Johnson v. State

Cole, J.,

dissenting:

I agree with the majority that the sentence of death in this case must be vacated. I cannot agree, however, that the guilty verdict can stand. It is clear to me from the record that Johnson was denied his right to the effective assistance of counsel under the Sixth Amendment to the United States Constitution and under Article 21 of the Maryland Declaration of Rights;1 that he, Johnson, was deprived of his sole defense under circumstances where his trial counsel knew or should have known that unless Johnson was insane, there was no exculpatory explanation for his conduct. I would reverse and grant a new trial.

The law is clear that the constitutional guarantee of the assistance of counsel in a criminal prosecution means effective assistance, Hawk v. Olson, 326 U.S. 271, 66 S. Ct. 116, 90 L. Ed. 2d 61 (1945); McMann v. Richardson, 397 U.S. 759, 771, n. 14, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970), that lawyers in criminal courts are necessities, not luxuries, Gideon v. Wainwright, 372 U.S. 335, 344, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), and that the assistance of counsel is a requisite element of a fair trial,2 Argersinger v. Hamlin, 407 U.S. 25, 31, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972). The basic *457purpose of a trial is the determination of truth, and it is self-evident that to deny a lawyer’s help through the technical intricacies of a criminal trial is to impede that purpose and to infect a criminal proceeding with the clear danger of convicting the innocent. Stovall v. Denno, 388 U.S. 293, 297-98, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967).

So inherently basic to the concept of fairness is the right to effective assistance of counsel that it originated as a corollary of the right of due process. See Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966). In Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932), the Supreme Court indicated that the right to counsel was a fundamental right, protected in the state courts by virtue of the Fourteenth Amendment due process clause. The first commonly accepted standard the state and lower federal courts used to gauge effectiveness was a "farce and mockery of justice” test. See Daugherty v. Director, Patuxent Inst., 235 Md. 662, 202 A.2d 593 (1964); Diggs v. Welch, 148 F.2d 667 (U.S. App. D.C.), cert. denied, 325 U.S. 889, 65 S. Ct. 1576, 89 L. Ed. 2002 (1945). In order to prevail when asserting a Sixth Amendment claim, a defendant had to show that the ineffectiveness of counsel so prejudiced his cause that it rendered the trial fundamentally unfair.

The Sixth Amendment standard has undergone a rapid evolution in recent years, however, and the farce and mockery of justice standard has been almost universally rejected. See 10 Val. U. L. Rev. 509 (1976). The trend away from a due process analysis of the Sixth Amendment was given a compelling impetus by the Supreme Court in McMann v. Richardson, supra. In McMann a criminal defendant challenged the voluntariness of a guilty plea based on what the defendant alleged was the advice of incompetent counsel. In discussing competence, the Supreme Court held that a guilty plea is open to attack if a defendant can demon*458strate that the advice given was not within the range of competence demanded of attorneys in criminal cases. Id. at 771. See also, Tollett v. Henderson, 411 U.S. 258, 266, 93 S. Ct. 1602, 18 L. Ed. 2d 1199 (1973). While not purporting to lay down a standard to be applied in all Sixth Amendment claims, the language of McMann has resulted in a change among most of the federal circuits and the majority of states regarding the method of analysis forjudging effectiveness of counsel. See, e.g., United States v. Bosch, 584 F.2d 1113 (1st Cir. 1978); Moore v. United States, 432 F.2d 730 (3rd Cir. 1970); Marzullo v. Maryland, 561 F.2d 540 (4th Cir. 1977), cert. denied, 435 U.S. 1011, 98 S.Ct. 1885, 56 L. Ed. 2d 394 (1978); MacKenna v. Ellis, 280 F.2d 592 (5th Cir. 1960), cert. denied, 368 U.S. 877, 82 S. Ct. 121, 7 L. Ed. 2d 78 (1961); Wilson v. Cowan, 578 F.2d 166 (6th Cir. 1978); United States ex rel. Healey v. Cannon, 553 F.2d 1052 (7th Cir.), cert. denied, 434 U.S. 874, 98 S. Ct. 221, 54 L. Ed. 2d 153 (1977); United States v. Easter, 539 F.2d 663 (8th Cir. 1976), cert. denied, 434 U.S. 844, 98 S. Ct. 145, 54 L. Ed. 2d 109 (1977); Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir. 1978), cert. denied, 440 U.S. 974, 99 S. Ct. 1542, 59 L. Ed. 2d 793 (1979); People v. Frierson, 25 Cal. App. 3d 142, 158 Cal. Rptr. 281, 599 P.2d 587 (1979); State v. Anonymous, 34 Conn. Supp. 656, 384 A.2d 386 (1978); Commonwealth v. Bailey, 480 Pa. 329, 390 A.2d 166 (1978). See also 17 Am. Crim. L. Rev. 233 (1979) (and cases cited therein).

