Kennedy v. State

Kivi Kennedy v. State of Maryland, No. 51, September Term 2013, Opinion by Greene, J.

CRIMINAL LAW – COMPETENCY TO STAND TRIAL

In order for defense counsel to trigger a trial judge’s duty to determine a criminal defendant’s
competency to stand trial under Md. Code (2001, 2008 Repl. Vol), § 3-104(a) of the Criminal
Procedure Article, defense counsel’s motion or request for a competency determination must
be “sufficiently clear.” Counsel must make known to the court the action that the party
desires the court to take and, in the present situation, defense counsel’s vague request to have
Petitioner “evaluated” was not sufficiently clear to alert the trial judge to his duty.
Circuit Court for Baltimore City
Case No.: 110077027, 28, 29
Argued : January 14, 2014

IN THE COURT OF APPEALS

OF MARYLAND

No. 51
September Term, 2013

KIVI KENNEDY

v.

STATE OF MARYLAND

Barbera, C.J.,
Harrell,
Battaglia,
Greene,
Adkins,
McDonald,
Watts,

JJ.

Opinion by Greene, J.
Harrell and Battaglia, JJ., dissent

Filed: February 21, 2014
 At issue in this appeal is whether defense counsel’s request to have Petitioner

“evaluated,” under the circumstances, was sufficiently clear to trigger Md. Code (2001, 2008

Repl. Vol.), § 3-104(a) of the Criminal Procedure Article, which requires the trial court to

determine whether the defendant was competent to stand trial based on evidence presented

on the record. We shall hold that defense counsel did not trigger the trial judge’s duty to

make a competency determination, and we therefore affirm the judgment of the Court of

Special Appeals.

FACTS AND PROCEDURAL HISTORY

Petitioner Kivi Kennedy (“Kennedy” or “Petitioner”) was charged with first degree

murder, two counts of attempted first degree murder, and related weapons offenses stemming

from a 2010 Baltimore City shooting death. The circumstances leading to the charges against

Petitioner in this case are largely irrelevant to this appeal, and a brief recitation of those facts

are included only to provide context. The State’s evidence showed that on February 25,

2010, Petitioner arranged to meet his friend, Kevin Newsome, at the intersection of Fulton

Avenue and Baker Street in Baltimore City. Newsome arrived with two people, Dejuan

Green and Kelly Roy, in his truck with him. Petitioner got in the backseat of Newsome’s

truck and subsequently shot Newsome, Green, and Roy. Petitioner fled on foot. Newsome

and Roy were treated for gunshot wounds and released, and Green was pronounced dead at

the hospital as a result of three close range gunshot wounds to the head.

Pertinent to this appeal are certain events that transpired over the course of

Petitioner’s jury trial. On the first day of trial, during cross-examination of Kevin Newsome,
the State’s first witness, Petitioner began crying. Defense counsel requested a break in the

proceedings, and the trial judge dismissed the jury to the jury room. Counsel approached the

bench, and the following colloquy ensued:

[Defense Counsel]: And, Your Honor, this is something that I showed Judge
Peters that I couldn’t relate to my client and he wouldn’t come visit me when
I would go to the jail and he refused to come to court one day and–

[Trial Judge]: Well, do you know what provoked his reaction?
....

[Defense counsel]: I can’t, I can’t tell if, I mean, as a layman, not as a
professional doctor, I haven’t been able to really communicate with this guy.
He like, I’ll say somethin’ to him and he’ll say the same thing over and over
again, like he didn’t hear what I said to him. And I tried to express that to
Judge Peters before he sent us here. I’m not askin’ for a mistrial or anything
like that, but I did – you heard me tell Judge Peters that.
....

[Prosecutor]: Do you think there’s something wrong with him?

[Defense Counsel]: Yes.
....

[Trial Judge]: If you are requesting any relief, do you want the evening break
now?

[Defense Counsel]: Yes, if we could.

[Prosecutor]: Fine. That’s fine.

When the trial resumed the following day, defense counsel made no reference to the

day before, nor did he request any relief. The State continued to call witnesses on the second

and third days of trial, all without incident. Several times throughout the trial, Petitioner

asked clarifying questions of the judge, including why his motion for judgment of acquittal

2
was denied, and what it meant to impeach him. Following explanation by the judge,

Petitioner stated that he understood in both instances. Petitioner, defense counsel, and the

trial judge also engaged in a discussion regarding Petitioner’s right to testify or not to testify.

