State v. Greco
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In the Circu it Court for B altimore C ounty Case No. K 81 74022 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2343 September Term, 2009 STATE OF MARYLAND v. VINCENT GRECO, JR. Eyler, James R. Mered ith Raker, Irma S. (Retired, Specially Assigned), Opinion by Raker, J. Filed: July 7, 2011 This is a State appeal from the grant of post-conviction relief to appellee Vincent Greco, Jr., pursuant to Maryland Code (2001 , 2008 Repl. Vo l., 2010 Cum. Sup p.) § 7-106(c) of the Criminal Procedure Article.1 The Circuit Court for Baltimore County vacated the judgment of conviction for the offense of first degree murder, and granted appellee a new trial on that offense.2 The State filed an application for leave to appeal, presenting a single question: Did the circuit court err in granting post-conviction relief under Section 7-106(c) of the Criminal Procedure Article, based on the improper retroactive application of a non-constitutional evidentiary standard that was not intended to be applied retroactively? Greco presents tw o additiona l issues in his br ief, question ing the jurisdiction of this Court to hear this State s appeal and the preservation of certain arguments in the State s brief.3 We 1 Unless otherwise noted, all subsequent statutory references herein shall be to the Maryland Code (2001, 2008 Repl. Vol., 2010 Cum . Supp .) § 7-106(c) of the Criminal Proced ure Ar ticle. 2 The circuit court s original order granted post-conviction relief to appellee without specifying which convictions were granted a new trial, as Greco was convicted of rape and felony murder, bu t the circuit cou rt clarified its ord er, ruling that o nly the first degree murder convic tion sho uld be v acated . 3 Greco presents an additional question regarding the legality of the sentence imposed by the trial court when it resentenced him on the rape and felony murder convictions on September 27, 201 0. Because we shall hold that the circuit court erred in granting Greco the post-conviction relief on the first degree murder conviction, the resentencing on the other convictions necessitated by that relief becomes a nullity. This Court, therefore, does not need to address w hether this question is p roperly before it, whether the trial court had jurisdiction to resentence while this appeal was pending, or whether the new sentences imp osed were legal, and we set forth no opinion on those matters. The sentence that Greco was serving prior to the circuit court s orders granting po st-conviction relief under § 7-106(c) re mains in effect. Any argum ents that Gr eco may ha ve against the legality of that sentence have not (continued...) shall hold that this Court does have jurisdiction to hear this appeal, that the State did not waive its challenge to the a pplicability of § 7 -106(c), and that the circuit c ourt erred in grantin g Grec o post-c onvictio n relief u nder § 7 -106(c ). I. This case has a lo ng history in the c ourts. We s et forth the f acts as set ou t by this Court in Greco s direct appeal in Greco v. State, No. 1671, Sept. Term 1982, unreported (Md. Ct. Spec. A pp. June 23, 1983 ): Greco was tried for killing 78 year old Leta Jeanette Larsen who he allegedly beat brutally before he strangled and raped her in her living room on April 17, 1981. On the eve of Larsen s death, Greco, who had steadily dated Larsen s granddaughter, Sheryl Fitch, received a call from Larsen. She allege dly told Greco that she did n ot want him to continue to date her granddaughter. Larsen expressed conce rn over Greco s use o f drug s and al cohol. That night, at approxim ately 9 p.m., Gre co, while at the Ridgley Inn, drank a few beers and smoked marijuana. Additionally, he got some caffeine pills. He then went to a p arty at the Storeroom Bar where he stayed until about 2 a.m. While at the party, Greco says he drank about ten drinks - Jack Daniels and Coke and Molson s Ale. He also had some marijuana cigarettes. When Greco left the party, he took a six-pack of Michelob with him. While driving on Charles Street toward the City of Baltimore, Greco remembered the conversation with Mrs. Larsen . Because he knew she stayed up late at night watching television, he decided to stop of f to see her. At Larsen s home, Greco testified, he and Larsen had a lengthy conversation about his re latio nshi p with Sh eryl as well (...continued) been presented to this Court, and we do not address them. -2- as his use of alcohol and marijuana. Larsen and Greco allegedly began to aggravate each other. Larsen, according to Greco, started talking about sex. She then went to fix coffee. Greco reportedly went to the bathroom and when he returned, Larsen, allegedly with the top of her pajamas unbuttoned, approached him while he was drinking coffee and requested that they have sexual intercourse. Greco told the jury that he and Larsen engaged in copulation on the kitchen floor. Upon the completion of the coupling, Greco dozed off. Suddenly he was awakened by a feeling of pain in his chest. He observed Larsen standin g over h im with a knife in her h and. A struggle en sued as G reco wre stled with L arsen to obtain the k nife. Durin g that strugg le Larsen cut her hand and Greco is said to hav e fainted from the sight of blood. He regained consciousness when Larsen allegedly stabbed h im in the side. He in turn grabbed her around the neck. They then stumbled into the living room and fell upon the sofa. Fearing that Larsen would kill him, Greco put a pillow over Larsen s face because s he looked so bad. H e found la ter that she had ceased breathin g. Greco testified that w hile he was in a state of panic and fren zy, he rinsed the blood from the knife, washed his face and hands, cleansed his wounds as well as Larsen s, notwithstanding that she was obviously dead, bandaged Larsen s wounds, and then co vered h er with an afg han. Ten year old Ma ry Lee Derric kson and eleven year o ld Joelle Myers, respectively granddaughter and great granddaughter