Greco v. State

427 Md. 477

48 A.3d 816

Vincent T. GRECO, Jr.

v.STATE of Maryland.

No. 86, Sept. Term, 2011.

Court of Appeals of Maryland.

June 26, 2012.

Reconsideration Denied Aug. 16, 2012.

Andrew T. Boone (Jon R. Fetterolf of Williams & Connolly, Washington, D.C.; Howard Cardin of Cardin & Gitomer, Baltimore, MD), on brief, for petitioner/cross-respondent.

Jeremy M. McCoy, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for respondent/cross-petitioner.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, BARBERA, and McDONALD, JJ.

BARBERA, J.

This matter stems from an order of the Circuit Court for Baltimore County granting Petitioner, Vincent T. Greco, Jr., postconviction relief by vacating his 1982 conviction for first degree premeditated murder and, as we shall see, leaving in place Petitioner's related convictions for felony murder and first degree rape. The Court of Special Appeals reversed that order and reinstated Petitioner's conviction for first degree premeditated murder. State v. Greco, 199 Md.App. 646, 24 A.3d 135 (2011). Petitioner filed a petition for writ of certiorari raising several issues and the State filed a conditional cross-petition. We granted both the petition and conditional cross-petition. Greco v. State, 423 Md. 450, 31 A.3d 919 (2011). The questions before us, consolidated and rephrased,¹ are: (1) Whether the Court of Special Appeals properly exercised jurisdiction when it decided the State's appeal; (2) whether Petitioner is entitled to postconviction relief because this Court's decisions in Hoey v. State, 311 Md. 473, 536 A.2d 622 (1988), and Simmons v. State, 313 Md. 33, 542 A.2d 1258 (1988), established a new, constitutionally-based rule that was intended to apply retroactively; and (3) whether the sentences are illegal.

For the reasons that follow, we hold that the Court of Special Appeals had jurisdiction to entertain the State's appeal, Petitioner was not entitled to postconviction relief, and the term-of-years sentence he received for first degree premeditated murder, but not the sentence for first degree rape, was illegal and must be corrected on remand.

I.Background

In 1982, Petitioner was convicted by a jury in the Circuit Court for Baltimore County of first degree premeditated murder,first degree rape, and first degree felony murder. We adopt the summary of the facts of the crimes, which the Court of Special Appeals set forth in its opinion in the matter now before us. Greco, 199 Md.App. at 650–52, 24 A.3d at 137–38.

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 allegedly told Greco that she did not want him to continue to date her granddaughter. Larsen expressed concern over Greco's use of drugs and alcohol. That night, at approximately 9 p.m., Greco, while at the Ridgley Inn, drank “a few beers” and smoked marijuana. Additionally, he “got some” caffeine pills. He then went to a party 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 off to see her.

At Larsen's home, Greco testified, he and Larsen had a lengthy conversation about his relationship with Sheryl as well 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 standing over him with a knife in her hand.

A struggle ensued as Greco wrestled with Larsen to obtain the knife. During that struggle Larsen cut her hand and Greco is said to have fainted from the sight of blood. He regained consciousness when Larsen allegedly stabbed him 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 she looked so bad.” He found later that she had ceased breathing.

Greco testified that while he was in a state of panic and frenzy, 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 covered her with an afghan.

Ten year old Mary Lee Derrickson and eleven year old 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 supposed sleep and informed them that they were leaving the house with him.

The trio journeyed to College Park, Maryland, in order to find Sheryl Fitch. Greco told Sheryl what had happened. He asserted that Larsen had seduced him and then tried to stab him. He sustained several minor wounds. Sheryl returned to Baltimore with the trio and after dropping the two children at their parents' home, Greco and Sheryl proceeded to Larsen's house where Sheryl discovered that the police had arrived. Greco drove to his parents' house where he was subsequently arrested.

Petitioner's defense to the charges was that he acted in self-defense and, because he suffered from a blood phobia, misperceived the threat Ms. Larsen posed and overreacted in response. Petitioner called an expert witness, Dr. Leonard Rothstein, in support of his theory of imperfect self-defense.² Petitioner sought to examine Dr. Rothstein regarding Petitioner's phobia as well as the psychiatric effects of both Petitioner's specific phobia and alcohol consumption. Petitioner asserted that such evidence was “admissible to assist the jury in understanding what the effects of alcohol and what the effects of the phobia might have had on Mr. Greco's perception[,] which lends to credibility.” Petitioner also sought to demonstrate “how the phobia and other factors affected his mental state at the time and caused him to act and how it is believable and credible that he perceived that he was acting in the manner he says he was.”

The trial court ruled that, “[w]ith respect to the proposed expert testimony concerning the mental state of the defendant, that testimony will not be admitted to support the fact that the defendant honestly but unreasonably believed that he was in danger of injury or that the killing was the only way to prevent it.” The court explained that its ruling was based on the court's understanding that Petitioner's defense theory was the equivalent of the impermissible defense of diminished capacity. The court added, though, that its “ruling [would] not preclude evidence of intoxication and its effects to negate specific intent.” After further discussion about the permitted scope of Dr. Rothstein's testimony, the court clarified its ruling:

[E]xpert testimony from Doctor Rothstein that one: the phobia was combined with alcohol and drug consumption altered the defendant's judgment and impaired the accuracy of his perception causing him to improperly assess the seriousness of the victim's alleged attack and to overreact to the alleged bodily injury, that is specifically excluded. And two, that the defendant did not as a fact premeditate or deliberate, but believed himself to be acting in self-defense, that is still part of what I call the diminished capacity imperfect self-defense defense. It would be excluded.

During trial, Dr. Rothstein testified that, “within reasonable medical certainty,” Petitioner was likely to have a “phobic response” under the circumstances in which Petitioner “was awakened to a sensation of pain and a struggle ensued with another individual during which [Petitioner] saw blood.” Dr. Rothstein gave testimony on the subject, in response to several other hypothetical questions posed by defense counsel as well as the State.

The jury convicted Petitioner of first degree premeditated murder, felony murder, and first degree rape. The trial court sentenced Petitioner to consecutive life sentences for premeditated murder and first degree rape, with a concurrent life sentence for felony murder.

On direct appeal, Petitioner argued, in part, that the trial court erred in excluding expert testimony that his “phobia of harm to his body and fainting at the sight of blood,” together with his consumption of alcohol, “caused him to misperceive and improperly assess the seriousness of the victim's attack, to overreact to his perception of the threat of bodily harm, and negated an intent to kill or inflict great bodily harm on the deceased.” With regard to that claim of error, the Court of Special Appeals, in an unreported opinion, held:

What [Petitioner] sought to do, notwithstanding a specific disavowal of the same, was to invoke the defense of diminished capacity, a defense, we note, that was rejected in Johnson v. State, 292 Md. 405 [439 A.2d 542] (1982). Irrespective of how [Petitioner] chooses to style his efforts, the result is the same, i.e., the injection into the case of the diminished capacity defense. The Court of Appeals, as we have said, rejected that defense in Johnson. Likewise, we...