Treece v. State

ADKINS, Judge. The first question presented in this case is whether a criminal defendant or the defendant’s counsel is entitled to decide to defend on the basis of a plea of not criminally responsible by reason of insanity. The Circuit Court for Prince George’s County and the Court of Special Appeals agreed that, despite the objections of the client, the decision was for defense counsel to make. Treece v. State, 72 Md.App. 644 , 532 A.2d 175 (1987).

We shall hold that a defendant who is competent is entitled to decide whether the defense of criminal responsibility is to be interposed at that trial. ⁶⁶⁸ The second question before us is whether the defense is entitled to make the concluding argument on the issue of criminal responsibility when that issue is raised in a criminal case. Although we shall not decide the question, we shall refer it and related issues to the Standing Committee on Rules of Practice and Procedure. Because the facts specific to each of these questions are somewhat different, we shall recount them as we analyze the issues. As an introductory matter it suffices to say that a jury in the Circuit Court for Prince George’s County convicted petitioner, James William Treece, of second degree rape and false imprisonment after a trial at which defense counsel interposed on Treece’s behalf a plea of not criminally responsible.

Md. Rule 4-242. I. Who Decides on the Plea—Defendant or Defense Counsel? Treece’s indictment was presented on 3 December 1985. On 14 January 1986 the assistant public defender assigned to represent him filed pleas of “not guilty” and “not responsible for criminal conduct” (Md.Rule 4-242) together with a request that Treece be evaluated “as to whether he is incompetent to assist in his defense and understood the nature of the charges.” Defense counsel retained a psychiatrist and a psychologist to examine Treece.

After considerable delays caused by confusion as to exactly who was doing what, Treece was examined at the Clifton T. Perkins Center. All who expressed an opinion on the point agreed that he was competent to stand trial. On 24 November 1986, as that trial was about to begin, Treece announced that he would like to make a “pretrial statement____” With the court’s permission he asserted: ... I have been incarcerated for 417 days and ...

I have never accepted a not criminally responsible plea and fought against. I was not present at my arraignment and the plea was entered by counsel for me and the fact that I was forced to undergo a mental evaluation, I ⁶⁶⁹ perceive that to be a violation of my rights under the Civil Rights and Privacy Act. I feel my rights of due process have been denied and under the Sixth Amendment and rights to speedy trial have been violated____ Treece then proceeded with a remarkably articulate argument (extending over almost a page and a half of the transcript), replete with citations and detailed chronology, explaining why he had been denied the right to a prompt trial. At the conclusion of this address, he restated his initial position.

The plea of not criminally responsible was not filed on his behalf. “It is a plea I am not going to accept.” There ensued a discussion between counsel and court, during which no one questioned the accuracy of the facts expounded by Treece; instead, the reasons for various delays were explained. The court again addressed Treece: Let me say this. As to who decides to file the plea, think about this for a minute. Let me give you a hypothetical.

It is not your case. Assuming someone was really insane and couldn’t make decisions and their attorney thought they were too insane to go to trial. Who do you think ought to make the decision as to whether or not to file an insanity plea, the person who is insane or the lawyer? TREECE: I would say the lawyer, Your Honor.

THE COURT: I know that’s not your case. But that’s the case sometimes. That’s part of the reason why a decision as to what plea to make is the lawyer’s—it is the lawyer’s and not the client’s. When your counsel made the decision to file this plea, it is his decision.

He has a right to make that decision, regardless. The trial proceeded. During opening statement defense counsel emphasized Treece’s asserted lack of criminal responsibility by references to delusions that Treece had suffered and to his paranoid condition. The State’s case, presented largely through the victim, a neighbor of Treece’s, was one of forcible rape.

Treece, testifying in his ⁶⁷⁰ own defense, asserted that the sexual intercourse had been consensual. His wife, also presented by the defense, spoke of some bizarre behavior exhibited by Treece, which included his statements that he was being watched by the FBI and CIA, that the victim’s husband worked for one of those agencies, and that he had caught an FBI agent in his (Treece’s) attic by nailing the attic shut. Dr. David Shapiro, a forensic psychologist, explained in detail why he thought Treece was paranoid, distorted reality, and was not criminally responsible at the time of the offense. Dr. Neil Blumberg, a forensic psychiatrist, reached the same conclusion.

A psychiatrist and a psychologist produced by the State and a unanimous Perkins staff were of the opposite view. The trial judge, carefully and at length, instructed the jury on the law of criminal responsibility. During its deliberations the jury sent out three notes on the subject. At the end, as we have recounted, it found Treece guilty, rejecting his plea of not criminally responsible as well as his not guilty plea.