of Larsen, were staying in the house that night with Larsen. Greco, realizing that they were there, awakened them from their s upposed sleep and in formed th em that they were leaving the house with him. The trio journeyed to College Park, Maryland, in order to find Sheryl Fi tch. Gre co told S heryl wh at had h appen ed. He asserted that Larsen had seduced him and then tried to stab him. He sustained se veral mino r wound s. Sheryl returned to Baltimore with the trio and after dropp ing the two children at their parents home, Greco and S heryl proceeded to Larsen s house where Sheryl discovered that the police had arrived. Greco drove to his parents house where he was subseque ntly arrested. -3- In a jury trial in the Circuit Court for Baltimore County, Vincent Greco, Jr., testified in his own defense that he and Mrs. Larsen had consensual intercourse on the night of her death, and that, when he killed her, he believed that his actions were necessary to save h is life. To corroborate his testimo ny, Greco sought to introduc e the expert testimony of D r. Leonard Rothstein, a defense psychiatrist who had examined G reco. Dr. Rothstein offered to testify, in re levant p art, that Greco s psychiatric ma keup inclu ded a spe cific phob ia regarding physical assau lts and the sigh t of blood w hich cause d him to misperceive the threat that the 78-year-old victim pose d toward s him wh en she alleg edly stabbed h im on the night he killed her. The trial court admitted some, but not all, of Dr. Rothstein s proffered testimony. The trial court noted that, under Johnson v. State, 292 Md. 405, 439 A.2d 542 (1982), testimony offered in support of a diminished capacity defense was not admissible, and further explained its ruling, in part, as follows: Now, I would follow the opinion in Waine vs. State, 37 Md. App. at 243 . . . [that] permitted [the de fense psych iatrist] to testify in a limited fashion, and that would be that he could testify with regard to what he thinks the psychiatric makeup of the person is. . . . He cannot testify with regard to any conclusion that he has reac hed with r egard to whether or not this person might possibly be able to commit an act of violence or did in fact com mit [the act]. . . . We can find no abuse of discretion on the part of the trial judge when he allowed testimony concerning the psychological makeup of the appellant but not an ultimate conclusion, which the doctor admitted he was not competent to make. Well, basically, as I stated yesterday, certain ultimate conclusions I have prohibited and I -4- think that Waine and other cases . . . would support that view. That s my opin ion. The trial court did not permit Dr. Rothstein to testify that Greco had misperceived the threat as a result of his specific phob ia on the grounds that the testimony wa s offered in support of a diminished capacity defense, which was disallowed in Johnson, 292 Md. 405, 439 A.2d 542. D r. Rothste in was allowed, however, to testify that, among other things, Greco s psychiatric makeup included this specific phobia. After extensive bench conferences regarding the purpose of the proposed testimony, defense counsel asked Dr. Rothstein a hypothetical question as to how a person with G reco s phobia m ight react to a scenario that matched Greco s d escription of the night s ev ents. The e xchange occurred a s follows: [Defense Coun sel]: . . . I would like you to add a couple of facts to the hypothetical and ask your opinion based upon those facts. Assume the fact . . . that the defendant was awakened in pain, there was a struggle with another person, that he then saw blood. I would like yo u to add in there upon seeing blood he fainted, that he awoke a second time, saw the same blood a second time, saw this person with whom he struggled have a knife in his possession. Would in your opinion the defendant s act of perhaps strangling this woma n be cons istent with a p hobic response? [Dr. Ro thstein]: Yo u would like me no w to answ er that? [Defense Counsel]: Please. [Dr. Rothstein]: My answer would b e yes, it is consistent w ith some of the features of the operation of a phobic reaction. [Defense Counse l]: Could you e xplain what you mean by that? -5- [Dr. Rothstein]: Yes. The feature that is most directly a product of the phobic response would in that situation be the fainting upon being presented with the stimulus, the combined stimuli of the sight of blood and the perception that someone was attacking him. Tha t would b e perceive d as a threat. [Prosecutor]: Objection. [The C ourt]: I m not sure overr uled, ov erruled . [Dr. Rothstein]: (continuing) That would be perceived as a threat of bodil y harm. The second way in which it would be consistent would be that in the case of somebody who faints as a result of a ph obic respo nse to a specific stimulus or indeed anyone who experiences a fainting episode, that there is a brief period following the recovery from the fainting episode during which there is some residual confusion and unclarity of thinking. And tha t particular state o f mind w ould contribute to the possibility of a misappraisal or misevaluation of what was being seen. That coupled with the fact that the person s particular emotiona l response to the threat of b odily harm w ould tend to result in the combination of the misperception and the overreaction to that which was misperceived. On April 6, 1982, Greco was convicted of first degree murder, felony murder, and first degree rape. On May 14, 1982, the circuit court imposed consecutive terms of life imprisonment for the first degree murder and first degree rape convictions, as well as a concu rrent life senten ce for th e felon y murde r convi ction. Greco noted a direct appeal, and on June 28, 1983, this Court aff irmed Greco s convictions but reman ded the ca se for resen tencing. W e held that Greco s two separate terms of life imprisonment for felony murder and first degree murder of the same victim w ere inapprop riate as it is manifes tly impossible to kill the same