State v. Greco

199 Md.App. 646

24 A.3d 135

STATE of Maryland

v.Vincent GRECO, Jr.

No. 2343

Sept. Term

2009.

Court of Special Appeals of Maryland.

July 7, 2011.

Jeremy M. McCoy (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for appellant.Christopher R. Hart (Jon R. Fetterolf, Andrew T. Boone, Williams & Connolly LLP, Washington, D.C., and Howard Cardin, Cardin & Gitomer, Baltimore, on the brief), for appellee.Panel: EYLER, JAMES R., MEREDITH, IRMA S. RAKER (Retired, Specially Assigned), JJ.IRMA S. RAKER (Retired, Specially Assigned), J.

This is a State appeal from the grant of post-conviction relief to appellee Vincent Greco, Jr., pursuant to Maryland Code (2001, 2008 Repl.Vol., 2010 Cum.Supp.) § 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 two additional issues in his brief, questioning the jurisdiction of this Court to hear this State's appeal and the preservation of certain arguments in the State's brief.³ We shall hold that this Court does have jurisdiction to hear this appeal, that the State did not waive its challenge to the applicability of § 7–106(c), and that the circuit court erred in granting Greco post-conviction relief under § 7–106(c).

I.

This case has a long history in the courts. We set forth the facts as set out by this Court in Greco's direct appeal in Greco v. State, No. 1671, Sept. Term 1982, unreported (Md. Ct. Spec.App. 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 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.”

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 his life. To corroborate his testimony, Greco sought to introduce the expert testimony of Dr. Leonard Rothstein, a defense psychiatrist who had examined Greco. Dr. Rothstein offered to testify, in relevant part, that Greco's psychiatric makeup included a specific phobia regarding physical assaults and the sight of blood which caused him to misperceive the threat that the 78–year–old victim posed towards him when she allegedly stabbed him 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 v. State, 37 Md.App. [222] at 243 [377 A.2d 509 (1977) ] ... [that] ‘permitted [the defense psychiatrist] 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 reached with regard to whether or not this person might possibly be able to commit an act of violence or did in fact commit [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 think that Waine and other cases ... would support that view. That's my opinion.”

The trial court did not permit Dr. Rothstein to testify that Greco had misperceived the threat as a result of his specific phobia on the grounds that the testimony was offered in support of a diminished capacity defense, which was disallowed in Johnson, 292 Md. 405, 439 A.2d 542. Dr. Rothstein 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 Greco's phobia might react to a scenario that matched Greco's description of the night's events. The exchange occurred as follows:

[Defense Counsel]: ... 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 you 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 woman be consistent with a phobic response?

[Dr. Rothstein]: You would like me now to answer that?

[Defense Counsel]: Please.

[Dr. Rothstein]: My answer would be yes, it is consistent with some of the features of the operation of a phobic reaction.

[Defense Counsel]: Could you explain what you mean by that?

[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. That would be perceived as a threat.

[Prosecutor]: Objection.

[The Court]: I'm not sure—overruled, overruled.

[Dr. Rothstein]: (continuing) That would be perceived as a threat of bodily 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 phobic response 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 that particular state of mind would contribute to the possibility of a misappraisal or misevaluation of what was being seen. That coupled with the fact that the person's particular emotional response to the threat of bodily harm would tend to result in the combination of the misperception and the...