Johnson v. State

439 A.2d 542, 292 Md. 405, 1982 Md. LEXIS 198

• Court: Court of Appeals of Maryland
• Decided: January 7, 1982
• Docket: [Nos. 9 and 22, September Term, 1981.]
• Status: Published

Opinions

Digges, J.,

delivered the opinion of the Court.

Eldridge, Cole and Davidson, JJ., dissent. Eldridge, J., filed a dissenting opinion at page 444 infra, in which Cole and Davidson, JJ., concur. Cole, J., filed a dissenting opinion at page 456 infra, in which Eldridge and Davidson, J J., concur.

Lawrence Johnson was convicted, after removal of this criminal cause from Baltimore County, by a jury in the Circuit Court for Calvert County of first degree murder (both premeditated and in the commission of a felony), first degree rape, kidnapping, and use of a handgun during the commission of a felony or a crime of violence. The same jury subsequently sentenced Johnson to death for the murder.¹ As is specified by the statute authorizing the sentence of death, we must, by this expedited appeal, scrutinize both the decision to execute the defendant as well as any claims of error properly presented by the parties. With the exception of the imposition of the death penalty, we sustain these convictions and sentences ordered, and remand this cause for a new hearing concerning the punishment to be given for the murder.

The sordid chronicle of this crime spree was related by the appellant, Lawrence Johnson, at trial. It began on the early morning of February 23, 1980, when he was suddenly awakened by a friend, Amos Batts, while perched on the couch at the home of his cousin, Dwayne Mayers. At the urging of Batts, Johnson followed his friend outside to a car being operated by the cousin. It soon became apparent to Johnson that Mayers and Batts had stolen the vehicle during the night and had abducted its owner, Betty Toulson, in the process. Although Johnson had earlier declined to participate when the other two decided to obtain some money through crime, the defendant this time joined them in the car with the victim. After a brief discussion, Mayers started the vehicle and drove around while the three men smoked "parsley flakes sprayed with some kind of embalming fluid.” The victim remained silent throughout this journey "with her head down.” Later, after driving to a remote area of Baltimore County, Mayers stopped the car and asked whether his companions "wanted to have sex” with their prisoner. Mayers and the appellant eventually raped the woman on the back seat of her car. The trio then drove the victim to another location nearby where Mayers stripped Ms. Toulson of her coat and pocketbook. After discussing the problem presented by the victim’s knowledge of their identities, Mayers returned to the automobile, removed a pistol from under the seat, and presented it to appellant with instructions to kill the woman. Johnson led her into the woods and complied with the directive. Ms. Toulson’s snow-covered body was recovered five days later; she had received fatal shots in the head and chest.

Following his trial, convictions, and sentencing, Johnson, because he received the death penalty, appealed directly to this Court, Art. 27, § 414, where he presents numerous contentions concerning the conduct of trial on the issue of guilt as well as the murder sentencing proceeding. We discuss in Part I below each of seven claimed errors relating to the guilt determining phase of the trial, and in Part II focus on the three issues relating to the subsequent sentencing hearing resulting in imposition of the death penalty by the jury.

I. The Convictions

a.

Johnson initially contends that, following entry of his plea of not guilty by reason of insanity and his referral to a state hospital for a psychiatric examination, he was further entitled to appointment of a private psychiatrist of his own choosing at state expense to assist in his defense. The record reveals that, upon the filing of this plea, Judge Haile in the Circuit Court for Baltimore County ordered that Johnson be transferred to the Clifton T. Perkins state mental hospital for an evaluation. After a staff examination, the hospital issued the following report, over the signatures of its superintendent and clinical director:

Mr. Johnson was admitted to the Clifton T. Perkins Hospital Center on June 16,1980, and evaluated in accordance with your order of April 23, 1980.

On June 19, 1980, Mr. Johnson was interviewed at a medical staff conference, where results of the multidisciplinary evaluation were examined....

It was the opinion of the psychiatrists present at the conference that:

1. The diagnosis is Antisocial Personality; Drug Abuse by History, (majority)

2. At the present time, Mr. Johnson is able to understand the nature and object of the proceedings against him and to assist in his own defense, (majority)

3. At the time of the alleged offense, Mr. Johnson was not suffering from a mental disorder which caused him to lack substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. (majority) Therefore, we are making arrangements to return Mr. Johnson to your custody.

The notation "majority” following each statement in the report resulted because Dr. Clermont, the clinical director of Perkins, declined to join, stating that he "did not arrive [at] a definite conclusion about diagnosis and responsibility as the defendant was uncooperative with him during most of the interview.”

Sometime later, Johnson’s attorney, arguing that it was "crucial to the defense .. . that the defendant be evaluated by a privately retained psychiatrist in order to determine whether he was, in fact, sane at the time of the commission of the alleged crime,” petitioned the court to appoint a private "independent psychiatrist” to further examine Johnson at the expense of the State.² The trial judge (Bowen, J.) denied Johnson’s petition after noting that he had already been examined by the staff at Perkins hospital and that "the doctors practicing in the various institutions under the jurisdiction of the Department of Health and Mental Hygiene are 'independent psychiatrists’ within the context in which that term is used in this case.”

When, just before trial began, appellant orally renewed his motion for appointment of an additional psychiatrist and it was again denied, there was an indication that Johnson’s attorney wished to withdraw the insanity plea "after making certain statements to the court.” The following colloquy between counsel and Judge Bowen then took place:

[Defense Counsel]: Your Honor, basically we have been unable to secure the services of the psychiatrist to evaluate Mr. Johnson, the defendant, and therefore, we have no other psychiatric testimony other than the reports from Perkins.

[The Court]: It is my understanding that he was examined by the staff at Clifton T. Perkins Hospital Center and that they have an opinion as to his mental condition?

[Defense Counsel]: That’s correct, your Honor. They found him competent to stand trial and competent at the time of the offense.

[The Court]: Very well. And do you have other evidence —

[Defense Counsel]: We have no other evidence we could present.

[The Court]: Very well, we will permit you to withdraw the motion. We think that there is no evidence of the plea, if you wish to do so.

[Defense Counsel]: Yes, your Honor. We would.

Appellant now asserts that this refusal of his request for appointment of a private psychiatrist effectively denied him the rights to the assistance of counsel, due process of law, and. the equal protection of law in violation of various State and Federal Constitutional guarantees.³ In making this argument, Johnson acknowledges that the judge before whom an accused has entered a plea of insanity has "full power and authority to order an examination of the mental condition of such person by the Department of Health and Mental Hygiene....” Md. Code (1957, 1979 Repl. Vol., 1981 Cum. Supp.), Art. 59, § 25 (b). Johnson also admits that "the Department is an impartial expert,” but he goes further and asserts that, in addition to such neutral evaluation, an indigent accused is entitled to another psychiatric expert, this one of his own choosing, funded by the State, solely to assist with the defense.

Although there can be little doubt that an effective defense may sometimes require expert assistance,⁴ the issue as posed by appellant is a much narrower one. It solely concerns whether Maryland’s statutory scheme providing for court appointment of a psychiatrist from the Department of Health and Mental Hygiene in cases involving a criminal defendant’s asserted insanity or incompetency is inadequate and that the appointment of additional experts is constitutionally required.

Even though appellant doesn’t specifically claim a right to a "psychiatric advocate,” his position reduces to essentially that proposition; thus the words of Chief Justice Burger, speaking as a judge for the District of Columbia Circuit in Proctor v. Harris, 413 F.2d 383, 386 (D.C. Cir. 1969), are particularly apropos here.

From Appellant’s posture, no psychiatrist can really "assist” him adequately unless he agrees with Appellant’s position. Stripped of its verbiage Appellant’s position is that he is entitled to a psychiatrist sufficiently sympathetic so that he will assist counsel in preparing his case favorably to his claims, and, accordingly, in structuring cross-examination of the hospital doctors so as to neutralize their testimony.

Common sense dictates that there be some limit placed upon the right of indigents to the assistance of State-funded experts. This is not a case where the government has refused to provide psychiatric evaluation of a criminal accused who wishes to interpose an insanity defense, or where the resulting report is withheld from the defendant. Nor has appellant in this case produced evidence challenging the professional competence or impartiality of the psychiatrists at the Perkins Hospital.⁵ The doctors designated by the Department of Health and Mental Hygiene to examine Johnson are thus "not partisans of the prosecution, though their fee is paid by the State, any more than is assigned counsel for the defense beholden to the prosecution merely because he is ... compensated by the State. Each is given a purely professional job to do — counsel to represent the defendant to the best of his ability, the designated psychiatrists impartially to examine into and report upon the mental condition of the accused.” McGarty v. O’Brien, 188 F.2d 151, 155 (1st Cir. 1951), cert. denied, 341 U.S. 928 (1951).