The subject of effectiveness of counsel arose again in Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980). In Cuyler, a criminal defendant alleged that his attorney did not provide effective assistance of counsel because of a conflict of interest arising out of the lawyer’s simultaneous representation of codefendants. The Court, while carefully avoiding the application of the McMann test to a case of multiple representation, reiterated the language of McMann as it applied to the voluntariness of guilty pleas. The Court went on to say that "a lawyer forced to represent codefendants whose interests conflict cannot provide the adequate legal assistance required by the Sixth Amendment.” Cuyler v. Sullivan, supra, 446 U.S. at 345. The Court *459further held that once a defendant has established an actual conflict which would result in a Sixth Amendment violation he "need not demonstrate prejudice in order to obtain relief.” Id. at 349-50.

These cases do not provide a bright line rule by which the courts of the nation could be governed, but they do provide general guidance. It appears that to establish a Sixth Amendment violation a defendant must demonstrate that the advice given was not within the range of competence demanded of attorneys in criminal cases. See Marzullo v. Maryland, supra. Once the defendant has established that his counsel’s representation failed to meet this standard the defendant does not need to show prejudice; the prejudice to the defendant’s defense will be conclusively presumed from the inadequacy of his representation.

Having gleaned from the Supreme Court a general Sixth Amendment test, the problem remains in determining what types of conduct by a defense attorney would render his representation ineffective. While Justice William H. Erickson of the Colorado Supreme Court has suggested that the American Bar Association Standards Relating to the Defense Function, (1971 Approved Draft), can and should be used as the basis for a uniform standard, 17 Am. Crim. L. Rev. 233 (1979), most courts have not tried to be so definitive. A brief review of a few cases involving facts analogous to the instant case, however, will point out that the representation in this case was undeniably ineffective.

In Wood v. Zahradnick, 578 F.2d 980 (4th Cir. 1978), the defendant was accused and convicted of a senseless, brutal rape. The victim, a sixty-seven year old woman, had known the defendant for several years. The defendant made no attempt to conceal his identity during the crime and told his attorney he had no recollection of committing the offense. The defense attorney did not explore the possibility of an insanity defense, despite knowing that the defendant had been drinking and using heroin on the night in question. The Court of Appeals for the Fourth Circuit held that the defense attorney’s representation was not within the range of *460competence demanded of attorneys in criminal cases and remanded the case for a determination of the defendant’s mental competency at the time of the offense.

In People v. Frierson, supra, the defendant was convicted of murder. At the time of the offense the defendant was under the influence of PCP and diminished capacity was his only defense. The defense counsel called no witnesses to express an expert opinion on the effects of PCP nor did he have the defendant examined by a psychiatrist. The court determined, based on the unanimous agreement of several practicing attorneys, that effective representation in this type of case would require investigative and expert assistance regarding the use of PCP and its effect and the appointment of a psychiatrist to assist counsel in his defense. The court found that because these minimal steps were not taken by the defense counsel that he had deprived himself of the reasonable bases upon which to make an informed tactical trial decision. Giving up the diminished capacity defense, where that was the sole defense, was tantamount to withdrawal of any legal defense — "a complete abandonment of the interest of the accused.” People v. Frierson, supra, 599 P.2d at 599.

In United States v. Easter, supra, the defense attorney did not challenge a warrantless residence search, which was the defendant’s only defense. The court held that "[i]t is fundamental, we think, to afford a defendant a fair trial on a criminal charge, that his counsel assert that which may be his only defense.” Id. at 666.

In Tillery v. United States, 419 A.2d 970 (D.C. App. 1980), the defense attorney failed to investigate and pursue an insanity defense and based the examination of his own psychiatric expert upon an obsolete insanity standard. The court held that where the defendant’s trial counsel’s actions "effectively blotted out a substantial defense, [it] thereby deprived] him of his Sixth Amendment right to the effective assistance of counsel.” Id. at 976.

In Wilson v. Cowan, 578 F.2d 166 (6th Cir. 1978), the entire prosecution consisted of the personal identification of *461the defendant by two victims. The defendant’s sole defense was "that he was not guilty because he was not there,” id. at 168, yet trial counsel failed to call two defense witnesses who would have corroborated the defendant’s alibi. The court concluded that

[w]e cannot escape the conviction that this record requires us to hold that ineffectiveness of counsel deprived appellant of his only defense. Even more important, we cannot escape the conviction that it also deprived the jury of the opportunity to hear arguably vital evidence which should have been weighed in the balance against the identification testimony. American justice and the Sixth Amendment to the United States Constitution require no less. [Id. at 168.]

The element these cases, and a multitude of other cases,3 have in common is that the defendant was deprived of the opportunity to assert a potentially meritorious defense because of the acts or omissions of his defense counsel. Where counsel’s actions have resulted in the deprivation of a defense and there is no reasonable basis for the actions in trial tactics or strategy, appellate courts, both state and federal, are wont to find effective assistance of counsel.

