            REPORTED

IN THE COURT OF SPECIAL APPEALS

          OF MARYLAND

              No. 2198

       September Term, 2014

    _________________________

   JEFFREY MICHAEL SHIFLETT

                 v.

      STATE OF MARYLAND

    _________________________


     Nazarian,
     Reed,
     Zarnoch, Robert A.
     (Senior Judge, Specially Assigned),

                 JJ.

    _________________________

       Opinion by Nazarian, J.

    _________________________

    Filed: September 28, 2016
       After Katie Hadel was found stabbed to death in the bathtub of her apartment on

February 5, 2013, Jeffrey Shiflett was charged with first-degree murder, first-degree

assault, first-degree burglary, third-degree burglary, carrying a weapon openly with intent

to injure, and two counts of second-degree assault. At trial in the Circuit Court for

Baltimore County, Mr. Shiflett conceded that he killed her, and the contested issue was

whether Mr. Shiflett, who has been diagnosed with multiple psychiatric disorders, was

guilty of first- or second-degree murder. Ultimately, evidence of Mr. Shifflet’s disorders

was not permitted, and Mr. Shifflet was deemed competent after a mid-trial competency

hearing. But because of Mr. Shiflett’s disruptive behavior in and around the courtroom,

the court ordered him restrained with a stun cuff during the proceedings, and when he

refused, excluded him from the courtroom unless he agreed to wear it. As a result, much

of the trial was conducted in his absence.

       On appeal, Mr. Shiflett claims the circuit court abused its discretion by ordering him

to wear a stun cuff as a condition of being present in the courtroom. In addition, he argues

that the court erred by failing to strike the State’s notice of intent to seek a sentence of life

without parole; by excluding evidence of Mr. Shiflett’s psychological profile; by

concluding that Mr. Shiflett was competent to stand trial; and by denying his motion to

dismiss the burglary count. We affirm his convictions.

                                     I. BACKGROUND

       Mr. Shiflett and Ms. Hadel were childhood friends who became romantically

involved in 2007. At that time, both Mr. Shiflett and Ms. Hadel used heroin and, as we

will explain in more detail below, Mr. Shiflett suffered from several untreated mental
illnesses. After Mr. Shiflett and Ms. Hadel participated in a robbery and Ms. Hadel was

caught on a security camera using a stolen credit card, both were placed on probation. Mr.

Shiflett later violated probation and was imprisoned for the full five-year sentence.

       While in prison, and until his release in 2012, Mr. Shiflett frequently wrote

threatening letters to Ms. Hadel, Ms. Hadel’s mother, and Ms. Hadel’s husband, Craig

Gordon. In one letter, dated May 25, 2009 and addressed to Ms. Hadel, Mr. Shiflett

threatened her with a graphically violent death if she didn’t comply with his wishes:

              I’m in prison and not a day goes buy [sic] to where I don’t think
              about you putting me hear [sic] in this place. It[’]s all good
              why because they can’t keep me forever one day I will leave
              this place. When I do I will come looking for you and I will
              find you. Where ever you might be I won’t give up until I find
              you . . . You better hope you are telling me things I want to
              hear. If not I will loose [sic] my mind and cut your fucking
              head off.

Another letter, dated March 10, 2010, addressed Ms. Hadel as “Dear Whore” and stated,

“Nobody sends me to prison and gets away with it. It’s not going to be hard to find you.”

       When he was released in December 2012, Mr. Shiflett moved in with his father in

Annapolis. Mr. Shiflett’s father testified that he believed his son’s mental condition had

worsened in prison, where he’d spent a year-and-a-half in solitary confinement. He

described his son’s demeanor at the time as highly anxious, that he was unable to sleep or

eat and was obsessed with Ms. Hadel. Mr. Shiflett continued to place phone calls to Ms.

Hadel and her mother, as well as to write about Ms. Hadel on his Facebook page.

       Mr. Shiflett disappeared from his father’s house around February 1, 2013. And he

followed through with his threat to find Ms. Hadel: he walked from Annapolis to



                                             2
Reisterstown and, by February 3, 2013, was camped out in the woods behind her apartment,

waiting for her husband, Mr. Gordon, to leave. On the night of February 5, Mr. Shiflett

broke into Ms. Hadel’s apartment and he encountered Mr. Gordon’s twelve-year old

daughter, D,1 lying in bed with her laptop. He screamed “Where the F is Katie?” at D, then

dragged her down the hall toward Ms. Hadel’s bedroom. He let go once he spotted Ms.

Hadel near the bathroom, and he pulled out a knife. D escaped to a neighbor’s house to

get help, but by the time police arrived, Ms. Hadel had been stabbed sixteen times and was

lying face down, “lifeless,” in the bathtub. Two other children, a one-year-old and a three-

year-old, were found in the apartment when police arrived; both were unharmed.

         Mr. Shiflett was charged with first-degree murder, first-degree assault, first-degree

burglary, third-degree burglary, carrying a weapon openly with intent to injure, and two

counts of second-degree assault. He conceded that he was responsible for Ms. Hadel’s

murder, but disputed that the murder was premeditated. To that end, the defense attempted

to introduce evidence of Mr. Shiflett’s untreated mental illnesses to rebut the State’s

contention that he premeditated Ms. Hadel’s murder, and when that failed, to demonstrate

that Mr. Shiflett was not competent to stand trial. After a mid-trial hearing, the circuit court

found him competent.

         Before and throughout trial, Mr. Shiflett behaved in a disruptive and threatening

manner. He directed his displeasure primarily, although not exclusively, toward the judge

and the prosecutor; he addressed both using profane adaptations of their names. He was


1
    We use only her first initial to protect her privacy.



                                                 3
permitted to sit in the courtroom unrestrained during jury selection, but after Mr. Shiflett

tried to force his way into the judge’s chambers, the court ordered him to wear a stun cuff,2

a device worn around the ankle that administers an electric shock, if he wanted to remain

in the courtroom for the trial. He refused to wear it, and the trial continued while he

remained in the courthouse lock-up, with a video and audio hook-up that allowed him to

see and hear the proceedings.

