Thanos v. State

MURPHY, Chief Judge. This case is the second of two direct appeals by appellant, John Frederick Thanos, who was twice convicted of capital murder and twice sentenced to die. I On September 2, 1990, Thanos entered the “minimart” of a Big Red gasoline station in Essex, Maryland. There, he persuaded the station employees, sixteen-year-old Billy Winebrenner and fourteen-year-old Melody Pistorio, to accept his gold watch in exchange for ten dollars worth of gasoline and twenty dollars in cash.

The following day, Thanos returned to the gas station intent on robbing and killing the teenagers. He did so, demanding cash from the youths with a sawed-off rifle, then shooting Billy once in the back of the head and Melody twice in the head. Three days earlier, Thanos had murdered eighteen-year-old Gregory Taylor with the same sawed-off rifle, after the young man had picked up Thanos, who was hitchhiking in a rural area of Worcester County. Thanos murdered Taylor with three shots to the head, then fled in Taylor’s vehicle.

After killing Billy and Melody in Baltimore County, Thanos ⁵⁸¹ drove to Delaware, where he was later apprehended by the police. Thanos confessed to all three murders on videotape. In March of 1992, Thanos was tried for Taylor’s murder in the Circuit Court for St. Mary’s County. He was convicted, sentenced to death, and appealed.

We affirmed both the conviction and the death sentence. Thanos v. State, 330 Md. 77 , 622 A.2d 727 (1993) (Thanos I). In January of 1992, Thanos was tried for the slayings of Billy and Melody in the Circuit Court for Garrett County. 1 At the guilt-innocence phase of the trial, Thanos conceded his role in the killings; he cross-examined none of the State’s witnesses and presented no witnesses or evidence of his own. The jury convicted Thanos of two counts of first degree murder (both premeditated and felony), two counts of robbery with a deadly weapon, and one count of use of a handgun in the commission of a felony.

Shortly thereafter, sentencing began before a jury. Thanos put on substantially the same case in mitigation of his sentence as he had done in the St. Mary’s County proceeding, which we fully delineated in Thanos I, 330 Md. at 82 , 622 A.2d 727 . In sum, Thanos offered, as witnesses in his behalf, a psychiatric social worker, a corrections official, a psychiatrist, and a psychologist. The social worker and corrections official testified that Thanos came from an extremely dysfunctional and abusive family and had an unfortunate history of institutional placements in which he was further abused.

Following these witnesses, Thanos allocuted, offering an incoherent but innocuous diatribe focusing on legal and religious themes. The medical witnesses then testified that Thanos suffered from a borderline personality disorder and generally lost his ability to distinguish fantasy from reality when under stress. The two doctors also opined that Thanos satisfied the statutory mitigating factor in Maryland Code (1957, ⁵⁸² 1992 Repl.Vol.), Art. 27, § 413(g)(4), namely, that the murders were committed “while the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired as a result of mental incapacity, mental disorder or emotional disturbance.” The State called one witness in rebuttal, Dr. Michael Spodak. Spodak opined that Thanos was not substantially impaired by his mental illness, that he committed the murders purposefully and was cognizant of their ramifications.

On cross-examination, Thanos’s counsel asked Spodak what records he had reviewed in preparing his testimony. Spodak answered that, among others, he had reviewed records dating from Thanos’s involuntary commitment to the Clifton T. Perkins hospital in 1990. In February of 1991, the Circuit Court for Baltimore County (Levitz, J.) had ruled that Estelle v. Smith, 451 U.S. 454 , 101 S.Ct. 1866 , 68 L.Ed.2d 359 (1981), precluded the State from using any statements Thanos uttered in response to questioning during his Perkins commitment. The court’s ruling had left open the possibility, however, that the State could use the Perkins records generally, as well as any statements Thanos blurted out voluntarily.

When Spodak admitted he had reviewed the Perkins records, Thanos’s counsel requested a recess to examine the records, whereupon the court adjourned for lunch. When the proceedings resumed, Spodak acknowledged that he had received the Perkins records from the State’s Attorney’s office. At this point, Thanos’s counsel requested a bench conference and moved for a mistrial, arguing that Spodak had tainted the jury with testimony derived from Perkins statements used in violation of Judge Levitz’s order. The court (Thayer, J.), out of the presence of the jury and the witness, heard argument by the parties on the motion.