*462Although the topic of effective assistance has drawn the attention of courts and commentators throughout the country in recent years, there is a paucity of authority emanating from this Court upon which to draw a constitutionally acceptable standard.4 Slater v. Warden, 241 Md. 668, 673, 217 A.2d 344 (1966), enunciated the test to be whether "under all the circumstances of the particular case ... the petitioner [has] been afforded a genuine and effective representation.” That test, still followed today, State v. Lloyd, 48 Md. App. 535, 429 A.2d 244 (1981), was based upon the Fourth Circuit cases of Turner v. State, 303 F. 507 (4th Cir. 1962) and its sequel Turner v. State, 318 F. 852 (4th Cir. 1963). The Fourth Circuit has since reviewed its position and changed its test to conform with the language of reasonable competence referred to in McMann v. Richardson, supra, 397 U.S. at 771. Marzullo v. Maryland, supra.

Although the Fourth Circuit has found cause to depart from its previous stand, it is apparent that our present test, when properly applied, will withstand constitutional scrutiny. While no longer parroting the language of federal decisions, the test focuses on the acts or omissions of defense counsel rather than the fairness of the proceedings as a whole. As such it is a Sixth Amendment right to counsel standard rather than a due process standard and should still be acceptable.

While we have not addressed a factual situation on all fours with the instant case, the Court’s decisions, under the genuine and effective representation formula, tend to parallel similar cases referred to earlier in this opinion. In *463Evans v. Warden, 240 Md. 333, 214 A.2d 144 (1965), where the appellant claimed inadequate representation, this Court remarked that "[t]he specific contention of failure to call [alibi] witnesses, on the face of it, does present a claim on which relief may be granted.” Id. at 335. The language of Evans was implicitly followed in Davis v. State, 285 Md. 19, 400 A.2d 406 (1979), where an appellant claimed that his trial counsel had failed to request that an alibi instruction be given to the jury and this Court reversed the Court of Special Appeals and remanded the case to the post conviction court for further inquiry. Id. at 37.

Both of these cases involved a situation where the defense attorney, by either act or omission, cut off a possible defense from the accused. Nothing can be more fundamental than that in a criminal prosecution the defendant is entitled to present his defense and that the jury is entitled to hear cogent evidence impacting directly on the guilt or innocence of the accused and Maryland precedent has tacitly so held.

Whenever reviewing the effectiveness of the assistance of counsel on direct appeal, a question arises whether it might not be more proper to allow the question to be heard in a post conviction hearing. Md. Code (1976, 1979 Cum. Supp.), Art. 27, § 645 (a) and Md. Rule BK 40 allow a criminal defendant to collaterally attack his conviction based on, inter alia, effectiveness of representation. See State v. Zimmerman, 261 Md. 11, 273 A.2d 156 (1971). Our decisions express the view that "appellate courts of this state have recognized that, ordinarily, counsel, whose professional ability and integrity are impugned, should be afforded an opportunity to be heard.” Davis v. State, supra, 285 Md. at 36 (emphasis supplied).

Our decisions, however, have indicated a willingness, at least on some occasions, to address the subject on direct appeal. See Evans v. State, 236 Md. 532, 204 A.2d 554 (1964), and Fowler v. State, 237 Md. 508, 206 A.2d 802 (1965) (where this Court reviewed the allegation of inadequate representation on direct appeal).5 In any event, this case rep*464resents the extraordinary situation provided for in Davis. Here a defendant is confronted with the specter of public execution for his miscreant behavior. There is, moreover, ample and irrefutable evidence in the record to indicate that no possible trial tactic or strategy could justify the actions of Johnson’s defense counsel.

This case is also extraordinary in the number of appellate options, direct and collateral, available to Johnson. If this Court affirms Johnson’s conviction but remands for sentencing then a new sentencing proceeding will have to be conducted either before a new jury or the trial court. Johnson will still have the post conviction alternative, whatever the outcome of the sentencing proceeding. If he is denied relief by the post conviction court, he will then be able to appeal the sentence, if life imprisonment, to the Court of Special Appeals or, if death, to this Court. Once his state court alternatives are exhausted he will have available to him the possible relief of a habeas corpus petition in federal court. If the denial of the effectiveness of assistance of counsel is obvious from the record, then to unnecessarily add to this formidable appellate process would be an abhorrent squandering of judicial resources, not to mention the burden it places on the defendant who must endure the anxiety of each step of the procedure.

The second and perhaps more compelling reason to confront this issue now is that to delay it needlessly would be cruel and inhuman. As Justice Brennan noted in his concurring opinion in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346, reh. denied, 409 U.S. 902, 93 S. Ct. 89, 34 L. Ed. 2d 163 (1972), "the prospect of pending execution exacts a frightful toll during the inevitable long *465wait between the imposition of sentence and the actual infliction of death.. . .The 'fate of ever-increasing fear and distress’ to which the expatriate is subjected can only exist to a greater degree for a person confined in prison awaiting death.” Id. at 288-89. Subjecting Johnson, who has already been once sentenced to death, to the concomitant anxiety and psychological stress over the time it takes for him to avail himself of his full panoply of rights when the Court could shorten that time by reviewing an obvious violation of the right to counsel is an extra and unjustified burden heaped upon him.

