State v. Johnson

SONNER, Judge. In this appeal, we return to a tragic murder case. The Circuit Court for Baltimore County convicted Stephen Craig Johnson of the murder of his infant son in 1984, and we affirmed the conviction on direct appeal. About fifteen years later, Johnson filed for post-conviction relief, asserting that his trial counsel was substandard because he withdrew Johnson’s insanity plea and pursued only a plea of not guilty.

The circuit court then ordered a partial new trial on the issue of Johnson’s sanity. We affirm that judgment because trial counsel inadequately investigated the insanity defense, which led him to withdraw it prematurely, and that error prejudiced Johnson’s case. I. Background December 25, 1983 We recounted the facts of this murder on direct appeal as follows: The record below paints a vivid picture of the tragedy that occurred on Christmas Day of 1983. Carla Johnson, the appellant’s wife, testified that she had known the appellant for seven years and had been married to him for three years.

She and the appellant had one child, Stephen Craig Johnson, Jr., 13 months of age at the time of his death. Mrs. Johnson testified that the appellant had been a loving and caring husband and father, but that he also had a long history of drug abuse. The appellant had in fact taken phencyclidine (PCP) and other drugs at a party in their home on December 23, 1983. ¹⁷⁶ On Christmas evening Mrs. Johnson, the appellant and their son went to the appellant’s mother’s house for dinner. Mrs. Johnson testified that she did not recall the appellant partaking of alcoholic beverages or drugs at any time that day.

According to Mrs. Johnson, the appellant seemed fine as they drove home in his truck, and she noticed nothing unusual. Upon their arrival at home sometime after 7:00 p.m., the appellant opened the door of the truck for his wife, and she carried their sleeping son into the house where she laid him on a bed. Mrs. Johnson and the appellant then went into the living room. She told the appellant that he was working too hard and needed to relax.

A short time later the appellant stated that he could call Ronald Reagan, if he wanted to. When his wife told him that he would probably be put on a list as a potential threat, the appellant responded that he was a potential threat. Mrs. Johnson thought nothing of this comment, however, because her husband appeared normal to her at that time. A few minutes later the appellant told her he was going to stop using drugs.

He then asked his wife to feel his heart, which was beating rapidly. He looked very frightened. Mrs. Johnson testified that, immediately after this conversation with her husband, the following occurred: As far as I can recall, he just, it just seemed like the next thing I know, he was in the bedroom grabbing our son off the bed. And I ran behind him, and when I got in there he already had ahold of him and he was squeezing him real tight, and it was almost as if he thought he was protecting him from me or something.

And I kept saying, “Steve, please give him to me. Please give him to me.” And I was trying to pry his fingers loose, and then he said that Stephen [Stephen, Jr., the son] was Jesus Christ reborn through us and that he had to die for everybody’s sins. And then I just panicked. I can remember, I slammed him in the face and it was like it didn’t even phase him.

And I said, “I’m calling your mother,” and I ran in to the living room and I had the ¹⁷⁷ phone, and I was dialing, but it wasn’t working right. And he ran right behind me, and I wasn’t sure if he was not going to let me use the phone or what. And I just threw that phone down and I ran in to the living room, I mean the kitchen, and I got the phone, and we had one button dialing. And I dialed his mother’s number and the phone, he went to reach for it or it ended up on the floor, and I bent over to get it, and he said, “Come on down here and die with us, Mom.” And I was screaming in the background, “Please, quick, please, quick.” And then from there he went over and he was standing in the corner by our cabinet.

And I was standing in front of him and I was still trying to get him to let me have Stephen. And I, I could see that he was getting in the drawer and he was getting a knife. And I knew that something had hit my back, but I really wasn’t sure. I mean, I knew he had a knife, but I was thinking he can’t have a knife, he just can’t, this isn’t real.

And then I, I just thought I got to get help, and I ran. And that’s when I ran out of the house to the neighbor’s. Mrs. Johnson testified that about 20 to 25 minutes had passed between the time of their arrival at home and the time she ran out of the house. As a result of the attack upon her, Mrs. Johnson sustained lacerations across the back of her left shoulder blade.

