Criminal Law Update

Picture25The November Amicus features a Court of Appeals and two Court of Special Appeals decisions which may be useful to practitioners.

State v. Johnson, No. 3, September Term 2014, filed October 22, 2014 (opinion by Greene, J.). Johnson was charged with the sexual abuse of a minor and a second degree sexual offense. Prior to trial, his counsel issued a subpoena for the minor victim’s mental health records. The facility where the youth had been treated filed a Motion for Protective Order. At a hearing on the motion, a representative of the counseling center argued that the records sought were privileged and confidential because they contained communications between the victim and mental health providers, as well as notes from psychiatrists and a licensed clinical social worker. The judge asked defense counsel why the records were being sought. Counsel answered: “I’d like to see the records, one, to know what is this young man’s mental health diagnosis. Is he, is he bipolar? Is he paranoid schizophrenic? Is he delusional? Does he have hallucinations?” because “if he’s delusional, and if he has hallucinations, I believe that’s exculpatory.” When asked if he had a more specific reason, counsel added, “Not without even having a slightest idea of what may be in the records. Your Honor, not without even knowing his diagnosis, no. So, if you wish to call it a fishing expedition, it may be because I have no idea what these records may contain.” The hearing judge cited Goldsmith v. State, 337 Md. 112 (1995), and Fisher v. State, 128 Md. App. 79 (1999), in deciding that counsel’s proffer to the court was insufficient to permit disclosure of the victim’s privileged mental health records. A protective order was issued.

Johnson was convicted and appealed to the Court of Special Appeals. COSA reversed his conviction, holding that the trial court committed reversible error by granting the counseling center’s motion. COSA wrote: “While we cannot expect counsel to have precise information as to the content of the records, he did suggest that it would be appropriate to know of the victim’s propensity for veracity…. Those suggestions alone were sufficient, at the very least, to call for an in camera review of the records to determine their relevance, vis a vis Johnson’s constitutional rights, before ruling on the motion.” The Court of Appeals granted the State’s petition for cert.

The Court of Appeals reversed COSA. It noted that Courts and Judicial Proceedings subsection 9-109 and 9-121 give a patient the privilege to prevent the disclosure of his or her communications to a licensed psychiatrist or a licensed clinical social worker. The Goldsmith case held that in a criminal trial, a defendant’s constitutional rights at trial may outweigh the victim’s right to assert a privilege. A victim does not have an absolute privilege against disclosure, however, a defendant does not have an absolute right to obtain those records. Goldsmith described striking a balance between the competing interests of a witness’s privilege and a defendant’s constitutional right to obtain and present evidence necessary to a defense. A trial court has to apply a balancing test, under which a defendant must meet a minimum threshold to be entitled to an in camera review of the records. A defendant must establish a reasonable likelihood that the privileged records contain exculpatory information needed for a proper defense. This must be more than the fact that the records may contain evidence useful for impeachment on cross-examination.

In the Johnson matter, COSA opined that defense counsel’s suggestion of a need to know the victim’s propensity for veracity was enough to at least warrant an in camera review. The Court of Appeals disagreed. A “fishing expedition” alone does not satisfy the Goldsmith standard. The mere argument that it would be appropriate to know the victim’s propensity veracity is not enough to overcome the privilege. A defendant must be able to point to some facts outside those records that make it reasonably likely that the records contain exculpatory information.

Sibug v. State, No. 2211, September Term 2012, filed October 2, 2014 (opinion by Krauser, C.J.). In 1999, Sibug was charged with multiple counts of assault and related handgun offenses. He was found not competent to stand trial and committed to the Department of Health and Mental Hygiene for inpatient treatment. Three years later, the circuit court received a letter from the hospital where Sibug had been committed stating that he had regained his competence to stand trial. In 2004, he appeared before the circuit court and, without any competency hearing having been held, he entered a plea of not guilty to an agreed statement of facts to one count of second degree assault. He was imprisoned, but a year later, his conviction was vacated based on ineffective assistance of counsel. He was then granted a new trial.

In 2008, Sibug was retried and a jury found him guilty of multiple counts of assault and handgun use. Neither before nor during trial did Sibug allege that he was incompetent to stand trial. After the jury found him guilty, his counsel filed a motion for a new trial, asserting that Sibug had not been competent to stand trial. The motion was considered at Sibug’s sentencing proceeding. The trial judge noted that neither Sibug nor his counsel had alleged, either before or during trial, that his competency was in question. The judge further noted that the court file contained a hospital’s letter stating that Sibug was competent and that he had “seemed to understand exactly what was going on” during his trial. The judge found that he was competent and denied the motion. Sibug appealed to the Court of Special Appeals, arguing that the trial court denied him due process by failing to determine whether he had regained his competency to stand trial before proceeding with his new trial.

