never be competent and could never be tried: at the same time, because limited