Hogan v. State , 240 Md. App. 470 ( 2019 )

Hogan v. State, No. 160 of the 2018 Term, Opinion by Moylan, J.
UNLAWFUL POSSESSION OF A FIREARM – CONTENTIONS –
FACTUAL BACKGROUND – A TOPSY-TURVY THRESHOLD – THE
COMPETENCY HEARING – STATE V. HICKS – A. THE 180-DAY RULE – B.
REQUEST FOR A COMPETENCY EVALUATION – C. THE CRITICAL HICKS
POSTPONEMENT – D. “GOOD CAUSE” FOR THE POSTPONEMENT – E.
WHEN DEFENDANT AND DEFENSE COUNSEL DISAGREE – F. THE 180-DAY
RULE IN THIS CASE – SIXTH AMENDMENT SPEEDY TRIAL – A.
DISTINCTION BETWEEN 180-DAY RULE AND CONSTITUTIONAL RIGHT – B.
A MULTI-FACTORED ANALYSIS – C. LENGTH OF DELAY – D. REASON FOR
THE DELAY – A GHOST CONTENTION: THE SECOND AMENDMENT’S RIGHT
TO BEAR ARMS – SUPPOSE THE ALLEGEDLY “PLAIN ERROR” IS NOT
PLAIN –THE MENS REA OF SIMPLE POSSESSION
Circuit Court for Carroll County
Case No. 06-K-16-047478
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 160
September Term, 2018
______________________________________
STEVEN HOGAN
v.
STATE OF MARYLAND
______________________________________
Wright,
Graeff,
Moylan, Charles E., Jr.
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Moylan, J.
______________________________________
Filed: March 29, 2019
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2019-03-29 14:13-04:00
Suzanne C. Johnson, Clerk
It would be a non-sequitur to insist on a speedy trial if one were incompetent to
stand trial at all, speedily or otherwise. On the other hand, should the incompetency lapse,
the entitlement to a speedy trial would concomitantly revive, but on a new and inevitably
altered calendar. Its latter-day calculation could not escape the shadow of the earlier
incapacity. This appeal presents an interesting interplay between the thrust and
counterthrust of speedy trial versus no trial at all.
The appellant, Steven Hogan, was convicted in the Circuit Court for Carroll County
by a jury, presided over by Judge Thomas F. Stansfield, of the unlawful possession of a
firearm and the unlawful possession of ammunition by a person disqualified from
possessing either.
Contentions
On this appeal, the appellant raises, in effect, six contentions. He claims
1. that at one point in the proceedings, Judge Fred S. Hecker, over the
appellant’s objection, erroneously ruled that he was incompetent to stand
trial;
2. that the appellant was denied his right to a speedy trial pursuant to
Maryland statutory law and Maryland caselaw per State v. Hicks;
3. that the appellant was denied his constitutional right to a speedy trial
pursuant to the Sixth Amendment;
4. that Judge J. Barry Hughes erroneously denied the appellant’s challenge
to the constitutionality of Public Safety Article, Section 5–113;
5. that the State was permitted to make an improper rebuttal argument to the
jury; and
6. that Judge Stansfield gave an improper instruction to the jury.
Factual Background
As of the critical confrontation of July 14, 2016, between the appellant and
members of the Westminster City Police Department, the appellant was a 66-year-old man
who had spent most of his adult life in law enforcement. As he told the story at his trial, he
spent two and a half years with the Anne Arundel County Police.
I was a cadet, and when I made patrol, then I quit and retired. Or I quit and
went with the state because it paid more.
The State employment consisted of 23 years as a prison guard.
Q And you were with the Department of Corrections as a prison
guard, correct?
A Yeah, at -- Institution.
Q How long were you there?
A Twenty-three years. I was the regional tactical commander for
the Jessup region.
Q And at one point you got hit in the head, correct, and had
injuries to your head?
A Yeah.
The State employment was followed by a job in Howard County “in charge of
central booking.”
Q And did that cause your retirement eventually?
A No. No, that didn’t. I just got tired of that kind of work and
went with Howard County and became in charge of central booking.
Q And then you retired from Howard County?
A Yes, I did. After 15 years.
2
On July 14, 2016, the appellant’s conduct was unsettling to the police. From his
home at 438 Spalding Court in Westminster, the appellant called 911 and asked the
dispatcher to have the police respond to his home, but to do so “one at a time” because of
his broken front door. He specifically asked the dispatcher to send “that Darby,”
presumably referring to Westminster Police Sergeant Radcliffe Darby. Sergeant Darby,
however, was committed to another assignment and Sergeant Richard Lambert led the team
that responded to the appellant’s call.
While Sergeant Lambert was waiting for the appellant to respond to his knocks
on his door, he looked for damage to the door but found none. When, after the third knock,
the appellant answered the door, he appeared distraught and was holding what the sergeant
believed was a silver cell phone in his right hand. The appellant’s first response was to ask
if Sergeant Lambert was the “real police” and then to ask, “Where the fuck is Darby?” The
appellant revealed that the purpose of his 911 call was that he wanted his property back
and that “all Darby gave him was this fucking Derringer.” He was actually turning the
object referred to in his hand when Sergeant Lambert realized that the appellant was
holding a small gun and not a cell phone. Sergeant Lambert attempted to grab the gun from
the appellant’s hand, but the appellant said, “Hell no,” retreated into the house, and shut
the door. Sergeant Lambert called for backup, including the SWAT team and hostage
negotiators.
The backup team shortly responded. Sergeant Darby heard of this ongoing
encounter over the police radio and also responded to the scene. He had recognized the
3
address mentioned on the radio dispatch as the appellant’s. He also knew that the appellant
was disqualified from possessing a handgun because of a disqualifying criminal conviction
in an assault case for which Sergeant Darby had arrested him.
After the backup team arrived, the appellant came out of the house on several
occasions. Sergeant Darby, Officer Michael Beaumont, and Officer Martin Runk all
testified that the appellant was “agitated,” “hostile,” and “argumentative.” He was
continuously “demanding evidence” that he wanted returned. Sergeant Darby tried to
engage him in conversation and to convince him to come down off the front porch. When
the sergeant got within 12 feet of him, he fired his taser and hit the appellant. The appellant,
however, was able to pull out one of the probes and to run back inside the house.
He shortly reemerged and asked to speak with Sergeant Darby again. When
Sergeant Darby convinced him to step off the front porch, Officer Beaumont was able to
come from the side of the house and to fire his taser into the appellant’s back. As the
appellant fell backward, a small Derringer .38 revolver fell out of his pocket. The appellant
was arrested. The Derringer was loaded with two rounds.
A Topsy-Turvy Threshold
It is not normal for a party in a case to appeal from a ruling on which that party
prevailed. The appellant, however, now does just that. On the day first scheduled for the
trial of this case, defense counsel, explaining his reasons for grave concern, requested
Judge J. Barry Hughes to order a psychiatric examination and then to hold a hearing to
determine the competence of the appellant to stand trial. Judge Hughes, over the vociferous
4
protest of the appellant himself, granted the defense request. The appellant, whether he was
aware of it or not, had the absolute constitutional right not to be tried if he was incompetent
to stand trial. Medina v. California, 505 U.S. 437, 449, 112 S. Ct. 2572, 120 L. Ed. 2d 353
(1992); Drope v. Missouri, 420 U.S. 162, 171, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975).
At a time when the appellant was alleged to be incompetent and when the
subsequent hearing confirmed that the appellant was, indeed, incompetent, defense counsel
was, of necessity, authorized to speak for the appellant. Defense counsel made the defense
request, and the request was granted. At the subsequent competency hearing, the defense
prevailed and the appellant was found to be and to have been incompetent. The appellant
was thus protected from going to trial under the handicap of not being competent to stand
trial. The appellant was thus protected from himself.
There are, to be sure, instances in the law where defendants challenge positions
earlier taken by defense counsel. Most of those instances, however, occur in hearings
pursuant to the Post-Conviction Procedure Act. In most of those instances, moreover, the
defendants claim to have suffered inadequate assistance of counsel. The appellant has made
no such claim in this case. In this case, of course, counsel’s suggestion of incompetency
was confirmed as having been correct. Defense counsel’s judgment was thus fully
vindicated. The appellant’s first contention, challenging a procedure theoretically
requested by him (through counsel) and for his unquestioned benefit, is almost nonchalant
with no citation of authority for its unusual procedural posture. We will not quibble,
however, and will entertain the contention as it is framed.
5
Even if the appellant were, arguendo, to prevail on this first contention, a very
poignant question would then loom as to what conceivable prejudice the appellant has
suffered. He now claims that he was competent to stand trial as early as January of 2017.