COSA affirmed the conviction. Criminal Procedure Article subsection 3-101(f) provides that a defendant is not competent to stand trial when he is not able “(1) to understand the nature or object of the proceeding; or (2) to assist in his defense.” Section 3-104(a) of the same article provides that if “before or during trial, the defendant in a criminal case… appears to the court to be incompetent to stand trial or the defendant alleged incompetence to stand trial, the court shall determine, on evidence presented in the record, whether the defendant is incompetent to stand trial.”

Before his first trial, Sibug properly alleged his incompetence. That conviction was vacated and he was granted a new trial. With that, Sibug’s case began anew procedurally. Sibug was then required to raise the issue again after a new trial was granted. The issue was not raised and his behavior in the courtroom did not trigger the judge’s duty to evaluate Sibug’s competency. Thus, the issue of his competence to stand trial was not before the court at the new trial.

The trial court was not required to address the issue when it was raised, for the first time, in a motion for a new trial after a guilty verdict. A trial court must determine a defendant’s competence to stand trial only if the question is raised before or during the trial. The judge had no obligation to make such a judicial determination at the sentencing hearing.

Williams v. State, No. 651, September Term 2012, filed October 1, 2014 (opinion by Woodward, J.). Williams was arrested and charged with first degree murder and related offenses. He was put in an interrogation room with two police officers. Just before being advised of his Miranda rights, he made the comment, “I don’t want to say nothing. I don’t know, -“. He was then given his Miranda rights, after which he confessed to shooting the victim. Prior to his trial, Williams moved to suppress his confession. His motion was denied and he pled guilty to first degree murder and use of a handgun from a not guilty to agreed statement of facts. Williams appealed his conviction to the Court of Special Appeals. In affirming the conviction, COSA answered three specific questions.

Were Appellant’s Comments Made in the Context of Custodial Interrogation? The State contended that Williams’s comment, “I don’t want to say nothing. I don’t know, -” was not an invocation of his right to silence because he said it before being advised of his Miranda rights and it was not in response to custodial interrogation. In disagreeing, COSA noted that Miranda requirements attach in the context of custodial interrogation which means that the custodial interrogation has begun or is imminent. Williams’s comment was made after he was placed in the interrogation room and afer he began to talk with the police. Thus, custodial interrogation was “imminent,” and he could invoke his right to silence under Miranda.

Was Appellant’s Invocation of His Right to Silence Unambiguous? Williams argued that his comment, “I don’t want to say nothing. I don’t know, -” was an unambiguous and unequivocal invocation of his right to silence. COSA disagreed. It decided that a suspect undergoing custodial interrogation must unequivocally and unambiguously invoke his or her right to silence before the police are required to end the interrogation. COSA agreed with the trial judge that the “I don’t know, -” added to the statement by Williams in the same breath as the first portion of his comment made what would otherwise have been a clear statement and ambiguous and equivocal one. COSA noted that the classic expression of uncertainty, “I don’t know, ” introduced a level of doubt into the message being communicated by Williams to the officers. A reasonable officer in the same circumstances would not find the individual’s comments to be an unambiguous and unequivocal invocation of the right to silence.

Did the Police Improperly Induce Appellant to Give a Confession in Violation of Maryland Common Law? Williams contended that his confession was involuntary because the police implied that he might “see outside again” if he confessed to a robbery gone bad instead of premeditated murder. COSA disagreed. It opined that the deception short of an overbearing inducement is a valid weapon for the police to use and that an appeal to the inner-psychological pressure of conscience to tell the truth does not constitute coercion. Williams’s detectives told him that there were two different charges: premeditated murder or an accidental killing during the course of a robbery. The officers did not tell him that he would face the same criminal penalty of first degree murder for either charge. Even this conduct was not an improper inducement. Although a detective told Williams that he “may never see outside again,” the detective did not promise or give any indication that he would obtain special consideration from the judge or the prosecutor. The detective also told Williams that he wanted to ensure that he “got every opportunity to tell us the truth.” Such an appeal to conscience is plainly permissible. COSA concluded that the police did not make any improper promises or inducements to gain Williams’s confession. It was not involuntary under Maryland common law.