Having examined the applicable legal standard, it is now the propitious point at which to discuss the facts of this case. A review of the facts leads me to the inescapable conclusion that Johnson’s defense attorney’s representation was constitutionally deficient in at least two respects: (1) calling Johnson to the witness stand to testify in his own defense, and (2) withdrawing the insanity plea prior to the commencement of the case before the jury. These two actions taken by defense counsel will be addressed out of chronological sequence for reasons which, to me, best demonstrate the trial counsel’s ineffective representation.

Johnson’s initial pleas were not guilty; not guilty by reason of insanity; and not guilty by reason of insanity at the time of the commission of the offense charged but sane now. As a result of his assertion of an insanity defense, Johnson was sent to Clifton T. Perkins Hospital Center for psychiatric evaluation. The report from Perkins indicated that a majority of the doctors who interviewed Johnson felt that he was competent to stand trial and responsible at the time of the offenses. However, one of the four reporting doctors, Dr. J. Clermont, said that he could not "arrive to a definite conclusion about diagnosis and responsibility as the defendant was uncooperative with him during most of the interview.” Mr. Kamm, a psychologist on the staff at Perkins who also interviewed Johnson, concluded that Johnson’s "contact with reality is difficult to evaluate on account of his poor productivity resulting from extreme negativism.” Dr. Clermont also reported that Johnson "admitted that he was *466still hearing voices,” and that he was "functioning on a borderline level of intelligence.”

Initially, Johnson was represented by counsel who moved for a postponement to get another doctor’s opinion, moved to suppress a confession Johnson had given to the police, and represented Johnson at a suppression hearing regarding the confession. Johnson does not fault the adequacy of this representation, nor do I. After the suppression hearing Johnson retained new counsel who represented him for the remainder of the trial and at the sentencing proceeding.

At the jury selection stage of the trial the trial judge requested and received questions from Johnson’s trial counsel to be addressed to the jurors on voir dire. Despite the fact that the State was seeking the death penalty there were no questions regarding the jurors’ attitudes about the imposition of the death penalty in the list of questions submitted by defense counsel. At the voir dire examination, however, the judge did ask whether the jurors would be able to render an impartial verdict in a death penalty case.

Defense counsel moved for the appointment of another psychiatrist at State expense to assist the defense and for a rehearing on the motion to suppress the confession. Both motions were denied. Defense counsel then withdrew the pleas of not guilty by reason of insanity, ostensibly because the majority report from Perkins declared the defendant competent to stand trial and competent at the time of the offenses. He felt that, in defense counsel’s words, "[w]e have no other evidence we could present” on the question of competency (emphasis supplied).

After this, defense counsel made his opening statements to the jury. He told them that Johnson would not deny his participation in this "senseless, totally senseless” offense. Rather, counsel directed the jury to focus its attention on the defendant’s situation, his school history, intelligence, and family history. Counsel asked the jury to be aware of the drugs the defendant had been taking and their effects on him. Counsel also requested the jury to be mindful of the part Dwayne Mayers played in this offense and the effect he had on the defendant.

*467The State then began to present its case. The first two witnesses, friends of the victim’s, testified regarding the victim’s personality and characteristics, laying the foundation for the beginning of the chain of events that led the police to Johnson. The State elicited testimony from these witnesses that the victim was very close to her daughter and that the daughter had recently undergone major surgery. The defense objected to the introduction of the evidence of the daughter’s medical condition but made no motion to strike or motion for mistrial after its introduction. No objection was made to the evidence of the victim’s relationship with her daughter.

After calling several other witnesses, the State called Detective Jennifer Wehr to the stand. Detective Wehr testified regarding the conditions of the taking of Johnson’s confession and read the contents of the statement for the court and the jury. The substance of the statement was that Johnson had been at his cousin’s house (Dwayne Mayers’) asleep when a friend of his, Amos Batts, came in and told Johnson that he and Mayers had gotten a car. Johnson went to the car, saw the victim in the front seat with Mayers, who was driving, then got in and the three men left with the victim. They drove to a field in Baltimore County where they stopped the car. Detective Wehr, reading Johnson’s statement then testified:

I [Johnson] had sex with the lady first in the car, then Dwayne, then Amos, all in the car .... Then me and the girl and Amos got out of the car and... [m]e and the girl walked off... .1 had sex with her again outside. Then we walked off. She had her back turned. I shot once and it hit her in the back. Then again and again. One of them hit her in the head. Then when she fell to her knees I hit her in the front. I went back and got in the car and we drove off.

Detective Wehr also testified that when she asked Johnson if the victim resisted the sexual attacks his answer was *468"yeah.” This was the State’s last witness. Defense counsel made motions for judgments of acquittal which were denied.