We are sensitive to the concerns of the defense attorney in this case faced with the task of undertaking to defend one who had voluntarily confessed to the crime in grim detail and where the state possessed overwhelming evidence of his client’s participation in the criminal acts. Counsel indeed confronted a bleak prospect unless he could develop sufficient evidence of insanity to at least create a jury question. Certainly, in these circumstances the indigent accused is at a disadvantage when compared with the wealthy defendant who possesses unlimited resources for the marshalling of batteries of attorneys, investigators and experts. It cannot be seriously contended, however, that the State must precisely equalize the position of the penurious defendant and the wealthy one. Even in the case of a right to counsel, an indigent accused is neither entitled to several attorneys to represent him nor to select a particular attorney to be appointed. Campbell v. State, 231 Md. 21, 188 A.2d 282 (1963); see Annot. 66 A.L.R.3d 996. Here, Johnson was evaluated by a team of independent psychiatric experts, he was furnished with copies of the resulting reports prepared by the examiners, and he had the opportunity to subpoena and question at trial members of the examining team. Whatever the amount of required State assistance for the appointment of defense experts to enable the indigent to place the issue of insanity before the trial court, we need not determine here, for it is certain that once an accused is evaluated by state funded, impartial and competent psychiatrists, that constitutional duty, if any, ends. "[T]he State has no constitutional obligation to promote a battle between psychiatric experts 'by supplying defense counsel with funds wherewith to hunt around for other experts who may be willing, as witnesses for the defense, to offer the opinion that the accused is criminally insane’ ....” Swanson v. State, 9 Md. App. 594, 601-02, 267 A.2d 270, 274 (1970) (Murphy, C.J.). We have found no case which broadens constitutional principles this far and defendant has cited none. Where an indigent accused has already received a competent psychiatric evaluation at state expense, either by the staff of a state institution, or by a private physician selected by the court, the cases throughout the country are in virtual unanimity and agree with our position upholding the denial of the indigent’s request for an additional psychiatric expert of his own choosing compensated by the state. E.g., United States v. Baldi, 344 U.S. 561, 568, 73 S. Ct. 391, 395, 97 L.Ed. 549 (1953); Satterfield v. Zahradnick, 572 F.2d 443, 445 (4th Cir. 1978), cert. denied, 436 U.S. 920 (but see Williams v. Martin, 618 F.2d 1021 (4th Cir. 1980)); Proctor v. Harris, 413 F.2d 383 (D.C. Cir. 1969); McGarty v. O'Brien, 188 F.2d 151, 155-57 (1st Cir. 1951), cert. denied, 341 U.S. 928, 71 S. Ct. 794 (1951); Wilkins v. State of Maryland, 402 F. Supp. 76, 80-81 (D. Md. 1975); Campbell v. Superintendent, Virginia State Pen., 386 F. Supp. 778, 779 (W.D. Va. 1974); Utsler v. Erickson, 315 F. Supp. 480, 482-83 (D. S.D., 1970); State v. Crose, 88 Ariz. 389, 357 P.2d 136 (1960); Barber v. State, 248 Ark. 64, 450 S.W.2d 291, 294 (1970); Dampier v. State, 245 Ga. 427, 265 S.E.2d 565, 571 (1980); State v. Dillon, 93 Idaho 698, 471 P.2d 553, 560 (1970), cert. denied, 401 U.S. 942 (1970); Bimbow v. State, 315 N.E.2d 738, 743-44 (Ind. App. 1974); State v. Burnett, 222 Kan. 162, 563 P.2d 451, 453-55 (1977); State v. Square, 257 La. 743, 244 So.2d 200, 209 (1971); Commonwealth v. Medeiros, 354 Mass. 193, 236 N.E.2d 642, 646, cert. denied, 393 U.S. 1058 (1969); State v. Grant, 560 S.W.2d 384 (Mo. App. 1977); State v. Osborne, 119 N.H. 427, 402 A.2d 493, 496-97 (1979); State v. Patterson, 288 N.C. 553, 220 S.E.2d 600, 612-13 (1975); State v. Downs, 51 Ohio St. 2d 47, 364 N.E.2d 1140, 1149 (1977); State v. Glover, 33 Or. App. 553, 577 P.2d 91, 93 (1978); Utsler v. State, 84 S.D. 360, 171 N.W.2d 739, 742 (1969); Graham v. State, 547 S.W.2d 531 (Tenn. 1977); Hammett v. State, 578 S.W.2d 699, 707 (Tex. Crim. App. 1979) (enbanc); Mason v. Commonwealth, 219 Va. 1091, 254 S.E.2d 116, 119 (1979), cert. denied, 444 U.S. 919 (1979). The decisions of our Court of Special Appeals on this issue are also in accord with the foregoing. Gaither v. State, 13 Md. App. 245, 282 A.2d 535 (1971); Swanson v. State, 9 Md. App. 594, 267 A.2d 270 (1970). Concerning this issue generally see "Right of Indigent Defendant in Criminal Case to Aid of State by Appointment of Investigator or Expert,” Annot. 34 A.L.R.3d 1256.

b.

Johnson next asserts that the trial court erred in not admitting certain psychological evidence at trial where he sought to use this information, not to establish his legal insanity, but rather, to demonstrate that he lacked a sufficient mental capacity to form the requisite intent to commit murder in the first degree. As an aid to an understanding of this issue we set out its factual predicate.

At trial, the defense called Dr. Ernest Kamm, a clinical psychologist at the Clifton T. Perkins Hospital Center. Dr. Kamm had conducted a psychological examination of Johnson as part of the court ordered evaluation performed by the Perkins staff and had prepared a report of his findings. Counsel for Johnson proffered that he wished to use Dr. Kamm’s entire report and testimony "to go to the mitigation of First Degree Murder and any specific [intent] crimes,” rather than to raise the issue of defendant’s sanity. The court allowed the psychologist to read to the jury only parts of his report relating to intelligence tests he had administered to Johnson and his conclusion, based on those tests, that the defendant "functions at the borderline intellectual level (I.Q. 72) ...” ⁶ Appellant urges that the entire report is relevant to his defense of "diminished capacity” — that is, he did not have sufficient mental capacity to form the requisite specific intent to commit some of the crimes with which he is charged. Consequently, the argument goes, it was error to keep that information from the jury when it determines the guilt issue. In order to decide whether this ruling on the evidence was erroneous, however, we must first examine whether the criminal defense known as "diminished capacity,” or as it is sometimes called, "diminished responsibility,” is recognized in this State. Only if such a doctrine exists in our jurisprudence is defendant arguably entitled to produce evidence in support of it. Because we here determine, however, that this State does not recognize diminished capacity as a legal doctrine operating to negate specific criminal intent, it was not error to exclude evidence in support of it.

Before expounding on why the principle of diminished capacity has been rejected in Maryland as a criminal defense relevant to the issue of guilt, see Armstead v. State, 227 Md. 73, 175 A.2d 24 (1961); Allen v. State, 230 Md. 533, 188 A.2d 159 (1963), and why we adhere to that position now, it may prove helpful to explore briefly our understanding of the doctrine and its background. The basic outline of diminished capacity has been summarized as follows:

[S]ince certain crimes, by definition, require the existence of a specific intent, any evidence relevant to the existence of that intent, including evidence of an abnormal mental condition not constituting legal insanity, is competent for the purpose of [negating] that intent.... [T]he actual purpose of such evidence is to establish, by negating the requisite intent for a higher degree of offense, that in fact a lesser degree of the offense was committed. [Annot. 22 A.L.R. 3d 1228, 1238 (1969).]

Thus, only after a defendant has been determined to be criminally accountable for his actions (legally sane) has the doctrine been applied to admit expert testimony as to a defendant’s mental condition in order to determine the degree of criminality for which the accused will be held responsible. See McCarthy v. State, 372 A.2d 180, 182 (Del. 1977); State v. DiPaolo, 34 N.J. 279, 168 A.2d 401, 409-10 (1961); Annot., 22 A.L.R. 3d 1228.

