Thanos v. State

MURPHY, Chief Judge. This direct appeal in a capital murder case raises a number of issues surrounding the trial, sentencing proceeding, and death sentence imposed upon appellant John Frederick Thanos. I On August 31, 1990, eighteen-year-old Gregory Allen Taylor, Jr. picked up Thanos, who was hitchhiking, in a rural area of Worcester County. Inside Taylor’s car, Thanos removed a sawed-off rifle from his duffle bag and ordered Taylor to drive to a remote wooded area.

When Taylor protested and begged for his freedom, Thanos shot Taylor three times in the head. Taylor died as a result of these wounds. Thanos then fled in Taylor’s vehicle. Police apprehended Thanos in Delaware, where he admitted to various crimes including Taylor’s murder.

Thanos led detectives to Taylor’s body, then confessed to the murder on videotape. The State charged Thanos with several crimes, including murder in the first degree, and announced its intention to seek the death penalty. Thanos was tried in the Circuit ⁸² Court for St. Mary’s County. 1 At the guilt-innocence phase of the trial, Thanos did not cross-examine any of the State’s witnesses, nor did he offer any witnesses or evidence of his own. The court (Kaminetz, J.), sitting without a jury, found Thanos guilty of first degree premeditated murder, felony murder, robbery with a deadly weapon, robbery, use of a handgun in the commission of a crime of violence, and theft of property having a value over three hundred dollars.

At the subsequent sentencing proceeding before Judge Kaminetz, sitting without a jury, Thanos offered four witnesses in mitigation of his sentence: a psychiatric social worker, a psychiatrist, and a psychologist who were all familiar with Thanos’s background and psychiatric history, and a corrections official who knew Thanos’s history of institutional placements. The psychiatric witnesses established that Thanos came from an extremely dysfunctional family. They testified that Thanos’s father had a history of mental illness and regularly abused his son both physically and emotionally. The elder Thanos also sexually abused his daughter, appellant’s sister.

In 1965, at age fifteen, Thanos was first incarcerated for auto theft in the Maryland Correctional Institution, where, according to the corrections official, other inmates seized on Thanos’s small stature to abuse and sodomize him. Thanos was imprisoned three more times, for auto theft, rape, and robbery, between 1966 and 1990, spending almost all of those years in prison. The medical witnesses testified that Thanos was diagnosed as schizophrenic at age seventeen, a diagnosis which later evolved into borderline personality disorder. They said that Thanos has self-destructive tendencies, gender identification disturbance, and that he most loses his ability to control his actions when under stress.

The witnesses also testified Thanos attempted suicide numerous times while in prison. ⁸³ At the conclusion of the sentencing proceeding, the court weighed the aggravating and mitigating circumstances of Thanos’s murder of Taylor in accordance with Maryland Code (1957, 1992 Repl.Vol.) Art. 27, § 413(h). By a preponderance of the evidence, the court found the mitigating circumstance delineated in § 413(g)(4) to apply, namely, that Thanos’s capacity “to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired as result of mental incapacity, mental disorder or emotional disturbance.” The court also recognized the following additional mitigating circumstances under § 413(g)(8): (1) the appellant is a product of a dysfunctional family; (2) early suggestions for mental health intervention for the appellant and his family were not followed; (3) the appellant was emotionally and physically abused as a child; (4) the appellant was inappropriately incarcerated in an adult correctional facility as a juvenile; and (5) the appellant was entitled to, and received, the mercy of the court. On the other hand, the court found beyond a reasonable doubt that the aggravating circumstance in § 413(d)(10) also existed, namely, that Thanos “committed the murder while committing ... a robbery____” Finding this aggravating circumstance to outweigh the mitigating ones, the court sentenced appellant to death. 2 Thanos appealed under the provisions of the Code, Art. 27, § 414(a) and Maryland Rule 8-306(c)(l). He asserts that the trial court committed reversible error for the following eight reasons: (1) the court failed to inquire into his competency to stand trial; (2) the court allowed him, as opposed to his counsel, to decide when he would allocute; (3) he did not ⁸⁴ knowingly and intelligently waive his right to testify; (4) he did not knowingly, intelligently, and voluntarily waive his right to be sentenced by a jury; (5) the court allowed him to waive his right to a jury trial, over his counsel’s objection; (6) he did not knowingly, intelligently, and voluntarily waive his right to a trial by jury; (7) the court admitted improper expert opinion evidence; and (8) the court failed to grant relief for discovery violations.

We shall address these assertions seriatim. II Thanos argues first, and most strenuously, that the trial court erred in failing to inquire into his competency to stand trial. It is well established that criminal defendants in state courts have a Fourteenth Amendment due process right not to be tried while they are incompetent. As Chief Justice Burger explained for the Supreme Court: It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to trial.