The defense’s first witness was Ernest Kamm, a psychologist from Perkins Hospital Center who had had the opportunity, as noted, to interview Johnson while he was at Perkins. The State objected to Mr. Kamm’s testimony, as defense counsel had already withdrawn the plea of insanity. Defense counsel proffered to the judge that he was not seeking testimony regarding Johnson’s mental competence but rather sought to mitigate the charges of first degree murder and other specific intent crimes. Mr. Kamm was then allowed to testify that Johnson functioned at a borderline intellectual level with an I.Q. of 72 and that he was a severely deprived individual with a hostile and negative orientation and a severe authority problem. Defense counsel sought to move Mr. Kamm’s entire report into evidence, to which the State objected, and the objection was sustained. In argument before the bench, and out of the hearing of the jury, the State noted that there were "certain things, bizarre thinking” in the report that would pertain to sanity, not premeditation. At the end of Mr. Kamm’s testimony the defense called Gordon Glazer. Mr. Glazer failed to respond and the judge recessed the trial until the next day.

On the second day of trial defense counsel called as his first witness the defendant. Counsel asked Johnson why he was living with his aunt and Johnson replied that he had just gotten out of jail for a "burglary charge” and was on probation for that offense. Johnson then related some background regarding his family history, school history, and his relationship with Dwayne Mayers. He testified that he had used a variety of drugs, including PCP. Defense counsel then focused his direct examination on the night before and the day of the offense. Johnson said that Mayers had asked him if he wanted to go out and make some money and Johnson, repeating that he had just gotten out of jail, declined. Johnson then related the events surrounding the offense, saying that while they were driving around with the victim they were smoking parsley flakes treated with PCP. *469Just before the victim was killed Johnson told the jury that Mayers told Johnson and Batts that they were going to have to kill the victim. An argument ensued in which Mayers insisted that Batts do the shooting. When Mayers became angry because Batts refused, Johnson said that he volunteered to do the killing. He said he walked the victim into the woods, fired one time, then kept shooting, saying his hand would not stop.

After the State’s cross-examination the defense again sought to call Gordon Glazer. Mr. Glazer was, again, not there so the trial judge recessed for lunch. After lunch and on the record the judge related the following:

I think the record ought to reflect, and I’m not sure that it does at this stage, what has transpired with respect to the witness, Gordon Glazer. He had advised the Court that he had agreed to testify as an expert witness at the request of defense counsel to the effect of certain controlled dangerous substances on persons. Mr. Glazer is an employee of the Center dealing with the problem of abusive substances, and specifically is Head of the New Leaf Center. That center operates under the general supervision of Doctor Pat Hawkins.
Mr. Glazer was here yesterday and everybody apparently assumed, I know I did, that he was going to be back today. When he didn’t show up today I sent out a search for him through the Sheriffs Office, when defense counsel informed the Court of their information that he was going to be back at 12:00 o’clock to his center here in Calvert County. Over lunch hour I received a call from Doctor Pat Hawkins who informed me that Mr. Glazer was leaving today on two weeks vacation in Alaska and was supposed to catch a plane to leave on the vacation at about 12:00 o’clock. It was then a little after 12:00 o’clock. She informed the Court that she was attempting to have the plane stopped or him stopped at the plane. I told her I didn’t think that *470would be necessary. Mr. Glazer did try to stay around yesterday, although he was not here as late as the trial ran.
As soon as counsel returned they were informed about this and in that Doctor Spodak, an independent medical employee of the State of Maryland, was here and had substantially better credentials for testifying in this matter than did Mr. Glazer. Counsel were given the opportunity to interview — defense counsel were given the opportunity to interview Doctor Spodak in the Court’s chambers without anybody else being present.
At the conclusion of that interview the Court was requested to state whether or not the Court would limit his cross-examination of Doctor Spodak, if defense counsel called him, and limited their questions simply to the general customary offense of controlled dangerous substance in question on a person. The Court said at that time that it would limit the State’s cross-examination to specifically that area. However, it would not prevent the State from recalling Doctor Spodak in rebuttal and on direct examination inquiring of him if he had examined the defendant in this case and if he felt, within his medical, field of medical expertise, that he could express an opinion about what the effect of whatever chemical substances were involved on this defendant. At that point everybody knew that the State was holding Doctor Spodak as a rebuttal witness to the testimony which was expected to be elicited in the defendant’s case, and the Court felt that we could not deprive the State of the right to use this rebuttal witness simply because he was now going to testify in a general way as to the effects. All of that having been sifted down and filtered through the various processes that go to make up trial tactics, the defense, as I understand it, has elected to close its case at this point. It is not to call Doctor Spodak.
*471Defense Counsel: That’s correct, Your Honor.
Prosecutor: Yes, sir. And the other thing is for the record, the Court may have said this and I missed it, that the State will concede he knew about he was a witness although he wasn’t officially summonsed for the case. We will state he knew he was a witness in the case, but there is no official summons. That’s the State’s position on this. Thank you Your Honor.

Unsuccessful in the attempt to obtain any testimony regarding the effects of PCP, the defense sought unavailingly to renew several of its motions and rested its case.