He was ultimately determined to be competent and, thus competent, stood trial 11 months
later. He was found guilty.
The only possible adverse impact would have been on his right to a speedy trial. In
the multi-factored analysis of a speedy trial claim, both under Hicks and under the Sixth
Amendment, a pertinent factor would be the reason for the extra period of delay to resolve
the incompetency question. To mount such an argument, however, the appellant would
have to attribute the reason for that extra delay to the State. He would have to take a delay
requested by defense counsel and for the exclusive benefit of the defendant and, with
unquestionable ill grace, blame it on the State. Ironically, almost hopelessly lost in the
hurly-burly of the criminal trial postponement hearing of January 17, 2017, is the State’s
official position, from which it never wavered:
[PROSECUTOR]: No questions, Your Honor. I just want the record
to reflect that the State was ready to proceed today.
(Emphasis supplied). In all of the incompetency hullabaloo, the State was simply an
innocent and unobtrusive spectator.
Thus, as we stand before this strange threshold, the appellant’s primary
contention about the competency hearing loses all independent or free-standing viability
of its own and is reduced to a mere factor in the speedy trial analyses. The oddity, moreover,
remains that the appellant is appealing from an aspect of the trial he himself, through
6
counsel, requested; that was granted for his exclusive benefit; and that ultimately turned
out to be of significant benefit to him. It would have been outrageous to have tried and
convicted an incompetent defendant. Of which, more infra!
The Competency Hearing
The answer to the appellant’s first contention is easy. It is the established law of the
case that the finding of Judge Fred S. Hecker on May 11, 2017, that the appellant was
incompetent to stand trial was erroneous is a moot question.
Following the May 11, 2017, hearing on competency and well before the appellant’s
criminal trial on December 6, 2017, the appellant filed an appeal with this Court raising
precisely the same issue he now raises in this contention. His question in that earlier appeal
of August 3, 2017, was “[w]hether the circuit court erred in ruling that [he] was
incompetent to stand trial.” Argument on that earlier single-issue appeal was heard on April
5, 2018, and this Court filed its unpublished opinion on April 27, 2018. Hogan v. State,
No. 1078, September Term, 2017, filed on April 27, 2018. We are chagrined that, in the
current case, the appellant made no mention of or remote allusion to that earlier appeal.
This Court there held that, because of the later December 5, 2017, ruling that the
appellant was competent, the earlier appeal from an incompetency filing was moot. We
held:
In this case, Hogan appealed the circuit court’s May 11, 2017 finding
that he was incompetent to stand trial. When the circuit court found Hogan
competent to stand trial on December 5, 2017, it ended the controversy that
was the subject of this appeal, such that this Court can no longer fashion an
appropriate remedy. Cottman v. State, 395 Md. 729, 744 (2006) (a case is
7
moot when “there is no longer any existing controversy between the parties”
and the appellate court “can no longer fashion an effective remedy”).
(Emphasis supplied).
The only impact that the competency evaluation and the respective findings of first
incompetency and then competency could have had on the present appeal would be as a
factor in the speedy trial analyses. In that earlier appeal, Judge Stuart Berger, writing for
the Court, observed:
At oral argument, Hogan’s counsel contended that this appeal is not
moot because the circuit court violated his right to a speedy trial by ruling
that Hogan was incompetent, which prolonged his case beyond 180 days.
Indeed, we have scoured the appellant’s brief, and we find just one sentence
alleging an infringement of his right to a speedy trial. Hogan has failed to
provide a modicum of factual or legal support for his claim. See Van Meter
v. State, 30 Md. App. 406, 408 (1976) (“We cannot be expected to delve
through the record to unearth factual support favorable to appellant and then
seek out law to sustain his position.”). Further, we need not decide this issue
at this time because there is no record for which we could decide this issue.
The record is absent of any reference to a motion to dismiss filed in the circuit
court and any indication whether the circuit court made a good cause finding
to extend the case beyond 180 days.
In our view, the far preferable course is to permit Hogan to raise the
speedy trial issue in the appeal from his convictions, to the extent he has
preserved that issue. Accordingly, to the extent Hogan asserts that his right
to a speedy trial was violated because of an erroneous competency finding,
if preserved, he can make that argument in the direct appeal of his
convictions.
(Emphasis supplied).
The appellant does now raise speedy trial issues and, accordingly, we shall address
them. The contention concerning the incompetency finding of May 11, 2017, however, is,
as we have already held, dismissed as moot.
8
State v. Hicks
A. The 180-Day Rule
Maryland Code, Criminal Procedure Article, Sect. 6–103(a) provides:
(a) (1) The date for trial of a criminal matter in the circuit court shall be
set within 30 days after the earlier of:
(i) the appearance of counsel; or
(ii) the first appearance of the defendant before the circuit court,
as provided in the Maryland Rules.
(2) The trial date may not be later than 180 days after the earlier of
those events.
(Emphasis supplied).
Maryland Rule of Procedure 4–271(a) implements that statute, providing in
pertinent part:
(a) Trial Date in Circuit Court
(1) The date for trial in the circuit court shall be set within 30 days
after the earlier of the appearance of counsel or the first appearance of the
defendant before the circuit court pursuant to Rule 4–213, and shall be not
later than 180 days after the earlier of those events.
(Emphasis supplied).
It was in State v. Hicks, 285 Md. 310, 318, 403 A.2d 356, on motion for
reconsideration, 285 Md. 334, 403 A.2d 368 (1979), that Chief Judge Robert C. Murphy
said for the Court of Appeals that time limits for conducting a criminal trial such as those
now spelled out in Criminal Procedure Article, Sect. 6–103(a) and Rule 4–271(a) are
“mandatory and that dismissal of the criminal charges is the appropriate sanction where
the State fails to bring the case to trial within the . . . period prescribed by the rule and
9
where ‘extraordinary cause’[1] justifying a trial postponement has not been established.”
What has been since 1979 the 180-Day Rule is also regularly known as the Hicks Rule.
B. Request For A Competency Evaluation
In this case, counsel for the appellant first entered his appearance, along with a
demand for a speedy trial, on August 11, 2016. Accordingly, the 180-day clock began to
tick on that day and the Hicks deadline became February 7, 2017. The trial date was set for
January 17, 2017, and all parties were in court ready for trial on that morning. It was at the
appearance before Judge Hughes that morning that the issue of the appellant’s suspected
incompetence first arose. Defense counsel first raised the subject:
THE COURT: Good morning, sir. All right. This matter was set for
trial today. [Defense counsel].
[DEFENSE COUNSEL]: Yes, Your Honor. After speaking with my
client several times over the last couple of months, I have serious concerns
right now about his competency. On our last visit on Friday I was talking to
him and had certain concerns the way he was responding to certain questions.
Your Honor, we met in chambers that afternoon.
Yesterday I went to see my client again in the Carroll County
Detention Center. He advised me that he wanted to fire me after I told him
about the competency.
I spoke with him again this morning. He advised me he does not want
to fire me, so that is a pending issue. But I do feel that competency is an issue,
so Defense requests a postponement.
I know Mr. Hogan himself is going to be objecting to that request, but
I do have in my possession a request for a competency evaluation.
(Emphasis supplied).
1
The rules now require simply “good cause” and not “extraordinary cause.”
10
The appellant strenuously objected to a competency examination.
THE DEFENDANT: I object to the competency evaluation because I
had one by Dr. Katz, I had one by Dr. Hightower that states I am competent.
I had recently had one done by my attorney . . . that says I am competent.
And this fact that he is talking about seeing me, he only saw me two times,
and that is within the past four months.
I have not seen him since then, and I told him I -- he agreed to go
along with the trial, then suddenly he changed his mind.
(Emphasis supplied).
The appellant then broadened the protest as he launched into an unsolicited attack
on the Assistant State’s Attorney prosecuting the case. In a Captain Queeg-like episode of
psychological unraveling,2 he unwittingly demonstrated the likely value of a competency
evaluation.
And [the prosecutor] set me up with a lie saying that I was suicidal from
listening to a phone call. And I have a witness here who I talked to who would
tell you that she’s lying.
So, they put me on suicide watch for that, and the mental health
woman disagrees. She agrees with me that that was not founded and untrue.
And she did it deliberately to keep this paperworks [sic] from me, to keep
attorneys’ phone numbers from me, and they just now brought them up. They
would never let me have them the whole time I was on this suicide watch,
which I was taken off from yesterday. Or stepped down. You have to step
down on it.
This is all a set up. You have set me up. You took my money, and you
said you --
THE COURT: Sir. Mr. Hogan, speak to me, please. Is there anything
else that you wanted to say?
