Walker v. State

WILNER, J. Maryland Code, §§ 3-106 and 3-107 of the Criminal Procedure Article (CP) set forth the procedures to be followed when a defendant in a criminal case is found, by reason of mental disorder or retardation, to be incompetent to stand trial. The question presented to us is whether certain of those procedures, relating to the commitment of the defendant to a facility designated by the Department of Health and Mental Hygiene (DHMH) and to dismissal of the pending criminal charges, pass Constitutional muster when DHMH has concluded that the defendant is not likely to achieve competence within a foreseeable time. Under what circumstances in that situation can the State Constitutionally continue to hold the defendant in confinement? At what point must the pending charges be dismissed? ³ These are important issues that need to be addressed by an appellate court, see Jackson v. Indiana, 406 U.S. 715 , 92 S.Ct. 1845 , 32 L.Ed.2d 435 (1972), but, because petitioner chose the wrong vehicle for presenting them to an appellate court, we shall be unable to answer them in this appeal.

There are proper and effective ways to present the issues, clearly set forth in the very statutes relied upon by petitioner, and for his benefit and for the benefit of any other persons who may be similarly situated, we shall point them out. BACKGROUND On April 7, 2002, Robert Horseman, a police officer in Caroline County, filed a Statement of Charges in the District Court charging petitioner with first and second degree rape, first, second, third, and fourth degree sexual offense, and second degree assault, all allegedly committed against his seven-year-old niece. The Statement of Probable Cause that accompanied the Statement of Charges alleged, in relevant part, that the child’s mother, Ms. Green, had come to the police station and reported that her daughter had been sexually assaulted by petitioner, who was the child’s uncle—Ms. Green’s brother. Ms. Green recited that, while she and the child were visiting her mother, she allowed the child to go upstairs to petitioner’s room to listen to music, that about fifteen minutes later she went to check on the child and found her sitting next to petitioner on petitioner’s bed.

The child was fully clothed; petitioner was wearing only his boxer shorts. When Ms. Green asked what was going on, the child responded that petitioner had stuck his “thing in her.” Ms. Green asked her brother whether he had done that, and he responded “yep” and shook his head. As a result of this revelation, the child was interviewed and examined by a sexual assault nurse examiner. From the interview and the finding of suspected seminal fluid in the child’s vagina, the nurse expressed the belief that the child had been sexually assaulted.

At some point, the child told Officer Horseman directly that, when she entered the bedroom, petitioner grabbed her, threw her on the bed, removed ⁴ her pants, and “stuck his thing in her.” Petitioner was arrested and interviewed, and he denied any sexual contact with the child. Petitioner was brought before a District Court Commissioner in the late evening of April 7. The record is not entirely clear as to what occurred, other than that (1) there is a notation on the Statement of Charges that the Commissioner found probable cause to support charges of second degree rape and second degree assault but no probable cause for any of the other charges, 1 and (2) believing that petitioner was “incompetent” due to “mental disabilities,” the Commissioner initially intended to issue a temporary mental health commitment, but for some reason concluded that he was unable to do that and instead committed petitioner to jail in default of a $50,000 bond, subje_. to later bail review. The next morning, petitioner appeared before a District Court judge and was committed to jail without bail but referred for psychiatric evaluation.

That examination occurred on May 1, 2002. The examining physician reported to the court that petitioner required a more comprehensive evaluation at a DHMH facility and that the case was being referred to the Developmental Disabilities Administration (DDA) of DHMH. On June 19, 2002, a DHMH forensic evaluator, under the supervision of a supervising psychologist, reported that petitioner was then incompetent to stand trial, in that “he does not have a factual and rational understanding of the nature and object of the proceedings against him and presently lacks sufficient ability to consult with his attorney with a reasonable degree of rational understanding.” The diagnosis was mental retardation, moderate (IQ at 44-52) and attention deficit disorder with hyperactivity. The evaluator also concluded, with a reasonable degree of psychological certainty, that, because of mental retardation, ⁵ petitioner would pose a danger to himself or the person or property of others if released from confinement.