person twice. On January 30, -6- 1984, the circuit court resentenced Greco to consecutive terms of life imprisonment for the first degree murder and first degree rape convictions, and the circuit court did not give Greco a sentence for his felony mu rder conv iction to avo id sentencin g him tw ice for a sing le homic ide. On February 3, 1984, Greco filed his first motion for reduction of sentence which the circuit court held sub curia until July 16, 1992 when the circuit court reduced Greco s sentence to run the life sentences concurrently. On August 17, 1992, Greco filed his second motion for a reduction of sentence, which the circuit court denied as untimely filed under Maryland Rule 4-345. The Court of Appeals reversed the denial of the second motion for a reduction of sentence on October 16, 1997, holding that the circuit court had misinterpreted the timeliness requirement in the rule. Greco v . State, 347 Md. 423, 431-32, 701 A.2d 419, 423 (1997). O n July 9, 1998 , the circuit court reduced Greco s concurrent life sentence s to life imp risonm ent, with all but fif ty years susp ended in each senten ce. On September 24, 1 998, Greco filed an application for review of sentence. On January 17, 2002, a three-judge panel declined to reduce Greco s sentence. Greco filed a third motion for modification of sentence on October 7, 1998. O n July 28, 200 6, the circuit court d enied th at motio n. On Decembe r 2, 1996, Greco filed a petition for post-conviction relief, which he amended on June 1 8, 2008 to include his claim that he was entitled to a new trial at which more of Dr. Roth stein s proff ered testimo ny would be allowed. On September 24, 2009, the -7- circuit court granted Greco s petition for post-conviction relief, reasoning that § 7-106(c)4 allowed a new trial based on the th eory that Hoey v. S tate, 311 Md. 473, 536 A.2d 622 (1988), and Simmo ns v. State, 313 Md. 33, 54 2 A.2d 1258 (1988), together overruled the rule from Johnson, 292 Md. 405, 439 A.2d 542, that had been applied in Greco s trial to exclude some o f Dr. R othstein s testimo ny. On October 23, 2009, the State filed, in this Court, an application for leave to appeal the post-conviction relief granted to G reco and, in the circuit cou rt, a motion to reconsider the post-conviction relief. On February 25, 2010, the post-conviction court issued an order that concern[ed] clarification with regard to the Court s [September 24, 2009] ordering a new trial and specified that the grant of a new trial applied on ly to Greco s conviction for 4 § 7-106(c) of the Criminal Procedure Article reads as follows: (c) Effect of judicial decision that Constitution imposes new standard. (1) This subsection applies after a decision on the merits of an allegation of error or after a proceeding in which an allegation of error may have been waived. (2) Notwithstanding any other provision of this title, an allegation of error may not be con sidered to have been finally litigated or waived under this title if a court whose decisions are binding on the lower c ourts of the State holds th at: (i) the Constitution of the United S tates or the Maryland Constitution imposes o n State crim inal proceedings a procedural or substantiv e standard n ot previous ly recognized; and (ii) the standard is intended to be applied retro spectively and would thereby affect the validity of the petitioner s conviction or sentence. -8- first degree murder and not to the convictions of first degree rape and felony murder. On April 2 3, 2010 , this Co urt gran ted the S tate s ap plication for leav e to app eal. II. Before this Court, the State argues that the circu it court erred in granting Greco s petition for post-co nviction relief because th e issue of th e admissib ility of Dr. Rothstein s testimony had been fully litigated in Greco s trial and direct appeal, and beca use Grec o did not satisfy all of the requirements in § 7-106(c) to allow an exception to the prohibition against post-conviction appeals of fully litigated matters. The State argues that [t]he circuit court erroneously determined that [the Hoey and Simmons] opinions created a new legal standard and erroneously determined that this standard was required under federal or State Constitutional law and were intended to be applied retrospectively. Since each of these elements - a new le gal stan dard, a constitutiona l mandate , and a retrosp ective intentio n - is required by § 7-106(c), the State conten ds that the circuit court erred in app lying this statute to Greco s c ase whe re none o f these elem ents are present. Furthermore, the State argues that Dr. Rothstein w as allowed to present the testimony that Greco argues was excluded, that the trial court instructed the jury on the theory of imperfect self-defense, that Greco presented a closing argument based on this theory, implicitly referencing Dr. Rothstein s testimony, and that Greco, therefore, was not prejudiced by any application of the Johnson ruling that might conflict with Hoey and Simmons. -9- Greco argues first that this Court does not have jurisdiction to hear this appeal because the circuit court order was clarified with a subsequent order, Greco filed a motion to amend the subsequent order, and that his motion is pending, which, according to Greco, means th ere is no final order from which to appeal. Greco argues next that the State has waived the issue of the applicability of § 7-106(c) and the lack of prejudice at trial because the State did not make these argum ents befor e the circuit co urt. Greco a rgues also th at Hoey and Simmons announced a new rule, that the new rule was constitutionally mandated, and that the Court of Appea ls intended th e rule to be applied retrospectively. Finally, Greco argues that he was prejudiced when he was prohibited from presenting all of Dr. Rothstein s testimony or discussing his testim ony in clo sing arg umen t, and that this corrobo rating testimo ny would have enhanced his credibility and swayed the jury such that he should be given a new trial