THE DEFENDANT: That’s all. I object to this.
2
Herman Wouk, The Caine Mutiny.
11
THE COURT: Okay.
THE DEFENDANT: And I object to [the prosecutor]. I’m going to
file paperwork on that.
THE COURT: All right. You can all have a seat for just a moment.
(Pause.)
THE DEFENDANT: Your Honor, can I say one more thing?
THE COURT: All right. Go ahead.
THE DEFENDANT: She’s been on my case now for three years. You
know, for three years I’ve been in jail, and I’m 66 years old. I object to her
being on this case because she’s done a lot of crooked things, and she is --
I’ve got paperwork on it, and she’s going to be sued for it.
THE COURT: All right. Thank you, sir. You can have a seat.
With each conspiratorial embellishment, the appellant displayed the very flight from
reality he was seeking to deny. In the immortal words of Alice, it got “curiouser and
curiouser.”3 Judge Hughes tried to explain to the appellant the purpose of the evaluation as
he ordered that a competency examination be made.
THE COURT: All right, Mr. Hogan. The request by [defense counsel]
for you to be evaluated is a duty that he has to the Court, should he see any
behavior that he thinks warrants such an evaluation. The fact that you may
have been evaluated and found to have been competent at some point in the
past doesn’t necessarily mean that you are competent today, because the
purpose of this evaluation is to see if at this point in time when you go to
trial, you are able to understand the nature of the proceedings against you.
THE DEFENDANT: But, Your Honor, I was evaluated yesterday.
THE COURT: Listen to me. Listen to me, please. I listened to you.
Now listen to me. Okay? The purpose of the evaluation is to see if you
3
Lewis Carroll, Alice’s Adventures in Wonderland.
12
understand the nature of the charges against [you] and can assist your
attorney in your defense. You may think there is no question on this.
[Defense counsel] has represented many, many, many clients. He is an
officer of the Court.
And while obviously he cannot tell us specifics in terms of your
conversation, that is protected by attorney/client privilege, he can tell us of
his observations and the extent to which he is concerned because we don’t
try people who are not competent to be tried. That is a bedrock principle of
the Court.
So, we have to deal with this issue first. So, I am going to order a
competency evaluation. You will have the ability to tell the evaluator what
you want to on the issue of competency.
(Emphasis supplied).
C. The Critical Hicks Postponement
It was the Assistant State’s Attorney who alerted the court to the imminence of the
Hicks deadline.
[PROSECUTOR]: Your Honor, I would agree based on the
information that I have, that a competency evaluation would be in order at
this time. We do have a Hicks date of February 7th, and I believe there would
be good cause to waive that Hicks date at this time, because I don’t believe
a competency evaluation can be done in that period of time.
(Emphasis supplied).
Judge Hughes agreed that the case would have to be postponed to a time beyond the
Hicks deadline.
I do find, based on this situation that the Court is confronted with, that there
is good cause to waive the application of the Hicks Rule in this case. So, the
Court will do that today. I will waive the operation of the Hicks Rule.
I will direct that this matter be set back in approximately 90 days so
that we can consider further proceedings in this case.
13
(Emphasis supplied).
D. “Good Cause” For The Postponement
On this State v. Hicks contention, therefore, our focus is on the January 17, 2017,
decision of Judge Hughes to order a psychiatric examination of the appellant and a
subsequent hearing to determine whether the appellant was competent to stand trial. The
postponement that was the inevitable consequence of that decision was the critical
postponement that carried the case beyond the 180-day deadline. State v. Brown, 355 Md.
89, 108–09, 733 A.2d 1044 (1999). As Judge Eldridge wrote for the Court of Appeals in
State v. Frazier, 298 Md. 422, 428, 470 A.2d 1269 (1984):
The critical order by the administrative judge, for purposes of the dismissal
sanction, is the order having the effect of extending the trial date beyond 180
days.
See also Rosenbach v. State, 314 Md. 473, 478, 551 A.2d 460 (1989).
On the Hicks issue, the only issue is that of whether Judge Hughes had “good cause”
to grant defense counsel’s request for a competence evaluation and, therefore, to postpone
the trial date to one beyond the 180-day deadline of February 7. Judge Wright’s opinion
for this Court in Thompson v. State, 229 Md. App. 385, 145 A.3d 105 (2016), is absolutely
controlling. In Thompson defense counsel moved, prior to trial, for a competency
evaluation, which the trial court granted. 229 Md. App. at 396. In subsequently arguing for
a dismissal based on a Hicks violation, Thompson argued that a competency evaluation is
not a good cause for delaying a trial beyond a Hicks deadline.
Appellant argues that a competency evaluation is not, as a matter of law, a
good cause to delay a trial, and the court was not required to wait five weeks
14
for the results of the examination and/or mandate that the evaluation be
completed by a psychiatrist. Appellant concedes, however, that once he
raised the issue of his own competency, the court was required to determine
whether he was competent to stand trial.
229 Md. App. at 397 (emphasis supplied).
Judge Wright’s answer to the contrary was sure.
The Court of Appeals has held that “[o]nce the issue of a defendant’s
competency has been raised, the proceedings cannot continue until the trial
judge determines that the defendant is competent to stand trial beyond a
reasonable doubt.” Accordingly, then, once appellant’s counsel filed the
motion for a competency evaluation, the case could not continue until the
circuit court determined that appellant was competent to stand trial.
229 Md. App. at 399 (emphasis supplied; citations omitted).
The answer to the critical question admitted of no doubt.
We agree with the State that complying with Crim. Pro. § 3–104
constitutes good cause to delay the trial beyond the Hicks time limit.
Id. (Emphasis supplied).
The Thompson opinion also established that although a trial judge might be able to
answer the competency question without ordering an evaluation, it is clearly within the
judge’s discretion to order such an evaluation.
Although appellant is correct that a determination of competency need not
be based on a medical or psychiatric examination a judge may certainly feel
that a medical or psychiatric evaluation is helpful to that determination.
Id. (Emphasis supplied; citation omitted).
A trial judge’s decision to order such an evaluation is, moreover, one that will be
reviewed by the abuse of discretion standard.
15
“‘The determination as to what constitutes a good cause, warranting an
extension of the trial date beyond the [180-day] limit, is a discretionary one,
which . . . carries a presumption of validity.’”
229 Md. App. at 398 (emphasis supplied; citations omitted).
The Court of Appeals is solidly in line. In State v. Cook, 322 Md. 93, 585 A.2d 833
(1991), the Court held that an order for a mental examination of a defendant that carried a
trial beyond the 180-day deadline did not constitute a Hicks violation. Judge Orth’s opinion
for the Court followed the earlier precedent of Carey v. State, 299 Md. 17, 472 A.2d 444
(1984), which Judge Orth summarized.
In Carey v. State, 299 Md. 17, 472 A.2d 444 (1984), the
administrative judge, within the 180-day period for trial, ordered that a
mental examination be performed on the defendant. . . . . We held that the
administrative judge’s order for a mental examination of the defendant
constituted an order postponing the trial as required by the Hicks Rule.
322 Md. at 101 (emphasis supplied).
E. When Defendant And Defense Counsel Disagree
In order to override the 180-day trial deadline, it is not necessary that the request for
a competency hearing come from the defendant personally. A sua sponte and discretionary
decision in that regard by the trial judge, for instance, would constitute “good cause” even
though neither the defendant nor defense counsel joined in the request. The appellant in
this case, however, obsesses over the fact that he expressly objected to the competency
hearing notwithstanding the fact that it was his defense counsel who requested the hearing.
The caselaw, however, has regularly and expressly included defense counsel as one of the
parties who may request a competency hearing without any regard to whether the client is
16
joining in the request. In Johnson v. State, 67 Md. App. 347, 358–59, 507 A.2d 1134, cert.
denied, 307 Md. 260, 513 A.2d 314 (1986), this Court listed the eligible parties.
[T]he trial court’s duty to determine the competency of an accused to stand
trial is triggered in one of three ways: (1) upon an allegation by the accused
himself that he is incompetent; (2) upon an allegation by defense counsel that
the accused is incompetent; or (3) upon the court’s sua sponte decision that
the accused appears to be incompetent.
....
[A] judicial determination of the accused’s competency to stand trial is
mandatory in any of those three situations[.]
(Emphasis supplied; citation omitted). See also Smith v. State, 62 Md. App. 670, 677, 491
A.2d 587, cert. denied, 304 Md. 96, 497 A.2d 819 (1985).
State v. Brown, 355 Md. at 97, expressly referred to defense counsel as a distinct
party.