Although acknowledging that the 25-year-old petitioner had no prior criminal involvement and did not appear to be a pedophile by preference, the evaluator opined that he was “an opportunist who requires adequate monitoring and supervision to maintain his own safety and that of others.” Petitioner, he said, was in need “of a structured environment with built in safeguards” and appeared to be “impulsive, preoccupied and extremely inconsistent, if not unpredictable.” The recommendation was an inpatient stay in a secure facility “where notions relating to the subject’s dangerousness could be refined if not reevaluated and community appropriateness assessed.” CP § 4-103 provides that, if a defendant is charged in the District Court with a felony that is not within the trial jurisdiction of that court, the defendant, upon request made within ten days after initial appearance, is entitled to a preliminary hearing before a judge, to determine whether there is probable cause to believe that the defendant has committed an offense. First and second degree rape and first and second degree sexual offense are felonies that are not within the trial jurisdiction of the District Court. See Md. Code, § 4-302(a) of the Cts. & Jud. Proc.

Article (CJP). On April 16, defense counsel timely requested a preliminary hearing. In light of the evaluation report, the court, with petitioner’s signed waiver, postponed a scheduled preliminary hearing and, on June 27, 2002, entered an order (1) finding petitioner incompetent to stand trial and, by reason of mental retardation, to be a danger to himself or the person or property of another, and (2) committing petitioner to DHMH “for confinement until such time as the Court is satisfied that the Defendant is no longer incompetent to stand trial or is no longer, by reason of a mental disorder or mental retardation, a danger to self or the person or property of another.” Pursuant to that order, petitioner was transferred to Rosewood Center, a facility for mentally retarded persons operated by DDA. ⁶ CP § 3-108 requires DHMH to report at least annually to the court a list of persons it is holding under commitment orders and any recommendations it considers appropriate. On November 26, 2002, petitioner was reevaluated by DDA.

It reported to the court that petitioner did not understand basic legal concepts or the proceedings against him, that he was not presently competent to stand trial and that “it does not appear that he can acquire competence in the foreseeable future, even if training attempts are made.” The report added that, although petitioner had not engaged in dangerous behavior since coming to Rosewood Center, “the possibility remains that he may sexually victimize a young child,” and that he must therefore “be considered dangerous to the person and property of another and should not have access to children or other vulnerable people if he returns to the community.” That assessment of dangerousness followed the analysis of the Chief Psychologist, who observed: “Mr. Walker’s dangerousness to others presents a dilemma. He has not shown any evidence that he is dangerous since he has been at Rosewood Center. However, the charges against him involve a young child to whom he had unsupervised access. There is no access to children at Rosewood Center, particularly for someone in a locked residence and a locked work area with 24-hour supervision.

If Mr. Walker did what he is charged with doing then he is certainly dangerous to others. If he did not do what is charged, he should not be considered dangerous since he has no other record of dangerous behavior. However, the charges cannot be resolved since Mr. Walker is not competent. Under these circumstances, and given the types of charges, Mr. Walker must still be considered dangerous to the person and property of another.

If he were to return to the community, he must never have unsupervised access to children or other vulnerable persons.” Following that report, petitioner, through counsel, asked that the court “enter an order confirming the defendant’s incompetency.” On March 17, 2003, the court obliged and entered another order finding petitioner incompetent to stand ⁷ trial and, by reason of mental retardation, to be a danger to self or the person or property of another, and committing him to DHMH. In conformance with CP § 3-108, petitioner was reevaluated in November, 2003. DDA reported that he had not made sufficient progress to meet his objective of learning basic legal terms, which would be a first step in demonstrating competence to stand trial, and that he should therefore still be considered not competent. Due to deficiencies in adaptive skills, the report added, “it may be that Mr. Walker will not acquire competence in the foreseeable future, but it is premature to come to that conclusion.” His training objective was being continued.

As to dangerousness, the report iterated the concern noted a year earlier, that he did not appear dangerous to himself or others but that he had no access to children while at Rosewood Center. The Acting Director at Rosewood and the Director of DDA concluded that petitioner “should never have unsupervised access to children since his alleged offenses took place while he was alone with a child.” As before, that conclusion followed the determination by the Chief Psychologist that petitioner “is not dangerous to himself, or others, with the proviso that he may have no unsupervised access to children at any time.” The next annual evaluation occurred November 18, 2004. It was a repeat of the 2003 evaluation. The recommendation of Rosewood and DDA was that petitioner “should still be considered incompetent to stand trial and he is not likely to become competent within the foreseeable future.” The report added that, although he did not appear dangerous to himself or others based on his behavior since coming to Rosewood, “he should not be permitted to have unsupervised access to children.” As before, that recommendation was based on the conclusion of the Chief Psychologist that petitioner “is not dangerous as long as he has no opportunity for unsupervised access to children.” At no point during this two-and-a-half year period did the State seek an indictment or file a criminal information in order ⁸ to bring the case to the Circuit Court.