Ultimately, Petitioner decided to testify, and during his testimony, he explained why he cried

on the first day of trial:

[Petitioner]: I cried because we all [sic] here today ‘cause of me. That’s why
we here today ‘cause of the situation and I’m sittin’ over there as somebody
who committed these crimes. I cried yesterday ‘cause I almost lost my life that
night and I didn’t shoot anybody. And I’m tellin’ ya’ll that and I’m tellin’ the
family that I did not shoot your family.

Petitioner then testified about the events leading to his arrest. He stated that an

unidentified man approached the vehicle where Petitioner was seated and pulled a gun on

him, and thereafter, a struggle between Petitioner and the unidentified individual ensued.

During cross-examination, the prosecutor asked Petitioner to re-enact this alleged struggle

over the gun with her using a magic marker as a prop. In the process of re-enacting this

struggle, Petitioner used enough force to cause the prosecutor to fall back several steps and

collide with the courtroom easel. Immediately following the incident, Petitioner said “I’m

sorry, I’m sorry” and “I didn’t mean it.” The jury was excused, and Petitioner continued to

apologize and asked if the prosecutor was alright. The following colloquy then ensued:

[Defense Counsel]: Your Honor, at this time I would ask the Court for a
mistrial. I believe the jury has been prejudiced. They now have an impression
of my client based on the State’s Attorney requesting him to demonstrate. I,
I believe I noticed the jury’s reaction. Everyone was shocked and I believe the
jury’s tainted. And I don’t believe my client will be given a fair trial, not
because of the evidence that was presented, but because of the incident that

3
 just occurred that was provoked by [the prosecutor].

[Trial Judge]: Well, let’s, let me put on the record, although there is a video
which may show what occurred, let me state that [the prosecutor] asked the
witness while standing outside of the box, he was sitting in the box, to
demonstrate how he tussled for the gun using a marker. And it is this [c]ourt’s
finding that it was not provoked in any way by the State, that Mr. Kennedy, I
guess lacks all judgment, but used strong force, enough to push [the
prosecutor] several feet back and knock over the easel, far beyond anything
that would ever be done in a re[-]enactment or demonstration. So I reject the
notion that the State has provoked anything in the Defendant’s conduct.

After the trial judge denied the motion for mistrial, defense counsel asked to approach the

bench, and thereafter the following discussion occurred:

[Defense Counsel]: Your Honor, I would express again that this is a
continuous situation with myself and [Petitioner]. At several times I have
problems communicating with him. I communicate directly with him and he
seems not to understand what I’m saying to him. Your Honor, I don’t–

[Trial Judge]: Well, how is this incident the result of a communication
problem?

[Defense Counsel]: Well, it’s, it’s something consistent I’ve seen in
[Petitioner] as far as a lack of understanding with things. If we attribute it to
he used too much force and improper force, I would consistently say this is
what I’ve experienced with him, a lack of understanding of things I say to him.
I don’t understand things that he says to me at times. I haven’t been able to
talk to him about the case and I would just ask the Court for a mistrial –

[Trial Judge]: All right. The motion is –

[Defense Counsel]: – and have him evaluated.

[Trial Judge]: The motion is denied. As I’ve said in connection with this
incident, I think it’s a lack of judgment. (Emphasis added.)

Thereafter, the prosecutor requested to proceed with the trial, and defense counsel

4
stated: “I would just make a last argument. This could be misconstrued by the jury as my

client being violent and he’s, he’s been prejudiced by this act and I’ll submit on that. Thank

you.” The trial judge then responded that the “[m]otion for mistrial is denied,” which was

his third time doing so. Cross-examination of Mr. Kennedy was completed without incident.

At the conclusion of trial, the jury convicted Petitioner of second degree murder, two

counts of attempted second degree murder, three counts of use of a handgun in a crime of

violence, and one count of wearing, carrying or transporting a handgun. Petitioner was

sentenced to 65 years incarceration. Petitioner noted a timely appeal. The Court of Special

Appeals affirmed the judgment of the Circuit Court for Baltimore City in an unreported

opinion. This Court granted certiorari, Kennedy v. State, 432 Md. 211, 68 A.3d 286 (2013),

to answer the following question:

Did defense counsel trigger the competency statute, requiring the trial court to
order a competency evaluation and make a competency determination, when
counsel informed the court that he had trouble communicating with his client
and that his client was unable to assist in his defense, mentioned that there was
“something wrong” with his client, and requested that his client be evaluated?