Drope v. Missouri, 420 U.S. 162, 171 , 95 S.Ct. 896, 903 , 43 L.Ed.2d 103 (1975), citing Blackstone’s Commentaries. See also Pate v. Robinson, 383 U.S. 375 , 86 S.Ct. 836 , 15 L.Ed.2d 815 (1966); Trimble v. State, 321 Md. 248 , 582 A.2d 794 (1990). Pursuant to this constitutional rule, Maryland Code (1982, 1990 RepLVol., 1992 Cum.Supp.) § 12-103(a) of the Health-General Article specifies: 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 ⁸⁵ (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, 789 , 4 L.Ed.2d 824 (1960). As the statute makes plain, a trial court’s duty to determine the competency of the accused is triggered in one of three ways: (1) upon motion of the accused; (2) upon motion of the defense counsel; or (3) upon a sua sponte determination by the court that the defendant may not be competent to stand trial. See Johnson v. State, 67 Md.App. 347 , 507 A.2d 1134 (1986). In the instant case, neither Thanos nor his counsel ever alleged that he was incompetent to stand trial.

Nevertheless, Thanos argues that the trial court failed to recognize its sua sponte obligation to inquire into his competency given his strange behavior at trial and sentencing. Thanos points to several incidents which, he contends, should have suggested his incompetence to the trial court. First, he points out his unusual request to absent himself from the trial, when he claimed, “I know I will become disruptive and hurt my defense.” Second, he notes his whimsical decisions to waive jury trial and sentencing, meanwhile changing his mind from his earlier decision to be absent from the proceedings. Third, he points to several strange remarks he made to the trial judge.

(On one occasion, for example, he commented that “in dog years ... I would be like 200 and some years old.” When sentenced to death, he asked, “Is that death by gas, or death by roo-roo?”) Finally, and most importantly, Thanos notes his general history of mental illness, borderline personality disorder, and self-destructive tendencies. He contends that all of these things, taken together, should have alerted the trial court to his possible incompetence to stand trial. ⁸⁶ Considering all the circumstances, we conclude that the trial court did not have a sua sponte obligation to conduct a competency hearing. We first note that prior to trial the State requested an opportunity to evaluate Thanos’s competency to stand trial.

Thanos opposed this request, stating the State’s petition must be dismissed because neither the Defendant nor his counsel has alleged the Defendant is incompetent and in the Defendants [sic] prior Court appearance, the Court did not indicate that the Defendant appeared incompetent. Therefore the Court would not have any authority to conduct a competency hearing at this time. The court denied the State’s request for a competency evaluation. Moreover, none of Thanos’s three defense attorneys ever subsequently alleged that he was incompetent, despite their representation shortly after being retained that “[t]he Defendant now has counsel who can keep the Court appraised should a competency issue arise in the future.” As we see it, Thanos sought to have it both ways in this case, maintaining at first that he was not incompetent, thereby denying the State an opportunity to evaluate him; then, upon receiving a death sentence, maintaining that his bizarre behavior warranted a competency hearing.

Our independent review of the record does not indicate that the trial court erred in failing to grant Thanos a competency hearing. None of Thanos’s four expert witnesses at the sentencing proceeding ever suggested that he was incompetent to stand trial. While Thanos did make some peculiar remarks to the trial judge, his words on the whole were very lucid. He appeared to grasp all of his rights as they arose throughout the proceedings.

He explained very clearly why he preferred conditions in the Super Max facility in Baltimore to those of the St. Mary’s County Detention Center. And he understood and insightfully articulated his tendency to become disruptive under stress, which reasonably justified his initial desire to absent himself from the proceedings. As his counsel noted: ⁸⁷ We believe the Court has adequate information and testimony from Mr. Thanos today to make a finding that his request [to excuse himself] is made freely and voluntarily without coercion. Defense counsel ... can attest to the fact that Mr. Thanos knows whereof he speaks.

It is our experience that under the stress of a trial with people talking about his childhood, with people talking about his family situation that brings back strong memories ...[,] Mr. Thanos does react to ... these things ... detrimentally] to his defense. Based on the foregoing, we think the record discloses that Thanos met the two-pronged test for competency to stand trial. He exhibited both “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, supra, 362 U.S. at 402 , 80 S.Ct. at 789 . All else aside, Thanos’s thoughtful contemplation of how his own potentially disruptive presence would affect the deliberations of the fact-finder indicates that he grasped not only the basic elements of the trial process but also its strategic dimensions.

The trial court did not err in not conducting, sua sponte, a competency hearing. Ill Thanos next contends that the trial court committed reversible error in permitting him to allocute when he wished. Thanos’s counsel had urged the court to have Thanos allocute at several points in the course of the sentencing proceeding. Counsel hoped to afford the psychiatric experts an opportunity to comment on Thanos’s allocution as well as to allow the offensive remarks which counsel feared that Thanos would utter to be forgotten.

