Sangster v. State

ALPERT, Judge. Being disinclined to spend the next one hundred eleven years behind bars, appellant, Sigismund Nathaniel Sangster, asserts, among other things, that he was denied his constitutional right of confrontation at the hearing in which it was determined that he was mentally competent to stand trial. This case began with a “drug bust” which ended in a shootout between the police and the appellant. Evidence at trial in the Circuit Court for Prince George’s County revealed the following.

On the morning of May 2, 1985, police officers from the Prince George’s County Police Department’s Vice Control Section and Emergency Service’s Team executed a search and seizure warrant at 5725 Chillum Heights Drive, Apartment 101. The affidavit in support of the search warrant alleged that individuals were selling “nickel bags” of marijuana through a peephole in the apartment door. The police went to the apartment, yelled “county police,” and then broke down the front door with a battering ram. They secured the living room, kitchen and bathroom of the apartment, and then sought access to the bedroom.

The door to the bedroom was barricaded. After Officer Sinton hit it with his shoulder and shield, Officer Magruder followed up with a battering ram. With the aid of the battering ram, the door would open approximately two inches, but it would shut tightly once the ram was removed. No sounds were heard from inside the bedroom until shots were fired.

This gunfire hit Officers Sinton and McKimmie. The police returned the gunfire by firing a shotgun through the unopened door. After gunfire was exchanged, Officer McKimmie tried to engage the occupant of the room in conversation. He told the occupant that “this is the county police, throw the gun out the window, go to the window, put your hands out the window, put your ⁴⁶¹ hands on the glass, or put them out the window.” At first, there was no response, but later the occupant yelled, “Come in and get me, man.” Gunfire was again exchanged and the police heard a yell from inside the room, indicating that the occupant had probably been injured.

The police then ceased their fire, and the occupant remained barricaded in the room for approximately five hours (at which time the occupant told police negotiators he had been shot and needed medical attention). When appellant came out of the bedroom, he was “leaning over slightly” with “both hands secreted in his jacket.” Sergeant William Spalding ordered the appellant to stop and take his hands out of his jacket and put them up in the air so that they were in plain sight. The appellant did not respond and instead made a motion with his hand which appeared to move from his jacket toward the police. Sergeant Spalding ordered Officer McKimmie to fire an Ar-wen 1 to disarm and disable Mr. Sangster.

The Arwen was shot, projecting a rubber projectile which struck the appellant, knocked him back, and caused his hands to move from his jacket. At the conclusion of the State’s case, the appellant moved for a judgment of acquittal. This motion was denied and the defendant began to present his case. Appellant produced four witnesses who testified that they were residents of appellant’s building present during the incident, but had not heard the police announce who they were before entering appellant’s apartment.

Mr. Sangster’s next-door neighbor testified that appellant had previously been beaten by the police, and his apartment had also been broken into shortly before the raid. In addition, appellant testified on his own behalf. He stated that on May 13, the date of the incident, that he was sitting in his bedroom when he heard somebody walking in ⁴⁶² the living room of his apartment who said, “[Everybody come out with their hand up.” Appellant testified that he called out, “it’s just me alone inside.” He then said: So while I was going to the front door, I got shot and I—and I say—they still say everybody come out with their hand up. So I said I ain’t coming out here.

Q. What did you do after you were shot? A. I went back where I was sitting down. And I take up— Q. Can you speak slower please? A. Yeah.

I went where I was sitting down first. And pick up—I went where I was sitting after they shoot me. And take a gun I did have and shoot the door back to them. And they still shooting and shooting again.

Q. What did you see out the window? A. I see somebody outside with a gun on me. I shoot at them. Q. Did you know that was a policeman?

A. I don’t know who he was. I saw one person first, after that I saw about three people knocking on the window. Q. So then what did you do? A. Well, the person that have a gun on me, I was shooting on him.

I shoot at him one time. The they knock on the window. While they was pushing the gun through the window I was trying to help myself by moving the—some furniture inside trying to keep bullets off me. Q. Why didn’t you just walk out the door?

A. Because they shoot. I didn’t reach the front door—I didn’t reach the door and they shoot me. Q. Why didn’t you open the door and walk on out? A. They going to shoot me.

Thus, appellant asserted that he didn’t know who was in his apartment when he fired the first three shots (the shots which injured the policemen), and thereafter, he did “not know what to do.” Although the police had told him to ⁴⁶³ come out of his apartment, appellant feared that if he came out he would be shot again. In fact, when he did come out of the bedroom, he was shot in the eye (an injury which caused him to lose the eye). At the conclusion of his case, appellant renewed his motion for judgment of acquittal. This motion was denied and the case was submitted to the jury, which convicted appellant and found him criminally responsible for assault with intent to murder, use of a handgun in the commission of a crime of violence, battery, assault, and possession of marijuana.