The states are less than unanimous in their resolution of the question whether application of diminished capacity to criminal trials on the issue of guilt represents a legally sound resolution of the pressing problem of how the criminal law should treat evidence of mental abnormality that does not establish the actor’s legal insanity. Compare, e.g., United States v. Brawner, 471 F.2d 969 (D.C. Cir. 1972) (en banc) (expert testimony admissible to demonstrate diminished capacity) with Bethea v. United States, 365 A.2d 64, 83-92 (D.C. App. 1976), cert. denied, 433 U.S. 911 (1977) (rejection of diminished capacity doctrine).⁷ It is generally recognized, however, that adoption of the concept of diminished capacity as a separate defense involves "a fundamental change in the common law theory of [criminal] responsibility,” Fisher v. United States, 328 U.S. 463, 476, 66 S. Ct. 1318, 1325, 90 L.Ed. 1382 (1946). This is true because the introduction of expert psychiatric testimony concerning the defendant’s mental aberrations when the basic sanity of the accused is not at issue conflicts with the governing principle of the criminal law that all legally sane individuals are equally capable of forming and possessing the same types and degrees of intent. Bethea v. United States, 365 A.2d 64, 87 (D.C. App. 1976), cert. denied, 433 U.S. 911 (1977); see Cole v. State, 212 Md. 55, 58-59, 128 A.2d 437, 439 (1957); c.f. Bradford v. State, 234 Md. 505, 509, 200 A.2d 150, 152 (1964). Consequently, an individual determined to be "sane” within the traditional constructs of the criminal law is held accountable for his action, regardless of his particular disabilities, weaknesses, poverty, religious beliefs, social deprivation or educational background, e.g., Cole v. State, supra, 212 Md. at 58-59, 128 A.2d at 439. The most that is proper to do with such information is to weigh it during sentencing. See Logan v. State, 289 Md. 460, 480-81, 425 A.2d 632, 642-44 (1981). This view of the relation of diminished capacity to criminal culpability is exemplified by Bethea v. United States, supra, 365 A.2d at 88 where the court, quoting Judge Leventhal concurring in United States v. Moore, 486 F.2d 1139, 1179-80 (D.C. Cir. 1973) (en banc), cert. denied, 414 U.S. 980 (1973), noted that:

[t]he legal conception of criminal capacity cannot be limited to those of unusual endowment or even average powers. A few may be recognized as so far from normal as to be entirely beyond the reach of criminal justice, but in general the criminal law is a means of social control that must be potentially capable of reaching the vast bulk of the population. Criminal responsibility is a concept that not only extends to the bulk of those below the median line of responsibility, but specifically extends to those who have a realistic problem of substantial impairment and lack of capacity. ... The criminal law cannot "vary legal norms with the individual’s capacity to meet the standards they prescribe, absent a disability that is both gross and verifiable, such as the mental disease or defect that may establish irresponsibility. The most that it is feasible to do with lesser disabilities is to accord them proper weight in sentencing.”

A review of our prior decisions in this area as they interact with legislative enactments on the subject demonstrates that this State has consistently adhered to the just articulated view that the criminal law as an instrument of social control cannot allow a legally sane defendant’s lesser disabilities to be part of the guilt determining calculus. For the purpose of guilt determination, an offender is either wholly sane or wholly insane. In 1888, this Court, following the lead of the celebrated English McNaughten⁸ case, first enunciated the test for criminal responsibility. An accused was held to be sane and responsible for his act if "at the time of the commission of the alleged offense, he had capacity and reason sufficient to enable him to distinguish between right and wrong, and understand the nature and consequences of his act, as applied to himself....” Spencer v. State, 69 Md. 28, 37, 13 A. 809, 813 (1888). Insanity, as defined by Chief Judge Alvey for this Court in Spencer was an all or nothing proposition:

[T]he law is not a medical nor a metaphysical science. Its search is after those practical rules which may be administered without inhumanity for the security of civil society by protecting it from crime, and therefore it inquires not into the peculiar constitution of mind of the accused, or what weakness or even disorders he was afflicted with, but solely whether he was capable of having, and did have, a criminal intent. If he had such intent the law punishes him, but if not, it holds him dispunishable. [Id. at 41, 13 A. at 814.]

Because the accused in Spencer did not offer to establish his insanity as thus defined, the Court declined to accept proffered testimony of the defendant to the effect that he was "nervous and restless ... haunted with the idea, that so long as the deceased lived, [the defendant] would have no rest or peace of mind, and that he could exercise no power of will or self-control over this idea....” 69 Md. at 35, 13 A. at 812. The Spencer court, after reviewing the facts of the homicide, rejected the further use of the proffered testimony "to show such condition of mind as to have rendered the prisoner incapable of forming the wilful and premeditated purpose of killing to constitute. . . murder in the first degree. . . .” 69 Md. at 41, 13 A. at 814, and concluded that "[t]he prisoner being criminally responsible, and having thus premeditated the killing, there is no principle that would justify the introduction of such evidence as that proffered for the purpose of reducing the degree of his crime.” 69 Md. at 43, 13 A. at 815. In Cole v. State, 212 Md. 55, 128 A.2d 437 (1957), we reaffirmed our adherence to the Spencer-McNaughten doctrine defining the conditions under which one is excused of responsibility for an otherwise criminal act. In that case, a defendant convicted of rape sought review of a trial court decision refusing to admit certain medical evidence as to his mental condition. The proffered material was rejected in the trial court because it did not tend to show legally recognized insanity under the Spencer-McNaughten right-and-wrong test. 212 Md. at 56, 128 A.2d at 438. The essence of the proffer was that the defendant had been suffering from encephalitis, an inflammation of the brain, and that various experts believed the defendant far less able to control his behavior as a result of the malady; some of the potential expert witnesses were prepared to testify that the "crime [was] a product of the disease” 212 Md. at 57, 128 A.2d at 438. This Court in Cole, recognizing that any changes to the Spencer-McNaughten doctrine involved "basic and far reaching questions of public policy,” declined to define insanity in terms of "a mental disease or mental defect.” 212 Md. at 58, 128 A.2d at 439. Rather, our predecessors noted that "if a workable definition of some new element [of the Spencer-McNaughten rule] is to be evolved, .. . that is a prerogative of the legislature and not of the courts.” Id. Although Cole dealt solely with a proposed redefinition of basic insanity sufficient to completely exculpate an accused, the words of the case proved prophetic when four years later this Court was presented, in Armstead v. State, 227 Md. 73, 175 A.2d 24 (1961), with the question, first raised in Spencer, of whether an accused may, as a matter of law, attempt to prove the existence of a lesser mental condition not amounting to insanity in order to negate specific intent so as to reduce first degree murder to murder in the second degree. The defendant in Armstead while recognizing that the testimony showing her epilepsy and susceptibility to grand mal seizures did not show her to be insane, nevertheless argued that this evidence demonstrated "diminished responsibility” precluding guilt of first degree murder. 227 Md. at 74, 175 A.2d at 25. Reflecting in that case the Spencer-McNaughten concept of criminal responsibility, we in Armstead again viewed insanity as an all or nothing proposition, and noted:

if [the accused] lacked sufficient mental capacity to commit a crime (in this instance, wilful, deliberate and premeditated murder) as required by the standard set in Spencer, she would be entitled to a general verdict of not guilty by reason of insanity, but, on the other hand, if she did have sufficient mental capacity to create criminal responsibility as the test was set forth in Spencer, then she is a responsible agent and must answer for the crime she committed, unless ... the Spencer rule is broadened or modified. [227 Md. at 76, 175 A.2d at 26.]

In Armstead, we declined not only to expand the common law concept of insanity so as to encompass diminished capacity but also to recognize the doctrine as an independent defense. This position was reaffirmed shortly thereafter in Allen v. State, 230 Md. 533, 188 A.2d 159 (1962).

Upon this common law doctrinal base, the General Assembly passed in 1967 a massive remodeling of the limits of criminal culpability as expressed in the definition of insanity. In that year, Chapter 709 of the Laws of Maryland, Md. Code (1957, 1964 Repl. Vol., 1967 Cum. Supp.), Art. 59, § 9, was enacted replacing the court established Spencer-McNaughten test for insanity with the broader rule patterned after that expressed in the American Law Institute Model Penal Code (section 4.01) admitting consideration of a "mental disease or defect.” Md. Code 1957 (1964 Repl. Vol., 1967 Cum. Supp.), Art. 59, § 9 (a). The sweeping change wrought by the 1967 law in the test for insanity was further refined in 1970 by Chapter 407 of the Laws of that year where the prior test of criminal responsibility was relocated to new section 25(a) of Article 59 and the term "mental disorder” was substituted for "mental disease or defect.” The section now reads:

A defendant is not responsible for criminal conduct and shall be found insane at the time of the commission of the alleged crime if, at the time of such conduct as a result of mental disorder, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. [Md. Code (1957, 1979 Repl. Vol.), Art. 59, § 25 (a).]

Additionally, by that same enactment, mental disorder was expressly defined in section 3 (f) as "mental illness or mental retardation or any other form of behaviorial or emotional illness resulting from any psychiatric or neurological disorder.” ⁹ By thus defining and redefining the limits of criminal culpability as expressed in the definition of legal insanity, the General Assembly has exercised its unique prerogative to balance the interests of the community and the individual accused in this regard. See Cole v. State, supra. We here reaffirm our position that "the concepts of both diminished capacity and insanity involve a moral choice by the community to withhold a finding of responsibility and its consequence of punishment,” Bethea v. United States, supra, 365 A.2d at 90, n.55, and on this basis are indistinguishable.¹⁰ Accordingly, because the legislature, reflecting community morals, has, by its definition of criminal insanity, already determined which states of mental disorder ought to relieve one from criminal responsibility, this court is without authority to impose our views in this regard even if they differed. See, Bates v. State, 386 A.2d 1139, 1143 (Del. 1978); Bethea v. United States, supra, 365 A.2d at 92; Steele v. State, 97 Wis.2d 72, 294 N.W.2d 2, 13 (1980).