          The jury convicted Mr. Shiflett of first-degree premeditated murder, first-degree

felony murder, and the remaining counts, except for one count of second-degree assault.

At the sentencing hearing, he moved for jury sentencing, but the court denied his motion

and sentenced him to life in prison without the possibility of parole. This timely appeal

followed. We will provide more facts as appropriate to the discussion below.

                                       II. DISCUSSION

          Mr. Shiflett presents five questions on appeal, which we address in a slightly

different order.3 First, he argues that the circuit court abused its discretion by ordering him


2
  The Baltimore County Sheriff’s Office maintains a protocol for the use of a stun cuff,
which defines it as “[a] conducted energy device that is secured to a subject’s ankle and
deployed remotely.” The Sheriff goes on to describe the stun cuff as an electronic control
device, that is, a “non-lethal device that emits an electronic energy charge, which causes
electro-muscular disruption, which affects the sensory and motor functions of the central
nervous system.”

3
    Mr. Shiflett phrased the questions as follows in his brief:

                 1. Must Mr. Shiflett’s life without parole sentence be vacated?

                 2. Did the trial court abuse its discretion when it refused to
                    permit defense counsel to introduce expert testimony about
                    Mr. Shiflett’s psychological profile, when such testimony

                                                4
to wear a stun cuff, then by proceeding with trial in his absence when he refused to wear

it. Second, he argues that he was entitled to have a jury determine whether he should be

sentenced to life without the possibility of parole, and that his life sentence, administered

by the court rather than by the jury, is unconstitutional. Third, Mr. Shiflett argues that the

trial court erred by refusing to admit testimony regarding his psychological profile, and

fourth, in its decision that he was competent to stand trial. Finally, Mr. Shiflett argues that

the court erred by refusing to dismiss the first-degree burglary count.

       A.     The Circuit Court Did Not Abuse Its Discretion In Requiring Mr.
              Shiflett To Wear A Stun Cuff To Remain In The Courtroom.

       Mr. Shiflett argues first that the circuit court erred by ordering him to wear a stun

cuff as a condition of remaining in the courtroom, then by allowing the trial to proceed in

his absence when he refused to wear it.           In-court physical restraints are inherently

prejudicial to criminal defendants in that they can diminish the accused’s ability to mount

a meaningful defense as well as his ability to communicate with his lawyer, Deck v.




                  was relevant to his ability to premeditate and form the
                  requisite intent?

              3. Did the trial court abuse its discretion when it ordered Mr.
                 Shiflett to wear a stun cuff and when it thereafter permitted
                 trial to proceed in his absence after he refused to wear the
                 cuff?

              4. Did the trial court err when it determined after a mid-trial
                 competency hearing that Mr. Shiflett was competent to
                 stand trial?

              5. Did the trial court err when it denied defense counsel’s
                 motion to dismiss the burglary count?

                                              5
Missouri, 544 U.S. 622, 631 (2005), and no reported Maryland decision has considered

whether and under what circumstances a stun cuff can serve as a courtroom restraint during

a jury trial. We begin, then, with a closer look at Mr. Shiflett’s behavior, the range of

options available to the trial court, and the court’s responses.

       Mr. Shiflett’s statements and conduct had raised serious security concerns for the

court long before trial. In the weeks leading up to jury selection, he’d taken to writing the

presiding judge letters that he sent to her home. We decline to memorialize the text of

those letters in the Maryland Appellate Reports—trust us when we say that their contents

were thoroughly inappropriate and venomously vulgar.

       It was the Sheriff who first recommended placing Mr. Shiflett in a stun cuff after

listening to a phone call Mr. Shiflett placed to his father from prison. In that particular call,

Mr. Shiflett reacted to the court’s ruling that he would not be permitted to introduce

psychiatric testimony; the call contained “a tremendous amount of profanity and some

rather horrific statements” about Ms. Hadel. Defense counsel objected to the Sheriff’s

recommendation, and after learning that Mr. Shiflett had not made any direct threats against

the court or the prosecutor, the court declined to order Mr. Shiflett to wear the stun cuff in

the courtroom:

              As counsel knows in this case, Mr. Shiflett has written to me
              on many occasions. Even though I keep writing back to him
              telling him not to write to me, he continues to write to me. And
              in many of his letters, there was never a direct threat against
              me or the Prosecutor—or either Prosecutor, but certainly
              language that this Court would consider to be highly
              inappropriate, vulgar and heated in terms [you would] describe
              a letter as heated. And this Court never felt in any way that
              there was a threat against her cause if I did, I would have


                                               6
              brought that to the attention frankly—of the Sheriff’s office
              and of the State and decisions would have been made based on
              that.

                      So considering the factors, being aware of the security
              necessary for this trial . . . I’m not going to order that the ankle
              cuff be put in. I appreciate why the Sheriff’s office wanted to
              put it in. I think in this particular case, I don’t believe it will
              [be] necessary. If at any time I feel that it becomes necessary,
              then I will modify my order.

       Jury selection then went forward as scheduled, and Mr. Shiflett was disruptive

throughout that process. He made “constant remarks, often time inappropriate remarks,

often vulgar remarks, often obscene remarks, for which the Court either tolerated . . . or

admonished him to stop speaking.” Still, jury selection continued, and at that point the

court elected not to revise its ruling on the stun cuff. But the next morning, before the

courtroom day got under way, Mr. Shiflett attempted to break free from the guards and

enter the judge’s chambers. A scuffle ensued as sheriffs tried to restrain him; they were

eventually able to move him away from the judge, but not before he spit in a sheriff’s face:

                     This morning at ten to ten as Mr. Shiflett . . . was being
              brought to begin the trial, he attempted to—I was in chambers
              and I heard him call out my name, my first name, several times,
              and saying [the Judge’s name], which is my first name, and
              then he attempted to enter my chambers. At that point, the
              sheriffs—and there was three or four of them I believe that
              were with him at that time—moved him away from my
              chambers, put him up against the wall and attempted to calm
              him down and deter him from trying to enter my chambers in
              what appeared to be his effort to want to talk to me.

