State v. Greco

IRMA S. RAKER (Retired, Specially Assigned), J. This is a State appeal from the grant of post-conviction relief to appellee Vincent Greco, Jr., pursuant to Maryland Code (2001, 2008 RepLVoL, 2010 Cum.Supp.) § 7-106(c) of the Criminal Procedure Article. 1 The Circuit Court for Baltimore County vacated the judgment of conviction for the offense of first degree murder, and granted appellee a new trial on that offense. 2 The State filed an application for leave to appeal, presenting a single question: “Did the circuit court err in granting post-conviction relief under Section 7-106(c) of the Criminal Procedure Article, based on the improper retroactive application of a non-constitutional evidentiary standard that was not intended to be applied retroactively?” Greco presents two additional issues in his brief, questioning the jurisdiction of this Court to hear this State’s appeal and the preservation of certain arguments in the State’s brief. 3 ⁶⁵⁰ We shall hold that this Court does have jurisdiction to hear this appeal, that the State did not waive its challenge to the applicability of § 7-106(c), and that the circuit court erred in granting Greco post-conviction relief under § 7-106(c). I. This case has a long history in the courts. We set forth the facts as set out by this Court in Greco’s direct appeal in Greco v. State, No. 1671, Sept. Term 1982, unreported (Md. Ct. Spec.App. June 23, 1983): “Greco was tried for killing 78 year old Leta Jeanette Larsen who he allegedly beat brutally before he strangled and raped her in her living room on April 17,1981. On the eve of Larsen’s death, Greco, who had steadily dated Larsen’s granddaughter, Sheryl Fitch, received a call from Larsen.

She allegedly told Greco that she did not want him to continue to date her granddaughter. Larsen expressed concern over Greco’s use of drugs and alcohol. That night, at approximately 9 p.m., Greco, while at the Ridgley Inn, drank ‘a few beers’ and smoked marijuana. Additionally, he ‘got some’ caffeine pills.

He then went to a party at the ‘Storeroom Bar’ where he stayed until about 2 a.m. While at the party, Greco says he drank ‘about ten drinks-Jack Daniels and Coke and Molson’s Ale.’ He also ‘had some marijuana cigarettes.’ When Greco left the party, he ‘took a six-pack of Michelob with’ him. While driving on Charles Street toward the City of Baltimore, Greco ‘remembered the conversation with Mrs. Larsen.’ Because he knew she stayed up late at night watching television, he decided to stop off to see her. At Larsen’s home, Greco testified, he and Larsen had a lengthy conversation about his relationship with Sheryl as ⁶⁵¹ well as his use of alcohol and marijuana.

Larsen and Greco allegedly began to aggravate each other. Larsen, according to Greco, ‘started talking about sex.’ She then went to fix coffee. Greco reportedly went to the bathroom and when he returned, Larsen, allegedly with the top of her pajamas unbuttoned, approached him while he was drinking coffee and requested that they have sexual intercourse. Greco told the jury that he and Larsen engaged in copulation on the kitchen floor.

Upon the completion of the coupling, Greco ‘dozed off.’ Suddenly he was awakened by a feeling of pain in his chest. He observed Larsen standing over him with a knife in her hand. A struggle ensued as Greco wrestled with Larsen to obtain the knife. During that struggle Larsen cut her hand and Greco is said to have fainted from the sight of blood.

He regained consciousness when Larsen allegedly stabbed him in the side. He in turn grabbed her around the neck. They then stumbled into the living room and fell upon the sofa. Fearing that Larsen would kill him, Greco put a pillow over Larsen’s face ‘because she looked so bad.’ He found later that she had ceased breathing.

Greco testified that while he was in a state of panic and frenzy, he rinsed the blood from the knife, washed his face and hands, cleansed his wounds as well as Larsen’s, notwithstanding that she was obviously dead, bandaged Larsen’s wounds, and then covered her with an afghan. Ten year old Mary Lee Derriekson and eleven year old Joelle Myers, respectively granddaughter and great granddaughter of Larsen, were staying in the house that night with Larsen. Greco, realizing that they were there, awakened them from their supposed sleep and informed them that they were leaving the house with him. The trio journeyed to College Park, Maryland, in order to find Sheryl Fitch.