DISCUSSION

“It has long been accepted that a person whose mental condition is such that he lacks

the capacity to understand the nature and object of the proceedings against him, to consult

with counsel, and to assist in preparing his defense may not be subjected to a trial.” Drope

v. Missouri, 420 U.S. 162, 171, 95 S. Ct. 896, 903, 43 L. Ed. 2d 103, 112-13 (1975). Once

the issue of a defendant’s competency has been raised, the proceedings cannot continue until

5
the trial judge determines that the defendant is competent to stand trial beyond a reasonable

doubt. Peaks v. State, 419 Md. 239, 252, 18 A.3d 917, 925 (2011). “Additionally,

competency to stand trial is a factual determination which will not be reversed unless it is

clearly erroneous.” Id. The proper procedure the trial court must follow when determining

a criminal defendant’s competence to stand trial is codified in Md. Code (2001, 2008 Repl.

Vol.), § 3-104(a) of the Criminal Procedure Article (hereinafter § 3-104(a)), which states:

If, before or during a trial, the defendant in a criminal case or a violation of
probation proceeding appears to the court to be incompetent to stand trial or
the defendant alleges incompetence to stand trial, the court shall determine, on
evidence presented on the record, whether the defendant is incompetent to
stand trial.

A person is incompetent to stand trial when he or she is unable “(1) to understand the nature

or object of the proceeding; or (2) to assist in one’s defense.” Md. Code (2001, 2008 Repl.

Vol.), § 3-101(f) of the Criminal Procedure Article (hereinafter § 3-101(f)).

This Court has visited the procedures mandated by § 3-104(a) many times,1 and has

determined that, when an accused’s competency is properly called into question, the actions

that must be undertaken by the trial judge can be distilled into three steps: “(1) First, a

determination of competency may be made at any time before or during a trial; (2) Second,

such a determination must be made if the defendant in a criminal case appears to be

1
This statute was formerly Md. Code (1982, 1987 Cum. Supp.), § 12-103 of the
Health- General Article, and some cited cases, including Roberts v. State, 361 Md. 346, 761
A.2d 885 (2000), interpret that prior codification. No substantive changes were made when
the statute was recodified as § 3-104(a).

6
incompetent to stand trial or the defendant alleges incompetence to stand trial; and (3)

Finally, the court must make its determination on the evidence presented on the record.”

Roberts v. State, 361 Md. 346, 364, 761 A.2d 885, 895 (2000).

At issue in the present case is the second step, which delineates the appropriate

avenues to bring the issue of competency properly before the court. “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.” Thanos v. State, 330 Md. 77, 85, 622 A.2d 727, 730 (1993). An allegation of

competency must be “sufficient” to alert the trial court to its duty to determine whether the

defendant is competent to stand trial. Cf. Jones v. State, 280 Md. 282, 286-87, 372 A.2d

1064, 1067 (1977) (concluding that the Court of Appeals need not decide whether defense

counsel’s allegations of competency were sufficient because the trial judge regarded the

statements as adequate for that purpose). Petitioner asserts only that § 3-104(a) was triggered

upon motion of the defense counsel.2

Petitioner contends that § 3-104(a) was triggered by defense counsel’s motion based

on several occurrences: that defense counsel informed the trial judge he had trouble

communicating with his client and that he believed there was “something wrong” with him,

2
Petitioner’s counsel conceded at oral argument that the trial judge did not have a duty
to raise the issue of competency sua sponte.

7
and when defense counsel requested Petitioner be “evaluated.” Respondent, meanwhile,

asserts that defense counsel failed to trigger the competency determination requirement under

§ 3-104(a) where the request was embedded in a motion for mistrial, the request was not

pursued despite ample opportunities to do so, and any proffered facts did not raise a bona

fide doubt as to Petitioner’s competency. We agree with Respondent, and shall hold that

defense counsel’s passing request to have Petitioner “evaluated” was not sufficient to trigger

the trial judge’s duty to make a determination of competency.

While it is not necessary for a party to “recite a specific litany” to request a course of

action by the trial court, see In re Ryan S., 369 Md. 26, 34, 797 A.2d 39, 44 (2002), a party

must sufficiently “make[] known to the court the action that the party desires the court to take

or the objection to the action of the court.” See Md. Rule 4-323(c) (codifying the method of

making objections, including motions for a mistrial). If a party “clearly makes the judge

aware of the course of action he or she desires the court to take and the reasons for such

course of action, the party shall have adequately preserved that issue for appellate review.”