“A second circumstance where it is inappropriate to dismiss the
criminal charges is where the defendant, either individually or by his
attorney, seeks or expressly consents to a trial date in violation of Rule 746.”
(Emphasis supplied; citation omitted). See also Peaks v. State, 419 Md. at 251 (“The duty
of the trial court may be triggered upon motion of the accused or defense counsel, or
upon sua sponte action of the court.” (Emphasis supplied; citation omitted).).
Hill v. State, 35 Md. App. 98, 106, 369 A.2d 98 (1977), also recognized defense
counsel as a separate and distinct party, eligible to request a competency hearing.
[T]he presumption of competency to stand trial does not disappear merely
because the issue is raised by allegations of the accused or his counsel . . .
. Such an allegation mandates no more than that the court make ‘a
determination upon testimony and evidence’ upon the issue whether an
accused is competent to stand trial.
17
(Footnote omitted).
Shiflett v. State, 229 Md. App. 645, 682–83, 146 A.3d 504 (2016), recognized
defense counsel as an eligible party without recognizing the defendant himself.
If the defendant’s competency is in doubt, whether the question is raised by
counsel or the court decides to pursue the matter sua sponte, the court must
conduct a hearing to determine “whether [the accused] has sufficient present
ability to consult with his lawyer with a reasonable degree of rational
understanding, and whether he has a rational as well as factual understanding
of the proceedings against him.”
(Emphasis supplied; citation omitted).
Thanos v. State, 330 Md. 77, 85, 622 A.2d 727 (1993), speaks to the same effect.
As the statute makes plain, a trial court’s duty to determine the
competency of the accused is triggered in one of three ways: (1) upon
motion of the accused; (2) upon motion of the defense counsel; or (3) upon
a sua sponte determination by the court that the defendant may not be
competent to stand trial.
(Emphasis supplied; citation omitted). See also Roberts v. State, 361 Md. 346, 364–65, 761
A.2d 885 (2000); Johnson v. State, 67 Md. App. 347, 358–59, 507 A.2d 1134 (1986).
In dealing with the subject of a defendant’s trial incompetency, the distinction
between defendant and defense counsel is particularly appropriate to examine. In a
situation where a defendant is deemed to be ineligible to speak for himself, it is necessary
to have counsel who can speak for him. In this case, moreover, the ultimate judgment of
the court vindicated the wisdom of defense counsel to seek a competency hearing,
notwithstanding the protests of the appellant himself. Lewis v. State, 79 Md. App 1, 555
A.2d 509, cert. denied, 316 Md. 549, 560 A.2d 1118 (1989), makes it clear that a
competency hearing is for the benefit of a defendant whether the defendant wants such a
18
hearing or not. Accordingly, any delay occasioned by such a hearing is charged to the
hearing’s ultimate beneficiary, to wit, the defendant himself.
We also observe that delays in the proceedings caused by examinations to
determine defendant’s competence are charged against the defendant
because such evaluations are solely for his benefit. Even if time limits for
such reports are violated, dismissal of the case is not the appropriate sanction.
79 Md. App. at 17 (emphasis supplied; citations omitted). See also Dyson v. State, 122 Md.
App. 413, 419, 712 A.2d 573 (“The actions of counsel in this regard, moreover, are binding
on a defendant and are not sapped of vitality simply because the defendant has not directly
or personally participated in the decision-making process.” (Emphasis supplied).), cert.
denied, 351 Md. 287, 718 A.2d 235 (1998), rev’d on other grounds, Maryland v. Dyson,
527 U.S. 465, 119 S. Ct. 2013, 144 L. Ed. 2d 442 (1999); State v. Lattisaw, 48 Md. App.
20, 28–29, 425 A.2d 1051, cert. denied, 290 Md. 717 (1981); Woodlock v. State, 99 Md.
App. 728, 738, 639 A.2d 188 (1994); Jules v. State, 171 Md. App. 458, 475, 910 A.2d 553
(2006), cert. denied, 396 Md. 525, 914 A.2d 769 (2007).
For purposes of speedy trial analysis (especially when assessing the reason for a
delay), the fact that the defendant and defense counsel are in tactical disagreement with
each other does not thereby transform defense counsel into “the State” or even into “the
court.” Defense counsel will not be treated as the opposing party. Nor need we entertain
protestations about the absence of a personal waiver of a right to a speedy trial by one who
was at the time certifiably incompetent to waive that or any other right.4 In such a state of
4
The notion of waiver, moreover, would be precluded because the 180-Day Rule is
not a personal right of a defendant. See Marks v. State, 84 Md. App. 269, 277, 578 A.2d
19
impairment, a client enjoys the services of counsel to act on his behalf and the two will
necessarily be treated as an indivisible entity.5
F. The 180-Day Rule In This Case
In this case, the 180-day clock of State v. Hicks began to tick on August 11, 2016.
On the scheduled trial date of January 17, 2017, the day on which Judge Hughes granted
defense counsel’s request for a competency hearing, the Hicks calendar was at Day 159.
There were still 21 days to go before the Hicks deadline of February 7, 2017. As we have
already held, “good cause” existed for ordering the competency evaluation, the order that
necessarily carried the Hicks trial date beyond the 180-day deadline. All parties agree that
as of January 11, 2017, there had been no even arguable Hicks violation.
Beyond that date, a monolithic, overriding, and absolutely neutral circumstance took
complete control of the entire trial scheduling process. Neither the court nor the defense
nor the State could countermand the imperative that the appellant could not be tried unless
and until the appellant was judicially determined to be competent to stand trial. Neutral
828 (1990) (“The purpose of the 180 day rule is to protect the societal interest in the prompt
trial of criminal cases; the benefits that the rule confers upon defendants are incidental.”
(Citation omitted).).
5
On an earlier occasion, the appellant was convicted of burglary and assault. On the
first scheduled day for trial in that case, it was the appellant himself who requested a
postponement so that he could be given a neurological evaluation. The appellant’s request
was granted and a trial delay of almost two years followed. In that case, as in this, the
appellant claimed violation of both Hicks v. State and the Sixth Amendment. On appeal,
this Court affirmed the convictions. Hogan v. State, No. 895, September Term, 2016, filed
on September 14, 2017, cert. denied, 457 Md. 146, 177 A.3d 76 (2018).
20
circumstances, beyond the control of any (or, indeed, all) of the parties, were in total control
of the scheduling process.
The full range of psychiatric evaluations and studies of the appellant were duly
conducted. Judge Hughes was informed on April 5, 2017, that the competency evaluation
had been made. Accordingly, a full competency hearing was scheduled for May 11, 2017,
and was conducted on that day before Judge Hecker. The determination of that hearing,
which we have heretofore affirmed supra, was that the appellant was, indeed, incompetent
to stand trial. That determination ipso facto negates any claims of the appellant that his trial
could have been somehow rescheduled to a time before May 11, 2017. Such a rescheduling
would have been during a period of incompetency. Looking forward from May 11, 2017,
it was equally obvious that no trial date could be scheduled for the appellant unless and
until he was judicially determined to be competent to stand trial, whether or not such a
change in the appellant’s circumstances would take weeks or months or years.
During the summer of 2017, Dr. Hightower reached the conclusion, apparently
because the appellant was on his prescribed medications, that the appellant was then
competent to stand trial. Her report to that effect was received by the court on September
25, 2017. A competency hearing was promptly scheduled for October 3, 2017. That hearing
date, however, was postponed at the request of defense counsel because of a scheduling
conflict involving counsel. On October 10, 2017, there was another postponement of the
competency hearing, apparently because of a scheduling conflict involving the State. The
rescheduled hearing on the appellant’s competency status was set for December 5, 2017.
21
At the rescheduled competency hearing of December 5, 2017, Judge Hughes found him to
be competent to stand trial. The appellant’s rescheduled trial began the following morning,
December 6, 2017.
Once a competency evaluation of the appellant was ordered on January 17, 2017, it
was obvious that a criminal trial of the appellant could not be held until the court
determined that the appellant was competent to stand trial. That determination was made
on December 5, 2017. The appellant attempts to ensnare us, nonetheless, in the internal
chronology of the evaluation process. That is uncharted territory for a Hicks analysis. Hicks
is focused on the scheduling, postponing, and rescheduling of criminal trials. That is classic
grist for the Hicks mill. Hicks is not concerned with the passage of time that may transpire
between the various stages in the evaluation process. A Hicks analysis is not focused, e.g.,
on how long it takes to get a defendant into a mental health facility; with how long it may
take to get a defendant transferred from one facility to another; with how many
psychiatrists, psychologists, and other personnel are available and their respective
workloads; with how long it may take to get test results; or how long it may take for a
mental health facility to communicate its findings to the court. The Hicks analysis, deferred
for the period of a competency evaluation, resumes when the defendant is back in the
criminal justice system, to wit, eligible to be scheduled for a criminal trial.