Greco told Sheryl what had happened. He asserted that Larsen had seduced him and then tried to stab him. He sustained several minor wounds. Sheryl returned to Baltimore with the trio and after dropping the two children at their parents’ home, Greco and Sheryl ⁶⁵² proceeded to Larsen’s house where Sheryl discovered that the police had arrived.

Greco drove to his parents’ house where he was subsequently arrested.” In a jury trial in the Circuit Court for Baltimore County, Vincent Greco, Jr., testified in his own defense that he and Mrs. Larsen had consensual intercourse on the night of her death, and that, when he killed her, he believed that his actions were necessary to save his life. To corroborate his testimony, Greco sought to introduce the expert testimony of Dr. Leonard Rothstein, a defense psychiatrist who had examined Greco. Dr. Rothstein offered to testify, in relevant part, that Greco’s psychiatric makeup included a specific phobia regarding physical assaults and the sight of blood which caused him to misperceive the threat that the 78-year-old victim posed towards him when she allegedly stabbed him on the night he killed her. The trial court admitted some, but not all, of Dr. Rothstein’s proffered testimony.

The trial court noted that, under Johnson v. State, 292 Md. 405 , 439 A.2d 542 (1982), testimony offered in support of a diminished capacity defense was not admissible, and further explained its ruling, in part, as follows: “Now, I would follow the opinion in Waine v. State, 37 Md.App. [222] at 243 [ 377 A.2d 509 (1977)] ... [that] ‘permitted [the defense psychiatrist] to testify in a limited fashion, and that would be that he could testify with regard to what he thinks the psychiatric makeup of the person is____He cannot testify with regard to any conclusion that he has reached with regard to whether or not this person might possibly be able to commit an act of violence or did in fact commit [the act]----We can find no abuse of discretion on the part of the trial judge when he allowed testimony concerning the psychological makeup of the appellant but not an ultimate conclusion, which the doctor admitted he was not competent to make.’ Well, basically, as I stated yesterday, certain ultimate conclusions I have prohibited and I think that Waine and other cases ... would support that view. That’s my opinion.” ⁶⁵³ The trial court did not permit Dr. Rothstein to testify that Greco had misperceived the threat as a result of his specific phobia on the grounds that the testimony was offered in support of a diminished capacity defense, which was disallowed in Johnson, 292 Md. 405 , 439 A.2d 542 . Dr. Rothstein was allowed, however, to testify that, among other things, Greco’s psychiatric makeup included this specific phobia. After extensive bench conferences regarding the purpose of the proposed testimony, defense counsel asked Dr. Rothstein a hypothetical question as to how a person with Greco’s phobia might react to a scenario that matched Greco’s description of the night’s events.

The exchange occurred as follows: [Defense Counsel]: ... I would like you to add a couple of facts to the hypothetical and ask your opinion based upon those facts. Assume the fact ... that the defendant was awakened in pain, there was a struggle with another person, that he then saw blood. I would like you to add in there upon seeing blood he fainted, that he awoke a second time, saw the same blood a second time, saw this person with whom he struggled have a knife in his possession.

Would in your opinion the defendant’s act of perhaps strangling this woman be consistent with a phobic response? [Dr. Rothstein]: You would like me now to answer that? [Defense Counsel]: Please. [Dr. Rothstein]: My answer would be yes, it is consistent with some of the features of the operation of a phobic reaction. [Defense Counsel]: Could you explain what you mean by that? [Dr. Rothstein]: Yes. The feature that is most directly a product of the phobic response would in that situation be the fainting upon being presented with the stimulus, the combined stimuli of the sight of blood and the perception that someone was attacking him. That would be perceived as a threat. [Prosecutor]: Objection. [The Court]: I’m not sure — overruled, overruled. ⁶⁵⁴ [Dr. Rothstein]: (continuing) That would be perceived as a threat of bodily harm. The second way in which it would be consistent would be that in the case of somebody who faints as a result of a phobic response to a specific stimulus or indeed anyone who experiences a fainting episode, that there is a brief period following the recovery from the fainting episode during which there is some residual confusion and unclarity of thinking.