After waiting a few minutes for Mrs. Johnson to calm down, her neighbors called the police. Craig Coleman, Paramedic Field Coordinator for the Baltimore County Fire Department, testified that at approximately 7:34 p.m. he received a call to respond to the Johnson residence. Upon his arrival he saw the appellant at the top of the driveway holding the limp body of a child. The appellant waved to Coleman and told him to come and help him, that he needed help badly.

When Coleman approached the house, the appellant ran inside. Coleman called the appellant’s name, and he responded, “Come on, Pm in here, I need help.” Coleman told the appellant that he could not go into the house; that the appellant had to come out and bring him the ¹⁷⁸ baby. The appellant responded, “There is nothing you can do, the baby is déad, I have killed the baby, there is nothing you can do.” Coleman made repeated requests to the appellant to bring the baby out, meeting with the same response. The appellant stated that he was sorry for what he had done, and that he wanted to talk to the Lord.

Coleman told the appellant that the Lord would not help him as long as he had the baby; he again asked the appellant to bring him the baby. The appellant repeated that he wanted to talk to the Lord. Coleman asked the appellant if he knew the Lord’s Prayer. The appellant recited the Lord’s Prayer.

Soon thereafter the telephone rang. Coleman heard the appellant say, “I need your help and I want you to come over here now. I have done something wrong and I need your'help. Please hurry and come over now.” After the appellant hung up the phone, Coleman again requested that he release the baby.

Coleman asked him, “Steve, do you take drugs?” and the appellant said, “yes.” Coleman told the' appellant that he could get help for the drugs, but he had to bring Coleman the baby. The appellant then brought the baby out of the house. Coleman saw at that point that the baby was dead. He had been stabbed and decapitated.

Coleman stated on cross-examination that, in his opinion based on his experience as a paramedic, the appellant was acting no differently than other people he had .seen under those circumstances, and that he heard no hollering, screaming or raising of voices during the appellant’s arrest. The police reports of Officers Mueller, Imke, and Baumil-ler of the Baltimore County Police Department, were admitted as defense exhibits. The reports stated that, after the officers arrived on the scene, they heard the appellant shouting, “Jesus, take my baby.” One of the reports stated that the appellant growled like an animal when the paramedic tried to take the baby’s body from him. Another ¹⁷⁹ report stated that the appellant was talking incoherently, saying he did not want help but he wanted his mother.

Johnson v. State, No. 1031, Sept. Term, 1984 (filed April 17, 1985). Police arrested Johnson and transported him to Baltimore County General Hospital. He appeared calm and coherent, although PCP was found in his urine. Johnson then spent December 29, 1983 through January 13, 1984 at Clifton T. Perkins Hospital Center.

He was placed on various anti-psychotic drugs throughout this period. Porreca v. State At this point, we detour from Johnson’s case and discuss Porreca v. State, 49 Md.App. 522 , 433 A.2d 1204 (1981), an attempted murder that occurred four years earlier, which involved a strikingly similar assault. In 1979, Michael Porreca stabbed his roommate with a knife, while making bizarre statements about the victim’s soul. Like Johnson, Porreca had a long history of drug abuse and had taken PCP within days before the attack.

He defended the attempted murder charge with a plea of not guilty by reason of insanity, as produced by the PCP ingestion. The law at Porreca’s trial was that, upon the introduction of sufficient evidence questioning the defendant’s sanity at the time of the crime, a burden shifted to the State to prove, beyond a reasonable doubt, that the defendant was not, in fact, insane. See Bradford v. State, 234 Md. 505, 513 , 200 A.2d 150 (1964). Since then, of course, the law has changed to the effect that a defendant who enters a plea of not criminally responsible bears the burden of proving the insanity by a preponderance of the evidence.

See Md.Code (2001), Crim. Procedure, § 3-110(b); Anderson v. Dep’t of Health and Mental Hygiene, 310 Md. 217, 220-22 , 528 A.2d 904 (1987). Porreca attempted to meet his burden of production for raising an insanity defense with the testimony of Dr. Brian Crowley, a psychiatrist. ¹⁸⁰ Dr. Crowley indicated that PCP was capable of causing four or five different categories of mental disorders and that the drug produced an organic brain syndrome which was sometimes reversible and sometimes not. He also indicated that PCP could produce a psychosis of fairly long duration, with the user suffering the effects weeks or months after use of the drug ceased.