In re Ryan S., 369 Md. at 35, 797 A.2d at 45. Indeed, it will not always be necessary for

defense counsel to recite the specific words “competency determination” when making such

a request. In the present case, however, defense counsel did not make his request known to

the court with sufficient clarity to trigger the requirements under § 3-104(a). Here, the only

instance in which defense counsel could possibly have requested that the trial judge make a

determination of Petitioner’s competency was when he made a vague request to have

8
Petitioner “evaluated.” This “request” was made at the end of a long colloquy with the trial

judge regarding defense counsel’s motion for a mistrial, and was actually made after the trial

judge had already begun ruling on that motion.

Moreover, despite defense counsel’s persistence in renewing the motion for mistrial,

his request to have Petitioner “evaluated” was never pursued, even though there were ample

opportunities to do so. Petitioner argues that defense counsel’s assertions that he had trouble

communicating with Petitioner and he did not think Petitioner understood him were further

support of the sufficiency of defense counsel’s motion for a competency determination. In

our view, the only remedy that defense counsel sought in this case was a mistrial. These

statements, concerning counsel’s lack of communication with his client, were made in the

context and in support of a motion for mistrial. There is no clear indication that the

comments were offered as a basis for challenging Petitioner’s competency to stand trial.

It is important to consider the circumstances in which defense counsel made the

request to “have him evaluated.” As evident from the trial transcript, this request was made

where the focus of the motion was for a mistrial. The decision the trial judge must undertake

when determining whether to grant a motion for mistrial is entirely different from the

decision to grant a request for an evaluation to determine competency to stand trial. This

Court has explained that, when a defendant makes a motion for a mistrial, “[t]he question is

whether the prejudice to the defendant was so substantial that he was deprived of a fair

trial[.]” Kosmas v. State, 316 Md. 587, 594-595, 560 A.2d 1137, 1141 (1989). The motion

9
made by defense counsel that is at issue here was made following the defendant’s botched

re-enactment of his struggle to take away the gun that allegedly took place when the

underlying crimes occurred. The trial judge’s focus was clearly on whether this re-enactment

was so prejudicial that the proceedings should be aborted. This is an entirely different

analysis than the analysis a trial judge engages in to decide whether to grant a request to

delay proceedings in order to evaluate the defendant’s competency to stand trial. In that

situation, the judge must decide ultimately, prior to resumption of proceedings, whether the

defendant understands the nature of the proceedings and is able to assist in his own defense.

See § 3-101(f). Because of the vague nature of defense counsel’s request to “have him

evaluated,” and without further clarification that the request was for a competency

evaluation, the trial judge’s attention was clearly on the prejudicial nature of what occurred

in front of the jury and not on whether defendant required a competency evaluation.

In addition, defense counsel’s request to “have him evaluated” is not sufficiently clear

as to the type of evaluation defense counsel was requesting. There are several different types

of “evaluations” in the criminal context, all of which could feasibly be the type of evaluation

defense counsel intended to request. For example, defense counsel here could have been

referring to a court ordered evaluation of Petitioner for alcohol and drug abuse. See Md.

Code (1982, 2009 Repl. Vol.), §§ 8-505–06 of the Health-General Article (codifying the

procedures for committing a criminal defendant for an alcohol or drug abuse evaluation and

mandating that such orders may be ordered during trial). Additionally, defense counsel could

10
have been requesting an evaluation pursuant to a potential plea of not criminally responsible,

Md. Code (2001, 2008 Repl. Vol.), § 3-110 of the Criminal Procedure Article, or an

emergency evaluation if counsel believed the defendant presented a danger to himself or

others, Md. Code (1982, 2009 Repl. Vol.), § 10-622 of the Health-General Article. Because

defense counsel requested to “have him evaluated” following a violent display by Petitioner,

all three of the above alternative evaluations were plausible requests defense counsel could

have intended to make.

Despite Petitioner’s attempt to compare the present case to Roberts, 361 Md. 346, 761

A.2d 885, and Hill v. State, 35 Md. App. 98, 369 A.2d 98 (1977), both cases are readily

distinguishable and illustrate requests for a competency determination that are sufficiently

clear so as to trigger the trial judge’s duty under § 3-104(a). In Roberts, defense counsel filed

a written Motion to Request Mental Examination with the trial court. 361 Md. at 354-55, 761

A.2d at 890. In general, the motion provided that defendant had a long history of psychiatric

problems, that counsel had difficulty communicating with defendant, and that both of

defendant’s physicians believed she should have been placed in a psychiatric hospital. Id.

