State v. Saul

Melvin, J., concurring in part and dissenting in part: For the reasons stated by Chief Judge Murphy of the Court of Special Appeals in his dissenting opinion reported in Saul v. State, 6 Md.App., pp. 551-555,1 respectfully dissent from the holding of the majority that the lower court committed reversible error when, in defendant’s involuntary absence, it complied with the request of the jury for a copy of the provisions of Maryland Code, Article 59, Section 9 (a). Chief Judge Murphy at page 554 of his dissent said: “None of the cases relied upon by the court in my judgment provide authority for its hold ¹⁰⁹ ing that merely sending a copy of the statute to the jury, vender the circumstances of this case, constituted a reinstruetion or further jury charge. I am furthermore of the view that the trial judge under Maryland Rule 558, applicable in criminal cases by reason of Rule 757, has discretion to permit the jury ‘upon retiring for deliberation’ to take with them into the jury room ‘such of the pleadings, granted prayers or written instructions * * * as the court may deem necessary for a proper consideration of the case.’ 1 think the trial judge was empowered by this Rule to send a copy of Article 59, Section 9(a) to the jury whether or not requested by them, as it was, in effect, one of the instructions previously given in the case to the jury, to which no exception had been taken. I think that in exercising his discretion under this Rule, the judge’s action would not constitute a ‘stage of the trial’ or a reinstruction under Young, requiring the presence of the appellant as a matter of law. “The court states in its opinion that even if the submission to the jury of the copy of the statute was not an instruction but only a mere ‘communication’, there was still reversible error under Midgett and Young because the record does not affirmatively show that such communication was not prejudicial or had no tendency to influence the verdict of the jury.

I believe the very provisions of the statute upon which appellant was relying to establish his claim of insanity could in no event be considered prejudicial to his case, and I also believe that mere submission of the statute to the jury, under the circumstances of this case, had no tendency ‘to influence the verdict of the jury’ in the sense that that phrase was intended to be applied in Midgett and Young.” (Emphasis added.) However, I concur with the result reached by the ma ¹¹⁰ jority, i.e., that the judgment of the Court of Special Appeals be affirmed. In my opinion the failure of the trial court to “direct the jury to render a special verdict on the sanity of the defendant at the time of the alleged crime” as required by Maryland Code, Article 59, Section 9 (b), was reversible error. For this reason alone I would affirm the judgment of the Court of Special Appeals remanding the cases for a new trial. McWilliams, J., delivered the opinion of the Court.

Melvin, J., concurs in part and dissents in part. Opinion concurring in part and dissenting in part at page 108 infra. In May 1968 the appellee (Saul) was convicted of murder, abduction and assault with intent to rape. The Court of Special Appeals, two judges dissenting, reversed the convictions and remanded the cases to the Circuit Court for Prince George’s County for a new trial.

Saul v. State, 6 Md. App. 540 (1989). We granted the State’s application for the writ of certiorari on 2 December 1969. Saul filed pleas of not guilty and not guilty by reason of insanity at the time of the commission of the crimes for which he was indicted. His trial generated a transcript of nearly 500 pages, well over half of which is given over to the testimony of five psychiatrists and a clinical psychologist.

When the evidence was concluded ¹⁰² the court, Powers and Loveless, JJ., instructed the jury. The instructions take up 12 pages of the transcript. We have set out below only the part thereof which is our present concern: “A question in this case has been raised, and there has been considerable testimony concerning the mental capacity of the defendant. “Under Article 59, Section 9 of the Code of Public Laws of the State of Maryland, [A] defendant is not responsible for criminal conduct and shall be found insane at the time of the commission of the alleged crime if, at the time of such conduct, as a result of mental disease or defect he lack [s] ed substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. Then it goes on to say that [A]s used in this section the terms ‘mental disease or defect’ do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.

In other words, it is not to be considered a mental disease or defect if the only manifestation is by repeated criminal or antisocial conduct. “Now, the language in this statute is very important and should be borne in mind by you very carefully. The first consideration on the matter of mental capacity, in other words, whether he should be held responsible for his conduct, is whether or not there was a mental disease or defect. If you conclude from the testimony that there was no mental disease or defect then a necessary element of this defense would be lacking and it would not be proper to find the defendant not guilty by reason of insanity on that alone. There must not only be a mental disease or defect, as distinguished from an abnormality or personality trait or characteristic which fell short of a mental disease or defect, but there ¹⁰³ first must be found to be a mental disease or defect, and then if you are convinced beyond a reasonable doubt that there was a mental disease or defect, then — no, you must be convinced beyond a reasonable doubt that there was not a mental disease or defect, and unless you are convinced beyond a reasonable doubt that there was not a mental disease or defect then you would be justified in concluding that there was.

Then you next go on to the question of whether such mental disease or defect caused him to lack substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. “So that there will be no misunderstanding, I will repeat that the burden is on the State to convince you beyond a reasonable doubt, in addition to the matter of the offenses with which he is charged, but also that he had the mental capacity. And you must be convinced beyond a reasonable doubt that there was not a mental defect or disease which resulted in his lacking substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.” (The language of the statute has been italicized.) What happened thereafter has been described by Orth, J., who delivered the opinion of the Court of Special Appeals : “* * * After the charge to the jury? the State and defense counsel presented closing arguments. The jury retired for their deliberations at 3:04 P.M., returned to the courtroom at 9:27 P.M. and rendered their verdicts. There is in the record by stipulation that while the jury were deliberating they sent a note to the court, signed by the foreman, reading, ‘May the jury have legal code Article 59 section 9/ Counsel for ¹⁰⁴ the State and the appellant [Saul] were called to the chambers of one of the two judges presiding at the trial.

The other presiding judge was not present. Counsel examined the note, considered the request, and agreed that a photostatic copy of Art. 59, § 9 (a) could be sent to the jury. It was delivered to the jury by the bailiff. Court did not re-convene and the jury did not return to the courtroom.

The appellant [Saul] was at no time present when the note was delivered to the judge, when the request was being considered by the judge and counsel or when the copy of the statute was delivered to the jury, as he was ‘detained at the time in a lock-up portion of the sheriff’s office located in the court house.’ ” Id. at 545. The Court of Special Appeals held that the delivery of the note from the