Petitioner remained confined at Rosewood Center pursuant to a Statement of Charges filed by the police in District Court. A District Court commissioner had found no probable cause to support five of the seven charges, including the two flagship felonies, but, due to petitioner’s incompetency, the Statement of Charges had never been subjected to a probable cause determination by a judge. In February, 2005, petitioner filed in the District Court a motion to dismiss the criminal charges, contending that, because of his permanent moderate retardation and illiteracy, he would never become competent to stand trial. He averred, presumably on the issue of dangerousness, that he had been allowed home visits at his mother’s home and that no problems had been reported.

He contended that, as applied to him, CP §§ 3-106 and 3-107 were unconstitutional in that they violated his right to due process of law and equal protection of the laws. It was impermissible, he argued, for the State to keep him confined under a criminal charge when it appeared that he would never be competent to stand trial, and that it should dismiss the criminal charges and seek, if it wishes to continue his confinement, to have him committed under the civil commitment law. The court denied the motion, apparently summarily, and petitioner appealed to the Circuit Court for Caroline County. On May 3, 2005, while the appeal was pending, the Director of Rosewood Center wrote to the District Court judge that petitioner’s treatment team believed that petitioner “would be a good candidate for successful community living with appropriate supervision and supports.” The program plan would include training supports and appropriate supervision “required for him to successfully participate in supported employment within a sheltered and structured setting.” The letter, accordingly, was to request court approval for community placement prior to June 30, 2005.

On May 4, 2005, the Circuit Court, after a hearing, affirmed the District Court’s denial of the motion to dismiss the criminal charges, finding no Constitutional basis to disturb that ruling. The court pointed out that the proper way to raise the ⁹ constitutionality of petitioner’s continued confinement based on those charges was a petition for release under Maryland Code, § 5-507 of the Health-General Article (HG) but, aware of Rosewood’s May 3 letter recommending petitioner’s placement in a community setting and in an effort to expedite that relief, remanded the case for the District Court to consider that recommendation, which had not been before it when it ruled on petitioner’s motion. The Circuit Court judge, having apparently communicated with the District Court judge, advised that a hearing could be held as early as the following week. Instead of proceeding in that manner, petitioner, on June 1, 2005, filed a petition for certiorari to review the Circuit Court’s decision.

We granted that petition. 2 DISCUSSION The Statutory Framework There is an interplay here between two sets of statutes (CP §§ 3-106 and 3-107 and HG §§ 7-506 and 7-507), complicated to some extent by a third (CJP § 3-701). CP §§ 3-106 and 3-107 are part of the subtitle of the Criminal Procedure Article dealing with incompetence and criminal responsibility. CP § 3-104 provides that, if a defendant appears to the court to be incompetent to stand trial or the defendant alleges incompetence, the court must determine, upon evidence presented on the record, whether the defendant is incompetent. Incompetence to stand trial is defined in CP § 3—101(f) as an inability to understand the nature or object of the proceeding or to assist in one’s defense.

Section 3-105 permits the court to have the defendant examined and sets forth the procedures for such an examination and a report of ¹⁰ its results. The section requires that, if DHMH opines that the defendant is incompetent to stand trial, it must, in a supplement to its report, state whether, because of mental retardation or mental disorder, the defendant would be a danger to self or to the person or property of another if released. CP § 3-106 deals generally with what occurs when there is a finding of incompetence. If. the court finds that the defendant is not dangerous, it may set bail or release the defendant on recognizance.

If the court finds that the defendant is a danger, it may order that the defendant be committed to a DHMH-designated facility “until the court is satisfied that the defendant no longer is incompetent to stand trial or no longer is, because of mental retardation or a mental disorder, a danger to self or the person or property of others.” If the defendant is committed because of mental retardation, as petitioner was, § 3-106(b)(2) requires DDA to provide