Trimble v. State

COLE, Judge. On March 12, 1982, James Russell Trimble was found guilty of first degree murder, first degree rape, two counts of first degree sexual offense, two counts of kidnapping, and one count of assault by a jury in the Circuit Court for Baltimore County. His only defense was insanity. After the jury verdict, Trimble elected to be sentenced by the court.

On March 19, 1982, Trimble was sentenced to death on the murder count and to three life terms plus seventy years on the remaining counts. Pursuant to Maryland Code (1957, 1987 Repl.Vol., 1989 Cum.Supp.), Article 27, § 414, we reviewed Trimble’s conviction and death sentence and affirmed. Trimble v. State, 300 Md. 387 , 478 A.2d 1143 (1984), cert. denied, 469 U.S. 1230 , 105 S.Ct. 1231 , 84 ²⁵³ L.Ed.2d 368 (1985). Thereafter, Trimble filed a petition in the Circuit Court for Baltimore County for post conviction relief pursuant to the provisions of Maryland Code (1957, 1987 Repl.Vol., 1989 Cum.Supp.), Article 27, §§ 645A-645J, the Post Conviction Procedure Act.

The Circuit Court for Baltimore County denied Trimble’s petition and we granted his application for leave to appeal. We now respond. Briefly, the facts of the case are as follows: On July 3, 1981, Melanie Rae Newsom and the murder victim, Nila Kay Rogers, were invited by a friend from school to ride around in a van with some of his friends. The two women entered the van with the friend, James Hanna.

Inside were Trimble, Terry Evans, Joseph Evans and Anthony Kordell. The Evans brothers, Trimble and Kordell had earlier taken various drugs and drunk beer. After Newsom and Rogers entered the van, Trimble tried to kiss Newsom. She resisted.

He screamed and began to tear off her clothing. Rogers tried to stop him, but Trimble punched her and threw her in the back of the van. He then hit Newsom and forced her to commit fellatio. The two women persuaded the men to stop the van.

Hanna and Newsom went into a cornfield. Back in the van Trimble and Joseph Evans raped Rogers. As Kordell tried to pull Rogers out of the van, Trimble repeatedly struck her with a baseball bat. Trimble then dragged her into the cornfield and slit her throat from ear to ear.

He left her body in the cornfield where she was later pronounced dead. The cause of death was listed as severe head injuries from a blunt object. At trial, Trimble offered insanity as his only defense. A state’s expert testified that Trimble suffered from antisocial personality and a history of substance abuse but that Trimble was not insane because he did not lack substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law under the then prevailing insanity standard of Maryland Code ²⁵⁴ (1982) § 12-107 of the Health-General Article. 1 Another state expert concurred.

The first expert further testified that Trimble had a below normal I.Q. of 64 but that that factor did not impair his sanity. The only defense witness testified that Trimble’s afflictions caused him to lack substantial capacity to conform his conduct to the law, but the doctor declined to state that conclusion with a reasonable degree of medical certainty or probability. The jury rejected Trimble’s insanity defense and found him guilty. Trimble waived his right to be sentenced by a jury and was sentenced to death by the trial judge.

I. Trimble’s first assignment of error centers on the allegation that his due process rights were violated by the failure of the trial court to conduct a supplemental hearing on the issue of his incompetency and because he was incompetent to stand trial. If a state fails to observe procedures adequate to protect a defendant’s right not to be tried or convicted while incompetent, it denies him due process. Sangster v. State, 312 Md. 560, 573 , 541 A.2d 637 (1988) citing Drope v. Missouri, 420 U.S. 162 , 95 S.Ct. 896 , 43 L.Ed.2d 103 (1975), and Pate v. Robinson, 383 U.S. 375 , 86 S.Ct. 836 , 15 L.Ed.2d 815 (1966). Maryland’s mandate for a court determination of competency is contained in ²⁵⁵ Md.Code (1982, 1990 Repl.Vol.), § 12-103 of the Health-General Article: § 12-103.

Court determination of competency. (a) Hearing. — 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. (b) Court action if defendant competent. — If, after receiving evidence, the court finds that the defendant is competent to stand trial, the trial shall begin as soon as practicable or, if already begun, shall continue. (c) Reconsideration of competency. — At any time during the trial and before verdict, the court may reconsider the question of whether the defendant is incompetent to stand trial.

It is clear from the record, and Petitioner concedes, that the trial court heard evidence regarding his competency to stand trial prior to trial. Clearly, the court followed the mandatory procedure of § 12-103(a) and ruled Trimble competent to stand trial. Trimble does not dispute that finding, but he asserts that his bizarre behavior at trial (red cross painted on his shaved head, sticking out his tongue, rolling his head and making obscene gestures to the jury) warranted another competency hearing. We do not believe another hearing was necessary.

Section 12-103(c) states that at any time during the trial, the court may reconsider the question of defendant’s competency. Subsection (c) is not couched in the mandatory “shall” language of subsection (a). See, Jones v. State, 280 Md. 282, 287 , 372 A.2d 1064 (1977). Although a determination of competency is required, if the accused is found competent, the court is not required to hold an additional hearing merely because he again alleges he is incompetent.

Johnson v. State, 67 Md.App. 347, 359 , 507 A.2d 1134 , cert. denied, 479 U.S. 993 , 107 S.Ct. 594 , 93 L.Ed.2d 595 (1986). Here, Trimble did behave strangely at trial, but it is clear from the record that ²⁵⁶ such behavior only occurred at trial, not during preparations or meetings with defense counsel, and it stopped as soon as a guard was placed behind Trimble. Also, any questions posed directly to him at trial were answered appropriately. The trial judge could have concluded that the behavior was designed only to disturb the proceedings and was not the result of any real incompetency.