Treece filed a pro se motion for a new trial. Although raising other issues, its basic thrust was that evidence admitted and arguments made under the not criminally responsible plea had hopelessly prejudiced his defense; he reiterated that he had never accepted that plea. The court denied the motion, observing that Treece’s lawyer had entered the plea despite Treece’s objections and that “it was a reasonable plea under the circumstances____” The State now insists that the trial judge was correct. It argues that the decision to enter a plea asserting lack of criminal responsibility is merely a tactical “trial decision” that a lawyer is entitled to make even in the face of the client’s disapproval.

It further asserts that we should treat this case as one involving allegations of ineffective assistance of counsel and relegate Treece to an attempt to obtain post-conviction relief. See generally Johnson v. State, 292 Md. 405, 434-435 , 439 A.2d 542, 558-559 (1982); Md.Code ⁶⁷¹ (1957, 1987 Repl.VoL), Art. 27, § 645A. We disagree with both of these arguments. We address the second argument first.

Quite simply, this is not an ineffective assistance of counsel case. Indeed, given the record here, a defense lawyer would expose himself to the very real possibility of post-conviction ineffective assistance charges if he did not, at minimum, fully advise his client to enter a plea of not criminally responsible. The issue here is not whether it was reasonable for Treece’s lawyer to file the plea—it obviously was. The question is whether Treece was entitled to make an intelligent and voluntary decision to withdraw the plea of not criminally responsible.

On several occasions prior to this case, the Court of Special Appeals has suggested or held that the decision to plead not criminally responsible is one for counsel, not client, to make. See, e.g., White v. State, 17 Md.App. 58, 61-62 , 299 A.2d 873, 874-875 (1973); List v. State, 18 Md.App. 578, 586-587 , 308 A.2d 451, 456 (1973), vacated, 271 Md. 367 , 316 A.2d 824 (1974); Riggleman v. State, 33 Md.App. 344, 350-351 , 364 A.2d 1159, 1168 (1976). Its most fully articulated explanation for this view is found in Judge Seanlan’s opinion in White . The position there expressed is that a plea of not criminally responsible does not entail the “severe, and usually, irrevocable consequences” of a plea of guilty.

Instead, it represents the assertion of an affirmative defense and “[l]ike any defense, the question of whether an insanity defense should be raised remains a matter of trial strategy to be determined by counsel after consultation with his client.” White, 17 Md.App. at 62 , 299 A.2d at 875 . The State espouses that same position here. It is certainly true 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----” Parren v. State, 309 Md. 260, 265 , 523 A.2d 597, 599 (1987) [emphasis supplied]. “[A] lawyer may properly make a tactical determination of how to run a trial even in ⁶⁷² the face of his client’s incomprehension or even explicit disapproval.” Brookhart v. Janis, 384 U.S. 1, 8 , 86 S.Ct. 1245, 1249 , 16 L.Ed.2d 314, 319 (1966) (Harlan, J., concurring) [emphasis supplied]; see also Curtis v. State, 284 Md. 132, 145-148 , 395 A.2d 464, 472-473 (1978) (tactical decisions made by competent attorney ordinarily will bind criminal defendant). Were it otherwise, indeed, the trial of a criminal case could become chaotic.

Thus, decisions “to forego cross-examining certain State’s witnesses, to forego confrontation by non-objection to hearsay, to forego objection to illegally seized evidence or to involuntary confessions (provided some tactical benefit might be extracted from their admission into evidence)” have been said to be matters usually allocated to defense counsel alone. State v. McKenzie, 17 Md.App. 563, 585 , 303 A.2d 406, 418 (1973); see also Henry v. Mississippi, 379 U.S. 443, 451-452 , 85 S.Ct. 564, 569 , 13 L.Ed.2d 408, 414-415 (1965) (counsel’s failure to object to testimony about evidence seized during unlawful search could operate as waiver of fourth amendment issue); Nelson v. California, 346 F.2d 73, 81 (9th Cir.1965) (counsel is the manager of a lawsuit); Standard 4-5.2(b), ABA Standards for Criminal Justice (2d ed. 1980) (“decisions on what witnesses to call, whether and how to conduct cross-examination, what jurors to accept or strike, what trial motions should be made, and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with the client”). But see United States v. Stephens, 609 F.2d 230, 232-233 (5th Cir.1980) (counsel may waive client’s confrontation rights if, among other conditions, client does not object); Chused, “Faretta and the Personal Defense: The Role of a Represented Defendant in Trial Tactics,” 65 Cal.L.Rev. 636 (1977) (arguing that under Faretta v. California, 422 U.S. 806 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 (1975), client is entitled to a substantial decisional role as to trial tactics). Generally, then, there is agreement that as to some matters connected with a criminal trial, counsel has the final say; there is not agreement, however, as to precisely ⁶⁷³ what those matters are.