In light of criticism of the McNaughten insanity test, diminished capacity has been viewed as a solution to some of the inadequacies of the traditional approach to criminal responsibility, People v. Drew, 22 Cal.3d 333, 149 Cal. Rptr. 275, 280-81 (1978) (en banc); People v. Henderson, 60 Cal.2d 482, 35 Cal. Rptr. 77, 82 (1963), and many decisions allowing evidence of a sane defendant’s mental abnormalities arise in jurisdictions which define criminal insanity in terms of the McNaughten principle. E.g., State v. Gramenz, 256 Iowa 134, 126 N.W.2d 285 (1964); State v. DiPaolo, 34 N.J. 279, 168 A.2d 401 (1961); Commonwealth v. Walzack, 468 Pa. 210, 360 A.2d 914 (1976). In fact, some assert that the judicial development of the diminished capacity defense assuaged dissatisfaction with the McNaughten test and actually inhibited reform of it. Arenella, The Diminished Capacity and Diminished Responsibility Defenses: Two Children of a Doomed Marriage, 77 Col.L. Rev. 827, 854-55 (1977). With the broadening of the concept of criminal insanity beyond the strictures of the Spencer-McNaughten test accomplished by section 25 (a), however, the arguable need for a doctrine such as diminished capacity to ameliorate the law governing criminal responsibility prescribed by the McNaughten rule has been eliminated to the extent the legislature has deemed it advisable to do so. See People v. Drew, supra; Held, Diminished Capacity in California: A Diminished Future or Capacity for Change?, 8 S.F.U.L. Rev. 203 (1980); Comment, Diminished Capacity and California’s New Insanity Test, 10 Pac. L.J. 751 (1979).

That the General Assembly has exercised its prerogative to make the delicate judgments upon which changes in the limits of criminal responsibility are based, can be illustrated by its actions concerning mental retardation and the relation of that mental condition to criminal culpability. In 1972, the term "mental retardation” was deleted from the section 3 (f) definition of "mental disorder” and the definition was made to expressly preclude mental retardation. 1972 Md. Laws, ch. 345; Md. Code (1957, 1979 Repl. Vol.), Art. 59, § 3 (f). Because at common law, mental retardation alone was not generally considered sufficient to support the defense of insanity, State v. Deyo, 358 S.W.2d 816, 826 (Mo. 1962); Bradshaw v. State, 353 So.2d 188, 191 (Fla. App. 1978); see Commonwealth v. Mazza, 366 Mass. 30, 313 N.E.2d 875, 878 (1974); Perkins on Criminal Law (2d ed. 1969) pp. 878-79, it appeared that the foregoing amendments precluded the insanity defense based on that mental condition. When, in 1978 the Attorney General of this State expressed the view that, in light of these statutory changes, "the Legislature intended that the defense of insanity based upon mental retardation would be unavailable to defendants in the future,” 63 Op. Md. Att’y. Gen. 230, 235 (1978), the General Assembly, in response, redefined "mental disorder,” as expressed in Code (1957, 1979 Repl. Vol., 1981 Cum. Supp.), Art. 59, § 3 (f), "[for] the purpose of including mental retardation in the definition of mental disorder” when that term is used to define insanity as a defense in criminal cases. 1980 Md. Laws, ch. 823.¹¹ Thus, by readjusting the concept of criminal insanity to include mentally retarded defendants, the legislature has made manifest that any such mentally deficient persons having met the section 25 (a) definition of insanity are not to be held accountable for behavior in breach of societal norms as those precepts are expressed in the criminal law. The General Assembly, however, has not expressed a similar determination that a lesser mental condition, short of insanity, however defined, will suffice to relieve the accused of the full measure of criminal responsibility by mitigating specific intent crimes, and we again decline to impose our views on this essentially legislafive prerogative. Cole v. State, supra; Armstead v. State, supra; Young v. State, supra.12

What has just been iterated does not mean, however, that evidence of a defendant’s mental abnormality which does not establish his insanity has been totally precluded from the consideration of those operating the machinery of our criminal justice system. Such evidence typically constitutes part of the range of data upon which the trial judge, following establishment of guilt, focuses attention when sentencing the individual accused. Such use of this information squares with the practice prevailing in our jurisprudence of permitting the judge wide latitude in making individualized sentencing decisions after consideration of information both in aggravation and mitigation of penalty. As we so recently noted in Logan v. State, 289 Md. 460, 480-81, 425 A.2d 632, 643 (1981):

"[in] exercising the discretion vested in [the sentencing judge], the procedural policy of the State encourages him to consider information concerning the convicted person’s reputation, past offenses, health, habits, mental and moral propensities, social background and any other matters that a judge ought to have before him in determining the sentence that should be imposed.”

Consequently, although the diminished capacity defense has not been written into our laws defining criminal guilt, evidence of a defendant’s mental abnormality which does not establish his insanity can be considered at sentencing.¹³ Indeed, the General Assembly has demonstrated its awareness of the moral and legal policy considerations involved in defining the limits of criminal culpability by expressly providing that, in death penalty cases such as the one we now consider, the sentencing authority, be it judge or jury, may consider the defendant’s impaired mental abilities in mitigation of punishment. Article 27, Section 413 (c) specifically authorizes admission of evidence relating to any mitigating circumstance for consideration by the sentencing body. The statute provides that in mitigation of penalty, the jury or court must evaluate whether "[t]he murder was committed while the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired as a result of mental incapacity, mental disorder, emotional disturbance, or intoxication.” Md. Code (1957, 1976 Repl. Vol., 1981 Cum. Supp.), Art. 27, § 413 (g) (4). Clearly, the General Assembly had commanded that in death penalty cases mental weaknesses, short of insanity, of a particular accused are to be considered, not in determining whether the defendant is to be held criminally responsible for his act, but rather, in considering the appropriate penalty to be set for the crime. Therefore, at the punishment determining stage of a death penalty case, testimony of a defendant’s impaired mental abilities should be admitted and the full mental profile of the prisoner may be adduced, uninhibited by the requirements of the legal definition of insanity. It is thus at the sentencing hearing where the common experience of the judge or jury is called upon to assess the defendant’s impaired mental capabilities and where this mitigating circumstance is evaluated in order to determine whether, in fairness and mercy, a defendant ought to be held less culpable for his criminal act.

c.

We now consider Johnson’s contention that the trial judge committed reversible error in allowing testimony which the accused characterizes as "purely prejudicial” to be adduced at trial to the effect that the victim had a very sick daughter. Assuming, solely arguendo, that this testimony was superfluous to the prosecution’s case, a reversal of the underlying convictions is not justified if the evidentiary violation constitutes harmless error. The standard for determining harmless error, as thoughtfully laid out by Judge O’Donnell for this Court in Dorsey v. State, 276 Md. 638, 659, 350 A.2d 665, 678 (1976), is whether "a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict. . . .” Upon such a review of the trial record in this case we have no difficulty in declaring beyond a reasonable doubt that the verdicts were not influenced by the testimony concerning the daughter’s health. The record is glutted with overwhelming evidence in support of the jury’s guilt determinations, including the defendant’s prior voluntary confession to the crimes as well as his testimonial admissions at trial. A reversal on this basis is thus not warranted.

d.

Immediately following the court’s instructions to the jury at the guilt determining phase of appellant’s trial, it became known that one of the panel member’s father had been stricken ill and was in the hospital. After a bench conference, at which both Johnson and his attorney expressed consent, Judge Bowen excused the juror, Mr. McCamey, and replaced him with the first alternate. The proceedings continued with the court, at the request of the prosecution, briefly amending its instructions to the jury concerning first and second degree rape. Following this interlude, and before closing argument began, Mr. McCamey returned to the courtroom after checking on his father’s condition during his brief absence and expressed a desire to return to jury service. In response to this request, the judge called another bench conference with appellant, the attorneys, and the excluded juror, and returned Mr. McCamey to the panel; both counsel expressly approved of the reinstatement, although the defendant himself was this time silent on the matter. The court, for the benefit of juror McCamey, then repeated verbatim its short amendatory instruction concerning the law of rape given in his absence. Counsel then presented their closing arguments to the jury.