                     They then moved him over into the courtroom and tried
              to get him to sit down. A scuffle occurred, and they were
              unable to really secure him, continued to become more agitated
              and resistive in his behavior. After that the sheriffs then took



                                               7
              him back into the lockup, and I believe [defense counsel] came
              around as well in an effort to calm down Mr. Shiflett.

                     I subsequently had a chambers conference with counsel,
              indicated my concern for courtroom security. I also had an
              opportunity to talk to the sheriffs since I did not witness all of
              the behavior of Mr. Shiflett. I only heard him screaming out
              and calling my first name. In further talking to the sheriffs,
              they indicated to me not only were they hav[ing] difficulty
              securing him, but that he also spit at one of the sheriffs. And
              then they attempted again to push him down the hallway to try
              and secure his attendance into the courtroom.

                     I told counsel in chambers based on his behavior this
              morning, that it was this Court’s intent and concern for
              courtroom security and his highly agitated state that I was
              going to order the sheriffs to place a cuff on him that would
              administer a shock if he acted up. And that was this Court’s
              decision. It was decided at that time to put all this on the
              record, and then go back to talk to Mr. Shiflett.

The court went on to explain that she wanted to place Mr. Shiflett in a stun cuff because

she thought “his rights are more secure and the appearance to the jury would be less

intrusive with the cuff than with six sheriffs standing around him.”

       The judge and counsel then proceeded to Mr. Shiflett’s holding cell, where the court

(with a court reporter present) gave Mr. Shiflett the opportunity to return to the courtroom

if he agreed to wear the stun cuff:

              THE COURT: The purpose of this hearing, Mr. Shiflett . . . —
              we are in lockup, this hearing is being held in lockup—is based
              on your behavior this morning.

                                       *      *      *

                     So based on your behavior, I have determined that the
              only way to maintain courtroom security, which is my job, is
              to have the cuff on you.



                                              8
                     Now, you can choose not to use the cuff, not to wear the
              cuff. And if you choose to do that, then you will be waiving
              your right to be in the courtroom. You have an absolute right
              to be in the courtroom and participate in the proceedings. I
              have the absolute right as the Judge to determine courtroom
              security.

                     It is my decision, based on your conduct this morning,
              that you wear the cuff.

              [MR. SHIFLETT]: All right—

              THE COURT: By not complying with my order, you are
              waiving your right under [Md. Rule] 4-231. So I wanted to
              advise you of your right to be present[.]

       Amidst the confusion that followed, Mr. Shiflett responded that “I’m not going to

wear that fucking cuff,” and the court explained the implications of his decision:

              THE COURT: So as a result of your refusal to comply with my
              order, and I’m doing this based on your behavior this morning
              and this Court’s concern about courtroom security, then you
              will be waiving your right to be present at trial, and the trial
              will continue—

              [MR. SHIFLETT]: And I am not waiving my right to be
              present at trial. Put the microphone right here. I am not
              waiving my right to be present at the trial today. I want to be
              in the courtroom, but I’m not going to be treated like I’m some
              fucking kind of animal. Thank you.

              THE COURT: Okay.

              [MR. SHIFLETT]: Now, let me say something about this
              bracelet.

              THE COURT: So the trial—you understand the trial will
              continue without your presence.

              [MR. SHIFLETT]: I don’t really care about that. That’s fine.
                                  *       *      *



                                             9
              THE COURT: Okay. All right. So I’m going to leave you in
              your cell, and every time we have a break, I’m going to revisit
              this issue with you. So you will continue to have the right to
              consult with a lawyer. I am not going to have you sent back to
              the jail. We will continue to explore the option for you to come
              back into court.

       From there, the trial continued in Mr. Shiflett’s absence. During the luncheon recess

that same day, the judge, the prosecutor, and defense counsel returned to Mr. Shiflett’s cell,

and Mr. Shiflett maintained his refusal to wear the stun cuff in the courtroom:

              [MR. SHIFLETT]: I ain’t seeing that nasty bitch.

              [DEFENSE COUNSEL]: We’re about to go on the record.

              [MR. SHIFLETT]: Woo-hoo.

              THE COURT: All right. Mr. Shiflett, we are back—

              [MR. SHIFLETT]: Hey—

              THE COURT: We are back—

              [MR. SHIFLETT]: —baby [Judge][4] Hey, babe.

              THE COURT: We are back on the record—

              [MR. SHIFLETT]: Hey babe.

              THE COURT: I am Judge [last name], Mr. Shiflett.

              [MR. SHIFLETT]: You’re baby [Judge] to me.

              THE COURT: (Inaudible) address me in that way.

              [MR. SHIFLETT]: You’re baby [Judge].

              THE COURT: We are back on the record—

4
  We refer in the block quotes to the identity of the person being addressed rather than
reproducing Mr. Shiflett’s names for them.

                                             10
[MR. SHIFLETT]: I have to think up a nickname for
(inaudible).

THE COURT: —in the State of Maryland versus Jeffrey
Shiflett, case Number K-13-1295.

[MR. SHIFLETT]: Is [Prosecutor] for the State?

THE COURT: We are now present—I am present, [defense
counsel and the State] are here as well—

[MR. SHIFLETT]: Oh, shit.

THE COURT: —along with my court clerk.

[MR. SHIFLETT]: Oh, shit.

THE COURT: I’m here to advise you of where we are in the
proceeding and of your right to go back into the court if you
choose to. We have concluded with three or four witnesses—

[MR. SHIFLETT]: And I should have been there so I can
fucking hear what they have to say about me, and so I could
have told me [sic] attorney some fucking questions to ask them
that I might thought that was relevant to this case, and I was
denied my constitutional right, but we all know they don’t give
a fuck about people’s rights around here.

THE COURT: So, Mr.—

[MR. SHIFLETT]: Ain’t that right [Prosecutor]?

THE COURT: Mr.—

[MR. SHIFLETT]: Yes, ma’am.

THE COURT: —Shiflett—

[MR. SHIFLETT]: Hey, babe.

                       *      *      *



                              11
THE COURT: I’m giving you the opportunity to come to the
courtroom.

[MR. SHIFLETT]: Does it look like I want to come back to the
courtroom?