Appellant was also convicted of, but found not criminally responsible for, assault with intent to avoid lawful apprehension. On May 21, 1986, appellant was committed to the custody of the Commissioner of Corrections for a period of one hundred and eleven years. A timely appeal was filed on June 5, 1986, and the following questions presented: I. Did the trial judge fail to determine competency upon testimony and evidence presented on the record [and did the trial judge err in denying appellant the right to confrontation]?

II

Did the trial judge err in refusing to instruct the jury that assault and battery were not crimes of violence under Article 27 § 36B?

III

Did the trial judge err in instructing the jury on the elements of assault with intent to murder?

IV

Did the trial judge err in refusing to give an instruction on the “castle doctrine?” I. Competency Section 12-103 of the Health General Article states that: If, before or during a trial, the defendant in a criminal case appears to the court to be incompetent to stand trial or the defendant alleges incompetence to stand trial, the court shall determine, on evidence presented on the ⁴⁶⁴ record, whether the defendant is incompetent to stand trial. Md. Health-Gen. Code Ann. § 12-103 (1982 and 1986 Cum. Supp.).

The provisions of this section are mandatory, Jones v. State, 280 Md. 282 , 372 A.2d 1064 (1977), and dictate that the court take affirmative action to determine the competency of a defendant to stand trial once the issue is raised. Hill v. State, 35 Md.App. 98 , 369 A.2d 98 (1977); Rozzell v. State, 5 Md.App. 167 , 245 A.2d 917 (1968); Strawderman v. State, 4 Md.App. 689 , 244 A.2d 88 (1967). The test for determining competency is whether an accused is able to (1) understand the nature of the proceedings against him and (2) assist in his own defense. Langworthy v. State, 46 Md.App. 116 , 416 A.2d 1287 (1980), cert. denied, 450 U.S. 960 , 101 S.Ct. 1419 , 67 L.Ed.2d 384 (1981).

Both parts of the competency test must be established before the accused can be tried. Raithel v. State, 280 Md. 291, 299-300 , 372 A.2d 1069 (1977). All doubts and ambiguities are resolved in favor of incompetency. Langworthy, 46 Md.App. at 129-30 , 416 A.2d 1287 .

One of the “primary purposes of the [competency] laws [is] to prevent an insane person from being tried for an alleged criminal offense until he has recovered his reason____” Jones, 280 Md. at 289 , 372 A.2d 1064 ; Rowe v. State, 234 Md. 295, 309 , 199 A.2d 785 , cert. denied, 379 U.S. 924 , 85 S.Ct. 281 , 13 L.Ed.2d 336 (1964). In the case sub judice, appellant raised the issue of his competency to stand trial. He presented evidence from a psychiatrist, 2 Dr. Richard Epstein, that he suffered from a chronic schizophrenic disorder and that because of this ⁴⁶⁵ mental disorder he could neither understand the nature of the proceedings nor assist in his defense. The State called no witnesses in rebuttal, but apparently submitted a report 3 from Clifton T. Perkins State Hospital in which it was concluded that the appellant was competent to stand trial.

The appellant objected to the trial judge’s consideration of the Perkins report since it only contained the doctor’s conclusions without any supporting facts. He contended that he should have had an opportunity to cross-examine the Perkins staff as to the basis of their conclusions, before competency was determined. Appellant cites Gregory v. State, 40 Md.App. 297 , 391 A.2d 437 (1978) for this contention. In Gregory , we held that the admission of a Perkins report which opined on the defendant’s criminal responsibility violated his right to confrontation because the report was admitted generally for the truth of the matter asserted (and not for a limited purpose).

Judge Wilner, speaking for the court, explained: We have here not the routine record of a person’s birth, or death, or body temperature, nor any other similar statement of fact or condition objectively ascertained, generally reliable and normally undisputed, and free from any motive to record falsely. We are dealing with the opinions of supposed expert witnesses, who, in this document, are giving testimony not only as to appellant’s mental condition, but, more importantly, as to whether or not he is criminally responsible. The document was offered without limitation as to purpose, and therefore for its truth. Thus, the jury was not merely advised of the fact that three staff psychiatrists had formed certain opinions; it was asked to accept as true—ie., to believe— the opinion of these three physicians that appellant was “sane” at the time he entered the bank.