The psychiatrist testified that manifestations of the appellant’s psychosis had appeared in November 1979, at least one month prior to the assault on Miss Klieforth, and had continued for three to six months thereafter. He stated that the appellant was not continuously psychotic, having lucid intervals during this time, and that as the effects of the drugs abated, the psychotic symptoms diminished. Dr. Crowley agreed that the appellant was sane prior to beginning his use of PCP and other drugs and again after the effects of the drugs wore off, which was some two to four months after the attack; he also stated that the psychosis was the result of appellant’s use of intoxicants and that he would not have assaulted Miss Klieforth had he not been using PCP. Porreca, 49 Md.App. at 525 , 433 A.2d 1204 .

The trial court ruled that Porreca failed to meet his burden of production because he had ingested the drugs voluntarily and was sane before taking the PCP and after it wore off. Id. It relied upon Parker v. State, 7 Md.App. 167 , 254 A.2d 381 (1969), in which this Court held that an insanity defense was unavailable to a defendant who committed a crime under the influence of a drunken bout. The court convicted Porreca of attempted murder, and sentenced him to twenty years in prison.

We reversed the trial court in Porreca , emphasizing that the ingestion of drugs could cause either temporary insanity or settled insanity. The former results from “the present consumption of intoxicants,” and persists “only so long as the individual was under the direct influence of the intoxicant.” Id. at 528 , 466 A.2d 550 . A settled insanity, however, results from “continued or persistent use,” and exists “even after the chemical agent was no longer present in the individual’s blood ¹⁸¹ stream.” Id. Whereas a temporary insanity is not a recognized defense, a settled insanity may be, and since we read Dr. Crowley’s testimony as diagnosing a settled insanity, we remanded the case for a new trial. 1 While “we [did] not want a criminal to escape punishment by the simple expedient of getting drunk first, neither [did] we want to punish anyone who [was] legally insane, even though the cause of [the] insanity [was] a long-term use of drugs or alcohol.” Id. at 529, 466 A.2d 550 .

Our opinion followed a similar case from the California Supreme Court, People v. Kelly, 10 Cal.3d 565 , 111 Cal.Rptr. 171 , 516 P.2d 875 (1973), and was adopted in turn by Michigan in People v. Conrad, 148 Mich.App. 433 , 385 N.W.2d 277 (1986), and Massachusetts in Commonwealth v. Herd, 413 Mass. 834 , 604 N.E.2d 1294 (1992). Porreca was filed in September 1981, about two years before Johnson committed his murder. Naturally, it was important precedent for Johnson’s case and became a chief subject of the post-conviction proceedings. Pre-Trial On January 17, 1984, the State charged Johnson with first-degree murder, assault with intent to murder, possession of marijuana, and possession of cocaine.

A week later, Nathan Stern, a lawyer of twenty-five years, “practicing mainly criminal law,” entered his appearance as Johnson’s attorney. On February 14, 1984, Johnson filed a plea of not guilty by reason of insanity, now known as a plea of not criminally responsible (“NCR”). Stern then successfully moved to have Johnson evaluated by Dr. Neal Blumberg, a psychiatrist in private practice, who also served as Director of Forensic Evaluation at Perkins Hospital. Dr. Blumberg met with Johnson on February 22, 1984, and subsequently interviewed his mother, brother, and wife.

Just two days after the doctor’s meeting ¹⁸² with Johnson, Stern’s office withdrew the NCR plea and filed an amended plea of not guilty. That left Johnson proceeding to trial with the singular tactic of lessening the first-degree murder charge by defeating the elements of specific intent and premeditation with evidence of voluntary intoxication. Apparently, Dr. Blumberg continued to work on Johnson’s case after withdrawal of the plea. He submitted a report to Stern in April 1984 that included a review of Johnson’s medical, family, and personal history, as well as the following evaluation: [I]t is my opinion that at the time of the alleged offense on December 25, 1983, Stephen Johnson was suffering from a PCP mixed organic mental disorder, a mixed substance abuse disorder and a mixed personality disorder.

As noted above, the defendant demonstrated a wide variety of psychotic symptoms involving delirium and delusions which, in my opinion, were directly related to his most recent abuse of phencyclidine. This type of bizarre behavior and ideation is frequently associated with this drug in particular. Furthermore, his criminal behavior, in my opinion, was the direct result of his believing that his delusions were, in fact, real. It is my further opinion that as a result of Mr. Johnson’s voluntary ingestion of phencyclidine around the time of the offense, that he lacked substantial capacity to appreciate the criminality of his conduct and conform his conduct to the requirements of the law.