THE COURT: Sir—

[MR. SHIFLETT]: All right. Hold on. I want to come back—
I’m going to say one thing, okay, for this record here. For this
record, I—I got to make it known, okay, that I do suffer from
a mood disorder, okay?

        Another thing I do have to make a note for the record is
at night, I don’t get a chance to go to sleep because I go back
to my cell and I constantly think about this case, and I just stay
up all night with my mind’s spinning in circles, okay? And
when I don’t get any sleep, I get very moody and I get very
agitated very easily, especially when asshole police officers try
to put their hands on me for no unapparent reason, okay?

      Just so everybody knows that stuff. You know, I like to
make sure that everybody understands.

THE COURT: Thank you for sharing that with us.

[MR. SHIFLETT]: Hey, baby, I’ll share anything with you.
What about you share with me? That’s what I want to know.

                         *      *      *

[DEFENSE COUNSEL]: Jeff, do you want to come into the
courtroom or not?

[MR. SHIFLETT]: Fuck, no, I ain’t coming into that mother.
You’re going to put that fucking bracelet on me and treat me
like a fucking animal, you think I’m going—another thing I
want to say about that. One thing I can tell you about that
bracelet okay? It’s inhumane to fucking have me wear that,
okay?

THE COURT: Go ahead.



                               12
               [MR. SHIFLETT]: There’s enough sheriffs here to fucking
               have 20 sheriffs in that courtroom to where if I acted up, you
               could have 20 sheriffs do something to me. I don’t need a
               fucking bracelet on my fucking leg to treat me like I’m a
               fucking cow and you’re going to use a cattle prod on me and
               tame me.

               THE COURT: Go ahead.

               [DEFENSE COUNSEL]: So what—

               [MR. SHIFLETT]: Are you fucking crazy?

               [DEFENSE COUNSEL]: So what you’re saying is that you
               don’t want to come to the courtroom now?

               [MR. SHIFLETT]: I don’t waive no rights. I want to fucking
               come into the courtroom. But I’m not wearing a fucking
               bracelet and being treated like an animal.

               THE COURT: The only way you’re coming into my
               courtroom, sir, is with that bracelet—

               [MR. SHIFLETT]: Oh, well.

               THE COURT: —that’s it.

               [MR. SHIFLETT]: (Inaudible) highly agitated? Let’s fuck so
               I can release some of my stress, baby. Hey [Prosecutor], you’re
               a faggot. You take it up the ass (inaudible) you faggot, you
               queer, you homosexual. I love you baby [Judge].

      The trial continued in Mr. Shiflett’s absence. But later that day, the court was forced

to excuse the jury when the Sheriff discovered that Mr. Shiflett had created another

disturbance:

               THE SHERIFF: We got a situation that he—we got a situation
               that he shitted in a—in a cell.

               THE COURT: He’s—



                                             13
THE SHERIFF: He’s shitted in the cell on the floor.

THE COURT: Okay.

                         *       *      *

THE SHERIFF: My sergeant—sergeant is going down to get a
shield because we don’t know what’s going to happen once we
go in, if he’s going to throw it or not.

THE COURT: If he’s going to?

THE SHERIFF: Throw it.

[DEFENSE COUNSEL]: Throw something.

THE COURT: Okay. All right. So do you know what is
currently in the cell at this point in time other than toilet paper?
There’s no—

THE SHERIFF: Feces.

THE COURT: I’m sorry, feces?

THE SHERIFF: Feces that he did on the floor.

THE COURT: Okay.

THE SHERIFF: Right in front of the door.

THE COURT: In front of the door. Okay. So—and I
appreciate you bring[ing] it to our attention, and you want to
deal with it now. So what do you want to do specifically?

THE SHERIFF: Basically just want to take him back to the—
to the jail.

                         *       *      *

THE COURT: Okay. All right. So you—you—you now have
permission to go ahead and remove him and take him back to
the Detention Center.



                                14
                     It was not my plan to talk with him again today. I’ve
              already talked to him twice today, and I will talk with him
              again tomorrow. But my plan, frankly, is not—unless things
              dramatically change, I planned to speak with him once a day,
              perhaps twice, but I’m not going to speak with him on every
              break.

              [DEFENSE COUNSEL]: Okay.

              THE COURT: I don’t feel there’s any reason to do that. I will
              once again continue to reiterate to him when I do have the
              opportunity to speak to him about his right to be present and
              how he can be present in order to comply with this Court’s
              order.

              [DEFENSE COUNSEL]: Well, it is a fluid situation.

              THE COURT: Uh-huh.

              [DEFENSE COUNSEL]: And at—at some point if he indicates
              to me—

              THE COURT: Uh-huh.

              [DEFENSE COUNSEL]: —that he decides to be in the
              courtroom, I will bring that to the Court’s attention.

       The next morning, a video monitor was set up in the courtroom so that Mr. Shiflett

could see and hear what was transpiring in the courtroom from the detention center. The

court reviewed the sheriff’s stun cuff protocol with Mr. Shiflett, and also gave him another

opportunity to return to the courtroom:

              THE COURT: Okay. Mr. Shiflett, we are on record. I’ve
              called your case and your attorneys are present. I wanted to
              put a couple of things on the record.

                      I have provided your attorney with the protocol for the
              use of the stun cuff that is dated September the 1st, 2011, and—
              and I wanted a court exhibit that will now become part of the



                                            15
record. Have you had an opportunity to review that with your
attorney?

[MR. SHIFLETT]: (Inaudible).

THE COURT: Okay, did he talk to you about it?

[MR. SHIFLETT]: No. He just told me that you gave him
some paperwork for me. That’s all.

THE COURT: Okay. Well, I’m going to review it with you
now. So this is an order that is—was developed by the sheriff’s
office that gives the protocol for when the stun cuff can be
used. Specifically it says under Paragraph 3-B, that it can be
used to control violent or potentially violent prisoners when a
member, which is a sheriff, reasonably believes that the
following conditions exist: Number one, lethal force does not
appear to be justifiable and/or necessary, attempts to subdue
the individual by conventional tactics will likely cause injury
to the individual members, c[o]urt personnel or citizens, and
then there will be a reasonable expectation that will be unsafe
for members to be approaching the individual within contact
range.