on all his convictions. III. Before reaching the merits of the State s appeal, we must first address Greco s jurisdiction and waiver argu ments. Greco s first argument against this Court s jurisdiction is, essentially, that the S tate appealed from the wrong order. The State appealed from the circuit court s order that granted Greco a new tri al. Although the S tate asked the circuit court to reconsider this order fo r various rea sons, the circu it court did not vacate o r superced e its original order, but rather clarified in the subsequent February 25, 2010 order that the original -10- order was meant to grant a new trial for the first degree murder conviction only, as this issue had no t been s pecific ally addre ssed in th e origin al order . We hold that the State appealed from the correct order, as it was the original order that granted the new tria l, and Greco s argument is without merit. Likewise, Greco s argument that his motion to alter or amend the February 25, 2010 clarifying order denies this Court jurisdiction fails both because that motion has been denied by the circuit court and because it is not the clarification that is being appealed but the original order that granted a new trial. Greco further argu es that the Sta te has wa ived the spe cific argum ents that it makes on appeal as to why the circu it court erred in relying upon § 7-106(c) to grant a new trial based on retrospective application of Hoey and Simmons because the State did not make identical argumen ts to the circuit court. Although the State s advocacy of its position before the circuit court could have been m ore expansive, the record indicates that the State argued that the rule described in Hoey and Simmons shou ld no t be a pplied re trosp ectiv ely, that the matter at issue had been finally litigated decades earlier, and that post-conviction relief was not warranted under § 7-106(c). The circuit court then ruled that the post-conviction relief of a new trial to retrospec tively apply the rule in Hoey and Simmons was ava ilable to Greco, even though the matter had been finally litigated, because he met the criteria under § 7-106(c)(2). Maryland Rule 8-131(a) states that appellate courts ordinarily decide only those issues raised in or decided by the lower court, and even if the State did not raise the § 7-106(c)(2) criteria issue below , the circuit court clearly decided that issue. Under these circumstances, -11- it would appear absurd to prohibit the State from addressing on appeal the rationale for the circuit court s ruling more direc tly on the gro unds that the State did not anticipate correctly that rationale prior to the circuit court s ru ling. As the S tate aptly notes, the C ourt of A ppeals has said that an appellant/petitioner is entitled to present the appellate court w ith a more detailed version of the argument advanced below. See Starr v . State, 405 Md. 293, 304, 951 A.2d 87, 93 (20 08) (internal q uotations omitted). The State, on app eal, has made a mo re detailed version of the argum ent it made b elow, i.e., that po st-conviction relief was not warranted, and the circuit court clearly decided the issue the State addresses. The argument in question has not been waived.5 Greco argues also that the State failed to preserve and therefore waived the argument that post-conviction relief is inappropriate because Greco was not prejudiced by any alleged errors at his trial. Because this appeal can be resolved completely by our ruling on the § 7106(c)(2) issue, we need not reach the issue of prejudice at trial and therefore do not address it or the questio n of wh ether it is prope rly before this C ourt. 5 In addition, this Court also has discretion under Rule 8-131(a) to a decide issues neither raised in nor decided by the circuit court if necessary or desirable to guide the lower court. See Burden v. Burden, 179 Md. App. 348, 355, 945 A.2d 656, 661 (2008) (deeming exercise of such discretion necessary when the issue and the application of the analytical framework required to re solve it, are hig hly likely to recur ); Hurt v. Chavis, 128 Md. App. 626, 638, 739 A.2d 924, 930 (1999 ) (noting that such discretion ex tends even to circumstances when the parties have not even raised the issue on appeal. ). As there is a dearth of a uthority on applying § 7-106(c)(2), the circuit court here expressed a desire for appellate guidance (i.e., I would like the Court of Special Appeals, very frankly, to tell me I was wrong. ). W e exercise th is discretion to w hatever ex tent necessa ry and decide this issue. -12- IV. The circuit court granted Greco a new trial under § 7-106(c)(2). This provision allows an otherwise finally litigated allegation of error to be deemed not finally litigated in order to allow for the retrospective application of new rulings under the following conditions: . . . if a court whose dec isions are binding o n the lowe r courts of the State holds that: (i) the Constitution of the United States or the Maryland Constitution imposes on State criminal proceedings a procedural or substantive stan dard not previously recognized; and (ii) the standard is intended to be applied retrospectively and would thereby affect the validity of the petitioner's conviction or sentence. The plain meaning of this language indicates that the grant of a new trial for the retrospective application of a new ruling und er § 7-106 (c)(2) require s that all of the following six conditions m ust be met: (a) a court of binding au thority must ma ke a ruling; (b) the ruling must impose a procedural or substantive standard; (c) the standard must be not previously recognized; (d) the state or federal constitution must impose this standard; (e) the court must intend fo r the standard to be applied retrospectively; and (f) such a retrospective application must affect the validity of a conviction or sentence at issue. To determ ine the a pplicab ility of § 7-1 06(c)(2 ) to this ca se, we begin our an alysis with conditions (b), (c), and (d). We must answer three questions: Did a ruling impose a standard? Was that standard not previously recognized? And was the standard imposed by -13- the Maryland or federal co nstitution? If we answer in the negative to any of these questions, § 7-106(c)(2 ) is not applica ble and the circuit court s decision to grant him relief under this provision must be reversed. Greco contends that, in Hoey and Simm ons, the Court of Appeals held that the State and federal constitutions required that a defendant be allowed to present expert testimony regarding his mental impairment in support of a claim of im perfect self -defense, a nd that this standard was a departure from the rule set forth in Johnson. The State, on the other hand, asserts that even if these cases do set forth a new standard, nothing indicates that the new require ment is i mpose d by the f ederal o r State co nstitution . A. The Standards Both parties agree that, as set forth in Hoey and Simmons , Maryland law c urrently allows a defendant to present testimony regarding his mental impairment in support of a claim of imperfect self-defense. In order to analyze this further, we will break this ruling down into its thr ee con stituent p arts. At the most fundamental level, this rule rests on the bedrock principles tha t the State must prove each element of a criminal charge in order to conv ict and that a d efendan t is entitled to present a defense to attempt to rebut each element of such a charge. At the secondary level of State criminal law, this rule relies upon a legal definition of murder that recognizes the affirmative defen se of imperfect self-def ense based upo n an unreasonable subjective belief. At the final level, where the prior two levels are applied to the facts of a -14- trial, this rule holds that psycholog ical evidenc e of a def endant s m ental impairm ent, including testimony from a psychiatric expert, may be relevant to proving such a defense and therefore may be admiss ible. We w ill analyze each le vel describe d above a s a separate standard under § 7 -106(c)(2). B. Not Previously Recognized? Each of the three standards appears to have been recognized prior to the Hoey and Simmons decisions, and therefore § 7-106(c)(2) is inapplicable. 1. Right to Present a Defense as to Every Element Was Recogn ized Previo usly The fundamental standard regarding the State s need to prove every element of a crime and the defendant s right to present a defense was recognized long before Hoey and Simmons, and well before Greco s trial as well. Indeed, this standard was reiterated in Johnson when th e Court of Appea ls stated, [c]er tainly, we recog nize the bas ic proposition that the [S]tate must prove every element of a crime beyond a reasonable doubt, including specific intent if necessary, and that an accused is entitled to rebut the [S]tate s case. Johnson, 292 Md. at 425 n.10, 439 A.2d at 554 (citing Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 18 81, 44 L . Ed. 2d . 508 (1 975)). 2. Unreasonable Belief Imperfect Self-Defense Was Recogn ized Previo usly Imperfect self-defense, as a defense, was recognized prior to Hoey and Simmons, but was still somewhat in flux in 1982, the year of both Johnson and Greco s trial. As the C ourt of Appeals noted in Simm ons, [t]he defense of imperfect self-defense was first recognized -15- by this Court in State v. Faulkner in 198 4. See Simmons, 311 Md. at 39, 542 A.2d at 1261. In State v. Faulkner, 301 Md. 482, 495-501, 483 A.2d 759, 766-69 (1984), however, the Court of Appeals discussed several cases from as early as 1975 in which the Court of Special Appea ls had recognized various forms of imperfect self-defense, including a version of the unreason able subjective belief form of the defense. See also Shuck v. State, 29 Md. App. 33, 349 A.2d 37 8 (1975); Wentworth v. State, 29 Md . App. 110 , 349 A.2d 421 (197 5); Law v. State, 29 Md. App. 457, 349 A.2d 295 (1975). The status of this defense as a matter of Maryland law in 198 2 was tha t it had been recognized by the Court of Special Appeals, but the deta ils of it ha d not yet b een fu lly delinea ted and settled b y the Cou rt of A ppeals . 3. Admissibility of Mental Impairment Evidence Was R ecognize d Previou sly Whether the final standard, on the admissibility of psychological evidence, qualifies as being not recognize d previou sly depends on ho w one interprets the ho lding of the Court of Appeals in Johnson. In that ca se, the trial court allowed only some o f the expert psychiatrist s report offered by the defense for the purpose of mitigating first degree murder and any specific inte nt crimes, ess entially limiting the report to its discussion of the defendant s below -averag e intellige nce. See Johnson, 292 Md. at 417-18, 439 A.2d at 550. The defendant appealed this limitation, asserting that the entire report is releva nt to his defense of diminished capacity that is, he did not have sufficient m ental capac ity to form the requisite specific intent to commit some of the crimes . . . . Id. The Court of App eals held that because Maryland does not recognize diminished capaci ty as a legal doctrine -16- operating to negate specific criminal intent, it was not error to exclude evidence in support of it. Id. at 418, 439 A.2d at 550. Because the specific ruling that Maryland does not recognize the diminished capacity defense was sufficient to resolve th e evidentiary question presented in Johnson, the remainder of the opinion s discussion of the topic can be regarded properly as dicta. The Court s dicta in this section of Johnson expounded in somewhat sweeping terms on the history and rationale behind Maryland s rejection of the diminished capacity defense, on its relationship to the plea of not criminally responsible, and on the acceptable use of diminished capacity as mitiga tion du ring sen tencing . Id. at 418-29, 439 A.2d at 550-56. As will be discussed in more detail below, this sweeping dicta contained the language (e.g., that all legally sane individuals are equally capable of forming and possessing