And that particular state of mind would contribute to the possibility of a misappraisal or misevaluation of what was being seen. That coupled with the fact that the person’s particular emotional response to the threat of bodily harm would tend to result in the combination of the misperception and the overreaction to that which was misperceived. On April 6, 1982, Greco was convicted of first degree murder, felony murder, and first degree rape. On May 14, 1982, the circuit court imposed consecutive terms of life imprisonment for the first degree murder and first degree rape convictions, as well as a concurrent life sentence for the felony murder conviction.

Greco noted a direct appeal, and on June 28, 1983, this Court affirmed Greco’s convictions but remanded the case for resentencing. We held that Greco’s two separate terms of life imprisonment for felony murder and first degree murder of the same victim were inappropriate as it is “manifestly impossible to kill the same person twice.” On January 30, 1984, the circuit court resentenced Greco to consecutive terms of life imprisonment for the first degree murder and first degree rape convictions, and the circuit court did not give Greco a sentence for his felony murder conviction to avoid sentencing him twice for a single homicide. On February 3, 1984, Greco filed his first motion for reduction of sentence which the circuit court held sub curia until July 16, 1992 when the circuit court reduced Greco’s sentence to run the life sentences concurrently. On August 17, 1992, Greco filed his second motion for a reduction of sentence, which the circuit court denied as untimely filed under Mary ⁶⁵⁵ land Rule 4-345.

The Court of Appeals reversed the denial of the second motion for a reduction of sentence on October 16, 1997, holding that the circuit court had misinterpreted the timeliness requirement in the rule. Greco v. State, 347 Md. 423, 431-32 , 701 A.2d 419, 423 (1997). On July 9, 1998, the circuit court reduced Greco’s concurrent life sentences to life imprisonment, with all but fifty years suspended in each sentence. On September 24, 1998, Greco filed an application for review of sentence.

On January 17, 2002, a three-judge panel declined to reduce Greco’s sentence. Greco filed a third motion for modification of sentence on October 7, 1998. On July 28, 2006, the circuit court denied that motion. On December 2, 1996, Greco filed a petition for post-conviction relief, which he amended on June 18, 2008 to include his claim that he was entitled to a new trial at which more of Dr. Rothstein’s proffered testimony would be allowed.

On September 24, 2009, the circuit court granted Greco’s petition for post-conviction relief, reasoning that § 7-106(c) 4 allowed a new trial based on the theory that Hoey v. State, 311 Md. 473 , 536 A.2d 622 (1988), and Simmons v. State, 313 Md. 33 , 542 A.2d 1258 (1988), together overruled the rule from Johnson, 292 Md. 405 , 439 A.2d 542 , that had been applied in Greco’s trial to exclude some of Dr. Rothstein’s testimony. ⁶⁵⁶ On October 23, 2009, the State filed, in this Court, an application for leave to appeal the post-conviction relief granted to Greco and, in the circuit court, a motion to reconsider the post-conviction relief. On February 25, 2010, the post-conviction court issued an order that “concern[ed] clarification with regard to the Court’s [September 24, 2009] ordering a new trial” and specified that the grant of a new trial applied only to Greco’s conviction for first degree murder and not to the convictions of first degree rape and felony murder. On April 23, 2010, this Court granted the State’s application for leave to appeal.