It then recalled Spodak without reconvening the jury. Spodak testified that he only used the Perkins records for the opinions of the examining doctors and did not look at Thanos’s statements. Spodak subsequently admitted, how ⁵⁸³ ever, that during the luncheon recess he had overheard the State’s Attorney comment “that there was some ruling or something about not mentioning the statements that were in the records.” The court promptly granted Thanos’s motion for a mistrial. In May, 1992, the court conducted a hearing in preparation for a new sentencing proceeding, at which Thanos elected to be sentenced by the court instead of a jury.

The second sentencing proceeding occurred the following month. Thanos’s case in mitigation was identical to his case in the aborted first proceeding, except that the psychiatric social worker could not appear and Thanos called an additional corrections official. In rebuttal, the State called Dr. Neil Blumberg, who opined that Thanos was not substantially impaired in appreciating the criminality of his conduct or in conforming it to the law. Blumberg suggested that, in killing Billy and Melody, Thanos may have rationally desired to steal money and eliminate witnesses to the crime.

After all the witnesses had testified, Thanos allocuted. Unlike in the first proceeding, Thanos’s allocution was repugnant and excessively provocative; in essence, he explained how he wished he could put Billy and Melody and their families through even more anguish. After closing arguments, the court weighed the aggravating and mitigating circumstances of the murders in accordance with Code, Art. 27, § 413(h). It found the aggravating circumstances in §§ 413(d)(9) and (10) to exist in each case, namely, that Thanos “committed more than one offense of murder in the first degree arising out of the same incident” and that he “committed the murder[s] while committing ... a robbery.” As a mitigating circumstance in both murders, the court found under § 413(g)(8) that Thanos’s ability to conform his conduct to the requirements of law was impaired, even though it was not “substantially” impaired under § 413(g)(4).

Finding the aggravating circumstances to outweigh the mitigating one, the court imposed the death penalty for both homicides. ⁵⁸⁴ Thanos appealed under Code, Art, 27, § 414(a) and Maryland Rule 8-306(c)(l). He contends the trial court erred for six reasons, four of which ring familiar from Thanos I : (1) the court failed to inquire, sua sponte, into his competency to stand trial and sentencing; (2) double jeopardy principles precluded the court from allowing a second sentencing proceeding; (3) he did not knowingly and intelligently waive his right to testify at trial; (4) he did not knowingly and intelligently waive his right to be sentenced by a jury; (5) the court allowed him, as opposed to his counsel, to decide when he would allocute; and (6) the court improperly admitted and excluded several prospective jurors. We consider these contentions in order. II Thanos’s main contention, as in his first appeal, is that the trial court improperly failed to conduct a hearing to determine his competency to stand trial and sentencing.

Thanos points to his obnoxious comments and angry outbursts throughout the proceedings as evidence of his incompetence. He notes, for example, his disrespect for the court (he challenged the trial judge, whom he called “Your Excellency,” to bind and gag him); his animosity for the State’s Attorney (he frequently called her “evil” among other names); and his liberal interjection of profanity into the proceedings. Recalling his experts’ testimony that he becomes irrational under stress, Thanos claims he was particularly incompetent at the second sentencing proceeding in light of the death sentence he had earlier received in St. Mary’s County. And Thanos points to his mental illness, a borderline personality disorder, as the foundation of his incompetence.

He asserts that, collectively, these factors should have awakened the trial court to its sua sponte obligation to inquire into his competency to stand trial. As we said in Thanos I , criminal defendants have a constitutional right not to be tried while they are incompetent. 330 Md. at 84 , 622 A.2d 727 . See Drope v. Missouri, ⁵⁸⁵ 420 U.S. 162 , 95 S.Ct. 896 , 43 L.Ed.2d 103 (1975); Pate v. Robinson, 383 U.S. 375 , 86 S.Ct. 836 , 15 L.Ed.2d 815 (1966). Thus, Maryland Code (1982, 1990 Repl.Vol., 1992 Cum.

Supp.), § 12-103(a) of the Health-General Article requires: 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 record, whether the defendant is incompetent to stand trial. The Code defines “incompetent to stand trial” as “not able: (1) to understand the nature or object of the proceeding; or (2) to assist in one's defense.” Id., § 12-101(e). A defendant must, in other words, have “present ability to consult with his lawyer with a reasonable degree of rational understanding — and ... a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 402 , 80 S.Ct. 788 , 4 L.Ed.2d 824 (1960). See Thanos I, 330 Md. at 85 , 622 A.2d 727 .