the same types and degrees of intent, id. at 420, 439 A.2d at 551) that was later misinterpreted as having created a rule even though, as dicta, it provided no binding auth ority. To the extent that the holding in Johnson is interpreted as being limited to the rejection of the diminished capacity defense, it is unproblematic because the Court of Appea ls has held consistently, and continues to hold, that the diminished capacity defense is not available in Maryland. See, e.g., Fish er and U tley v. State, 367 Md. 218, 267, 786 A.2d 706, 735 (2001); Hoey, 311 Md. at 495 n.5, 536 A.2d at 632. Yet the Johnson holding has no t always b een inte rpreted so narro wly. Greco urges this C ourt to give a n unnece ssarily broad rea ding to the holding in Johnson. In his brief, Greco characterizes the Johnson opinion as holding that a sane -17- criminal defenda nt is not entitled to present expert psychiatric testimony for the purpose of negating the elements of first degree murder. This characterization of the Johnson opinion fails to appreciate the distinction between the diminished capacity defense that a defendant is mentally incap able or less ca pable of f orming a s pecific inten t and the defense that one simply did not possess a specific intent. Although there are obvious and substantial areas of overlap between the eviden ce that one m ight offer to support the se two de fenses, there is nothing inconsistent in ruling such evidence both admissible when offered for the later defense and inadmissible when offered for the former because the former defense is not recognized in Maryland. Finding evidence inadmissible when offered for a diminished capacity defense d oes not imp ly necessarily that the same e vidence w ould be ina dmissible to show a lack of specific inten t. The Johnson opinion made no such holding regarding the lack of specific intent defense, but rather took pains to stress the distinction between evidence demonstrating that the d efendan t did not as a fact possess the requisite mental state and evidence establishing that the defendant was generally le ss capable than a normal person of forming a requisite mens rea. Johnson, 292 Md. at 425 n.10, 439 A.2d at 554 (noting that we cannot agree with those courts which easily declare that evidence of a legally sane defendant s mental impairment is always probative on the factual question of whether a particular accused entertained the requisite mental state. ). By stating that such psychological evidence was not always admissible, the Johnson Court imp lied that, neverth eless, so metim es such eviden ce wa s admis sible. -18- Six years later in Hoey and Simmons, the Court o f Appe als interpreted the holding in Johnson in the manner that Greco urges and purported to disapprove or modify the portion of the opinion that Greco finds objectionable. Focusing on certain sweeping language in the Johnson dicta (i.e., that all legally sane individuals are equally capable of forming and possessing the same types and degrees of intent, id. at 420, 439 A.2d at 551), the Court in Hoey reasoned that the legal implication of this holding was that n othing sho rt of insanity could rebut a m ental ele ment o f a crim e. Hoey, 311 Md. at 494-95, 536 A.2d at 632. The Court reaffirmed the holding of Johnson, rejecting the diminished capacity defense, but disapproved of that portion of the Johnson opinion which indicated that a criminal defendant is not entitled to present evidence of his impaired mental condition for the limited purpose of showing the absence of mens rea, without pointing out what portion of the opinion might actually do such a t hing. Id. at 495 n.5, 536 A.2d at 632. Months later, in a footnote similarly devoid of analysis, the C ourt in Simmons declared th at Hoey had modified Johnson to allow a criminal defendant to present evidence of his impaired mental condition for the limited purpose of showing the absence of mens rea. Simmons, 313 Md. at 39 n.3, 542 A .2d at 12 61. These snippets of language from Hoey and Simmons suggest that, as a result of Johnson, for the period betwe en 1982 and 198 8, Maryland did not allow defenda nts to present any expert psychia tric testimony to support a lack of mens rea. A closer examination of the Simmons opinion, however, reveals that this suggestion is incorrect. The Simmons -19- Court held not that all testimony offered for this purpose was admissible, but that a trial court could not summarily reject all such testimony offered for this purpose as a matter of law . See Simmons, 313 Md. at 47-48, 542 A.2d at 1265. One pro per limitation to such testimo ny is that a psychiatrist may be restricted from testifying as to what the defendant was actua lly thinking or believing, on the grounds that a psychiatrist cannot precisely reconstruct the emotions of a person at a specific time. Id. The Court explained that for this reason Maryland courts had held admissible psychiatric testimony when it is limited to discussion of the psychological profile of the defendant. Id. at 46, 542 A.2d at 1264. Two of the cases that the Simmons Court used to explain and support this distinction come from within the 1982-1988 time period at issue, and both aptly demonstrate that Maryland courts allowed expert psychological testimony regarding mental impairments, within limits, for the purpose of showing a lack of mens rea. See id. at 43-4 6, 542 A .2d at 12 63-64 . The Court in Simmons described a 1983 C ourt of Sp ecial App eals case where the defendant claimed h is participation in two murders was coerced, and althoug h the trial court refused to allow the psychiatrist to testify that th e defend ant did not (o r could no t) participate voluntarily in the violence, this exclusion was not an abuse of discretion because the psychiatrist had been permitted to opine that the defend ant s psychological profile revealed that he was passive and easily led. Id. at 45, 542 A.2d at 1263-64 (discussing Kanaras v. State, 54 Md. App. 568, 588, 460 A.2d 61, 73 (1983)). The Simmons Court also