During closing arguments defense counsel emphasized the dominant influence Mayers had in Johnson’s life. The gist of the argument was that Johnson lacked the premeditation required for first degree murder; that there was not enough evidence to support the charge of kidnapping; and that there was not enough evidence of force to sustain the charge of rape.

In light of this summary of the evidence, it seems to me that defense counsel’s ineffectiveness is glaringly apparent and this Court should address the issue forthwith. It is apparent to me that defense counsel’s theory of the case was that the defendant was guilty of the offenses charged, thus, rather than present a defense consistent with a plea of not guilty, his best course of action would be to persuade the jury that the offense Johnson was guilty of was second degree murder and not first degree. This is evident in counsel’s opening and closing remarks to the jury, where he admitted the defendant’s guilt, and the colloquy at the bench regarding the testimony of Mr. Kamm.

It seems obvious to me that in order to build a defense reducing the offense to second degree murder, defense counsel had to get around both prongs of the State’s case for first degree murder. The first prong was the felony murder stat*472ute. Md. Code (1976, 1981 Cum. Supp.), Art. 27, § 410 provides that a homicide committed during the course of certain enumerated crimes, including rape, robbery, and is tne standard of premeditated murder. Article 27, § 407 provides that "any kind of wilful, deliberate, premeditated killing shall be murder in the first degree.” ;, is murder in the first degree. The second prong

Examining the State’s case for first degree murder it is obvious that a defense based on a reduction to second degree murder was unsupportable. It is also apparent that while a second degree verdict could arguably (a tenuous argument at best) have been realizable without Johnson’s testimony, such defense was totally untenable once Johnson took the stand.

To circumvent the application of the felony murder statute, Johnson’s defense counsel had to raise a reasonable doubt in the minds of the jurors that Johnson was incapable of forming the specific intent needed to support the charges of rape, robbery, and kidnapping. Before Johnson testified, the defense could have offset the admissions in the confession with the testimony of Mr. Kamm regarding Johnson’s low intelligence and the impression defense counsel had tried to create, through cross-examination of State witnesses, that Johnson was under the influence of drugs and alcohol when the statement was made. After Johnson took the stand, however, the jury was made aware that Johnson knew the night before the murder that Mayers was planning to steal a car; that they were looking to steal some money; that the victim had her head down and was crying when Johnson got in the car; that Johnson had an argument with Mayers before he got in the car about the presence of the victim; that Johnson had gotten out of jail just a few days before this offense occurred for a burglary conviction; that Johnson knew at this point that the victim was there against her will; that Johnson made a reasoned decision just after the murder to dispose of some of the victim’s property because it was evidence. None of these facts was in evidence before Johnson took the stand. By calling Johnson to the witness stand to testify the defense attorney literally drove *473home the State’s case and made a guilty verdict a foregone conclusion.

It is reasonable to expect that any reasonably competent defense attorney would have gone over a witness’ testimony before calling that witness to the stand, particularly where the witness is the defendant. It is, therefore, reasonable to assume that defense counsel knew of Johnson’s recent burglary conviction (especially since it first came out in response to a question on direct examination) and that he knew what Johnson’s narration of events would reveal. It does not reasonably or even remotely follow that Johnson’s testimony that he apparently knew that the car was stolen and that he was making rational decisions before, during, and after the offenses (arguing with Mayers before getting into the car, volunteering to shoot the victim when Batts and Mayers were arguing about who was going to pull the trigger, and disposing of evidence immediately after the murder to avoid detection, respectively) would in any way attenuate the State’s case for premeditation. Quite obviously to the contrary, it filled in whatever gaps were left after Detective Wehr’s reading of Johnson’s confession. By calling Johnson to the stand defense counsel proved that Johnson knew what he was doing before he did it and intended whatever actions he took.

Whatever slender thread defense counsel was resting his case on snapped when counsel called Johnson to the stand. He could not have more effectively ensured a finding of guilty to murder in the first degree if he had been the prosecutor. By having Johnson testify and thereby virtually destroying whatever hope there was for a finding of second degree murder defense counsel blotted out the only defense he had available. It cannot be more obvious that this could not have been the trial strategy of a reasonably competent attorney and, on this basis alone, Johnson was deprived of the effective assistance of counsel.

Not only was Johnson deprived of the effective assistance of counsel before he took the witness stand, he was deprived of it in the incipient stages of the trial when defense counsel *474withdrew the insanity plea. Insanity was Johnson’s only viable defense from the beginning of the trial.

Where the defendant’s plea is not guilty by reason of insanity, one of the eventualities that may arise from the plea is that

[i]f the verdict on the general plea is guilty and the special verdict on the additional plea is that the accused was insane at the time of the commission of the offense, he has failed in what he sought under his general plea but attained what he sought by his additional plea, in that he shall not be held responsible for his criminal conduct. [Langworthy v. State, 284 Md. 588, 593-94, 399 A.2d 578 (1979).]