Johnson here asserts that the reinstatement of juror McCamey was a "patently illegal procedure” which requires reversal. This contention has no merit, for we do not agree with defendant’s claim that reinstatement of a temporarily excused juror prior to deliberations can only be made affirmatively by the accused himself. It is clear that not every matter touching a defendant’s right to a jury need be decided by the accused personally. As we recently held in State v. Magwood, for example, the right to a sequestered jury during deliberations is not so fundamental that it can only be waived by the defendant personally, and either consent of counsel to a jury separation or failure to object to the dispersal constitutes a waiver of the right. 290 Md. 615, 628, 432 A.2d 446, 453 (1981). If counsel can consent to a continuation of jury deliberations following an overnight dispersal of the entire group, he can certainly agree in the presence of the accused and without his objection to the return of one juror to service following a brief separation from the trial proceedings before deliberations have begun. All jury deliberations occurred with the same panel that was originally selected and defendant does not attempt to demonstrate that he was in any way prejudiced by juror McCamey’s brief absence from the courtroom. Consequently the trial judge committed no error in exercising his discretion to reinstate juror McCamey to the panel with the express consent of Johnson’s counsel.

e.

Appellant, in an effort to explain the effects of the drugs he was ingesting while riding in the victim’s car, secured Mr. Gordon Glazer, "an employee of the Center dealing with the problem of abusive substances ...,” to testify on his behalf. Defendant did not subpoena Mr. Glazer, however, and the witness was not present on the second day of trial when defendant sought his testimony. Responding to a search for the witness instituted by the trial judge, Mr. Glazer’s office contacted the court with information that he had left for Alaska and that attempts were being made to stop him at the airport or to hold his plane. The judge declared that such action would not be necessary and Mr. Glazer did not appear. In an effort to provide the defense with a witness who could testify on the subject of Mr. Glazer’s proposed testimony, however, the trial judge informed counsel that Dr. Spodak, "an independent medical employee of the State of Maryland” was present "and had substantially better credentials for testifying ... than did Mr. Glazer.” Dr. Spodak was present in order to testify in rebuttal for the State and, after interviewing the witness, Johnson’s counsel elected not to have him take the stand on his client’s behalf.

Johnson readily admits that the trial judge had no duty to make efforts to locate the missing witness for him, but he nevertheless complains that once the judge undertook the task of assisting the defense in this regard, he could not abandon the quest. Appellant cites no authority for this imaginative claim and we reject it. As no subpoena had been issued for the witness, the court had no legal basis for commanding his presence at trial.

f.

Johnson additionally contends that, because the evidence adduced at trial demonstrates he was not present when his accomplices initially seized the victim, he cannot be guilty of kidnapping. It is argued in this regard that actual seizure of the victim is an essential element of the offense of kidnapping. We do not agree. Kidnapping is, in essence, false imprisonment aggravated by carrying the victim to some other place, although at early common law, the accused had to carry the person kidnapped into another country to constitute the offense. Midgett v. State, 216 Md. 26, 38-40, 139 A.2d 209, 215-16 (1958); Wharton’s Criminal Law (14th ed. 1979), § 210; Hockheimer, American Criminal Law (1911), § 41. False imprisonment is merely the restraint of one’s freedom of locomotion against his will without authority of law, id., and the element of carrying the victim is self-explanatory. Md. Code (1957, 1976 Repl. Vol.), Art. 27, § 337 concerning kidnapping reads as follows:

Every person, his counsellors, aiders or abettors, who shall be convicted of the crime of kidnapping and forcibly or fraudulently carrying or causing to be carried out of or within this State any person ... with intent to have such person carried . .. or ... concealed . .. shall be guilty of a felony.. ..

As this Court noted in Midgett v. State, supra, 216 Md. at 39-40, 139 A.2d at 216, the enactment reflects "the basic common law concept that to constitute kidnapping [as opposed to false imprisonment] there must be a carrying of the person from the place where he is seized to some other place either out of or within this state.” (emphasis in original.) It is thus manifest that the crux of the crime of kidnapping in this jurisdiction today is false imprisonment aggravated by some measure of transportation of the victim. See Midgett v. State, supra; Dean v. State, 46 Md. App. 536, 537-38, 420 A.2d 288, 290 (1980); Tate v. State, 32 Md. App. 613, 616-17, 363 A.2d 622, 625 (1976). Johnson, by his own testimony, admitted participation in the transportation of the victim to the deserted area of Baltimore County. It was the defendant alone, however, who then led the blindfolded victim into the woods to murder her. This evidence more than suffices to support conviction of appellant for kidnapping. See Carpenter v. United States, 264 F.2d 565, 572 (4th Cir. 1959) (immaterial which defendant first seized kidnap victim or which one was driving; if they were acting in concert, voluntarily in pursuit of joint purpose, each was responsible not as co-conspirator but as a principal).

g-

As his final contention concerning the rectitude of the guilt determining phase of trial, appellant asserts that he was not afforded adequate assistance of counsel and that this failure requires reversal on appeal. It is clear that appellant did not object at trial or sentencing to the adequacy of his representation and that the trial judge took no testimony or made any findings in this regard.¹⁴ Johnson, nevertheless, through new counsel, strives in this appeal to portray his former lawyer as ineffective by asserting that the record as a whole demonstrates a failure to develop at trial a coherent defense theory. Citing many alleged errors by counsel appearing on the face of the record, appellant asks this Court to pass on the question of his counsel’s competence.

We previously stated in State v. Zimmerman, 261 Md. 11, 24, 273 A.2d 156, 163 (1971), "[w]hat we consider to be the desirable procedure” for consideration of claims of inadequate assistance of counsel when the issue was not presented to the trial court, and we adhere to that view. In essence, it is because the trial record does not ordinarily illuminate the basis for the challenged acts or omissions of counsel, that a claim of ineffective assistance is more appropriately made in a post conviction proceeding pursuant to Md. Code (1957, 1976 Repl. Vol., 1981 Cum. Supp.), Art. 27, § 645A. Davis v. State, 285 Md. 19, 36, 400 A.2d 406, 414-15 (1979); State v. Zimmerman, supra; see also White v. State, 17 Md. App. 58, 64-67, 299 A.2d 873, 876 (1973); Harris v. State, 2 Md. App. 408, 234 A.2d 781 (1967). Moreover, under the settled rules of appellate procedure, a claim of ineffective assistance of counsel not presented to the trial court generally is not an issue which will be reviewed initially on direct appeal, Berndt v. Warden, 240 Md. 701, 213 A.2d 471 (1965); State v. Zimmerman, supra; see White v. State, supra; Bailey v. State, 6 Md. App. 496, 252 A.2d 85 (1969); Harris v. State, supra; see also Md. Rules 885, 1085, although competency of counsel may be raised for the first time at a section 645A post conviction proceeding. Davis v. State, supra; see Curtis v. State, 284 Md. 132, 395 A.2d 464 (1978). Upon such a collateral attack, there is presented an opportunity for taking testimony, receiving evidence, and making factual findings concerning the allegations of counsel’s incompetence. Wilson v. State, 284 Md. 664, 675, 399 A.2d 256, 262 (1979); see Md. Rule BK 44. By having counsel testify and describe his or her reasons for acting or failing to act in the manner complained of, the post conviction court is better able to determine intelligently whether the attorney’s actions met the applicable standard of competence. Where, as here, the record sheds no light on why counsel acted as he did, direct review by this Court would primarily involve "the perilous process of second-guessing” People v. Miller, 7 Cal.3d 562, 102 Cal. Rptr. 841, 848, 498 P.2d 1089 (1972), perhaps resulting in an unnecessary reversal in a case where sound but unapparent reasons existed for counsel’s actions.¹⁵ Consequently, we leave consideration of Johnson’s ineffective representation claim to the circuit court upon post conviction proceeding where there can be a studied evaluation of a proper record should appellant choose to pursue the matter. See, e.g., Jones v. Warden, 244 Md. 720, 224 A.2d 274 (1966); Davis v. State, 285 Md. 19, 36-37, 400 A.2d 406, 414-15 (1979); see Md. Rule BK 45b.¹⁶

II. The Sentencing Proceedings

We turn now to examine Johnson’s contentions concerning the sentence of death, imposed by the same jury that determined his guilt following a subsequent sentencing hearing held pursuant to Md. Code (1957,1976 Repl. Vol., 1981 Cum. Supp.), Art. 27, § 413, which establishes a bifurcated trial on the issues of guilt and sentencing whenever the state seeks the death penalty.¹⁷ Initially, appellant launches a two-pronged attack on the constitutionality of this statute. He asserts that the death penalty is per se cruel and unusual punishment as measured against the standards of the Maryland Constitution. Alternatively, Johnson contends that the statute authorizing imposition of the death sentence unconstitutionally places the burden of proving mitigating circumstances on the defendant. Both arguments presented here were thoroughly considered and rejected, however, in our recent decision of Tichnell v. State, 287 Md. 695, 720-34, 415 A.2d 830, 843-50 (1980), and we deem the matter to be settled.

b.