       Those are the—the criteria for use of a stun cuff, which
also includes persons that are trained to use it, where they affix
it which is in your—at your ankle level, and the—the proper
use of it, and the—the only criteria, which are the ones I just
described.

       Do you understand?

[MR. SHIFLETT]: Basically you’re trying to treat me like a
fucking animal.

THE COURT: No, sir.

[MR. SHIFLETT]: (Inaudible).

THE COURT: It is this Court’s job to insure courtroom
security. Based on your actions yesterday, you have
demonstrated to the Court that you will not comply with this
Court’s position that you must—your conduct must comply


                               16
with proper courtroom decorum. This Court has concerns,
based [on your] conduct yesterday, of both safety of the
courtroom personnel, myself, other members of the courtroom
staff, and for those reasons, I find that you are a security risk,
that you have exhibited violent behavior and threatening
behavior in your conduct yesterday, and that is the reason that
I have ordered the—the cuff to be placed.

       You can return to the courtroom if you can—

[MR. SHIFLETT]: (Inaudible).

THE COURT: Let me just—just listen to me.               You can
return—

[MR. SHIFLETT]: It doesn’t matter.

THE COURT: You can return—

[MR. SHIFLETT]: (Inaudible).

THE COURT: All right. So you can return to the courtroom if
you promise that you will comply with the rules of civility and
act appropriately and behave in a proper manner.

[MR. SHIFLETT]: I don’t know how to live civilized.

THE COURT: I’m sorry?

[MR. SHIFLETT]: I don’t know how to live civilized.

THE COURT: You don’t know how to live civilized, is that
what you[] said?

[MR. SHIFLETT]: Yes, ma’am.

THE COURT: Okay. All right. So I have offered you the right
to come in. You have indicated you are unable to comply and
live civilized and comply with it. I’ve also indicated to you
that you can come in with the—the cuff, and you have
indicated that you are unwilling to do that, is that correct?




                               17
[MR. SHIFLETT]: Yes, because Amendment Number Eight
says that prohibits (inaudible) cruel and unusual punishment.
You’re not going to treat me like an animal. You have more
than enough officers (inaudible) in the courtroom. And I’m not
wearing that cuff so people on the jury can see me and see that
you people are treating me like an animal.

THE COURT: All right. Just to be clear, Mr. Shiflett, the cuff
is not visible. It is under your pant leg. It can only be
administered by the sheriff who is trained in it—

[MR. SHIFLETT]: And what happens if the jury sees you drop
me and people shock me?

THE COURT: You would not—well, first off, they could
not—

[MR. SHIFLETT]: (Inaudible) they couldn’t see that either?

THE COURT: They would not see the cuff. And—

[MR. SHIFLETT]: (Inaudible) get out of here with this dumb
shit.

THE COURT: And the shock can only be administered under
those three very limited areas that I described.

[MR. SHIFLETT]: Well, tell [Prosecutor] I want to shock his
balls.

THE COURT: So I understand that you are refusing to comply
with my order, that you will not come into the courtroom and
act in a civilized manner and—

[MR. SHIFLETT]: No.

THE COURT: —I have—I have offered that to you, to
participate. You can change your mind at anytime, and I will
continue to offer you[] that option during the day. If at any
time you change your mind, you can let the sheriff know . . .




                              18
       On at least one occasion every day through the conclusion of trial, the court met

with Mr. Shiflett, on the record and with counsel present, and offered him the opportunity

to return to the courtroom with the stun cuff on. Each time, he refused.

              1.     The court did not abuse its discretion in deciding that
                     restraints were necessary.

       Mr. Shiflett argues that, as a preliminary matter, the court’s decision to order

restraints of any kind was an abuse of discretion. Visible physical restraints during trial

are inherently prejudicial to criminal defendants because they “highlight the need to

separate the defendant from the community at large,” and undermine the presumption of

innocence and the fairness of the fact-finding process. Wagner v. State, 213 Md. App. 419,

476-77 (2013) (quoting Hunt v. State, 321 Md. 387, 409 (1990)); see also Deck, 544 U.S.

at 630 (2007), People v. Allen, 856 N.E.2d 349, 352 (Ill. 2006) (“The presumption of

innocence is central to our administration of justice. In the absence of exceptional

circumstances, an accused has the right to stand trial with the appearance, dignity, and self-

respect of a free and innocent man.”) (citations omitted). For that reason, the Due Process

Clause “prohibits the use of physical restraints visible to a jury absent a trial court

determination, in the exercise of its discretion, that they are justified by a state interest

specific to a particular trial.” Deck, 544 U.S. at 629. This applies to both the guilt and

sentencing phases of trial. Id. at 633.

       Even so, three essential state interests “may justify physically restraining a

defendant: Preventing the defendant’s escape, protecting those in the courtroom, and

maintaining order in the courtroom.” Wagner, 213 Md. App. at 477 (quoting Holbrook v.



                                             19
Flynn, 475 U.S. 560, 569 (1986)). “Where a defendant is ‘disruptive, contumacious,

stubbornly defiant’ in a manner that interferes with the dignity, order, and decorum of the

courtroom, the trial court has the discretion to order ‘constitutionally permissible’

accommodations.” In re D.M., 228 Md. App. 451, 455 (2016) (citing Illinois v. Allen, 337

U.S. 343-44 (1970)). So restraints aren’t per se unconstitutional—the issue in each case is

whether the restraint “was so inherently prejudicial that [Mr. Shiflett] was thereby denied

his constitutional right to a fair trial. Holbrook, 475 U.S. at 567, 570. “The prejudice posed

by security measures, and whether a compelling state interest outweighs that prejudice,

must be measured on a case-by-case basis.” Hunt, 321 Md. at 410. And ultimately,

restraints are appropriate if, after making an individual evaluation, the court decides that

the need for the restraint outweighs the potential prejudice, and ensures that the record

reflects the need for extraordinary security measures. Id.

       Mr. Shiflett acknowledges, as he must, that physical restraints may be appropriate

when the court makes a particularized finding on the record that a compelling interest

outweighs the prejudice to the defendant. Instead, he argues that his behavior at trial did

not justify restraining him in the manner the court ordered here. By Mr. Shiflett’s account,

he simply tried to enter the presiding judge’s chambers in an attempt to talk to her.