The case sub judice is distinguishable from Gregory . In that case the (out of court) opinion evidence went to the ⁴⁶⁶ very heart of the State’s case, i.e., it was introduced for the purpose of establishing criminal responsibility—an accusatory purpose. Here, the psychiatric opinions were not offered for an accusatory purpose but only to determine whether the appellant was competent to stand trial. Gregory is inapposite.

Instead, we look to the Maryland and Federal Constitutions to determine the scope of the appellant’s right of confrontation. The Right of Confrontation Article 21 of the Declaration of Rights of Maryland and the Sixth Amendment'to the United States Constitution (made applicable to the states through the due process clause of the Fourteenth Amendment) guarantee the right “in all criminal prosecutions ... to be confronted with the witnesses against the defendant.” U.S. Const, amend. VI; Md. Const, art. 21. See also Tichnell v. State, 290 Md. 43, 55 , 427 A.2d 991 (1981) (right to confrontation is guaranteed by state and federal constitutions and is considered a fundamental right).

Competency is an issue which, once raised, must be determined before the State may continue prosecuting the defendant. Raithel v. State, 280 Md. 291, 299-300 , 372 A.2d 1069 (1977). The determination of a defendant’s competency to stand trial does not pertain to the defendant’s guilt or innocence, but is a collateral matter relevant to the ability of the accused to obtain a fair trial. Jones v. State, 280 Md. 282, 289 , 372 A.2d 1064 (1977).

Confrontation rights do not generally extend to collateral matters. 4 ⁴⁶⁷ Dowdell v. United States, 221 U.S. 325, 330 , 31 S.Ct. 590, 592 , 55 L.Ed. 753 (1911). In Dowdell , the Supreme Court considered a statutory codification of the Sixth Amendment, as it appeared in the Phillipine Bill of Rights. On the defendant’s initial appeal, a question arose as to whether he had ever entered a plea to the charge and whether he had been present throughout the trial, as required by law. The record was unclear.

In order to clarify these questions, the appellate court ordered the trial court clerk and the court reporter to certify (1) whether each was present throughout the trial, and (2) whether they had observed that the defendant was also continuously present. In considering the defendant’s contention that the procedure violated his right to confrontation, because he was not present and had no opportunity to cross-examine the clerk or the court reporter, the Supreme Court said the Sixth Amendment right to confrontation intends to secure the accused in the right to be tried, so far as facts provable by witnesses are concerned, by only such witnesses as meet him face to face at the trial, who give their testimony in his presence, and give to the accused an opportunity of cross-examination. It was intended to prevent the conviction of the accused upon depositions or ex parte affidavits, and particularly to preserve the right of the accused to test the recollection of the witness in the exercise of the right of cross-examination. ⁴⁶⁸ But this general rule of law embodied in the Constitution ... and intended to secure the right of the accused to meet the witnesses face to face, and to thus sift the testimony produced against him, has always had certain well-recognized exceptions. As examples are cases where the notes of testimony of deceased witness, of which the accused has had the right of cross-examination in a former trial, have been admitted.

Dying declarations, although not made in the presence of the accused, are uniformly recognized as competent testimony____ Documentary evidence to establish collateral facts admissible under the common law, may be admitted in evidence. 221 U.S. at 330 , 31 S.Ct. at 592 (citations omitted) (emphasis added). Thus, the court concluded that the procedure did not violate the defendant’s right to confrontation because (1) the clerk and the court reporter were not asked to testify to facts concerning the defendant’s guilt or innocence, and (2) they were not witnesses against the accused within the meaning of the right to confrontation. Like the clerk and the court reporter in Dowdell , the Perkins doctors in the case sub judice were not “witnesses against” the defendant. They are impartial physicians assigned by the court to determine the defendant’s competency to stand trial.

See Johnson v. State, 292 Md. 405, 414 , 439 A.2d 542 (1982), wherein the Court of Appeals said: The doctors designated by the Department of Health and Mental Hygiene to examine [the defendant] are thus “not partisans of the prosecution, though their fee is paid by the State, any more than is assigned counsel for the defense beholden to the prosecution merely because he is ... compensated by the State. Each is given a purely professional job to do—counsel to represent the defendant to the best of his ability, the designated psychiatrists impartially to examine into and report upon the mental condition of the accused.” McGarty v. O’Brien, 188 F.2d 151, 155 (1st Cir.1951), cert. denied, 341 U.S. 928 [ 71 S.Ct. 1005 , 95 L.Ed. 1378 ] (1951). ⁴⁶⁹ Thus, we hold that the right to confrontation did not attach during the defendant’s hearing to determine his competency to stand trial, since such a hearing is not a prosecutorial proceeding as contemplated by the State and Federal constitutions. See State v. Correll, 148 Ariz. 468 , 715 P.2d 721, 727 (1986) (hearing to determine competency is nonadversarial and is best characterized as investigatory in nature); People v. Williams, 123 Mich.App. 752 , 333 N.W.2d 577, 581 (1983) (constitutional right of confrontation does not extend to pretrial hearings on competency to stand trial); Commonwealth v. Iacobino, 319 Pa. 65, 69 , 178 A. 823, 826 (1935) (no constitutional right to be confronted by or to cross-examine witnesses or members of commission appointed to ascertain competency to stand trial because such inquiries are apart, separate and distinct from that of guilt of the crime itself). See generally Annot., 32 A.L.R.2d 434 (1953).