Johnson next asserts that the failure of the jury expressly to acknowledge the uncontroverted fact that he had not been convicted of any prior crime of violence demonstrates that he was sentenced to death in violation of section 413 which requires that this mitigating factor be recognized and balanced against the aggravating factors present in his case, and we agree. In so doing, we note that section 414 (e) of Article 27 directs two varieties of review by this Court of death penalty cases. We may, of course, perform the normal appellate function and hear any errors "properly before [this] Court on appeal.” In addition, beyond any legal issues raised in a death penalty case, we are required in accord with statutory guidelines to review the propriety of the imposition of the death penalty itself, a function not usually performed in this State at the appellate level. Because in this case we vacate the sentence due to failure to follow the sentencing procedure set forth in the statute, we have no occasion to review the appropriateness of the imposition of the death penalty here.

Section 413 is structured to guide the discretion vested in the sentencing authority with "clear and objective standards” to ensure that the death penalty is not inflicted in an arbitrary and capricious manner in violation of constitutional principles. Tichnell v. State, supra, 287 Md. at 722-29, 415 A.2d at 844-48; see Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S. Ct. 2960, 49 L.Ed.2d 913 (1976); Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 49 L.Ed.2d 929 (1976). To this end:

the sentencing authority — either the judge or jury — must first consider whether, beyond a reasonable doubt, any of ten statutorv aggravating circumstances exist. § 413 (d).[¹⁸] If the sentencing authority does not find beyond a reasonable doubt the existence of one or more of the aggravating circumstances, then the sentence shall be life imprisonment. § 413 (f). If, however, the sentencing authority finds beyond a reasonable doubt the existence of one or more aggravating factors, then it must determine whether, by a preponderance of the evidence, any one of eight mitigating circumstances exist. § 413 (d).[¹⁹] The statute requires that a sentence of life imprisonment be imposed if, by a preponderance of the evidence, the sentencing authority finds that the mitigating circumstances outweigh the aggravating circumstances. § 413 (h) (1) and (3). If the mitigating circumstances do not outweigh the aggravating circumstances by a preponderance of the evidence, however, then a sentence of death must be imposed. § 413 (h) (1) and (2) . [Tichnell, supra at 725-26, 415 A.2d at 846-47.]

In order for this Court to determine that the death sentence was not arbitrarily directed but, rather, resulted from the guided consideration required of the sentencing authority by section 413 as well as the federal constitution, adequate information concerning the sentencing decision must be revealed. Consequently, section 413 (i), (j) requires that the sentencing determination be unanimous, be in writing, and that it specifically state:

(1) Which, if any, aggravating circumstances it finds to exist;

(2) Which, if any, mitigating circumstances it finds to exist;

(3) Whether any mitigating circumstances found under subsection (g) outweigh the aggravating circumstances found under subsection (d);

(4) Whether the aggravating circumstances found under subsection (d) are not outweighed by mitigating circumstances under subsection (g); and

(5) The sentence, determined in accordance with subsection (f) or (h).

To further aid our review of the determination to impose the death penalty and in accord with the authority vested in this Court pursuant to section 413 (1), we adopted Maryland Rule 772A. This rule provides for a standard form verdict sheet where the sentencing body is required to indicate, by marking appropriate spaces, its consideration of each statutorily required step in the penalty determining process.²⁰ Moreover, the rule requires a detailed report by the trial judge providing additional information about the trial, the offense, the defendant, and the victim. All of this data thus provides the basis for our review of the jury’s determination to end the life of the defendant.

Johnson claimed at the sentencing hearing that several mitigating circumstances existed in his case. Of these, at least one — that he had no criminal record of a prior enumerated crime of violence — was not controverted and thus, as a matter of law, defendant has met his burden and the jury was required to recognize its existence. Nevertheless, the jury indicated that it found no mitigating circumstances and the State acknowledges that the panel was mistaken in this regard. It may be that the jurors actually considered Johnson’s lack of a record of any prior crime of violence but either did not feel that it outweighed the aggravating factors present in this case or inadvertently marked the wrong answer. We will not pretend omniscience, however, particularly when considering the fate of one sentenced to death, and the penalty statute does not permit it. Our review in this regard, of necessity, encompasses only what the sentencing authority specifically states as its basis for imposing the death penalty. We do not in this case purport to control how a particular mitigating factor is used by the sentencing authority in its penalty determining calculus. Johnson, however, does have the statutory (and constitutional) right to have such information specifically considered by the sentencing jury and this Court is obligated to enforce that procedure. Cf., Wash., B. & A.R. Co. v. Kimmey, 141 Md. 243, 118 A. 648 (1922) (no review of discretionary denial of motion for new trial, but appellate court will ensure that proper evidence is considered by lower court). Where, as here, the sentencing authority fails to indicate the existence of a factor commanded by the legislature to be considered in mitigation of the death penalty, it is manifest that the sentence was imposed in violation of the statutory design, thus compelling us to vacate it. Were the sentencing authority free to disregard the existence of a mitigating factor and impose sentence without considering it, the statute authorizing such arbitrary imposition of the death penalty would be rendered patently unconstitutional. See Tichnell v. State, supra; Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L.Ed.2d 346 (1972); Gregg v. Georgia, supra; Proffitt v. Florida, supra; Jurek v. Texas, supra. Accordingly, because the death penalty was unlawfully imposed, we will vacate it and remand the case for a new sentencing proceeding under section 413.²¹

c.

We address the remaining sentencing issue because at the hearing for redetermination of Johnson’s punishment for the murder, the trial court will again be confronted with it. At sentencing, the trial judge, over Johnson’s objection, permitted the state to read to the jury his explicit confession to the murder of Ester Rosenblatt for which he was then under indictment but had not yet been tried. Johnson urges that the admission of his highly prejudicial Rosenblatt murder confession was error because the statement "was unrelated to any aggravating factor” contained in the statute, and, moreover, rebutted nothing. We do not take such a limited view of the range of information properly presentable in a death penalty case to the sentencing authority (in this case a jury), however, and begin our analysis by pointing out that evidence of criminal conduct for which a defendant has not been convicted is clearly admissible for sentencing purposes when that task is performed by a judge in a case not involving a section 413 death penalty proceeding. Logan v. State, 289 Md. 460, 480-87, 425 A.2d 632, 642-46 (1981); Purnell v. State, 241 Md. 582, 217 A.2d 298 (1965). We only a few months ago stated in Logan v. State that:

[i]n considering what is proper punishment, it is now well-settled in this State that a judge is not limited to reviewing past conduct whose occurrence has been judicially established, but may view "reliable evidence of conduct which may be opprobrious although not criminal, as well as details and circumstances of criminal conduct for which the person has not been tried....” [Logan v. State, supra, 289 Md. at 481, 425 A.2d at 643 (citations omitted).]

There is no reason in principle why this concept of sentencing should not apply in a section 413 death penalty proceeding even though the sentencing authority can, by election of the defendant, be reposed in either judge or jury. We observe nothing in the enactment which in any way contradicts this view, and in fact, a fair reading of the statute, particularly section 413 (c), embraces it. That section sets forth the following "type of evidence admissible in [the sentencing] proceeding:”

(i) Evidence relating to any mitigating circumstance listed in subsection (g);

(ii) Evidence relating to any aggravating circumstance listed in subsection (d) of which the State had notified the defendant pursuant to § 412(b);

(iii) Evidence of any prior criminal convictions, pleas of guilty or nolo contendere, or the absence of such prior convictions or pleas, to the same extent admissible in other sentencing procedures;

(iv) Any presentence investigation report. However, any recommendation as to sentence contained in the report is not admissible; and

(v) Any other evidence that the court deems of probative value and relevant to sentence, provided the defendant is accorded a fair opportunity to rebut any statements, [(emphasis supplied).]

In our view, part (v) in unambiguous terms authorizes the trial court to admit into evidence before the sentencing jury identical information concerning a defendant’s criminal conduct as would normally be considered by the judge if he were imposing sentence in a non-death penalty case. As is true in all other criminal causes, the sentencing authority in a death penalty case should be presented with a full range of relevant information so as to fashion a particular penalty in accord with "the prevalent modern penal philosophy of individualized punishment.” Logan v. State, supra, 289 Md. at 481, 425 A.2d at 643. The task that the sentencer must perform in this regard is thus basically no different from that carried out daily by trial judges in other types of cases. Therefore, evidence of a convicted person’s confession to prior criminal conduct, voluntarily made, may be admitted at sentencing pursuant to section 413 (c) (v) if the court deems it to be of probative value and relevant to sentence, "provided the defendant is accorded a fair opportunity to rebut any statements” and challenge their voluntariness.²² Those jurisdictions which have addressed the question here presented are in substantial accord with this view. E.g., United States v. Dalhover, 96 F.2d 355, 360 (7th Cir. 1938), cert. denied, 305 U.S. 632 (1938); People v. Morse, 70 Cal.2d 711, 76 Cal. Rptr. 391, 411 (1969) (en banc), cert. denied, 397 U.S. 944 (1970); State v. Mackey, 553 S.W.2d 337, 342-45 (Tenn. 1977); Commonwealth v. Hoss, 445 Pa. 98, 283 A.2d 58, 68-69 (1971); Hammett v. State, 578 S.W.2d 699, 709 (Tex. Crim. App. 1979) (en banc). See Jurek v. Texas, 428 U.S. 262, 96 S. Ct. 2950, 2958, 49 L.Ed.2d 929 (1976) ("essential .. . that the [sentencing] jury [in a death penalty case] have before it all possible relevant information about the individual defendant whose fate it must determine.”); Woodson v. North Carolina, 428 U.S. 280, 304, 96 S. Ct. 2978, 2991, 49 L.Ed.2d 944 (1976) ("consideration of the character and record of the individual offender and the circumstances of the particular offense [is] a constitutionally indispensable part of the process of inflicting the penalty of death”) (plurality). See generally Annot. 96 A.L.R.2d 768, §§ 12-15 and later case service.