Loath as we are to conflate the scheduling of a competency hearing with the
scheduling of a criminal trial, we will indulge the appellant in one regard. Assuming,
arguendo, that Hicks scrutiny was again operational when the court received Dr.
22
Hightower’s report on September 25, 2017, that the appellant was competent to stand trial,
the State would seem to be chargeable for the delay of one month and 26 days between
October 10, 2017, and December 5, 2017. Such a modest delay, however, was clearly not
an “inordinate delay” within the contemplation of Hicks. The 180-Day Rule was not
violated in this case.
Sixth Amendment Speedy Trial
A. Distinction Between 180-Day Rule And Constitutional Right
Although the appellant merged his claims pursuant to the Hicks Rule and pursuant
to the Sixth Amendment into a single contention, we have separated them into two
contentions because of the widely divergent analyses they entail. Both, to be sure, are
concerned with the trial scheduling calendar. Essentially beyond that point, however, they
veer off in very different directions. A Hicks claim is not a junior varsity speedy trial claim.
The Sixth Amendment right is constitutional. The Hicks Rule is only statutory. It
can be changed at any time at the whim of the Legislature or of the Court of Appeals (with
an assist from the Rules Committee).6 The guarantee of a speedy trial is a constitutional
right vested in a criminal defendant personally. Any benefits received by a defendant from
the Hicks Rule, on the other hand, are purely coincidental. See Marks v. State, 84 Md. App.
269, 277, 578 A.2d 828 (1990) (“[T]he benefits that the rule confers upon defendants are
6
In 1979, for instance, the Hicks Rule was changed from a 120-Day Rule into a
180-Day Rule.
23
incidental.”), cert. denied, 321 Md. 502, 583 A.2d 275 (1991). In State v. Hicks, 285 Md.
at 320, Chief Judge Murphy took note of the distinction.
The time limits prescribed by Rule 746 are not, however, the measure of the
Sixth Amendment right to a speedy trial. While the rule was adopted to
facilitate the prompt disposition of criminal cases, it stands on a different
legal footing than the Sixth Amendment’s constitutional right to a speedy
trial.
(Emphasis supplied).
In State v. Frazier, 298 Md. 422, 428, 470 A.2d 1269 (1984), Judge Eldridge
similarly wrote for the Court:
This Court also stated in the Hicks opinion that § 591 and Rule 746
were not intended to be codifications of the constitutional speedy trial right
but stand “on a different legal footing.”
(Emphasis supplied; citation omitted).
In Tapscott v. State, 106 Md. App. 109, 123, 664 A.2d 42 (1995), this Court also
observed:
Appellant mistakenly asserts that his statutory right to a speedy trial
was violated. There is no statutory right to a speedy trial. In Marks
v. State, this court clearly explained that “the purpose of the 180 day rule is
to protect the societal interest in the prompt trial of criminal cases, the
benefits that the rule confers upon defendants are incidental.” Consequently,
the mandate to the State to bring the case to trial no later than 180 days is not
a speedy trial right of a defendant.
(Emphasis supplied; citations omitted).
B. A Multi-Factored Analysis
Since 1972, the Alpha and Omega of Sixth Amendment speedy trial analysis has
been the opinion of Justice Powell for the Supreme Court in Barker v. Wingo, 407 U.S.
24
514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). The now legendary four-factored balancing
test was presented in a nutshell.
A balancing test necessarily compels courts to approach speedy trial
cases on an ad hoc basis. We can do little more than identify some of the
factors which courts should assess in determining whether a particular
defendant has been deprived of his right. Though some might express them
in different ways, we identify four such factors: Length of delay, the reason
for the delay, the defendant’s assertion of his right, and prejudice to the
defendant.
407 U.S. at 530 (emphasis supplied; footnote omitted).
C. Length Of Delay
At the outset, the Supreme Court recognized the length-of-delay factor as a
triggering mechanism. Unless the delay is long enough to be “presumptively prejudicial,”
a reviewing court need not even waste its time engaging in any further analysis. “Length
of delay’s” first function is to “provoke an inquiry.”
The length of the delay is to some extent a triggering mechanism.
Until there is some delay which is presumptively prejudicial, there is no
necessity for inquiry into the other factors that go into the
balance. Nevertheless, because of the imprecision of the right to speedy trial,
the length of delay that will provoke such an inquiry is necessarily dependent
upon the peculiar circumstances of the case.
407 U.S. at 530–31 (emphasis supplied; footnote omitted).
The words “presumptively prejudicial” are generally used to assess the length of
delay as a threshold trigger to call for further examination pursuant to Barker v. Wingo.
They are not typically used to describe the length of delay in its other capacity as one of
the four factors in the ultimate analyses of the speedy trial merits.
25
The “length of delay” factor is of significant concern to us in this case. Our concern
has nothing to do with the ultimate merits of this appellant’s speedy trial claim. Our concern
is that the inherent ambiguity of the phrase, designed as it is to serve two very distinct and
different purposes, could lead to the abuse of the concept, inadvertently we would hope, in
the heat of fervid advocacy.
This Court went out of its way in Ratchford v. State, 141 Md. App. 354, 785 A.2d
826 (2001), cert. denied, 368 Md. 241, 792 A.2d 1178 (2002), to warn of the dangers that
lurk in the dual purposes of the length-of-delay measurement. One of the two purposes
comes at the front end of the four-factored balancing test and is relatively low octane. The
other purpose comes at the back end of the balancing process and packs significantly more
punch.
The “length of delay” between arrest and trial is a term of art that
serves two separate and distinct functions in a speedy trial analysis. In its first
function, it identifies the threshold that must be crossed before any further
analysis is called for. Along the delay continuum, the trigger of
“constitutional dimensions” is not itself part of the ultimate merits of a
speedy trial claim. It simply marks the minimal point, short of which a court
will dismiss a claim summarily and will not waste its time even inquiring
into such things as reason for delay, demand-waiver, or prejudice. Beyond
that minimal or triggering point, however, the claim may not necessarily have
merit, but it is worthy at least of thoughtful consideration.
141 Md. App. at 358 (emphasis supplied).
The danger is that caselaw that could legitimately be cited for having found the
lesser purpose may be miscited as authority for finding the greater purpose.
The defense bar, however, has a chronic tendency to conflate the two
functions of “length of delay” and to transform the mere procedural catalyst
into a judicial pronouncement on the merits that takes on an apparent gravity
26
that was never intended. The phrase “constitutional dimensions” does,
indeed, pack a potent rhetorical punch. Defense attorneys, therefore,
frequently treat the preliminary finding that a delay is of “constitutional
dimensions” as persuasive argument that there was a violation of the right to
a speedy trial itself.
It is, of course, no such thing.
Id. (Emphasis supplied).
The problem is that “length of delay” may mean one thing at the front end of the
ultimate balancing test but mean something quite different at the back end. If the subtle
distinction is not meticulously maintained, the potential for abuse is rife.
“Length of delay” in one of its manifestations, moreover, is by no
means the equivalent of “length of delay” in its other manifestation. For its
procedural function, “length of delay” is the gross period of time between the
arrest and the trial or the hearing on the motion. For its function as a factor
on the merits, by contrast, the “length of delay” is the net period of time that
may be chargeable to the State or to the court system as true “delay,” some
of which, depending on other circumstances, may be given great weight and
some of which may be given only slight weight.
141 Md. App. at 360 (emphasis supplied).
In appellate brief, the appellant makes the following argument. He is not arguing
that the Court should engage in a Barker v. Wingo balancing test. That was already taken
for granted. Four cases are cited for the proposition that the time periods reflected in those
four lengths-of-delay were all treated as being “presumptively prejudicial.” The argument,
however, was on the ultimate merits of the speedy trial issue.
Generally, courts have held that it is “presumptively prejudicial” for
the prosecution or court system, or some combination of both, to cause a
delay between the defendant’s formal accusation and trial nearing twelve
months or longer. Doggett, 505 U.S. at 652 n.1 (noting that, generally, delays
approaching twelve months are “presumptively prejudicial”); see also Divver
27
v. State, 356 Md. 379, 389 (1999) (delay of one year and sixteen days raised
a “presumption of prejudice”); Brady v. State, 291 Md. 261, 265 (1981)
(“[T]he State candidly admits that the fourteen month delay . . . gives rise to
a speedy trial claim of prima facie merit.”); Epps v. State, 276 Md. 96, 111
(1975) (delay of one year and fourteen days was “presumptively
prejudicial”).