The Motion concluded by stating that

Ms. Roberts, through counsel[,] asks this Court to issue an order that she be
evaluated by a suitable licensed or certified examiner . . . . Counsel believes
that this examination is very necessary and should be done as soon as possible
. . . . If the Court believes that a hearing on the issue of competency is
necessary or if any additional information is required, counsel would be more
than happy to provide same.

Roberts, 361 Md. at 355, 761 A.2d at 890. To be sure, this motion made by defense counsel

11
in Roberts was a model of clarity. Although such an extensive proffer is not

necessary–indeed, “a defendant merely needs to . . . allege incompetence in order to trigger

the need for a competency determination,” Roberts, 361 Md. at 365 n.14, 761 A.2d at 895

n.14–it does clearly and unequivocally alert the trial judge of his or her duty to make a

determination of competency. In the present case, the defense counsel did not allege

incompetence with any clarity and this situation is therefore distinguishable from Roberts.

In Hill, on the second day of trial, defense counsel informed the trial judge that

Defendant indicated to me further for the first time yesterday evening that one
time [last year] he had been at Clifton T. Perkins for seven months for some
type of evaluation. He indicated he wishes me to interpose a plea of . . . not
guilty by reason of insanity at the time of the alleged commission of the
offense and is not competent to stand trial at this time.

35 Md. App. at 99, 369 A.2d at 99 (emphasis in original). We agree with the intermediate

appellate court in Hill that “[t]he language used by trial counsel unequivocally directed the

attention of the trial court to the dual issues (a) of insanity . . . and (b) of the competency of

the accused to stand trial.” 35 Md. App. at 104, 369 A.2d at 101. Indeed, there is no

question as to what defense counsel in Hill was requesting. Although defense counsel in Hill

did make a motion with dual purposes, namely a desire to enter a plea of not guilty by reason

of insanity and a request for a determination of defendant’s competency to stand trial, both

requests were made with equal weight in order to alert the trial judge to the dual issues with

sufficient clarity. That, however, is not this case. Here, defense counsel made several

motions for a mistrial throughout Petitioner’s trial and, only at the end of a long colloquy

12
with the trial judge about the reasons for mistrial, did counsel make a vague request to “have

him evaluated.” There is nothing “sufficiently clear” about this request to alert the trial judge

to his duty under § 3-104(a).

The situation in State v. Northam, 421 Md. 195, 26 A.3d 344 (2011), is more

comparable to the present case, and while it is not a case involving competency, we agree

with the intermediate appellate court that it is instructive. In Northam, the defendant filed

a motion for a change of venue, which listed several reasons why he was so entitled. 421

Md. at 202-03, 26 A.3d at 348. At the end of the motion, the defendant stated that he was

“requesting a Court appointed attorney and Change of Venue.” Northam, 421 Md. at 203,

26 A.3d at 348. This Court concluded that the motion made by the defendant was

sufficient only to alert the prosecutor and the trial court that [Northam] wanted
a change of venue . . . and his vague request that he wanted a “Court appointed
attorney,” buried in the final sentence of the final paragraph of what was
captioned and pled specifically and solely as a change of venue motion stands
in stark contrast to other cases where [waiver of counsel] inquiries were
mandated.

Northam, 421 Md. at 206, 26 A.2d at 350. Additionally, we reasoned that the defendant had

opportunities both at the pretrial hearing as well as prior to trial to request a discharge of

counsel, and because he failed to do so, the waiver of counsel rule was not implicated.

Northam, 421 Md. at 207, 26 A.3d at 350-51.

In the present case, like in Northam, an alleged separate request for court action was

embedded in a motion heralded as something else. Northam’s request for “a Court appointed

attorney” was embedded in a motion for a change of venue, just as Petitioner’s request to

13
“have him evaluated” was embedded in a motion for mistrial. If anything, Petitioner’s

request was even more vague than Northam’s request because it was made at the end of a

long verbal exchange, rather than made at the end of a written motion where the trial judge

could potentially go back and review what was requested.