We see no need to disturb his decision.

II

It is also asserted by Petitioner that the jury was not instructed on the essential element of malice for the crime of first degree murder, and the jury was thereby unconstitutionally permitted to infer malice from the facts. Malice embraces the elements of (1) the presence of the required malevolent state of mind, i.e., either (i) the intent to kill, (ii) the intent to do grievous bodily harm, (iii) the intent to do an act under circumstances manifesting extreme indifference to the value of human life, or (iv) the intent to commit a dangerous felony, and (2) the absence of legally adequate justification, excuse or circumstances of mitigation. Ross v. State, 308 Md. 337, 340 , 519 A.2d 735 (1987). See also, Gladden v. State, 273 Md. 383, 388 , 330 A.2d 176 (1974); Brown v. State, 44 Md.App. 71, 78 , 410 A.2d 17 (1979).

The judge at Trimble’s trial instructed the jury thus: Now, let me discuss with you what the law is when one is charged with first degree murder as the defendant is charged in this case. Murder in the first degree is the willful, deliberate, and premeditated killing of a human being, without excuse, justification, or mitigation. Willful means that the act which caused the death was done intentionally and with purpose. Deliberate means that there was a full and conscious knowledge of the intention and purpose to kill.

Premeditated means that the intention and purpose to kill preceded the killing by some appreciable time. Clearly, the definition of “malice” was adequately set forth to the jury although the actual word was not used. ²⁵⁷ We find that instruction was adequate properly to instruct the jury that they must find actual malice. The issue is not, at any rate, a proper subject for review in this proceeding because the issue of the instruction was not raised on appeal and was waived. See, Davis v. State, 285 Md. 19, 34-35 , 400 A.2d 406 (1979).

III

Petitioner also asserts that the voir dire of the jurors and a failure to excuse for cause those jurors who demonstrated an inability to be impartial denied him a fair trial. Trimble avers the trial court should have undertaken extra measures to ensure that the jury was one that could fairly decide his case and that those jurors who made statements tending to indicate their inability to be impartial were stricken for cause. The State responds by stating that at the close of jury questioning Trimble had used only 17 of his 20 peremptory challenges, and if the jury selection was unsatisfactory, he should have said so then. Instead, defense counsel indicated the jury was acceptable to him.

We agree with the State. Defense counsel’s declaration of his satisfaction with the jury was an affirmative acceptance of those jurors who had been selected. Thus, he may not object now. See, Mills v. State, 310 Md. 33, 40 , 527 A.2d 3 (1987), vacated on other grounds, 486 U.S. 367 , 108 S.Ct. 1860 , 100 L.Ed.2d 384 (1988); Foster v. State, 304 Md. 439, 450-53 , 499 A.2d 1236 (1985), cert. denied, 478 U.S. 1010 , 106 S.Ct. 3310 , 92 L.Ed.2d 723 (1986) and cases cited therein.

IV

As his next major contention, Trimble asserts he was denied effective assistance of counsel at trial and on appeal. This issue is properly before us because we have held that consideration of a claim of ineffective counsel is best left to a post conviction hearing. Harris v. State, 295 Md. 329 , ²⁵⁸ 337, 455 A.2d 979 (1983) citing Johnson v. State, 292 Md. 405 , 439 A.2d 542 (1982). To support a claim for reversal based on ineffective assistance of counsel, the principles of the oft-cited case of Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984) require (1) that counsel’s performance be deficient, and (2) that the deficient performance prejudiced the defendant so as to deprive him of a fair trial.

Trimble lists several reasons for his belief that the requirements of Strickland were met, and we shall set them forth in turn. 1. Trimble states his trial counsel improperly failed to object to an erroneous instruction concerning the issue of insanity, that is, he did not object when the court instructed the jury that mental retardation could not be considered a mental disorder which could negate criminal responsibility under the then prevailing Md.Code (1982) § 12-107 of the Health-General Article. While mental retardation is not itself a mental disorder under § 12-107, it is an alternate indication of lack of criminal responsibility. Trimble believes that if counsel had objected, the arguments he could have made on appeal on this issue would have been strengthened.

We see no merit to this contention. While it is true the instruction given was in contravention of the law and that no objection was made at trial, this court reviewed the matter on direct appeal to ascertain if plain error was present. We found the error was not so compelling as to warrant reversal since there was inadequate evidence linking Trimble’s retardation to his alleged inability to conform his behavior to the mandate of the law as required before there may be a finding of not criminally responsible under § 12-107. The retardation, therefore, was irrelevant to the defense of insanity.

Thus, a failure to object was immaterial and does not warrant reversal. 2. Trimble submits there was no valid reason for his attorney not to strike jurors who did not seem impartial. ²⁵⁹ The jury selection process was not, however, questioned at trial, and defense counsel stated his satisfaction with the juror selection. It appears to us that counsel’s decision not to strike certain jurors was nothing more than a trial tactic, which does not constitute a basis for reversal. See Curtis v. State, 284 Md. 132, 150 , 395 A.2d 464 (1978). 3.

Counsel’s failure to cross-examine the witness Kordell and to object to the prosecutor’s closing argument is Trimble’s next assignment of error. In closing argument, the prosecutor stated that Kordell, Trimble’s co-defendant, had pled guilty to first degree murder, and therefore, the most lenient sentence he could receive under the law was life imprisonment. Trimble alleges that the statement suggests that Kordell, the prosecution’s main witness, did not receive a substantial benefit from his plea, and as such, he would not be motivated to tailor his testimony to fit the case of the prosecution. Trimble contends this is misleading and that his attorney should have objected because the jury was not told that although given a life sentence, Kordell could be placed on probation, have his sentence suspended, or be incarcerated in the Patuxent Institute from which he could be released