Although his actions undoubtedly were inappropriate, he argues, they failed to demonstrate

any concrete threat, and did not support a finding that restraints were necessary. This

argument isn’t borne out by the transcript though, which reveals that Mr. Shiflett screamed

the judge’s name from outside her chambers until he was forcibly restrained, which

resulted in a fracas during which Mr. Shiflett spit in a sheriff’s face. By the time this


                                             20
incident occurred, Mr. Shiflett had already sent the presiding judge inappropriate, vulgar

letters at her home address, and the sheriff had already recommended that the court order

Mr. Shiflett to wear the stun cuff in light of his phone calls from prison. The incident

formed the basis for the court’s on-record, particularized finding that Mr. Shiflett posed a

threat to courtroom security, and we discern no abuse of discretion in that finding, and Mr.

Shiflett’s subsequent demeanor and behavior only confirmed the correctness of the court’s

assessment. And as such, the court did not err when it ordered Mr. Shiflett restrained, so

long as the need to protect courtroom order and security outweighed any prejudice to Mr.

Shiflett that might result from the restraint imposed.

              2.     The court’s compelling interest in maintaining security and
                     order outweighed any prejudice to Mr. Shiflett.

       Assuming that we would disagree with his contention that no restraints were

required, Mr. Shiflett argues next that the security measures imposed by the court—an

ultimatum to wear the stun cuff or be excluded from the court room—was unreasonable.

He contends that the cuff would have put him at risk of injury, and would have unfairly

prejudiced him by interfering with his ability to participate in his own defense and to

consult with counsel. He asks us to hold that the court abused its discretion in ordering

him to wear the cuff when other (in his view, less prejudicial) options were available, such

as leg irons or ordering additional sheriffs to guard him in the courtroom.

       His argument flows, however, from the faulty premise that judges are required to

employ the least restrictive alternative, as judged by twenty-twenty hindsight.         The

standard is in fact more realistic. “Trial judges confronted with disruptive, contumacious,



                                             21
stubbornly defiant defendants must be given sufficient discretion to meet the circumstances

of each case.” Allen, 397 U.S. at 344. And therefore, judges have “broad discretion in

maintaining courtroom security,” and we review a trial judge’s decision regarding the

manner of restraint for abuse of discretion. Hunt, 321 Md. at 408. We need not determine

“whether less stringent security measures were available to the trial court, but whether the

measures applied were reasonable, and whether they posed an unacceptable risk of

prejudice to the defendant.” Id. Instead, we assess the methods the court actually used—

the requirement that Mr. Shiflett wear the stun cuff as a condition of remaining in the

courtroom—in the context of the security and behavioral threats he posed.

       First, we hold that the court’s decision to exclude Mr. Shiflett from the courtroom

was reasonable under the circumstances. The Sixth Amendment guarantees a defendant

the right to be present at every stage of his trial, but a defendant “who engages in conduct

that justifies exclusion from the courtroom” waives that right. Md. Rule 4-231(c)(1)-(2).

The Supreme Court held in Illinois v. Allen that a trial judge confronted with a disruptive

defendant can “(1) bind and gag the defendant, thereby [keeping the defendant in the

courtroom]; (2) cite [the defendant] for contempt; or (3) take him out of the courtroom until

he promises to conduct himself properly.” 397 U.S. at 344. Those possible alternatives

aren’t exhaustive, though; courts faced with similarly recalcitrant defendants have

employed these security methods, and others, to varying degrees of success, and the

“appropriateness and lawfulness of any action taken in a given case will depend naturally

on the facts of each case.” Smith v. State, 382 Md. 329, 343-45 (2004) (approving the trial

court’s decision to cite a disruptive defendant for contempt three times throughout his trial);


                                              22
see also Bruce v. State, 318 Md. 706, 720 (1990) (upholding the trial court’s decision to

post four plainclothes marshals in addition to two bailiffs as a security measure); Bowers

v. State, 306 Md. 120, 138 (1986) (finding no abuse of discretion in the trial court’s

decision, at the recommendation of the sheriff’s office, to order the defendant to wear leg

irons during trial); Wagner, 213 Md. App. at 481 (observing that no prejudice resulted from

placing the defendant in shackles for the jury’s verdict announcement, because the shackles

were hidden by the defendant’s suit coat, while his leg irons were obscured because he was

standing up). However, “trial in absentia should be the extraordinary case, ‘undertaken

only after the exercise of a careful discretion by the trial court.” Biglari v. State, 156 Md.

App. 657, 674 (2004) (quoting Pinkney v. State, 350 Md. 201, 221 (1998)).

       Mr. Shiflett did not simply speak out of turn or make the occasional outburst. He

consistently used angry, vulgar, and violent language with the court. He repeatedly

threatened the judge and the prosecutor. And he defecated on the floor of his cell in a

temporarily successful effort to prevent the trial from proceeding.         Faced with this

magnitude of disruption to the proceedings and to the safety and security of everyone

involved, the court chose Allen’s third option, i.e., to remove Mr. Shiflett from the

courtroom until he agreed to conduct himself appropriately. See 397 U.S. at 344. The court

offered Mr. Shiflett numerous opportunities to return and behave, and he refused all of

them. Mr. Shiflett’s Sixth Amendment rights did not entitle him to thwart his trial, and the

court was well within its discretion to exclude him rather than binding and gagging him

(which might have created even more prejudice than excluding him altogether), citing him

for contempt (which would have been pointless in this case), or trying other methods of


                                             23
restraining him, such as adding further shackles or other physical restraints or increasing

the number of security personnel in the room. Smith, 382 Md. at 343; Wagner, 213 Md.

App. at 481.

       Second, we discern no abuse of discretion in the court’s decision to condition Mr.