However, since Mr. Johnson’s criminal behavior was the direct result of his voluntary drug ingestion, in my opinion he, nevertheless, is criminally responsible for his misconduct. Furthermore, at the time of my examination, Mr. Johnson was competent to stand trial, in that he understood the nature and the object of the proceedings against him and ¹⁸³ could assist in his defense. 2 Trial The circuit court tried Johnson in a one-day bench trial on April 16, 1984. The most significant testimony was given by Dr. Blumberg, who was the only defense witness. The doctor reiterated his belief that the defendant suffered from “a PCP mixed organic mental disorder.” Stern then asked whether Johnson appreciated the criminality of his conduct, which prompted the State to object that “a psychiatrist [could not] render an opinion on the ultimate factual issue.” Stem defended that Dr. Blumberg merely sought to repeat the conclusion in his report that Johnson was competent to stand trial.

Then, as an afterthought, Stern argued that Dr. Blumberg would also testify “that [Johnson] was not insane at the time.” Apparently, he did not intend to explore Dr. Blumberg’s conclusions as to the effect of the PCP on Johnson or how Porreca factored into the case. The State’s objection prompted the court to ask, “Are we going to have a not guilty plea by reason of insanity?” Stern answered in the negative and moved on to the aforementioned discussion. The court eventually overruled the objection, and Dr. Blumberg concluded his examination by repeating his written conclusion that Johnson lacked “substantial capacity to both appreciate the criminality of his conduct and conform his conduct to the requirements of law.” On cross-examination, the State attempted to solidify Dr. Blumberg’s opinion as to whether Johnson “[met] the legal insanity requirements.” Dr. Blumberg, however, declined to answer a simple “yes” or “no”, explaining instead: ¹⁸⁴ [I]f there was no PCP, if his mental state in my opinion was not the result of PCP intoxication or PCP psychosis, [then] he would have qualified, [as legally insane]. However, the issue of his voluntarily taking the drugs makes it, in terms of the legal issue, that he would be responsible.

However, the mental state alone would have qualified him, in my opinion, for the criteria of an insanity defense. The State then raised Pontea, and Dr. Blumberg asserted that Johnson had not suffered from “a settled, fixed, or permanent form of insanity or mental illness.” The doctor finished his testimony by answering a series of questions from the court concerning the difference between a delusion caused by drug ingestion, and one caused by a mental disorder, such as schizophrenia. Dr. Blumberg defined Johnson’s disorder as “PCP psychosis.” Rounding out the testimony at trial were the examinations of the State’s three witnesses: Carla Johnson, the paramedic who arrived at the scene of the murder, and the detective who responded to the scene. The defense also admitted into evidence the police reports of three apprehending officers.

Stern elicited from Mrs. Johnson that her husband had ingested PCP two days before the murder, and he directed the court’s attention to portions of the police reports detailing Johnson’s bizarre behavior. Piecing those facts together with Dr. Blumberg’s testimony, he argued in closing that, at the time of the murder, Johnson suffered “a mental condition because of his ingestion of PCP” that precluded him from forming “an intent and premeditation of killing a child.” The State began its closing argument with the emphatic assertion: “[T]his is not a case of insanity.” It argued that Johnson’s mental capacity did not implicate “the Porreca-type situation” because “[t]here was no subtle delusion, no pre-psychotic condition.” Turning then to Johnson’s capacity to premeditate the crime, the State pressed that there was no evidence that the PCP ingestion divested Johnson of all cognition. It also argued that ingestion of PCP, a controlled substance, should be treated differently from alcohol consumption, the historic ingredient in a voluntary intoxication defense. ¹⁸⁵ The court convicted Johnson of first-degree murder and the lesser three charges, ruling: I conclude from the evidence in this case that the defendant intended to kill and did so with premeditation and that it was a willful and deliberate act of the defendant at the time of the killing. I further conclude from the evidence that at the time of the offense the defendant’s state of mind, his motivation and intentions were affected by the voluntary ingestion of an illegal drug or drugs, primarily PCP.