(Emphasis supplied).
Those periods of “presumptively prejudicial” delay would seem to dispose of the
speedy trial issue on its ultimate merits. But do they? In Doggett v. United States, 505 U.S.
647, 112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992), the footnote that is cited goes on to “note
that, as the term is used in this threshold context, ‘presumptive prejudice’ does not
necessarily indicate a statistical probability of prejudice; it simply marks the point at which
courts deem the delay unreasonable enough to trigger the Barker enquiry.” 505 U.S. at 652
n.1 (emphasis supplied). In Divver, 356 Md. at 389–90, the analysis of four cases was in
the context of “requiring us to engage in the balancing procedure outlined in Barker[;]” a
“speedy trial claim of prima facie merit[;]” and “of constitutional dimension so as to trigger
the prescribed balancing test.” (Emphasis supplied; internal quotation marks omitted). The
quoted passage from Brady, 291 Md. at 265, concludes, “What remains is the application
of the balancing test.” (Emphasis supplied). The Epps v. State passage concluded that the
delay in question was enough “to provoke inquiry into the other interrelated factors which
go into the balance . . . of Barker v. Wingo.” 276 Md. at 111 (emphasis supplied). Each of
the citations was unequivocally applied to a “length of delay” being analyzed in its
threshold or triggering capacity, although the passage from the appellate brief gave no
express indication of such a limitation.
28
We admonish counsel to be very careful in using an ambiguous and dual-purposed
factor such as “length of delay” without pinpointing precisely the purpose for which the
term was being used in the cited case or in using a potently descriptive phrase such as
“presumptively prejudicial” without identifying its precise context, lest counsel’s message
be misunderstood. We must always be wary of a term uttered in one context being
misapplied in a different context.
In this case, the overall length of delay ran from July 14, 2016, when the appellant
was arrested and a Statement of Charges was filed against him, to December 6, 2017, when
the appellant was tried. That computes to a delay of 16 months and 22 days. That is, we
hold, a delay that is “presumptively prejudicial,” by which we mean simply that it is a delay
of “constitutional dimensions” so as to trigger the four-factor balancing of Barker v.
Wingo. Once that threshold has been crossed, we can say with Ratchford v. State, 141 Md.
App. at 359:
Once the Sixth Amendment merits are in play, the only response that need
be made to the no longer necessary use of the phrase “constitutional
dimensions” is, “Of course, it’s of ‘constitutional dimensions’ or we
wouldn’t even be having this hearing.”
(Emphasis supplied).
As we now turn to the length of delay in its other manifestation, as one of the factors
on the ultimate merits, we are again guided by the Ratchford case.
Once we are engaged in Barker v. Wingo’s four-factored analysis, we
view the “length of delay” in a different light. As far as the length of delay
itself is concerned, what was sufficient to enable it to serve its first and
triggering function may be of only minimal significance when it comes to its
second function. Depending on which of its two functions is being served,
29
we treat the “length of delay” very differently. As one of the four factors on
the ultimate merits, it is heavily influenced by the other three factors,
particularly that of “reasons for the delay.”
Id. (Emphasis supplied). The length of delay is no longer “presumptively prejudicial.” That
threshold has been passed. It is, moreover, now largely controlled by the other factors, most
especially the reason for the delay.
D. Reason For The Delay
As Ratchford suggests, the length of delay in this case, as it bears on the ultimate
speedy trial merits, is massively, indeed, critically, affected by the reason for the delay. In
this case, there was only one delay of any constitutional significance. The reason for that
delay is dispositive of the entire speedy trial claim.
As of the originally scheduled trial date of January 17, 2017, there had been no delay
problem of any sort. The trial was still well within the Hicks Rule (Day 159 on the 180-
Day calendar). The passage of time to that point was uncontestedly for the neutral reason
of routine trial scheduling. No one was complaining about the scheduling in any way.
It was on January 17, 2017, at the express and exclusive request of defense counsel
that Judge Hughes postponed the trial and ordered that the appellant be examined to
determine if he was competent to stand trial. Defense counsel’s request in that regard was
fully vindicated when the ensuing competency examination showed that the appellant was
indeed incompetent to stand trial. From that point forward, a trial date could not, as a matter
of law, be rescheduled unless and until the appellant was legally adjudicated to be
competent to stand trial. That did not happen until December 5, 2017. As a legal matter, of
30
course, the appellant was competent to stand trial not when his psychiatrist said so but only
when the trial judge declared that to be so.
The delay for the entire incompetency saga, measured from January 17, 2017, was
one of 10 months and 19 days. Even if, arguendo, we should opt to charge the State with
responsibility for the delay in scheduling the final competency hearing from October 10,
2017, to December 5, 2017, that subtraction of one month and 26 days from the overall
incompetency delay would be negligible.
That massive delay, moreover, is chargeable exclusively to the defense. It was
requested by defense counsel. It was exclusively for the benefit of the defendant. Its result
verified the fact that it benefitted the defendant by preventing the trial of one who was
incompetent to stand trial. Judge Hughes never, sua sponte, suggested a competency
hearing. The State, of course, stood unobtrusively by and never requested anything.
The appellant, to be sure, vigorously protested his counsel’s request. This issue we
have already fully analyzed and decided supra, under the subheading of “E. When
Defendant And Defense Counsel Disagree.” It would be self-evidently incongruous if the
defense could both request a delay and then claim reversible error on the basis of the
granting of that requested delay.
The entire incompetency episode, from start to finish, was attributable to the defense
side of the trial table. The overarching reason for the delay, moreover, was not a matter of
defense trial tactics. It was, far more seriously, a matter actually controlled by the
appellant’s medical and mental condition. This reason for the delay resolves the entire
31
speedy trial issue. The other factors are inconsequential. The appellant was not denied a
constitutionally guaranteed speedy trial.
A Ghost Contention:
The Second Amendment’s Right To Bear Arms
The appellant’s fourth contention first appeared before us as a ghost contention. We
were initially nonplussed as to whether it was sufficiently preserved to permit the appellant
even to argue it on appeal. In appellate brief, the appellant, out of the blue, launched into
an abstract discussion asserting that Maryland Code, Public Safety Article, Sect. 5–133,
pursuant to which the appellant was convicted of the wrongful possession of a firearm, has
been rendered unconstitutional by the Second Amendment of the United States
Constitution.
Nowhere in the trial transcript was there any even remote reference to this
unconstitutionality argument. The appellant did not cite any such reference in the
transcript. Nor did he mention that he ever filed a possible pre-trial motion in this regard.
There was no mention that the State was ever served with such a motion or that it ever
responded to such a motion. There was no mention that such a motion was ever referred to
a judge; no mention that a hearing was ever held on the motion; and no mention as to what
disposition was ever made. The abstract Second Amendment argument simply appeared
out of the blue in the middle of the appellant’s brief. We could as readily have been asked
to debate the applicability to the appellant’s case of the United Nations Charter or of the
Magna Charta. As it first appeared, the contention was completely adrift.
32
The State, however, has come to the rescue and has seen that the record has been
supplemented. On April 4, 2017, after the appellant had been referred for a competency
evaluation but before the first competency hearing on May 11, 2017, the appellant filed
with the court a Motion To Dismiss Pursuant To The Second Amendment To The United
States Constitution. The heart of the constitutional argument was as follows:
3. In District of Columbia v. Heller, 554 U.S. 570 (2008), the Court
held that the Second Amendment “guarantee[s] the individual right to
possess and carry weapons in the case of confrontation.”
4. Subsequently, in McDonald v. Chicago, 561 U.S. 742 (2010), the
Court held that the Second Amendment’s protection of an individual’s right
to possess and carry firearms was incorporated against state and local
governments through the Due Process Clause of the Fourteenth Amendment.
5. Recently, in Caetano v. Massachusetts, 136 S. Ct. 1027 (2016), the
Court held that the right to bear arms extends to all forms of bearable
firearms.
6. For these reasons, any United States citizen has an individual right
to possess and carry firearms, regardless of whether they have been convicted
of a crime.
7. This makes sense because the courts are presumed to have the
wisdom to not let an individual roam free if they pose a threat. Stated
otherwise, no court would knowingly allow a person convicted of a crime to
interact freely with other citizens unless the court believed the person was,
due to the sentence imposed, reformed and rehabilitated. See Williams v.
New York, 337 U.S. 241, 248 (1949) (“Reformation and rehabilitation of
offenders have become important goals of criminal jurisprudence.”).
The final relief sought was dismissal of the charges.