Shiflett’s reentry to the courtroom upon agreement to wear the stun cuff. The constitutional

right to be tried without physical restraint, once lost, “can, of course, be reclaimed as soon

as the defendant is willing to conduct himself consistently with the decorum and respect

inherent in the concept of courts and judicial proceedings.” Allen, 397 U.S. at 343. To that

end, a court “that removes the defendant from the courtroom must advise him of the

opportunity to return if he promises to behave.” Biglari, 156 Md. App. at 671. But at each

of the court’s post-removal meetings with him, and we count at least four, Mr. Shiflett

emphatically declined this opportunity. Each time the court consulted with Mr. Shiflett in

lockup, he refused unequivocally to promise that he would behave, choosing instead to

continue flinging profanity and sexually explicit insults at the judge and prosecutor.

       Because his erratic behavior continued and escalated as the trial progressed, even

after his removal, the court was entirely justified in removing Mr. Shiflett from the court

room and in setting conditions for his return. We agree as well that requiring him to wear

the stun cuff was a reasonable condition. Mr. Shiflett complains that the cuff would have

put him at risk of injury in the event he became immobilized and fell when a shock was

delivered,5 and that its chilling effect might have impaired his ability to participate in his


5
  The sheriff’s protocol for using the stun cuff describes it as “designed for temporary
immobilization of a subject [that] should not cause any significant injury.” However, the

                                             24
own defense. Those risks are real, and we do not seek to diminish them, although Mr.

Shiflett’s categorical refusal even to try it on6 leaves us no record on which to evaluate the

likelihood or extent of the risk he faced. Even so, and assuming that the risks were as Mr.

Shiflett contends, they were outweighed by court’s compelling interests in order, safety,

and security. And we also see no abuse of discretion in the court’s assessment that

alternatives, such as binding or gagging or shackling or surrounding Mr. Shiflett with an

entourage of law enforcement personnel, would have risked causing at least as much

prejudice before the jury as the stun cuff.

       By his own reckoning, Mr. Shiflett behaved as he did in order to prevent his trial

from proceeding. His conduct, and no one else’s, created the problems the court was forced

to solve. He complains now that the court abused its discretion in restraining him, but “our

courts, palladiums of liberty as they are, cannot be treated disrespectfully with impunity.”

Allen, 397 U.S. at 346. Mr. Shiflett put the court to a delicate balancing challenge. He

faced serious charges, and obviously has important constitutional rights that the court was

obliged to recognize and protect. At the same time, Mr. Shiflett was not in control of the

process, and the court was equally not obliged to let him disrupt the trial and threaten court

personnel.




protocol warns that “a subject may receive secondary injuries as a result of falling when
the subject is immobilized.”
6
 We note as well that at no point, in the circuit court or here, did Mr. Shiflett or counsel
propose, let alone agree to, any alternative form of restraint.

                                              25
       Because Mr. Shiflett never wore the stun cuff or attempted to discover its impacts

or limits, this case affords us no opportunity to rule broadly on its uses or limitations as a

restraint. We recognize that stun cuffs are a potentially severe form of restraint, one that

could be calibrated or applied improperly, and there is something viscerally disturbing

about a device that administers electric shocks to another human being. That all said, Mr.

Shiflett left the court with no choice—he was determined to thwart his trial, and his

aggressive refusal even to attempt to conduct himself appropriately waived his right to be

present in the courtroom for trial. We see no abuse of discretion in the court’s patient

efforts to find a way for Mr. Shiflett to return and participate in his trial, or in its decision

to condition his return on an agreement to wear the stun cuff.

       B.     The Trial Court Correctly Denied the Motion For Jury
              Sentencing.

       Second, Mr. Shiflett argues that because the State filed a notice of intention to seek

a sentence of life without the possibility of parole, he was entitled to elect sentencing by

jury, and the circuit court erred in denying his motion for sentencing by jury. His argument

is primarily a statutory one—that the language the General Assembly left behind in Md.

Code (2002, 2012 Repl. Vol., 2015 Supp.), § 2-304(b) of the Criminal Law Article (“CR”),

after removing the parts relating to the death penalty,7 extended to defendants facing life


7
  CR § 2-304, as amended, provides in subsection (a) that a court should conduct the
sentencing proceeding in life without parole cases, but in subsection (b) provides for jury
sentencing. We reproduce the applicable sections below, providing emphasis to indicate
the references to the jury upon which Mr. Shiflett relies:

              (a) In general. – If the State gave notice under § 2-203(1) of
              this title, the court shall conduct a separate sentencing

                                               26
without parole the sentencing by jury procedures previously reserved for capital

defendants. He argues as well that once Maryland repealed its death penalty, a sentence of

life without the possibility of parole is more than an enhanced sentence—it is “the harshest

sentence that can be imposed on a defendant in this State,” to which the constitutional

protections accorded previously to defendants facing life sentences now attach.

       In the time since the briefs were filed in this case, however, we had occasion to

address and reject the same arguments in Bellard v. State, __ Md. App. __ No. 1281, Sept.

Term 2014 (filed August 31, 2016). As the Supreme Court’s death penalty jurisprudence

has long recognized, the death penalty is different, and the unique permanence of capital

punishment compels procedural safeguards that other punishments do not—even

punishments, such as life imprisonment without parole, that are meant to be permanent.


              proceeding as soon as practicable after the defendant is found
              guilty of murder in the first degree to determine whether the
              defendant shall be sentenced to imprisonment for life without
              the possibility of parole or to imprisonment for life.

              (b) Findings. – (1) A determination by a jury to impose a
              sentence of imprisonment for life without the possibility of
              parole must be unanimous.

              (2) If the jury finds that a sentence of imprisonment for life
              without the possibility of parole shall be imposed, the court
              shall impose a sentence of imprisonment of life without the
              possibility of parole.

              (3) If, within a reasonable time, the jury is unable to agree to
              imposition of a sentence of imprisonment for life without the
              possibility of parole, the court shall impose a sentence of
              imprisonment for life.

(Emphases added.)