In the Court’s opinion, the defendant was not suffering from a settled or fixed insanity. And as I interpret the law in this case, if a person voluntarily takes a mind-altering drug, he is responsible for his conduct, which is deliberately, willfully and premeditatedly undertaken while under the influence of that drug, and that person will be criminally responsible for his conduct under such conditions. The court sentenced Johnson to life imprisonment, with all but fifty years suspended for the murder, and shorter, concurrent sentences for the assault and drug convictions. Stern then moved for a new trial on the ground that the court disregarded the undisputed testimony of Dr. Blumberg, which he characterized: “His conclusion was that the defendant was legally insane at the time of the offense due to PCP psychosis.

However, due to his voluntary ingestion, he could not be found insane.” In closing, Stern also noted that both he and the prosecutor were “shocked” by the first-degree conviction. The court denied the motion, reiterating its belief that Johnson was “perfectly sane” at the time of the crime. Direct Appeal On direct appeal, Johnson v. State, No. 1031, Sept. Term, 1984 (filed April 17, 1985), Johnson challenged the sufficiency of the evidence for the murder conviction. Specifically, he argued that his history of drug abuse, coupled with Dr. Blumberg’s testimony, refuted the requisite element of premeditation.

We were unpersuaded, given the deferential standard of appellate review on such matters. Johnson next argued that he was entitled to a verdict of not criminally ¹⁸⁶ responsible, but we quickly disposed of the claim by noting he had withdrawn the NCR plea, so it was not before the trial court. In a footnote, we urged Johnson to pursue the NCR claim in post-conviction proceedings, arid he heeded the advice in February 1998. Post-Conviction Johnson alleged in his petition for post-conviction that Stern withdrew the NCR defense prematurely, thereby preventing him “from presenting a potentially meritorious defense.” 3 He argued that his case mirrored the facts of Porreca , and, by abandoning the line of defense sanctioned in that case, Stern left him admitting a heinous cirime, but scrambling to redefine it as second-degree murder.

The State’s response was, “[presented with a very difficult case from an emotional standpoint, counsel did a very effective job in representing Stephen Johnson.” The circuit court held a post-conviction hearing in February 1999, at which Johnson called to the stand, inter alia, Stern, Johnson’s mother, Johnson’s brother, a forensic psychiatrist named Dr. Michael Spodak, and a criminal defense attorney named Richard Karceski. He did not call Dr. Blumberg. Stern testified that he became involved in the case through his associate, Larry B. Litt. Apparently, Litt was. a friend of Johnson’s family, and although he spoke with the family about the case and even signed some pleadings, he thought it best that Stern serve as lead counsel in the case.

Stern recalled the bizarre circumstances of the murder and remembered retrieving police reports and hospital records related to the case. Beyond that, however, his memory failed him, which ¹⁸⁷ frustrated Johnson’s post-conviction counsel’s repeated attempts to pin down the sequence of events leading to the withdrawal of the NCR plea. Stern could not recall exactly when he spoke with Dr. Blumberg, although he was “sure” that he had spoken with him either on February 22, 1984, the day of the psychiatric interview, or the next day. Nor could Stern remember speaking with Johnson about withdrawing the plea, although he “assumed” he had done so, in line with his practice of discussing all filed motions with clients.

Ultimately, Stern explained his reason for withdrawing the plea: Dr. Blumberg was not going, in my opinion, to be helpful as to that motion of whether it came under NCR. Also in the police reports I remember, and in talking to Mr. Johnson about his background, the fact that he worked every day. He had no problems going to work. He had a relationship with his wife.

The fact that the police, the hospital report indicated that after a couple hours or sometime, but that evening, that morning, he discussed what had happened to the best of his knowledge. That he wasn’t incoherent, that it indicated that there was PCP in his system at the time. All that, along with what Dr. Blumberg had told me, and the other doctor — I think at that point, it was decided that we could never sustain the plea of insanity, that in my opinion, the best bet, and the best thing for Mr. Johnson, was to proceed and try in getting found not guilty of first-degree murder. Apparently, Stern believed the case was a “slam-dunk” second-degree murder.

Johnson’s post-conviction attorney then questioned Johnson’s mother and brother about his mental history, and their assistance in trial preparation. Each of them relayed stories, occurring years before the murder, in which Johnson acted strangely. His mother recollected an incident from the 1970’s, in which her son told her “the world was