9. For these reasons, the first, second, third and fifth counts of the
State’s Indictment seek to violate Mr. Hogan’s rights under the Second
Amendment, thus the statutes upon which they are based are unconstitutional
and the said counts should be dismissed.
33
On April 14, 2017, the State filed its State’s Response To Defendant’s Motion To
Dismiss Pursuant To The Second Amendment To The United States Constitution. The
State’s Response quoted District of Columbia v. Heller, 554 U.S. at 626, as having pointed
out that “‘nothing in our opinion should be taken to cast doubt on longstanding prohibitions
on the possession of firearms by felons and the mentally ill[.]’” The Response also cited
the Court of Appeals decision in Williams v. State, 417 Md. 479, 10 A.3d 1167 (2011):
In Williams v. State, 417 Md. 479 (2011), the Court of Appeals found
that the Second Amendment is not violated by the wear/carry/transport
handgun prohibition under Maryland Criminal Law Code Annotated § 4–
203. In that case, a distinction was made regarding handgun possession in
one’s home, which was not prohibited under 4–203, and in public, which was
prohibited under 4–203. In the case at bar, the applicable statutory
prohibition, PS 5–133, does prohibit the possession of a firearm whether it
be within or outside of one’s home. The Court’s reasoning in Williams,
however, would still carry over to the constitutionality of PS 5–133. The
Court of Appeals in Williams reaffirms the holdings in both Heller and
McDonald v. City of Chicago, 561 U.S. 742, 130 S. Ct. 3020, 177 L. Ed. 2d
894 (2010), that even though the opinions safeguarded an individual’s right
of self-defense when possession in the home was an issue, the Supreme Court
made it clear that regulatory schemes prohibiting handgun ownership by
dangerous individuals, felons and the mentally ill, among other restrictions,
are not violative of the Second Amendment, as applied to the States through
the 14th Amendment. Maryland Public Safety Code Annotated § 5–133 is
exactly the type of restrictive statute that is permitted under the Supreme
Court holdings.
The Motion To Dismiss was submitted to Judge Hughes, who signed an order on
April 21, 2017, denying it. There is no indication that there was any hearing on the Motion
To Dismiss nor that legal memoranda were submitted by counsel. Assuming, arguendo,
that this heretofore incorporeal apparition now looms palpably before us like the Spirit of
34
Christmas Present,7 we hold that Judge Hughes was not in error in denying the Motion To
Dismiss. This conviction will not imperil the “well regulated Militia.” U.S. Const. Amend.
II.
The very oddity of this contention provokes a sense of bafflement as to whether the
contention was truly substantive or only spectral. Was what appeared to be before us really
before us? The entire life span of this phase of the litigation was no more than a flash, from
April 4 through April 21 of 2017. It was a flash, moreover, that happened off stage,
apparently without a live word having been uttered by anyone in a courtroom. But for
eleventh-hour heroics by the State to correct the record, this phase of the litigation would
have suffered (or enjoyed) a premature burial. It would have been gone, and no one would
have known that it ever happened. Theoretically, there would appear to be no reason why
a dozen such abstract issues could not arise, reaching into a dozen far-flung corners of
constitutional and non-constitutional law.
It is hard, however, to conceptualize as a phase of the appellant’s trial a self-
contained sub-litigation that occurs, from start to finish, during the time when the appellant
himself was committed to a mental health hospital and was under a court-ordered
evaluation to determine whether he was incompetent to stand trial. Could a significant stage
of the appellant’s trial take place before it had been determined that the appellant was
competent to stand trial? Did not the appellant have a right to be there? Did not the
appellant have a right both to be there and to be there competently? To what extent may an
7
Charles Dickens, A Christmas Carol.
35
appellant’s non-trial (and/or period of non-triability) serve, therefore, as a platform for
deciding (and then appealing) a variety of issues not directly involved with the appellant’s
competency status? The appellant has offered us no guidance.
Suppose The Allegedly “Plain Error” Is Not Plain
The secondary charge on which the appellant was convicted in this case was the
unlawful possession of ammunition by one forbidden to possess it. The ammunition
possessed by the appellant consisted of two bullets, both of which were loaded into the
unlawfully possessed handgun. Two bullets might seem trivial, but in rebuttal argument to
the jury, the State was making the point that two bullets (or even one bullet) would be
enough to justify a conviction.
Regarding the bullets, there are two bullets. There are two bullets in
the evidence and there are two bullets that were in the gun. And that is all
you need is two bullets.
Were there more? You have a piece of paper in the evidence that the
Defendant referred to as an inventory. That inventory was of the living room
and the kitchen. It wasn’t of the rest of the house. It was just an inventory of
what was in the living room and kitchen. And that is in evidence. And there
is no bullets on there, there were no other bullets in the living room and the
kitchen. But it doesn’t matter because we only needed those two anyway. We
only needed one.
At that point, no one made any comment and the Assistant State’s Attorney went on
uninterruptedly with her rebuttal argument. Post-trial, however, in the course of a hearing
on the appellant’s Motion For A New Trial, the appellant suddenly realized that in that
segment of rebuttal argument there lurked a clear and plain instance of prosecutorial
36
misconduct in which the Assistant State’s Attorney had “flagrantly lied” to the jury about
the state of the evidence. “Flagrantly lied.” That’s a harsh charge.
Although it might initially appear that the appellant had failed to make a timely
objection and had thereby failed to preserve this objection for appellate review, the
appellant now claims that raising the objection in the course of the hearing on the Motion
For A New Trial sufficed for preservation purposes. Cases dealing with the preservation
requirement, on the other hand, make it incontrovertibly clear that a primary function of
the timely objection requirement is to permit the trial judge to correct an obvious error
while the jury is still in the box before a verdict has been rendered. That was self-evidently
no longer possible at a hearing on a post-trial motion. The appellant’s objection to the
prosecutor’s rebuttal argument has self-evidently not been preserved for appellate review.
In the alternative, the appellant asks that we take notice of plain error. In the exercise
of our discretion, we decline to do so. That is all that need be said on the subject. The
appellant’s argument on the subject is so strained, however, that we cannot refrain from
making at least brief passing comment on it.
We are cognizant of the concept of an appellate court sometimes taking notice of
unpreserved “plain error.” Does that concept embrace, however, the taking notice of
unpreserved “arcane error?” In Wieland v. State, 101 Md. App. 1, 33, 643 A.2d 446 (1994),
we clearly said, “No.”
The notion of plain error simply does not embrace arcane error.
(Emphasis supplied). We elaborated more fully on that answer.
37
The failure to give the instruction in issue might, therefore, have technically
been error. By no stretch of the imagination, however, could such an error, if
it be error, be deemed “plain.” It is an issue that has never been the subject
of an appellate decision in Maryland. At most, it has been alluded to once in
passing dicta. It is an issue of first impression. It involves, moreover, a very
subtle nuance of mens rea analysis which is on the very cutting edge of legal
thought. If error it was, it certainly was not plain. The qualifying adjective
“plain” in the phrase “plain error” is not without meaning or content.
Id. (Emphasis supplied; citations omitted).
Stockton v. State, 107 Md. App. 395, 398, 668 A.2d 936 (1995), cert. denied, 342
Md. 116, 673 A.2d 707 (1996), spoke to the same effect.
If words have meaning . . . even subtle error presumably does not
constitute plain error. Otherwise the word “error” would be enough, standing
alone, without the qualifying requirement that such error be “plain.”
(Emphasis in original). The possibility of noticing “plain error” does not exist in order to
reach out and to solve involved and intricate legal problems. It exists to correct glaring
miscarriages of justice. Those miscarriages are “plain.”
As we look for the needle of “plain error” in the haystack of the rebuttal argument,
we are sorely challenged. The search is convolutedly subtle and its theory is enigmatic.
The existence of an alleged error depends upon a defense thesis that is by no means solid.
The thesis is that the appellant was not guilty of the unlawful possession of a firearm if he
was, essentially until the last minute, oblivious to the fact that he possessed the firearm.
His, however, was a crime of simple possession, and he plays a bit fast and loose with the
mens rea of such a crime. We will discuss this more fully infra in dealing with the
appellant’s final contention.
38
A crime of simple possession does not require any specific intent nor does it require
any special scienter. McNeal v. State, 200 Md. App. 510, 524, 28 A.3d 88 (2011), aff’d,
426 Md. 455, 44 A.3d 982 (2012). It is essentially a malum prohibitum, if not quite. Simple
possession is a general intent crime. The appellant need only be aware that he is then in
possession of the forbidden item. This appellant was clearly so aware as he waved the gun
about in the presence of Sergeant Lambert. He knew it as he said, “Hell, no,” and retreated
into his house, and slammed the door. That is all that is required. There is no requirement
that he was necessarily aware of his possession of the firearm an hour earlier or a week
earlier. The defense belief in “plain error,” however, depends upon this defense thesis that
the appellant was innocent of unlawful possession if he was unaware of the presence of the
firearm in his house on the days and weeks preceding the confrontation of July 14, 2016.