Judgment of conviction and sentences affirmed, except as to the imposition of the death sentence for murder: death sentence vacated and case remanded to the Circuit Court for Calvert County for a new sentencing proceeding under § 413 of Article 27.

1 . Md. Code (1957, 1976 Repl. Vol., 1981 Cum. Supp.), Art. 27, §§ 413, 414. In addition, the trial judge sentenced Johnson to consecutive terms of life in prison for the rape, 20 years for the kidnapping, and 15 years for the handgun offense.

2 . At all times during trial, the defendant was represented by private counsel paid by his parents. Johnson’s family was apparently either unwilling or unable to expend additional sums on his behalf beyond those already paid to counsel. Although the State here disputes appellant’s claim of indigency, no such contention was made before the trial court. On appeal, Johnson’s claims are pressed by the public defender. We shall assume for purposes of our discussion that the defendant is, indeed, indigent.

3 . To this, the State replies that such appointment is not required, but in any event, by withdrawing his plea of insanity before trial, Johnson has waived any claim of error based on the refusal by the trial court to authorize an additional psychiatric evaluation of the accused. As we here determine that the lower court’s refusal to authorize an additional psychiatric evaluation was not error, we shall assume without deciding that appellant’s claim is properly preserved for review. We note, however, that, while "ordinarily” we will not consider questions not properly preserved for appeal pursuant to Maryland Rule 885, in a previous death penalty case we demonstrated a less strict application of this principle and exercised our discretion to consider and determine questions briefed and argued before us whether or not properly preserved for review. See Bartholomey v. State, 260 Md. 504, 513, 273 A.2d 164, 169 (1971).

4 . The only United States Supreme Court decision directly on this point is United States v. Baldi, 344 U.S. 561, 73 S. Ct. 391. 97 L.Ed. 549 (1953), where the Court noted that "[w]e cannot say that the State has [the duty to appoint a psychiatrist to make a pretrial examination] by constitutional mandate.” 344 U.S. at 568. The constitutional issue, however, was reawakened with the subsequent decision of Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L.Ed.2d 799 (1963), which held that one of the fundamental rights applied to the states through the Fourteenth Amendment is the Sixth Amendment right to counsel. Some courts view the right secured in Gideon as additionally requiring the assistance of experts or investigators when necessary to provide an indigent with the effective assistance of counsel. E.g., Mason v. State of Arizona, 504 F.2d 1345, 1351 (9th Cir. 1974) cert. denied, 95 S. Ct. 1145 (1975); Hintz v. Beto, 379 F.2d 937 (5th Cir. 1967); Jacobs v. United States, 350 F.2d 571 (4th Cir. 1965); People v. Worthy, 109 Cal.App.3d 514, 167 Cal. Rptr. 402 (1980); People v. Watson, 36 Ill.2d 228, 221 N.E.2d 645 (1966); State v. Second Jud. Dist. Ct. in and for Co. of Washoe, 453 P.2d 421 (Nev. 1969). Other courts, however, hold the view that the Constitution does not create any right to such expert assistance. E.g., Watson v. Patterson, 358 F.2d 297 (10th Cir. 1966), cert. denied, 385 U.S. 876 (1966); Corbett v. Patterson, 272 F. Supp. 602 (D. Colo. 1967); State v. Chambers, 104 Ariz. 247, 451 P.2d 27 (1969); Taylor v. State, 229 Ga. 536, 192 S.E.2d 249 (1972); Bimbow v. State, 315 N.E.2d 738, 743-44 (Ind. App. 1974); Utsler v. State, 171 N.W.2d 739 (S.D. 1969); Foster v. Commonwealth, 209 Va. 297, 163 S.E.2d 565 (1968).

5 . Defendant’s complaints about the facial brevity of the report in no way impugn the integrity of the evaluation contained in it. Appended to the report was a summary of staff deliberations on the competence of Johnson. Moreover, Dr. Ernest Kamm, a clinical psychologist at Perkins, filed a separate psychological report, portions of which the defendant used at trial along with the testimony of Dr. Kamm.

6 . We reproduce here in full Dr. Kamm’s psychological report with emphasis indicating the portions read to the jury:

TESTS ADMINISTERED:

WAIS

Bender-Gestalt

Holtsman Inkblot Technique

Color Pyramid Test

TEST BEHAVIOR:

The patient is a 19-year old youth of medium height and build who presented a neat and clean appearance. He was extremely sullen and hostile, and his cooperation for interview and test was poor. In view of this test results have to be considered tentative.

TEST RESULTS:

On the WAIS he earned a Verbal I.Q. of 78, a Performance I.Q. of 68, and a Full Scale I.Q. of 72 which places him within the borderline range of intelligence. His potential, as gauged by his abstract reasoning, is at least within the low average range. Intellectual efficiency is decreased by a combination of educational deprivation and negativism. There are some signs which point in the direction of bizarre thinking and a tenuous hold on reality. E.G. on Card 22 of the Holtzman he saw "the devil,” and on Card 27 he saw "God over water.” But these should be interpreted with caution, as they may also be attempts to embarrass and express contempt for the examiner by giving nonsensical answers.

The personality picture is that of an extremely deprived individual who does not expect any affection and emotional support from either parental figure. He perceives the mother figure as domineering, but distant and devoid of warmth and understanding and the father figure as hostile and threatening. Yet he has conjured up the image of an idealized, all wise and all loving father surrogate with whom he will compare any male elder. Since such a person is bound to fall short of his ideal he is apt to equate this person with the real father figure whom he sees in negative terms and reject him. As a result he not only has trouble with authority figures, but perceives the world about him as a cold inhospitable place where he does not have a chance.

CONCLUSION:

The patient functions at the borderline intellectual level (I.Q. 72), but his potential is at least within the low average range. He can be described as a severely deprived individual with a hostile and negative orientation and an [sic.] severe authority problem. Contact with reality is difficult to evaluate on account of his poor productivity resulting from extreme negativism.

We note that Md. Code (1974, 1980 Repl. Vol., 1981 Cum. Sup_p.), § 9-120 of the Courts Article provides that a psychologist, duly licensed and qualified as an expert witness, "may testify on ultimate issues, including insanity, competency to stand trial, and matters within the scope of that psychologist’s special knowledge....”

7 . For a chronicling of those jurisdictions which have adopted the diminished capacity defense, either by judicial fiat or through legislative action, and a listing of those which have rejected the doctrine, see Pfeiffer v. State, 44 Md. App. 49, 57-58 n.4, 407 A.2d 354, 358-59 (1979). To this compendium, we add the recent case of Steele v. State, 97 Wis.2d 72, 294 N.W.2d 2 (1980), which rejects the doctrine.

8 . "Daniel McNaughten was inconsistent in the spelling of his name, and courts and commentators ever since have shared that inconsistency, (see Frankfurter, Of Law and Life and Other Things (1965) p. 3).” People v. Drew, 22 Cal.3d 333, 149 Cal. Rptr. 275, 275 n.1 (1978). We follow the spelling as used in Spencer v. State, 69 Md. 28, 13 A. 809 (1888), the first Maryland case to embrace the McNaughten doctrine.

9 . This section 3 (f) definition of mental disorder has recently been altered slightly. See discussion in text infra; Code (1957, 1979 Repl. Vol., 1981 Cum. Supp.), Art. 59, § 3 (f).