Moreover, we concur with the Court of Special Appeals’s reasoning when it

recognized that “[h]ere, as in Northam, there were ample opportunities, before and during

the trial, for defense counsel to bring clearly to the court’s attention that appellant’s

competency to stand trial was an issue.” If defense counsel indeed had intended to request

a competency evaluation for his client, he would have, or should have, pursued such a motion

as he did when he made multiple motions for a mistrial. In this vein, we think explanatory

language from Northam is applicable here:

[Petitioner] may not take advantage of an obscurely situate[d], undecided
motion . . . . If the question is not of such importance to [defense counsel] that
he remembers to request an answer, the court cannot be charged with screening
previously decided motions to discern an unanswered sentence obscured by a
plethora of unrelated issues. Nor can we permit such distended motions to be
set as a trap for an unwary judge.

Northam, 421 Md. at 206-07, 26 A.3d at 350 (quoting White v. State, 23 Md. App. 151, 326

A.2d 219 (1974). The onus is on the defendant or defense counsel to make a request for a

competency evaluation with sufficient clarity. In the interest of fairness, one cannot expect

a trial judge to parse out each phrase uttered in a colloquy with defense counsel to determine

what is being requested. Defense counsel made it clear that he was requesting a mistrial, but

did not make it sufficiently clear that he was requesting a competency evaluation.

14
Furthermore, defense counsel did not pursue his request for a competency evaluation when

it became clear that the trial judge was only aware of the motion for mistrial, despite ample

opportunities to do so.

Petitioner, in effect, frames his argument as a “totality of the circumstances” analysis.3

This type of analysis may be appropriate if Petitioner were arguing that the trial judge had

a duty to sua sponte address his competency to stand trial,4 but because he is not doing so,

we believe this argument has no merit. Petitioner argues only that the trial judge’s duty was

triggered under § 3-104(a) by the motion of defense counsel, but then asserts that this motion

was formed from several statements spoken throughout the trial. A sufficiently clear

application for a court order does not involve piecing together various statements made over

the course of a multi-day trial to form a coherent and clear request for court action.5

3
Although Petitioner does not designate his argument as such, we believe this label
is appropriate because Petitioner calls for this Court to consider statements made throughout
the four-day trial to support the assertion that defense counsel made a proper request for a
competency evaluation under § 3-104(a).
4
A trial judge has a duty to raise the issue of a defendant’s competency sua sponte if
he or she has a bona fide doubt that the defendant is competent to stand trial. Because
“[e]vidence relevant in determining whether there exists a bona fide doubt as to an accused’s
competence[] includes evidence of a defendant’s irrational behavior, his demeanor at trial,
and any prior medical opinion on competence to stand trial[,]” Wood v. State, 436 Md. 276,
291, 81 A.3d 427, 436 (2013) (quotations and citations omitted), would be relevant under a
totality of the circumstances analysis.
5
We believe that the method for making a request for a competency determination is
analogous to the method for making objections to rulings or orders during a criminal trial.
The proper method for making objections is prescribed by Md. Rule 4-323(c), which states
in pertinent part that “it is sufficient that a party, at the time the ruling or order is made or
(continued...)

15
Nevertheless, we believe it useful to point out facts before the trial judge that Petitioner

failed to acknowledge, which shed further light on why § 3-104(a) was not triggered.

Petitioner’s contention is that “defense counsel triggered the competency statute . . .

when counsel [1] informed the court that he had trouble communicating with his client and

that his client was unable to assist in his defense, [2] mentioned that there was ‘something

wrong’ with his client[,] and [3] requested that his client be evaluated.” Notwithstanding the

fact that these statements were made over the course of the multi-day trial and a totality of

the circumstances analysis is not proper to determine whether defense counsel made a motion

under § 3-104(a), this argument fails to take into account several factors before the trial

judge. Perhaps most importantly, the trial judge had the opportunity to observe Petitioner

firsthand during a four-day trial. Over the course of the trial, Petitioner asked clarifying

questions of the judge, including why his motion for judgment of acquittal was denied, and

what it meant to impeach him. Following explanation by the judge, Petitioner stated that he

understood in both instances. Petitioner, defense counsel, and the trial judge also engaged

in a discussion regarding Petitioner’s right to testify or not testify. Later, during Petitioner’s

(...continued)
sought, makes known to the court the action that the party desires the court to take or the
objection to the action of the court.” In the present case, defense counsel’s “request” for an
evaluation did not specifically make known the action defense counsel desired the court to
make. Moreover, all the statements made by defense counsel prior to his vague request to
“have him evaluated” did not occur at the time the request was sought. Because all but one
of the statements made by defense counsel were not made at the time the ruling was sought,
and because defense counsel did not make it known the action he desired the court to take,
defense counsel’s request was not sufficiently clear when analogized to the proper method
for making an objection to a ruling or order.