II

Before this Court, the State argues that the circuit court erred in granting Greco’s petition for post-conviction relief because the issue of the admissibility of Dr. Rothstein’s testimony had been fully litigated in Greco’s trial and direct appeal, and because Greco did not satisfy all of the requirements in § 7 — 106(c) to allow an exception to the prohibition against post-conviction appeals of fully litigated matters. The State argues that “[t]he circuit court erroneously determined that [the Hoey and Simmons ] opinions created a new legal standard” and erroneously determined that this standard was “required under federal or State Constitutional law and were intended to be applied retrospectively.” Since each of these elements — a new legal standard, a constitutional mandate, and a retrospective intention — is required by § 7 — 106(c), the State contends that the circuit court erred in applying this statute to Greco’s case where none of these elements are present. Furthermore, the State argues that Dr. Rothstein was allowed to present the testimony that Greco argues was excluded, that the trial court instructed the jury on the theory of imperfect self-defense, that Greco presented a closing argument based on this theory, implicitly referencing Dr. Rothstein’s testimony, and that Greco, therefore, was not prejudiced by any application of the Johnson ruling that might conflict with Hoey and Simmons. ⁶⁵⁷ Greco argues first that this Court does not have jurisdiction to hear this appeal because the circuit court order was clarified with a subsequent order, Greco filed a motion to amend the subsequent order, and that his motion is pending, which, according to Greco, means there is no final order from which to appeal. Greco argues next that the State has waived the issue of the applicability of § 7-106(e) and the lack of prejudice at trial because the State did not make these arguments before the circuit court.

Greco argues also that Hoey and Simmons announced a new rule, that the new rule was constitutionally mandated, and that the Court of Appeals intended the rule to be applied retrospectively. Finally, Greco argues that he was prejudiced when he was prohibited from presenting all of Dr. Rothstein’s testimony or discussing his testimony in closing argument, and that this corroborating testimony would have enhanced his credibility and swayed the jury such that he should be given a new trial on all his convictions.

III

Before reaching the merits of the State’s appeal, we must first address Greco’s jurisdiction and waiver arguments. Gre-co’s first argument against this Court’s jurisdiction is, essentially, that the State appealed from the wrong order. The State appealed from the circuit court’s order that granted Greco a new trial. Although the State asked the circuit court to reconsider this order for various reasons, the circuit court did not vacate or supercede its original order, but rather clarified in the subsequent February 25, 2010 order that the original order was meant to grant a new trial for the first degree murder conviction only, as this issue had not been specifically addressed in the original order.

We hold that the State appealed from the correct order, as it was the original order that granted the new trial, and Greco’s argument is without merit. Likewise, Greco’s argument that his motion to alter or amend the February 25, 2010 clarifying order denies this Court jurisdiction fails both be ⁶⁵⁸ cause that motion has been denied by the circuit court and because it is not the clarification that is being appealed but the original order that granted a new trial. Greco further argues that the State has waived the specific arguments that it makes on appeal as to why the circuit court erred in relying upon § 7-106(c) to grant a new trial based on retrospective application of Hoey and Simmons because the State did not make identical arguments to the circuit court. Although the State’s advocacy of its position before the circuit court could have been more expansive, the record indicates that the State argued that the rule described in Hoey and Simmons should not be applied retrospectively, that the matter at issue had been finally litigated decades earlier, and that post-conviction relief was not warranted under § 7-106(c).

The circuit court then ruled that the post-conviction relief of a new trial to retrospectively apply the rule in Hoey and Simmons was available to Greco, even though the matter had been finally litigated, because he met the criteria under § 7-106(c)(2). Maryland Rule 8-131(a) states that appellate courts ordinarily decide only those issues “raised in or decided by” the lower court, and even if the State did not raise the § 7-106(c)(2) criteria issue below, the circuit court clearly decided that issue. Under these circumstances, it would appear absurd to prohibit the State from addressing on appeal the rationale for the circuit court’s ruling more directly on the grounds that the State did not anticipate correctly that rationale prior to the circuit court’s ruling. As the State aptly notes, the Court of Appeals has said that “an appellant/petitioner is entitled to present the appellate court with a more detailed version of the argument advanced” below.

See Starr v. State, 405 Md. 293, 304 , 951 A.2d 87, 93 (2008) (internal quotations omitted). The State, on appeal, has made a more detailed version of the argument it made below, i.e., that post-conviction relief was not warranted, and the circuit court clearly decided the issue the State addresses. The argument ⁶⁵⁹ in question has not been waived. 5 Greco argues also that the State failed to preserve and therefore waived the argument that post-conviction relief is inappropriate because Greco was not prejudiced by any alleged errors at his trial. Because this appeal can be resolved completely by our ruling on the § 7-106(c)(2) issue, we need not reach the issue of prejudice at trial and therefore do not address it or the question of whether it is properly before this Court.