Hearsay Moreover, appellant’s contention that he should have had an opportunity to cross-examine the Perkins’ staff is misplaced when it is considered that appellant never subpoenaed the doctors whose opinions were contained in the report. In Marlow v. Cerino, 19 Md.App. 619, 637 , 313 A.2d 505 (1974), we held that an opinion expressed in a hospital record by a qualified person is admissible into evidence as an exception to the hearsay rule, and “it is incumbent upon the person seeking to attack those opinions to call the declarant as a witness and examine him for weakness or error.” Id., citing 5 Wigmore, Evidence, §§ 1517-1561 (3rd ed. 1940); 6 Wigmore, supra at 1707. 5 Although appellant had an opportunity to call the Perkins ⁴⁷⁰ physicians to cross-examine them during the competency hearing, he failed to do so. 6 Accordingly, we hold that the trial court did not err when it considered the Perkins report in determining the appellant’s competency without allowing the appellant the opportunity to cross-examine the doctors who contributed to and wrote the report. Appellant’s right to confrontation did not attach during this pretrial hearing and, even if it had, appellant did not act to preserve those rights. If appellant wanted to cross-examine the physicians concerning the opinions they expressed in the hospital report, he should have called them as witnesses.

Having failed to do so, he waived his right to cross-examine them at the competency hearing. Hearing Procedure Finally, appellant argues that the failure to admit the Perkins report into evidence violates Section 12-103 of the Health-General Article, because the trial judge’s statements indicate that he considered the Perkins report in rendering his decision 7 even though it was never formally admitted into evidence. At trial, appellant objected to the court’s ⁴⁷¹ consideration of the report because he had no opportunity to cross-examine the physicians’ conclusions contained therein. Appellant never objected to the court’s failure to follow the procedure outlined in section 12-103 at trial and the objection appears for the first time on appeal.

Although we believe that the better practice would have been to introduce the report into evidence before the judge made his ruling as to the defendant’s competency, we decline to overturn appellant’s conviction based on his present contention. Maryland Rule 1085 requires a party to object to a ruling in order to preserve it for appellate review. A party need not give a specific objection to the ruling, but where he does the nature of his objection is limited to that which he articulated at trial, von Lusch v. State, 279 Md. 255 , 368 A.2d 468 (1977). In the case sub judice, appellant objected to the trial court’s determination of competency because he believed it violated his right to confrontation.

We have addressed that contention and found it incorrect as a matter of law. Appellant never objected to the determination of competency based on section 12-103 at trial and, thus, we will not consider it on appeal. Maryland Rule 1085. Even without the admission of the Perkins report, the evidence contained on the record was sufficient to uphold the trial court’s finding that the appellant was competent to stand trial.

See Md. Health-Gen. Code Ann. § 12-103 (1982). The court conducted a voir dire of the appellant (out of the hearing of the jury) to determine his competence. During this proceeding, the following colloquy ensued on direct examination: Q. Right.

Who am I? A. Mr. Eric S. Slatkin. Q. What am I doing here? A. Well, you supposed to be my attorney at law.

Q. What’s going to happen today? A. Well, I am going to court. Q. Is this court? What is this? ⁴⁷² A. This, well, to me I would say the courthouse.

Q. What? A. I would say the courthouse. Q. The Court knows? What does the Court know?

A. I say, I would say this is the courthouse. Q. This is the courthouse? A. Yeah. Q. And what’s going to happen if you’re found guilty?

A. Well, my papers. Q. You mean this paper? A. Yeah. Q. What’s going to happen if you are found guilty?

A. Well, I couldn’t—I’m not sure, I couldn’t read, so. Q. What does it mean to be found guilty? A. What does it mean to be found guilty? I did something wrong.

What to mean? I wasn’t guilty, I wasn’t doing nothing wrong. I was inside. On cross-examination, the following exchange occurred: Q. Sir, what is your name?

A. Sigismund Nathaniel Sangster. Q. Do you remember when the police