In the instant case, as in his first appeal, Thanos never alleged to the court that he was incompetent to stand trial. Nor did any of his expert witnesses ever so claim, including the psychiatrist and the psychologist who together interviewed Thanos no fewer than nine times in 1991 and 1992. Nor did any of Thanos’s three defense lawyers ever allege his incompetency, despite their presence throughout the trial and sentencing when Thanos was supposedly acting so strangely. Indeed, in the St. Mary’s County proceedings, Thanos’s counsel had even opposed the State’s request for a competency hearing and promised to keep the court apprised of any future competency issue.

Notwithstanding this collective inaction, Thanos now insists the trial court had a sua sponte obligation to inquire into that which his doctors, his lawyers, and he himself saw no need to explore. We believe the trial court had no such obligation. A lawyer’s failure to allege a client’s incompetency will not relieve a court of its duty to conduct a competency hearing sua sponte if the circumstances so warrant. Pate, supra, ⁵⁸⁶ 883 U.S. at 384, 86 S.Ct. at 841 ; Thanos I, 330 Md. at 84-85 , 622 A.2d 727 ; Code (1982, 1990 Repl.Vol.), § 12-103(a) of the Health-General Article.

However, “judges must depend to some extent on counsel to bring issues into focus.” Drope, supra, 420 U.S. at 176-77 , 95 S.Ct. at 906 . A lawyer who has been acquainted with a client for months will be much more familiar with the client’s mental state than a judge who has just met the defendant at trial. See Medina v. California, — U.S. -, 112 S.Ct. 2572 , 120 L.Ed.2d 353 (1992) (“[Djefense counsel will often have the best-informed view of the defendant’s ability to participate in his defense.”). The failure of Thanos’s three counsel to move for a competency hearing, though not dispositive, undermines his post-hoc bid for such an inquiry.

Counsel’s inaction notwithstanding, our independent review of the record indicates that the trial court did not err in failing to grant Thanos a competency hearing. As explained earlier, to be legally competent a defendant need only be able to understand the proceedings against him and to consult rationally with his lawyer. Thanos clearly understood the proceedings against him. As opposed to offering blank stares or gibberish from the trial table, Thanos’s remarks reveal that he was very interactive with the court.

At one point during the presentence hearing he astutely observed: Okay. There’s no question to the guilt in the case. We’ve been through that phase of it. The video speaks for itself.

I don’t think there’s anything that any — I would be going over the same identical presentations that they made before all the way up to the very end where there was a mistrial at the very last witness. So there would be essentially nothing new, and the only thing I could do with my presence is damage my case further, if they could do anything to assist me. Thanos cites the angry and offensive character of most of his comments as evidence of the stress he was feeling, which rendered him incompetent. But this type of behavior ⁵⁸⁷ does not mean that he was incompetent to stand trial.

Rather, it indicates that he comprehended the situation enough to feel stress. The law only requires that a defendant understand the proceedings, not be at peace with them. Thanos also had a reasonable ability to consult rationally with his counsel. His attorneys informed the court that they had consulted extensively with Thanos on a number of issues.

His expert psychologist testified that Thanos “can plan and think,” suggesting he was able to assist his counsel in formulating his defense. Thanos himself exclaimed at one point that he and his counsel “just don’t see eye-to-eye on anything,” indicating that Thanos could critically evaluate his counsel’s tactics. Most tellingly, Thanos’s counsel conceded that Thanos was “not ... incapable of assisting his defense.” The law requires no more. Because Thanos understood the nature of the proceedings against him and was reasonably able to consult with his counsel, the trial court did not err in failing to order a competency hearing sua sponte.

Ill Thanos next contends that principles of double jeopardy barred his second sentencing proceeding, at which he received the death penalty. Specifically, Thanos claims that, by giving Dr. Spodak the records of his 1990 Perkins commitment, the State’s Attorney deliberately sought to provoke a mistrial in the first sentencing proceeding, which precluded a second proceeding under current tenets of double jeopardy law. Thanos is mistaken. The Double Jeopardy Clause of the Fifth Amendment, made