IV

The circuit court granted Greco a new trial under § 7-106(c)(2). This provision allows an otherwise finally litigated allegation of error to be deemed not finally litigated in order to allow for the retrospective application of new rulings under the following conditions: “... if a court whose decisions are binding on the lower courts of the State holds that: (i) the Constitution of the United States or the Maryland Constitution imposes on State criminal proceedings a procedural or substantive standard not previously recognized; and (ii) the standard is intended to be applied retrospectively and would thereby affect the validity of the petitioner’s conviction or sentence.” ⁶⁶⁰ The plain meaning of this language indicates that the grant of a new trial for the retrospective application of a new ruling under § 7-106(c)(2) requires that all of the following six conditions must be met: (a) a court of binding authority must make a ruling; (b) the ruling must impose a procedural or substantive standard; (c) the standard must be not previously recognized; (d) the state or federal constitution must impose this standard; (e) the court must intend for the standard to be applied retrospectively; and (f) such a retrospective application must affect the validity of a conviction or sentence at issue. To determine the applicability of § 7-106(c)(2) to this case, we begin our analysis with conditions (b), (c), and (d). We must answer three questions: Did a ruling impose a standard?

Was that standard not previously recognized? And was the standard imposed by the Maryland or federal constitution? If we answer in the negative to any of these questions, § 7-106(c)(2) is not applicable and the circuit court’s decision to grant him relief under this provision must be reversed. Greco contends that, in Hoey and Simmons, the Court of Appeals held that the State and federal constitutions required that a defendant be allowed to present expert testimony regarding his mental impairment in support of a claim of imperfect self-defense, and that this standard was a departure from the rule set forth in Johnson .

The State, on the other hand, asserts that even if these cases do set forth a new standard, nothing indicates that the new requirement is imposed by the federal or State constitution. A. The Standards Both parties agree that, as set forth in Hoey and Simmons, Maryland law currently allows a defendant to present testimony regarding his mental impairment in support of a claim of imperfect self-defense. In order to analyze this ⁶⁶¹ further, we will break this ruling down into its three constituent parts. At the most fundamental level, this rule rests on the bedrock principles that the State must prove each element of a criminal charge in order to convict and that a defendant is entitled to present a defense to attempt to rebut each element of such a charge.

At the secondary level of State criminal law, this rule relies upon a legal definition of murder that recognizes the affirmative defense of imperfect self-defense based upon an unreasonable subjective belief. At the final level, where the prior two levels are applied to the facts of a trial, this rule holds that psychological evidence of a defendant’s mental impairment, including testimony from a psychiatric expert, may be relevant to proving such a defense and therefore may be admissible. We will analyze each level described above as a separate standard under § 7-106(c)(2). B. Not Previously Recognized?

Each of the three standards appears to have been recognized prior to the Hoey and Simmons decisions, and therefore § 7-106(c)(2) is inapplicable. 1. Right to Present a Defense as to Every Element Was Recognized Previously The fundamental standard regarding the State’s need to prove every element of a crime and the defendant’s right to present a defense was recognized long before Hoey and Simmons, and well before Greco’s trial as well. Indeed, this standard was reiterated in Johnson when the Court of Appeals stated, “[c]ertainly, we recognize the basic proposition that the [S]tate must prove every element of a crime beyond a reasonable doubt, including specific intent if necessary, and that an accused is entitled to rebut the [S]tate’s case.” Johnson, 292 Md. at 425 n. 10, 489 A.2d at 554 (citing Mullaney v. Wilbur, 421 U.S. 684 , 95 S.Ct. 1881 , 44 L.Ed.2d 508 (1975)). ⁶⁶² 2. Unreasonable Belief Imperfect Self-Defense Was Recognized Previously Imperfect self-defense, as a defense, was recognized prior to Hoey and Simmons, but was still somewhat in flux in 1982, the year of both Johnson and Greco’s trial.

As the Court of Appeals noted in Simmons, “[t]he defense of imperfect self-defense was first recognized by this Court in State v. Faulkner” in 1984. See Simmons, 313 Md. at 39 , 542 A.2d at 1261 . In State v. Faulkner,