10 . Given the primary assumption in the criminal law concerning a defendant’s criminal culpability regardless of his lesser abilities, whatever they may be, and "recognizing the unique position of the concept of insanity in the framework of criminal responsibility,” Bethea v. United States, 365 A.2d 64, 86 (D.C. App. 1976), we cannot agree with those courts which easily declare that evidence of a legally sane defendant’s mental impairment is always probative on the factual question of whether a particular accused entertained the requisite mental state. See, e.g., State v. DiPaolo, 34 N.J. 279, 168 A.2d 401 (1961), cert. denied, 368 U.S. 880 (1961). There is a fundamental difference between evidence demonstrating that the defendant did not as a fact possess the requisite mental state, here premeditation and deliberation, as opposed to evidence establishing that the defendant was generally less capable than a normal person of forming a requisite mens rea. Certainly, we recognize the basic proposition that the state must prove every element of a crime beyond a reasonable doubt, including specific intent if necessary, and that an accused is entitled to rebut the state’s case. Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L.Ed.2d 508 (1975). The doctrine of diminished capacity, in our view, however, does not operate to demonstrate that, as a fact, a defendant did not entertain a requisite mental state; rather, the principle is used to establish a legally sane but, mentally impaired defendant’s diminished culpability for a particular criminal act.

Moreover, facile comparison of the doctrine of diminished capacity with the rule allowing certain evidence of a defendant’s intoxication on the issue of mens rea does not withstand scrutiny. The degree of intoxication necessary to negate mens rea is great and is comparable with that degree of mental incapacity that will render a defendant legally insane. As noted in State v. Gover, 267 Md. 602, 608, 298 A.2d 378, 382 (1973):

If the trier of fact determines that at the time the alleged criminal act occurred, the accused had become so inebriated that he possessed no reason or understanding, then he has reached that stage of intoxication that renders him incapable of forming the requisite mens rea which is a necessary element of all specific intent crimes.

Lesser degrees of incapacity, whether produced by intoxication or organic mental impairment will not relieve a defendant of full responsibility for his acts. See 267 Md. at 606-07, 298 A.2d at 381.

11 . The 1980 changes added to the definition of "mental disorder” a proviso to the exclusion of mental retardation. The last sentence of Code (1957, 1979 Repl. Vol., 1981 Cum. Supp.), Art. 59, § 3 (f) now reads: "[t]he term [mental disorder] shall not include mental retardation except as used in §§ 23 through 28, inclusive.” The referenced sections regulate insanity as a defense in criminal cases.

12 . We note that the legislatures of some states have enacted the diminished capacity doctrine. See Alaska Stat. § 12.45.085 (1980); Ark. Stat. Ann. § 41-602 (1947, 1979 Supp.); Colo. Rev. Stat. § 16-8-103 (1) (1973, 1980 Supp.); Haw. Rev. Stat., § 704-401 (1976 Repl. Vol., 1979 Supp.); Idaho Code § 18-208 (1) (1979,1981 Supp.); Mo. Ann. Stat. § 552.030 (3) (1) (Vernon) (1981 Supp.); Mont. Rev. Codes Ann. § 46-14-102 (1979). Recently, the legislature of California, however, abrogated the defense of diminished capacity, see Cal. Penal Code § 28 (a) (b) (Chapter 409, S.B. 54, adopted Sept. 10, Í981), and the Delaware Legislature enacted a statute providing for recognition of diminished capacity but repealed the provision prior to the code’s effective date. See 59 Del.L.Ch. 203, § 36; Bates v. State, 386 A.2d 1139, 1143 (Del. 1978).

13 . See Jurek v. Texas, 428 U.S. 262, 271, 96 S. Ct. 2950, 2956, 49 L.Ed.2d 929 (1976), where the Court noted that, "in order to meet the requirement of the Eighth and Fourteenth Amendments, a capital-sentencing system must allow the sentencing authority to consider mitigating circumstances.”

14 . We agree that "[a]s a practical matter, ineffectiveness of counsel claims are not likely to be raised at the trial level. Few lawyers will challenge their own conduct of a trial, and client dissatisfaction does not usually surface until after the verdict is in.” Bines, Remedying Ineffective Representation in Criminal Cases: Departures from Habeas Corpus, 59 Va.L.Rev. 927, 939 (1973). Although infrequently, defendants have presented the issue of counsel’s competence to the trial judge. E.g., White v. State, 17 Md. App. 58, 64-67, 299 A.2d 873, 876 (1973).

15 . We recognize that it is conceivable there may be presented a case on direct review where error by counsel at trial is so blatant and egregious that, assuming the issue is properly presented, an appellate court may determine from the face of the record that an accused was not afforded adequate representation. Given the secretive nature of trial tactics, however, such a case will be rarely presented.

16 . Johnson, anticipating this disposition of his ineffective counsel claim, asserts that reference of the issue to post conviction relief would "thwart the purpose” of Md. Code (1957, 1976 Repl. Vol., 1981 Cum. Supp.), Art. 27, § 414 which provides for direct review by this Court of cases where a death penalty has been imposed. This position is belied by the terms of both sections 414 and 645A of Article 27. Section 414 (e) contemplates review of the death sentence imposed "[i]n addition to the consideration of any errors properly before the Court on appeal..while section 645A authorizes post conviction proceedings on behalf of "(a toy person convicted of a crime and either incarcerated under sentence of death or imprisonment....” (emphasis supplied.) Clearly, these statutory provisions authorize decisions of this Court, acting in accord with ordinary and settled principles of appellate review, determining which issues in a death penalty case are properly presented for direct appellate review and which are best left for consideration at a section 645A post conviction proceeding. We note that section 414 of the death penalty statute, when construed in conjunction with section 645A, provides for direct review by this Court of any post conviction proceedings in a case where the death penalty has been imposed.

17 . For a full discussion of the application of the death penalty statute, see Tichnell v. State, 287 Md. 695, 415 A.2d 830 (1980). In the interest of brevity, we shall quote in this opinion only those portions of the enactment relevant to our discussion of the issues.

18 . To support imposition of the death penalty in this case, the state relied upon two statutory aggravating circumstances, namely, that "[t]he victim was a hostage taken or attempted to be taken in the course of a kidnapping or abduction or an attempt to kidnap or abduct,” and "[t]he defendant committed the murder while committing or attempting to commit robbery, arson, or rape or sexual offense in the first degree.” § 413 (d) (4) and (10). The jury found both aggravating factors to be present in this case and the evidence clearly supports the jury’s findings in this regard.

19 . The statutorily denominated mitigating factors are:

(1) The defendant has not previously (i) been found guilty of a crime of violence; (ii) entered a plea of guilty or nolo contendere to a charge of a crime of violence; or (iii) had a judgment of probation on stay of entry of judgment entered on a charge of a crime of violence. As used in this paragraph, "crime of violence” means abduction, arson, escape, kidnapping, manslaughter, except involuntary manslaughter, mayhem, murder, robbery, or rape or sexual offense in the first or second degree, or an attempt to commit any of these offenses, or the use of a handgun in the commission of a felony or another crime of violence.

(2) The victim was a participant in the defendant’s conduct or consented to the act which caused the victim’s death.

(3) The defendant acted under substantial duress, domination or provocation of another person, but not so substantial as to constitute a complete defense to the prosecution.

(4) The murder was committed while the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired as a result of mental incapacity, mental disorder, emotional disturbance, or intoxication.

(5) The youthful age of the defendant at the time of the crime.

(6) The act of the defendant was not the sole proximate cause of the victim’s death.

(7) It is unlikely that the defendant will engage in further criminal activity that would constitute a continuing threat to society.

(8) Any other facts which the jury or the court specifically, sets forth in writing that it finds as mitigating circumstances in the case.

20 . The form (as applied to jury sentencing) first lists the aggravating factors and provides that the panel respond either "yes” or "no” to each depending on whether or not it unanimously finds a particular aggravating factor beyond a reasonable doubt. Should an aggravating factor be found, the form directs the jui^ to consider in a similar manner whether, by a preponderance of the evidence, there exists any of the statutory mitigating factors. The jury is next asked to indicate whether, by a preponderance of the evidence, the mitigating circumstances marked "yes” outweigh the aggravating circumstances so identified. Finally, the jurors must indicate the sentence imposed and each must sign the form.

21 . The problem presented by this case may be avoided by the trial court specifically instructing the jury that it must accept and consider any mitigating factor conceded to exist. Section 413 (c) (3), which declares that "in addition to any other appropriate instructions permitted by law, the court shall instruct the jury as to the findings it must make ... and the burden of proof’ (emphasis added), provides ample basis for giving such guidance. Moreover, we mention that the trial judge and counsel, before the jurors are dismissed after the death penalty has been imposed, should carefully peruse the verdict sheet so that any errors in the sentencing process apparent from the form can be corrected.

22 . Johns on took advantage of this statutorily granted rebuttal right. He submitted Dwayne Mayer’s confession to the same murder which, although involving Johnson in the crime, portrayed Mayers as the killer of Ms. Rosenblatt. Mayers had been convicted of the Rosenblatt murder at the time of the sentencing proceedings in this case and this fact was also presented to the jury. In addition, Johnson personally addressed the jurors and denied involvement in the Rosenblatt killing.