16
testimony, he explained why he cried on the first day of trial. Rather than indicating

incompetency, Petitioner’s testimony reasonably shows his understanding of the court

proceedings and gravity of the situation. Therefore, these circumstances omitted by

Petitioner’s argument shed further light on why the trial judge may not have been aware that

defense counsel’s request to “have him evaluated” was, in fact, a request for a competency

determination. Because defense counsel never made a motion or request triggering the trial

judge’s duty to make a competency determination under § 3-104(a),6 we shall affirm the

judgment of the Court of Special Appeals.

JUDGMENT OF THE COURT OF
SPECIAL APPEALS AFFIRMED.
PETITIONER TO PAY COSTS.

6
Respondent posits that despite this Court’s holding in Wood, 436 Md. 276, 81 A.3d
427, an implicit finding of competency by the trial judge is acceptable in this situation if we
conclude that § 3-104(a) was triggered. This is an incorrect reading of Wood. To
reemphasize our conclusion in Wood, on review we do not take into consideration whether
a judge made an implicit determination as to a defendant’s competency once § 3-104(a) has
been triggered. Once § 3-104(a) has been triggered, either upon motion of defendant,
defense counsel, or because the trial judge has a bona fide doubt as to the defendant’s
competency, it is the trial judge’s duty to “determine, on evidence presented on the record,
whether the defendant is incompetent to stand trial.”

17
Circuit Court for Baltimore City
Case No.: 110077027, 28, 29
Argued: January 14, 2014

IN THE COURT OF APPEALS OF
MARYLAND

No. 51

September Term, 2013

KIVI KENNEDY

v.

STATE OF MARYLAND

Barbera, C.J.,
Harrell,
Battaglia,
Greene,
Adkins,
McDonald,
Watts,

JJ.

Dissenting Opinion by Harrell, J.,
which Battaglia, J., joins.

Filed: February 21, 2014
 I dissent. The Majority opinion concedes, as it must, that the threshold to trigger a

trial judge’s need to refer a criminal defendant for a mental competency evaluation is a

low hurdle. Maj. slip op. at 12, citing Roberts v. State, 361 Md. 346, 365 n.14, 761 A.2d

885, 895 n.14 (2000) (“‘[A]n extensive proffer is not necessary–indeed, a defendant

merely needs to . . . allege incompetence in order to trigger the need for a competency

evaluation.’”). That notwithstanding, the Majority faults Kennedy’s defense counsel for

not making his request known to the court with sufficient clarity. Maj. slip op. at 8.

Although specificity is to be desired generally in gleaning a record to ascertain what

relief (if any) a lawyer seeks for his or her client, I arrive at the view of this case that

Kennedy’s lawyer’s efforts were sufficient to have put the trial judge on notice that

Kennedy’s mental competency was questioned and that the court should have understood

that an evaluation of same was sought or, at a minimum, clarification was needed to

understand better what Kennedy’s lawyer wanted done. Looked at as a totality of

circumstances, Kennedy’s lawyer made the following points to the trial court:

• Kennedy refused (without reason) to meet with his lawyer on occasion.

• Kennedy refused (without reason) to attend court on one occasion.

• There were continuous communication impediments (apparently not of a
foreign language barrier type) to Kennedy appearing to understand what his
lawyer was saying to him.

• “There is something wrong with him [Kennedy].”

• “I [Kennedy’s lawyer] haven’t been able to talk [effectively] to him about
the case.”

• I would just ask the Court . . . have him evaluated.”
Of course, much of the above was commingled with talk of a possible mistrial over the

shoving incident in the courtroom. Nonetheless, it strikes me that it is not unreasonable

for a judge to separate into compartments the two different concepts – a mistrial sought

because of the courtroom shoving incident and the strongly-implied (at the least) request

for a mental competency evaluation. To ignore the latter is merely to stick one’s head in

the sand beyond one’s ears.

I would reverse the judgment and remand for further proceedings, to include a

referral for mental competency evaluation of Kennedy.

Judge Battaglia authorizes me to state that she joins the views expressed in this

opinion.

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