The defense thesis of innocence then went one step further and conjectured that an
earlier awareness of the very presence of the gun would have suggested the appellant’s at
least occasional use of the gun. The ensuing conjecture is that if the appellant knew of the
existence of the gun and at least periodically used the gun, there would be circumstantial
evidence of such use. The circumstantial evidence supporting or negating such awareness
and use would be the tell-tale presence or absence of ammunition about the house.
The appellant’s suggestion of “plain error” then turns to the presence or absence of
such circumstantial evidence. After the appellant was arrested on July 14, 2016, the police
obtained a search warrant and searched his house. The inventory of items seized, a copy of
which was given to the appellant, listed an item of evidence seized from the living room
39
and an item of evidence seized from the kitchen. Neither of those items were bullets. The
only bullets seized were the two bullets found in the handgun itself.
Clearly, what the defense wanted to do was to make the argument that if no bullets
were found anywhere in the house, that would be circumstantial evidence supporting the
inference that the appellant had no awareness of the presence of the firearm. The State, for
its part, never gainsaid that argument. It never said, or even suggested, that bullets had been
found somewhere in the house other than in the kitchen and living room. By pointing out
that the inventory only spoke with respect to the living room and the kitchen, however, the
State weakened the argument that the defense wanted to make. The inventory did not
oppose the defense argument. It simply did not speak with respect to other rooms in the
house one way or the other. The other rooms in the house may indeed have been as free of
bullets as were the living room and the kitchen. That was almost certainly the case or the
inventory would have said so. What the inventory failed to do, the appellant now
complains, was affirmatively to support the defense argument based on circumstantial
evidence. With respect to inventories, it is interesting to note that Maryland Rule 4–601,
dealing with Search Warrants says, in subsection (e)(1):
(1) An officer shall make, verify, and sign a written inventory of all
property seized under a search warrant, including a general description of
electronically stored information received pursuant to the warrant in
electronic, disk, paper, or other form.
(Emphasis supplied). What the inventory must list, as was properly done in this case, is the
property that was actually seized, not the rooms that were searched. To describe the scope
of the search is not the function of an inventory list.
40
In any event, we find it inconceivable that so strained and attenuated an allegation
of error could ever be described as “plain.” It takes pages even to describe it. It is more
than arcane; it is almost invisible. It was hardly an extraordinary miscarriage of justice.
That fortunately is beside the point, however, for our basic decision, announced before
engaging in this rambling dicta, remains that, in our discretion, we decline to notice this
unpreserved objection.
The Mens Rea Of Simple Possession
The appellant’s final contention is that Judge Stansfield erroneously refused to give
his requested instruction to the jury to the effect that the appellant could not be convicted
of illegally possessing a firearm if his possession was designed solely to hand over the
firearm to the police in order to comply with the law. With respect to such a contention,
this case is the mirror image of McNeal v. State, 200 Md. App. 510, 28 A.3d 88 (2011),
aff’d, 426 Md. 455, 44 A.3d 982 (2012). The defendant in McNeal was attempting to
interpose precisely the same defense to the possession of a firearm charge that the appellant
here is now advancing. The requested jury instruction in McNeal is indistinguishable from
the instruction the appellant requested here.
I would now like to explain to you the doctrine of “mens rea.” [McNeal] has
explained to you that he found the weapon just prior to his arrest, and that he
picked it up intending to turn it into the police department, and also to see to
it that it did not cause injury to any of the children in the area. The doctrine
of mens rea, or wrongful intent, requires that a defendant have a wrongful
intent before he can be convicted of a criminal offense.
200 Md. App. at 523 (emphasis supplied).
41
The trial judge in McNeal declined to give the requested instruction, just as Judge
Stansfield declined to give it in this case. The defendant’s contention in McNeal
foreshadowed precisely the appellant’s contention here.
McNeal contends that “it was error [for the court] to refuse his
counsel’s requested instruction,” because “[t]he instructions that were given
did not adequately convey to the jury that [McNeal] should not have been
convicted of . . . the possession of a firearm . . . if he intended to possess . . .
it only for the purpose of turning it over to the police.”
200 Md. App. at 523–24 (emphasis supplied).
This Court, speaking through Judge Salmon, rejected the contention there,
explaining that the crime of simple unlawful possession did not include the element of
“wrongful intent,” as urged by the appellant here.
We reject that contention. “In order for . . . evidence supporting [a] handgun
possession conviction to be sufficient, it must demonstrate either directly or
inferentially that [the defendant] exercised some dominion or control over
the” handgun. Parker v. State, 402 Md. 372, 407, 936 A.2d 862 (2007). . . .
“Wrongful intent” is not an element of unlawful possession of a regulated
firearm as defined by PS Section 5–133(b), supra, and therefore the court did
not err in omitting the element from its instructions to the jury.
200 Md. App. at 524 (emphasis supplied).
The mens rea of simple unlawful possession requires only the defendant’s
awareness that he is in actual possession of the item he is not permitted to possess.
The charge of which appellant was convicted did require proof of mens
rea, but not the mens rea appellant suggests. Although PS Section 5–
133(b) is silent concerning the mens rea required, the Court of Appeals has
held that a “possession conviction normally requires knowledge of the illicit
item.” Parker, 402 Md. at 407, 936 A.2d 862. Here the court instructed the
jury in conformity with Parker, when it said: “the State has the obligation to
prove . . . knowledge on the part of” McNeal that “he was in possession of a
handgun.”
42
Id. (Emphasis supplied). See also Parker v. State, 402 Md. 372, 407, 936 A.2d 862 (2007).
The appellant acknowledges that McNeal v. State poses a precedential problem for
him. His solution to the problem is to reject McNeal v. State as binding authority. “The
problem with the holding,” the appellant has decided, “is that it is not well reasoned. The
above passage from McNeal constitutes the entirety of this Court’s analysis on the subject.
Clearly this Court evaded addressing the why—why should the law punish a person for
trying to comply with it?” We reject the appellant’s rejection of McNeal v. State and his
conclusion that we should follow instead United States v. Mason, 233 F.3d 619 (D.C. Cir.
2000).
We note, moreover, that the jury instruction given by Judge Stansfield as to the mens
rea of simple possession was taken verbatim from that recommended by the Maryland State
Bar Association, Maryland Pattern Jury Instructions: Criminal, 4:35.6. See Johnson v.
State, 223 Md. App. 128, 152, 115 A.3d 668 (“[I]t is well-established that a trial court is
strongly encouraged to use the pattern jury instructions.”), cert. denied, 445 Md. 6, 122
A.3d 975 (2015); Yates v. State, 202 Md. App. 700, 723, 33 A.3d 1071 (2011) (“This Court
has recommended that trial judges use the pattern instructions.”), aff’d, 429 Md. 112, 55
A.3d 25 (2012); Green v. State, 127 Md. App 758, 771, 736 A.2d 450 (1999) (“[T]he wise
course of action is to give instructions in the form, where applicable, of our Maryland
Pattern Jury Instructions.”).
We also note that at trial, the appellant argued to the court that because the
“Maryland Court of Appeals has never ruled on this issue, it is an open question in
43
Maryland.” That statement is absolutely incorrect, and we take umbrage at the disdaining
of the authority of this Court to promulgate Maryland law. In the absence of a holding by
the Court of Appeals of Maryland or by the Supreme Court of the United States to the
contrary, the holdings of this Court are the authoritatively binding law of Maryland.
Pursuant to the authoritative holding of McNeal v. State, the correctness of Judge
Stansfield’s instruction to the jury on the mens rea of a crime of simple possession is hereby
affirmed.
Incidentally, we may now note that the appellant’s argument in his preceding
contention that an unpreserved but “plain error” occurred that the Court should choose to
notice completely depended upon the defense theory of innocence that we have now
rejected in resolving the present contention. Our dicta in discussing that earlier contention
observed that the ostensible “plain error” there was not “plain.” McNeal v. State and this
present holding would now heap Pelion upon Ossa by adding that the ostensible “plain
error” was also not “error.” Thus, we not only choose not to take notice, but we can’t—
even if we wanted to. It is hard to take “plain error” notice of something that was both
esoteric and correct.
JUDGMENTS AFFIRMED; COSTS TO BE
PAID BY APPELLANT.
44