The result is not an acquittal where the defendant was proved guilty but rather the outcome rests on the legislative determination that because of the defendant’s mental incompetence he will not be punished for his act. Id. at 598.

It has further been established by this Court that defense counsel is not restricted to the testimony of psychiatrists, or any expert witnesses, to establish insanity. A lay witness may express an impression or conclusion that someone is normal or abnormal provided that he does not testify as to the ultimate legal question of whether the defendant was criminally responsible. State v. Conn, 286 Md. 406, 428, 408 A.2d 700 (1979). Whether or not such witnesses were available the record does not reveal since the insanity plea was withdrawn.

There was absolutely no reason for the withdrawal of the insanity plea in this case. The defense could not afford to hire its own psychiatrist to examine the defendant. However, the medical report from Perkins was divided as to whether Johnson was competent to stand trial. Three doctors said he was competent and one doctor said that he could not make the conclusion because of the defendant’s poor cooperation. The report said that Johnson admitted hearing voices and that his contact with reality was difficult to evaluate. The author of that report, Dr. Clermont, was *475available to the defense at State expense and could have been called as a witness at trial.

Furthermore, defense counsel had Mr. Kamm, a psychologist at Perkins, available to testify on Johnson’s behalf. The portion of Mr. Kamm’s report that defense counsel was not able to get before the jury because he had withdrawn the insanity plea was to the effect that there were "some signs which point in the direction of bizarre thinking and a tenuous hold on reality,” that Johnson had said that he had seen the devil and that he had seen God over water. On cross-examination, when asked if he had an opinion on whether Johnson knew right from wrong, Mr. Kamm said that he had no opinion, implying that there was an insufficient basis to draw any conclusions.

Aside from the potentially favorable expert opinion regarding the defendant’s incompetence that was available to defense counsel, there was also an expert, Gordon Glazer, who had been contacted by defense counsel regarding the effects of the drug PCP. Johnson testified that PCP made him hallucinate, "like you might be standing somewhere and you just go out of your —,” that it made him forget things, and that he "could smoke about twenty days [jays?] or something like that.” PCP is a powerful mind altering drug with potential long term side effects from continued use that an expert could have testified to. Defense counsel, however, did not seek to employ Mr. Glazer’s testimony to this end. In fact, Mr. Glazer was not even summonsed to appear.6

*476Under these circumstances the withdrawal of the insanity plea can in no way be justified as a reasonable trial tactic. It deprived the defendant of his only defense. Even if one were to assume that pursuit of a second degree verdict (which bears a possible sentence of thirty years), was more advantageous to Johnson than the insanity defense, there could have been no evidence adduced during the course of the attending testimony on Johnson’s mental competence that would have prejudiced an argument for second degree. Rather, the evidence would have served to bolster the case for a second degree verdict.7 There is no excuse, therefore, for failing to pursue the insanity plea, thereby depriving the defendant of this defense. Wood v. Zahradnick, supra.

Counsel’s failure to produce evidence of Johnson’s mental competence also deprived the jury of the opportunity to hear arguably vital evidence which should have been weighed in the balance against the evidence of criminal agency. Wilson v. Cowan, supra. Indeed, in a case where the death penalty is being sought justice demands that the defendant have the opportunity to present what may be his only defense to the jury. Such a deprivation of a potentially meritorious defense with no reasonable basis in trial tactics is unquestionable proof of ineffective assistance and tantamount to a complete abandonment of the interest of the accused. People v. Frierson, supra.

There is one further reason that this Court should, on this record, strike out the verdict. The judicial system has been often, and sometimes stridently, accused of white-washing the problem of inadequate representation by members of the bar. Chief Justice Burger has commented that "we are more casual about qualifying the people we allow to act as advocates in the courtrooms than we are about licensing electricians.” Burger, The Specialized Skill of Advocacy: Are Specialized Training and Certifícation of Advocates Essential to Our System of Justice?, 42 Fordham L. Rev. 227, 230 *477(1973). Chief Judge Bazelon of the District of Columbia Circuit Court criticizes the system for going to great lengths to bury the problem of ineffective representation. "One of the major reasons that the problem of ineffective assistance has remained hidden is the appellate court’s remarkable propensity to ignore the issue of ineffective assistance altogether and to paper over the cracks in the house that Gideon built.” Bazelon, The Defective Assistance of Counsel, 42 U. Cin. L. Rev. 1, 21, n.3 (1973). Lest we also fall subject to this criticism this Court should meet its responsibility head on. It is squarely presented by the record and resolvable by the evidence it contains.

Based, therefore, on the irrefutable facts in the record that Johnson was deprived of any semblance of a defense when defense counsel withdrew his insanity plea and when he called Johnson to the stand to testify, I would hold, in consonance with the numerous authorities cited earlier, that Johnson was denied his constitutional right to the effective assistance of counsel. I would reverse the judgment of the trial court and remand for a new trial.

Judges Eldridge and Davidson have authorized me to state that they concur in the views here expressed.