Each time, however, the court deferred to Thanos’s desire to speak at the end of the proceedings in order to “rebut things.” True to his counsel’s fears, after closing arguments, Thanos offered an inappropriate allocution in which he praised the physical features of various women in the courtroom. ⁸⁸ Thanos cites our holding in Parren v. State, 309 Md. 260, 265 , 523 A.2d 597 (1987), that “[w]hen a defendant is represented by counsel, it is counsel who is in charge of the defense and his say as to strategy and tactics is generally controlling----” The decision when to allocute, Thanos claims, is a tactical one, and therefore the trial court should have allowed his counsel to determine when he would allocute, as opposed to indulging Thanos’s preference on the matter. In Harris v. State, 306 Md. 344 , 509 A.2d 120 (1986), we traced the history of the right of allocution in Maryland. We recounted how the right of allocution has long been preserved at common law, and that the right has been recognized in the Maryland Rules since 1962, excluding a brief window between 1979 and 1984. Since July 1, 1984, allocution in capital cases has been governed by Rule 4-343(d), which provides: “Before sentence is determined, the court shall afford the defendant the opportunity, personally and through counsel, to make a statement.” 3 As we observed in Harris , the alloeutory process provides a unique opportunity for the defendant himself to face the sentencing body, without subjecting himself to cross-examination, and to explain in his own words the circumstances of the crime and his feelings regarding his conduct, culpability, and sentencing.

Indeed, even “the most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.” Id. at 358 , 509 A.2d 120 , quoting Green v. United States, 365 U.S. 301, 304 , 81 S.Ct. 653, 655 , 5 L.Ed.2d 670 (1961). See also Shifflett v. State, 315 Md. 382, 387 , 554 A.2d 814 (1989) (“the raison d’etre of allocution as it exists in Maryland is to improve the truth-finding process by considering ⁸⁹ comments from the defendant’s perspective”). We went on to hold in Harris that, while allocution “is not a fundamental right secured by either the federal or state constitution,” id., 306 Md. at 357 , 509 A.2d 120 , citing Logan v. State, 289 Md. 460 , 425 A.2d 632 (1981), denial of the defendant’s right to allocute will void the sentence and require a new sentencing proceeding. Id., 306 Md. at 359 , 509 A.2d 120 .

Thanos now urges that allocution is sufficiently unimportant that defense counsel may dictate to his client when it will occur. We cannot agree. It is difficult to label allocution a “tactical” decision, appropriate for counsel to control, when our cases indicate that respect for allocution is an essential element of proper sentencing. Moreover, in Booth v. State, 306 Md. 172 , 507 A.2d 1098 (1986), vacated in part, 482 U.S. 496 , 107 S.Ct. 2529 , 96 L.Ed.2d 440 (1987), we considered whether the prosecution could adversely comment on a defendant’s allocution consistently with the Fifth Amendment’s mandate that the government may not remark on a defendant’s failure to testify.

We held that it could, for though allocution is not exactly testimony, it “is more like testimony than silence and for Fifth Amendment purposes is testimonial, carrying with it, at a minimum, a waiver of any privilege to avoid comment by the prosecutor on the allocution.” Booth, 306 Md. at 203 , 507 A.2d 1098 . Since allocution, while not precisely testimonial, is testimonial for Fifth Amendment purposes and carries with it some of the burdens accruing to the testimonial privilege, we believe it must also carry the important benefit of that privilege — that it is the defendant, not counsel, who controls its exercise. See Rock v. Arkansas, 483 U.S. 44 , 107 S.Ct. 2704 , 97 L.Ed,2d 37 (1987) (defendant controls decision to testify). As we observed in Treece v. State, 313 Md. 665 , 547 A.2d 1054 (1988), “the defendant ordinarily has the ultimate decision when the issue at hand involves a choice that will inevitably have important personal consequences for him or her, and when the choice is one a competent ⁹⁰ defendant is capable of making.” Id. at 674 , 547 A.2d 1054 .

The decision whether and when to allocute, like the decision whether and when to testify, is such a choice. We note, finally, that while Thanos makes much of the fact that he frustrated his counsel’s tactical objectives in allocuting when he did, he waited until the end of the proceedings for a good reason. We said in Shifflett, supra, 315 Md. 382 , 554 A.2d 814 , that “[t]he very purpose of affording an accused the right to allocute before passing sentence is to provide him or her an opportunity to refute or explain any information presented to the sentencing judge and to present a statement in mitigation of punishment.” Id. at 386-87 , 554 A.2d 814 , quoting Miller v. State, 67 Md.App. 666, 674 , 509 A.2d 135 (1986) Had Thanos responsibly rebutted or explained the damaging testimony preceding his allocution, he may have successfully mitigated his sentence. We will not now