We need not attempt to draft a definitive list, nor would it be useful for us to try to draw a bright line separating strategic and tactical (or perhaps just tactical) choices from other kinds of decisions. It is clear that there are some decisions that a competent defendant is entitled to make, regardless of the views of counsel, if the defendant makes them knowingly and voluntarily. In Brookhart v. Janis, 884 U.S. 1 , 86 S.Ct. 1245 , 16 L.Ed.2d 314 (1966), for instance, the defendant said he did not wish to plead guilty. His lawyer, nevertheless, entered what the Supreme Court said was “the equivalent of a guilty plea”, depriving the defendant of “the right to be confronted with and cross-examine the witnesses against him.” Brookhart, 384 U.S. at 7 , 86 S.Ct. at 1248 , 16 L.Ed.2d at 318-319 .

The issue, wrote Justice Black for the Court, was “whether counsel has power to enter a plea which is inconsistent with his client’s expressed desire and thereby waive his client’s constitutional right to plead not guilty____” Id. at 7 , 86 S.Ct. at 1248 , 16 L.Ed.2d at 319 . The Court held “that the constitutional right of a defendant cannot be waived by his counsel under such circumstances.” Id. Four years later the Court ruled that a trial judge could constitutionally accept a plea of guilty to a reduced charge from a defendant who insisted he was innocent, but who had made a voluntary and intelligent choice to plead guilty in order to avoid a possible death sentence. North Carolina v. Alford, 400 U.S. 25 , 91 S.Ct. 160 , 27 L.Ed.2d 162 (1970).

Justice White explained that a plea should not be forced on a defendant, who “must be permitted to judge for himself” which of various alternative pleas should be made. 400 U.S. at 33 , 91 S.Ct. at 165 , 27 L.Ed.2d at 169 . Finally, in Faretta v. California, 422 U.S. 806 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 (1975), the Supreme Court “confront[ed] ... a nearly universal conviction, on the part of our people as well as our courts, that forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so.” Id. at 817 , 95 S.Ct. at 2532 , 45 L.Ed.2d at 572 . The Court recognized the ⁶⁷⁴ importance of counsel to fair trial; it affirmed the right of every defendant, rich or poor, to the assistance of counsel; but it held that a defendant who intelligently and voluntarily chooses to represent himself cannot be compelled to be represented by counsel. Justice Stewart explained for the Court: The right to defend is personal.

The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of “that respect for the individual which is the lifeblood of the law.” Id. at 834 , 95 S.Ct. at 2540-2541 , 45 L.Ed.2d at 581 (quoting Illinois v. Allen, 397 U.S. 337, 350-351 , 90 S.Ct. 1057, 1064 , 25 L.Ed. 353 , 363 (1970) (Brennan, J., concurring)). These cases teach that 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 defendant is capable of making.

Additional examples of this sort of decision include whether to testify on one’s own behalf, Rock v. Arkansas, — U.S. -, -, 107 S.Ct. 2704, 2709-2710 , 97 L.Ed.2d 37, 46-47 (1987), whether to forego trial by way of a guilty plea, Boykin v. Alabama, 395 U.S. 238 , 89 S.Ct. 1709 , 23 L.Ed. 274 (1969), and waiver of right to trial by jury, United States v. Woods, 450 F.Supp. 1335 , 1337-1338 n. 2 (D.Md.1978). On which side of the line does the choice to plead not criminally responsible fall? A number of the authorities we have just cited emphasize the defendant’s right to decide what sort of a plea is to be entered. As stated in Standard 4-5.2 of the ABA Standards for Criminal Justice: (a) Certain decisions relating to the conduct of the case are ultimately for the accused and others are ultimately ⁶⁷⁵ for defense counsel.

The decisions which are to be made by the accused after full consultation with counsel are: (i) what plea to enter____ See also Md. Lawyers’ Rules of Professional Conduct Rule 1.2(a) (1988) (“In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered.... ”). Also, while Rule 4—242(b)(1), like § 12-109 of the Health-General Article of the Annotated Code of Maryland, provides that this plea may be made by the defendant or counsel, the reference to counsel does not require us to conclude that counsel may act against the wishes of a competent client. The State’s response is that the plea of not criminally responsible is an affirmative defense, no different from defenses such as self-defense, coercion, entrapment, or consent. Further, the State argues, that because these affirmative defenses may be imposed by counsel on an unwilling defendant, the same result should follow as to the “affirmative defense” of not criminally responsible.