. The Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right to ... have the Assistance of Counsel for his defence.” Article 21 of the Maryland Declaration of Rights provides: "That in all criminal prosecutions every man hath a right ... to be allowed counsel ....”

. The reason was stated with eloquent simplicity in Johnson v. Zerbst, 304 U.S. 458, 462-63, 58 S. Ct. 1019, 82 L. Ed. 1461 (1838):

[The Sixth Amendment] embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with the power to take his life or liberty, wherein the prosecution *457is presented by experienced and learned counsel. That which is simple, orderly and necessary to the lawyer, to the untrained layman may appear intricate, complex and mysterious.

. For further support of this point in cases where a defendant was deprived of a meritorious defense see United States ex rel. Healey v. Cannon, 553 F.2d 1052 (7th Cir.) cert. denied, 434 U.S. 874, 98 S. Ct. 221, 54 L. Ed. 2d 153 (1977) (attorney advised client to plead guilty after psychiatric testimony was ruled inadmissible where guilty plea foreclosed appellate review); Johnson v. United States, 413 A.2d 499 (D.C. App. 1980) (defense attorney failed to investigate and pursue evidence that victim of sex offense had not suffered any physical trauma); People v. Nation, 26 Cal. App. 3d 169, 161 Cal. Rptr. 299, 604 P.2d 1051 (1980) (attorney failed to obiect to identification evidence thereby depriving defendant of a potentially meritorious defense); People v. Brinson, 80 Ill. App. 3d 388, 35 Ill. Dec. 721, 399 N.E.2d 1010 (1980) (defense attorney failed to challenge a weak identification or challenge a confession defendant said was coerced); People v. McDonnell, 91 Mich. App. 458, 283 N.W.2d 773 (1979) (attorney did not seriously investigate or advance an insanity defense for allegedly tactical reasons); People v. Bryant, 77 Mich. App. 108, 258 N.W.2d 162 (1977) (failure to adequately prepare and present insanity defense); Jackson v. Warden, 91 Nev. 430, 537 P.2d 473 (1975) (defense counsel failed to conduct careful investigations and inquiries thereby omitting a crucial defense from the case); Com. v. Bailey, 480 Pa. 329, 390 A.2d 166 (1978) *462(defense attorney failed to pursue defendant’s intoxication at time of offense as a line of defense); Ex Parte Duffy, 607 S.W.2d 507 (Tex. Crim. App. 1980) (failure to interview witnesses works a denial of effective assistance of counsel where the consequence is that the only viable defense alternative to the accused is not advanced). In each of these cases a defense that might have otherwise been available to the accused was taken from the factfinder as the result of a conscious or unconscious act on the part of the trial attorney and the reviewing court subsequently found a Sixth Amendment violation.

. Most issues dealing with effective assistance of counsel have been reviewed by the Court of Special Appeals in recent years pursuant to the Post Conviction Procedure Act.

. Reviewing competence of defense counsel on direct appeal is not a novel or unacceptable practice among jurisdictions around the country. See, *464e.g., United States v. Bosch, 584 F.2d 1113 (1st Cir. 1978); United States v. Easter, supra; State v. Anonymous, 34 Conn. Supp. 656, 384 A.2d 386 (1978); Tillery v. United States, 419 A.2d 970 (D.C. App. 1980); Johnson v. United States, 413 A.2d 499 (D.C. App. 1980); State v. Douglas, 97 Idaho 878, 555 P.2d 1145 (1976); People v. Neely, 90 Ill. App. 3d 76, 45 Ill. Dec. 428, 412 N.E.2d 1010 (1980); People v. Brinson, 80 Ill. App. 3d 388, 35 Ill. Dec. 721, 399 N.E.2d 1010 (1980): White v. State, 414 N.E.2d 973 (Ind. App. 1981); State v. Moon, Mo. App. , 602 S.W.2d 828 (1980); Com. v. Newmiller, 487 Pa. 410, 409 A.2d 834 (1979); Flores v. State, 576 S.W.2d 632 (Tex. Crim. App. 1978); State v. Jury, 19 Wash. App. 256, 576 P.2d 1302 (1978).

. This failure to summons and secure the appearance of a key witness is further evidence of the ineffectiveness of Johnson’s representation. Once the insanity plea was withdrawn the only defense counsel actually pursued was that Johnson was guilty of second degree murder, not first degree. To support that contention the defense called Mr. Kamm to testify to Johnson’s borderline intelligence. Mr. Glazer was to testify regarding the effects of PCP. Without this testimony Johnson was left with his account of the incident and evidence of low intelligence to support his claim.

As to Mr. Glazer’s availability the trial judge took it upon himself to tell Mr. Glazer’s secretary not to try to contact Mr. Glazer, apparently on the belief that the State’s rebuttal witness was better qualified to testify on the effects of PCP. Defense counsel did not object. He should have. It was up to defense counsel to decide what witnesses should testify for the defendant, not the trial judge.

. This is further evidence of ineffective assistance in that it shows that by failing to cull up this available evidence counsel failed to adequately prepare and present the theory of the defense.