Trimble v. State

DAVIDSON, Judge, dissenting: The majority here holds, among other things, that the trial judge did not abuse his discretion in overruling an objection to a portion of the State’s Attorney’s closing argument. It finds that the objected to portion of the closing argument was nothing more than an effort to attack the credibility of an expert witness. In my view, the objected to portion of the closing argument constituted a contradiction of the trial judge’s previous ruling that the sole defense psychiatrist was qualified and competent and, consequently, that his expert opinion, that as a result of mental disorders the appellant was unable to conform his conduct to the requirements of law, was admissible. It also contradicted the trial judge’s binding instruction that the jury should consider, among other things, the defense psychiatrist’s expert opinion.

Under established Maryland law, a ruling and binding instruction on such matters cannot be disputed by counsel in argument to the jury. Accordingly, I respectfully dissent. Here the record shows that the appellant was 17-years old at the time of the commission of the crimes. The record further shows that the appellant’s sole defense was insanity.

The appellant called only one witness, Dr. Robert B. Lehman (defense psychiatrist), who testified that he was graduated from the University of Maryland School of Medicine in 1971; that in that year he was licensed to practice medicine in the State of Maryland; that he was trained in general psychiatry and child and adolescent psychiatry at the Sheppard-Pratt Hospital; that for seven years he had been in private practice specializing in adolescent and child psychiatry; that he was on the staff of the Baltimore County General Hospital; that he was a clinical instructor in child and adolescent psychiatry at the University of Maryland School of Medicine; and that his clinical and ⁴³⁸ educational skills in psychiatry were certified to by the American Board of Psychiatry and Neurology. When defense counsel asked that the defense psychiatrist be qualified as an expert witness, the State indicated that it had “no questions” and did not cross examine the defense psychiatrist with respect to his qualifications. The trial judge then ruled that the defense psychiatrist was qualified as an expert. The State did not object to the trial judge’s ruling.

The record further shows that the defense psychiatrist gave oral testimony and submitted a written report in which, among other things, he expressed the opinion that, as a result of mental disorders, the appellant was unable to conform his conduct to the requirements of law. The State did not object to the admission of this evidence. After the State and the defense rested, the trial judge instructed the jury. With respect to expert testimony, the trial judge said: “You will recall we have heard several doctors or psychiatrists’ testimony in this case.

A witness who has special training or experience in a given field is permitted to express opinions based on observed or assumed facts to aid you in deciding the issues in this case. In weighing the opinions of experts you should consider the expert’s experience, training, and skills, and the expert’s knowledge of the subject matter about which he is expressing an opinion. You should give expert testimony the weight and value you believe it should have. You are not required to accept any expert’s opinion.

You should consider an expert’s opinion together with all the other evidence.” (Emphasis added.) Additionally, the record shows that in closing argument, the State’s Attorney argued to the jury as follows: “In that regard whom did the defense put on to testify that this defendant was in fact insane at the time of the offense? I submit to you nobody. Nobody testified he was insane at the time of the offense. Dr. Lehman ⁴³⁹ testified and Dr. Lehman has no formal training in forensic psychiatry.

He has a practice limited to child and adolescent psychiatry. He is not affiliated with any State or mental hospital, and he has in the past only examined five defendants to determine their responsibility at the time of a given offense. He, unlike Dr. Spodak and Dr. Blumberg, is eminently unqualified to give an opinion seven months after the occurrence of an offense as to what the defendant’s mental state was at the time of the offense." (Emphasis added.) Defense counsel’s objection to this portion of the argument was overruled by the trial judge. Finally, the record shows that in closing argument, defense counsel placed heavy emphasis on the evidence of insanity adduced by the defense psychiatrist.

Initially, in explaining that the State had the burden of proof on the question of sanity, he said: “All the doctors agree he is crazy. They all will agree he is crazy. Now, the job of this jury really is to determine how crazy is he. The State has to prove he is sane.

The burden of proof is on them, not on us. We have already proved that he is insane, but the burden is on the State to prove he was sane.” (Emphasis added.) The significance of the evidence of insanity adduced by the defense psychiatrist was again stressed at the conclusion of defense counsel’s closing argument when he said: “I also leave you with something else that is extremely important. I leave you with a copy of Dr. Lehman’s report, the same exact copy that he gave to me, not edited, not inked out, bad things as well as good. Contrary to what [the State’s Attorney] says, Dr. Lehman’s qualifications are very, very good.

He is a specialist in adolescent psychiatry, and he is board certified. That is very difficult to get done. I have prepared a number of ⁴⁴⁰ copies of this report for you to take into the jury room with you to refer to.” (Emphasis added.) I agree with the majority that “both the State’s Attorney and defense counsel are given wide latitude in the conduct of closing argument, including the right to explain or to attack all the evidence in the case.” Nevertheless, under Maryland law, there are limitations upon the general scope of permissible closing argument. Wilhelm v. State, 272 Md. 404, 413-23 , 326 A.2d 707, 714-20 (1974).

Under Article 23 of the Maryland Declaration of Rights, 1 as construed by this Court, there is an established dichotomy between the role of the trial judge and the jury with respect to the determination of questions of law. Montgomery v. State, 292 Md. 84, 91 , 437 A.2d 654, 658 (1981); Stevenson v. State, 289 Md. 167, 178-80 , 423 A.2d 558, 564-65 (1980). The jury’s authority is limited to deciding “the law of the crime” or “the definition of the crime” as well as “the legal effect of the evidence.” Stevenson, 289 Md. at 178 , 423 A.2d at 564 . All other legal issues