discussed a 1985 Court of Appeals case where the defendant from the 1982 Johnson case appe aled his -20- conviction from a dif ferent murder, and although the trial court refused to allow an expert psychiatrist to testify that Johnson was definitely under the mental control of his accomplice, the Court affirmed this exclusion because the psychiatrist was permitted to testify that Johnson had passively followed [the accomplice] in the past and was manipulated by [him] in many ways. See id. at 43-44, 542 A.2d at 1263 (discussing Johnson v. State, 303 Md. 487, 51 5, 495 A .2d 1, 15 (1985 )). The 1985 Johnson case (h ereinaf ter, Johnson 85 ) is particularly instructive as to the interpretation given to the 1982 Johnson case beca use in the 1985 case Johnson appealed, among other things, both the trial court s summ ary exclusion of evidence offered in support of a diminished capacity defense and the trial court s partial e xclusion o f expert ps ychiatric testimony discuss ed abo ve. See Johnson 85, 303 Md. at 501 -02, 495 A.2d 1 , 8. In Johnson 85, the Court of Appeals was asked to reconsider the 1982 Johnson holding, but the Cou rt instead reaffirmed Johnson and held that the evidence offered to support a diminished capacity claim w as exclu ded pro perly. Id. In the same opinion, the Johnson 85 Court acknowledged that the trial court s decision to admit some, but not all, of the testimony of Johnson s expert psychiatr ist was n ot an ab use of discretio n. Id. at 515, 495 A.2d at 15. Thus, the Court of Appeals in 1985 saw no inconsistency in approving both the 1982 Johnson opinion and the admission of expert psychiatric testimony for purposes other than determ ining sa nity. -21- For this reason, and those discussed above, Greco s description of the 1982 Johnson decision as the Court of Appeals unequivocally [holding] that expert psychiatric testimony would be admis sible in a criminal trial on ly where the d efendan t s sanity was at issu e is wrong.6 Although the language discussed from Hoey and Simmons does seem to offer support for Greco s interpretation, our analysis of the Johnson opinion an d its application to cases in the intervening years leads us to view the brief commentary on Johnson in Hoey and Simmons not as overruling a previous holding or imposing a new standard, but as clarifying a misunderstanding of the Johnson opinion. The 1982 Johnson opinion did not impose a standard contrary to the standard put forth later in Hoey and Simmons in 1988, nor did the Maryland courts appear to operate under a standard of admissibility significantly different in the year s betw een the se opin ions. We hold that the standard that evidence of a defendant s mental impairment, including expert psych iatric testim ony, may be admissible for the purpose of supporting a lack of mens rea is not a new standard and should not be considered not recognized previously for the purpose of § 7-1 06(c)(2). 6 Indeed, the record of Greco s trial also belies his assertion, as Greco was allowed to offer some, bu t not all, of his expert psychiatric testimony even though it was not offere d in support of an insanity plea. Although the Greco trial court was not always clear in its rulings or its rationales for said r ulings, the rec ord show s no sum mary exclusio n of all psychia tric testimony based on Johnson as Greco asserts that Johnson required. Rather, the trial court s actual exclusions appear to c onform fairly well with the measured limits discussed above and in Simmo ns v. State, 313 M d. 33, 43 -48, 54 2 A.2d 1258, 1 263-6 5 (198 8), Johnson v. State, 303 Md. 487, 515, 495 A.2d 1, 15 (1985), and Kanara s v. State, 54 Md. App. 568, 588, 460 A.2d 6 1, 73 (1 983). -22- C. Imposed by the Constitution of the United States or the Maryland Constitution? Only the first of the three standards a t issue, i.e., the right to p resent a def ense to each element of a crimin al charge, ap pears to be im posed by the United S tates Cons titution or Marylan d Con stitution. S ection 7 -106(c )(2) is ina pplicab le. 1. Right to Present a Defense as to Each Element Is Imposed by the United States and Maryland Constitutions The fundamental stand ard requiring the State to prov e every element of the charged crime and allowing the defenda nt to presen t a defense is imposed by both the United States Constitution and the Maryland Consitution. These requirements have long been held to be basic elements of the due process of law gu aranteed b y the Fifth and Sixth Am endmen ts to the United States Constitution and in corporated against the sta tes through the Fourtee nth Amen dment. See, e.g., Washington v. Texas, 388 U.S. 14, 17-19, 87 S. Ct. 1920, 1922-23, 18 L. Ed. 2d 1019 (1967) (holding Sixth Amendment s guarantee of compulsory process for obtaining defense witness applies to state criminal proceeding s). They are also equally guaranteed by the Marylan d Dec laration of Rig hts. See, e.g., McCray v. State, 305 Md. 126, 133, 501 A.2d 856,860 (1985) (noting that [t]he right of a defendant in a criminal trial to produce witnesses in his own behalf is a critical right, the implementation of which is guaranteed by Article 21, Maryland Declaration of Rights, and the Sixth Amendment to the United States Constitution. ); Johnson, 292 Md. at 425 n.10, 439 A.2d at 554 (noting that -23- we reco gniz e the basic pro posi tion that t he [S ]tate mus t prove ev ery element of a crime beyond a reasonab le doubt, inclu ding spec ific intent if necessary, and that an accu sed is entitled to rebut the [S]tate s case. ). This standard, therefore, can be described properly as having been imposed by a constitution. 