It is by no means clear that the State is correct about the right of counsel to force a competent client to assert affirmative defenses such as self-defense against the client’s will, but that is a question we need not and do not decide. Even if we, for the sake of argument only, take that rather substantial leap, and if we further assume that a plea of not criminally responsible is indeed an affirmative defense, we believe that defense is inherently different from the other affirmative defenses because of the potentially far-reaching consequences which may result for the defendant. All of these defenses have an important common element. When any of them is employed, the defendant in effect admits that he or she has done the acts with which he or she is charged.

See Gardner v. State, 41 Md.App. 187, 196 , 396 A.2d 303, 309 (1979). When asserting each of them, except lack of criminal responsibility, the defendant contends that because of the grounds for defense asserted, no criminal liability should attach to those acts. If the defense prevails, the defendant is found not guilty and goes free. ⁶⁷⁶ It is quite otherwise when a defendant “wins” under a plea of not criminally responsible. When the defense of not criminally responsible is asserted, along with a not guilty plea, the initial question is the defendant’s guilt or innocence.

Langworthy v. State, 284 Md. 588, 598 , 399 A.2d 578, 584 (1979). If the verdict is guilty, the next step is the determination of criminal responsibility. If lack of responsibility is found, that is not an acquittal. The result of “the successful interposition of a plea of insanity is not that an accused is to be found not guilty of the criminal act it was proved he had committed, but that he shall not be punished therefor.” Id.; Anderson v. Dept. of Health & Mental Hygiene, 310 Md. 217, 224-225 , 528 A.2d 904, 908 (1987), cert. denied, — U.S. -, 108 S.Ct. 1088 , 99 L.Ed.2d 247 (1988).

See also Ford v. Ford, 307 Md. 105, 112-117 , 512 A.2d 389, 393-395 (1986). In short, the defendant who “successfully” pleads not criminally responsible is subject to the stigma of a criminal conviction, Pouncey v. State, 297 Md. 264, 268-270 , 465 A.2d 475, 478 (1983), although he or she may not be subject to all of the consequences that would otherwise flow therefrom. See, e.g., Ford, 307 Md. at 122-123 , 512 A.2d at 398-399 (defendant found guilty of first degree murder, but not criminally responsible may take under victim’s will). Moreover, the “successful” not criminally responsible defendant is not likely to go free, at least initially.

See Anderson, 310 Md. at 222 , 528 A.2d at 907 . Ordinarily, “the court immediately shall commit the [criminally not responsible] defendant to the Department [of Health and Mental Hygiene] for institutional, inpatient care or treatment.” Md.Code (1987 Cum.Supp.), § 12-lll(a) Health-Gen. Art. Cf., Jones v. United States, 463 U.S. 354, 366-368 , 103 S.Ct. 3043, 3051 , 77 L.Ed.2d 694, 706-707 (1983) (indefinite commitment of insanity “acquitee” is not unconstitutional). We are aware, of course, that in certain carefully limited circumstances one who has been found not criminally responsible may be released instead of being committed to the department.

Section 12-111(c). And we ⁶⁷⁷ understand that one who is committed enjoys the benefit of various mechanisms looking to review and redetermination of his or her mental status. See id., §§ 12-113—12-119. But the burden ordinarily is on the committed person to prove eligibility for release.

Id., §§ 12-113(d), 12-117(a), 12—118(c)(4)(i). The fact remains that the defendant who “wins” on a not criminally responsible plea is faced with both the stigma of a criminal conviction and with indefinite commitment to a state institution. The defendant who is acquitted on a defense of self-defense, coercion, entrapment, or consent is faced with neither. The “affirmative defense” of not criminally responsible thus stands in stark contrast from all of the other affirmative defenses listed by the State.

For this reason alone, its consequences are so grave and personal that a competent defendant should have the right to make his or her own decision as to whether to interpose that plea. There are, moreover, yet other factors that distinguish a plea of not criminally responsible from ordinary affirmative defenses. If the offense of which the defendant is accused is a minor one, with a low maximum penalty, it may seem (to the defendant) much more sensible to risk imposition of the maximum penalty rather than to chance indefinite commitment after a successful plea of not criminally responsible. See Frendak v. United States, 408 A.2d 364, 376-377 (D.C.1979).

There is a stigma that often attaches, however unreasonably, to a person with a mental disease. Id. A defendant may