2. Unreaso nable Belief Imperfect Self-Defense Developed From the Common Law In Faulkner, where the Court of Appeals affirmed that the unreasonable belief variation of imperfect self-defense was a viable defense to a murde r charge in Maryland, the origins, developm ent and ratio nale for the def ense we re discussed in great detail and there was no indication that the Court considered any part of the defense to be required by either the State or federa l constitu tion. Faulkner, 301 Md. at 486-501, 483 A.2d at 762-69. Rather, the Court engaged in classic common law reasoning, reviewed the logic of the various versions of imperfect self-defense advanced by different authorities, and concluded that [o]ur review of the development of the imperfect defense doctrine and examination of the jurisdictions that have addressed circumstances when the doctrine is applicable convinces us that the honest but unreasonable belief standard of imperfect self defense is the proper one to be followed in Maryland. Id. at 499-500, 483 A.2d at 768. Thus, this standard was not impos ed by a co nstitution . -24- 3. Admissibility of Mental Impairment Evidence Not Imposed by a Constitution As discussed a bove, the sta ndard reg arding adm issibility of mental im pairment evidence in Hoey and Simmons is described more accurately as a clarification th an a new ly imposed standard, but to whatever extent it might be regarded as setting a new standard, it was not imposed by any principle o r requireme nt containe d in a constitution. The Court of Appeals described its holding on this issue in Hoey in the following ma nner: [T]he Johnson opinion muddled the distinction between the concepts of criminal responsibility and mens rea . . . . We now make indelibly clear that, where a particular mental element of a crime must be p roved to establish the commission of a crime, evidence that it did not exist, whether due to mental impairment or som e other r eason r elevan t to that iss ue, is ad missible . Hoey, 311 Md. at 495, 536 A.2d at 633. The Court deemed this clarification necessary to dispel a perceived confusion between the concepts of mens rea and crim inal r espo nsib ility, but made no indication that this was the result of any constitutional mandate.7 In Simmons, the Court o f Appe als merely app lied the ruling in Hoey quoted ab ove to a case where psychological evidence was offered to bolster a defense of imperfect self- 7 To be sure, both the federal constitution and the State constitution impose many standards that may involve the concept of mens rea or criminal responsibility, but nothing in the language of Hoey v. State, 311 Md. 473, 536 A.2d 622 (1988), indicates that the Court of App eals found th e adm issib ility of men tal im pairmen t evid ence was requ ired by these documents. Rather, the o nly discussion of constitutional law in this section of Hoey stated that the documents permitted the legislature to place the burden of proving a lack of criminal responsibility on the defendant because this did not relieve the State of its burden to prove mens rea. Id. at 495, 536 A.2d at 633. -25- defense but where the trial court had summ arily exclu ded all s uch tes timony. Simmons, 313 Md. at 39-41, 542 A.2d at 1261. In light of Hoey v. S tate, Simmons is permitted to present evidence of his mental state in support of his defense of imperfect self defense. . . . [and because] of defense counsel s proffer that the expert would only testify that such a subjective belief would b e consisten t with Simmons s psychological profile we find the trial judge s ruling [that excluded all of the expert testimo ny] too br oad. Id. at 39 n.3, 40-41, 542 A.2d at 1261. The Court did not rule that the trial court had violated a constitutionally protected right of Simmons or that a mandate from such a text required the conclusion; rather, the Court reviewed the previously established principles relating to the admission of expert testimony, discussed the broad discretion a trial court is given on these questions, and concluded that the trial court erred by failing to recognize (and utilize) its own discretion. See id. at 41-48, 542 A.2d at 1261-65 . These evidentiary principles and policies of judicial discretion were the authorities that imposed whatever standard might have been set forth in Simmons. There is no ind ication th at it was impos ed by a co nstitution . D. Do A ny of the Stan dards M eet All the Req uirements U nder § 7-106 (c)(2)? We have established that only one of the standards at iss ue is imposed by a constitution, and that none of them are, in fact, not recognized prev ious ly. Because both of these conditions are required by the lang uage of § 7-10 6(c)(2)(i), none of the standards are eligible for retrospective application to a criminal trial under § 7-106(c)(2). We hold that the circuit co urt that g ranted G reco a n ew trial u nder th is statute d id so in e rror. -26- In the alternative , even if w e were to assume th at the eviden tiary standards se t forth in Hoey and Simmons were not recognized previously, they would not be eligible for retrospective application under § 7-106(c)(2) because they are not imposed by the Constitution of th e Un ited S tates or the Maryland Constitution. Greco argues that these rulings on admissibility should be deemed imposed by the constitutions because they affect the integrity of the fact-finding process, a def endant s right to put o n a defense, and fundamental issues of guil t or innocen ce. This arg ument pro ves far too much. T his reasoning would essentially consider any ruling on a matter that altered the admissibility of evidence at trial into one im posed by a c onstitution ev en if the ho lding at issue e xpressly limited its analysis to the common law or the rules of evidence. The fundamental principles embodied in our constitutions permeate and inform much of the reasoning and motivation behind our statutes, regulations, ru les and case law, but this cannot be considered enough to make decisions based on these lesser authorities regarded as imposed by the constitutions that enshrine the rights that the lesser author ities seek to prote ct. Such an interpretation w ould effectively read the constitutional imposition req uirement out of § 7 -106(c)(2). JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY REVERSED. COSTS TO BE PAID BY APPELLEE. -27-
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