                                            27
Bellard, slip op. at 11-12. Although the legislation repealing Maryland’s death penalty

did, through apparent clerical inadvertence, create some ambiguity in the statute governing

sentencing procedures in life without parole cases, see id. at 14-17, the structure and

legislative history left no doubt that the purpose of that legislation was to repeal the death

penalty, not to alter the sentencing procedures or create new rights for defendants where

the State seeks life without parole:

              But we need not dig deeply into Senate Bill 276 to find its
              purpose. The bill’s Preamble says in so many words that its
              purpose was “repealing the death penalty,” and the Fiscal and
              Policy Note states that the bill “repeals the death penalty and
              all provisions relating to it.” Fiscal and Policy Note Revised,
              S.B. 276 Md. at 1. Neither mentions other alterations to the
              sentencing authority or procedures for first-degree murder, and
              the provisions of the bill itself simply removed portions of the
              Maryland Code relating to the death penalty and replaced
              references to repealed language. This obviously was a
              complicated task, and details can—and apparently did—get
              overlooked. But our two alternatives are to acknowledge that
              subsection (b) of CR § 2-304 has become purely vestigial, or
              to interpolate an intention on the part of the General Assembly
              to create jury sentencing rights that previously didn’t exist in
              non-capital first-degree murder cases. We see nothing in the
              purpose or language of the legislation itself that suggests any
              intent to expand jury sentencing to defendants facing life
              without parole. And although we could have stopped there, we
              reviewed the legislative history as well, and it too supports a
              conclusion that the purpose of the legislation was to repeal the
              death penalty, rather than alter sentencing procedures in non-
              capital murder cases.

Id. at 18.

       In rejecting Mr. Shiflett’s contention that Section 2-304 unambiguously requires

that a life without parole sentence be imposed by a jury, we must also reject his request

that we apply the rule of lenity. The rule, which would require that we construe in favor


                                             28
of the defendant any ambiguity in a criminal penal statute, applies only when a “statute is

open to more than one interpretation and the court is otherwise unable to determine which

interpretation is intended by the Legislature.” Oglesby v. State, 441 Md. 673, 676 (2015)

(emphasis added). But the tools of statutory construction have not failed us here: the

legislature intended to repeal the death penalty, not to create a right to jury sentencing in

life without parole cases.

       Our opinion in Bellard also rejected the other arguments that Mr. Shiflett raises

here: that the absence of jury sentencing guidelines or restrictions on prosecutorial

discretion rendered the life without parole sentencing process unconstitutionally vague,

Slip Op. at 19 (citing Woods v. State, 315 Md. 591, 602-08 (1989)), and that the elimination

of the death penalty elevated life without parole to the status of an “enhanced sentence”

that requires proof of additional facts beyond a reasonable doubt. Id. at 20-21 (citing

Apprendi v. New Jersey, 530 U.S. 466 (2000)).           And again, to reach any of these

conclusions we would need to hold, in the in the face of long-standing (and controlling)

precedent to the contrary, that death was not, in fact, different, or that life without parole

became “different” once the death penalty was repealed.

       C.     The Court Did Not Err In Excluding Evidence Of Mr. Shiflett’s
              Psychological Profile.

       Mr. Shiflett argues third that the circuit court erred by refusing to let the defense

introduce expert testimony describing his “psychological profile,” a term he uses to

describe the constellation of mental illnesses from which he claims he suffers. In its case-

in-chief, the State introduced threatening letters Mr. Shiflett had written to Ms. Hadel as



                                             29
evidence of his premeditation and intent to kill her. Mr. Shiflett argues that he should have

been allowed to rebut these with evidence of his psychological profile because, he believes,

this evidence would have demonstrated that the letters were the product of his mental

illness. And he contends that the testimony would have proven that he was unable to form

the mens rea defined in CR § 2-201 for the charge of first-degree murder, that is, a

deliberate, premeditated, and willful killing.

       The State disputes the factual bases of Mr. Shiflett’s proposed psychological profile

testimony, but argues in any event that his obsession with Ms. Hadel had no bearing on

whether he acted with premeditation and deliberation or his ability to form the specific

intent to kill. The State characterizes the testimony as an effort by Mr. Shiflett to offer a

“diminished capacity” defense, i.e., that he was less capable than a normal person of

forming the required mens rea, that is unavailable under Maryland law.

       At a motions hearing on August 6, 2014, Mr. Shiflett offered testimony from Dr.

Joanna Brandt, who diagnosed Mr. Shiflett with specified bipolar disorder, obsessive

compulsive disorder, and borderline personality disorder:

                     [T]he combination of illnesses is particularly malignant
              for him and is—are very impairing and have significant impact
              on his thinking and behavior. The first illness that I diagnosed
              was other specified bipolar disorder . . . .

                      These symptoms that he has of elevated mood and
              expansive and irritable mood when—when he has a manic
              episode, decreased need for sleep, pressured speech, increased
              talkativeness, racing thoughts, distractibility, agitation and
              impulsivity, and he describes that he has felt like his head is
              exploding on numerous occasion. He also clearly has episodes
              of depressed mood where he has hypersomnia and sleeps a lot,
              low energy, poor concentration, feelings of worthlessness and


                                             30
              suicidal ideation. The records and his father corroborate that
              he has had these symptoms since childhood.

                                       *      *      *

                    The second illness I diagnosed him with was obsessive
              compulsive disorder. This was diagnosed in him at age 7 or 8.
              Obsessions are recurrent and persistent thoughts, urges or
              images that are experienced as intrusive or unwanted and cased
              marked anxiety or distress. Individuals with obsessions
              attempt to ignore, suppress them or they attempt to neutralize
              them with a thought or action[,] that is by performing a
              compulsion which is a behavior. . . .

                     Compulsions are repetitive behaviors such as hand
              washing, ordering or counting or other mental acts or physical
              acts that the individual feels driven to perform in response to
              an obsession.

                                       *      *      *

                     And to complicate matters further, he—he really has a
              severe permanent disorder which is characterized by borderline
              paranoid and antisocial traits. . . . He becomes extremely angry
              very quick. He—he had unstable interpersonal relationships.
              He’s severely sensitive to being abandoned by others. He
              becomes very, very angry, and he acts in a very impulsive way.
              He has paranoid thoughts that are part of his personality.

       Later, Dr. Brandt explained Mr. Shiflett’s thought processes and the limitations on

his ability to control himself:

                     So in—in anger and with increasing frustration, he
              threatened the victim for years. But at the same time, he was
              constantly thinking about trying to avoid acting on his impulse,
              and he was repeatedly failing at this. He tried to think of ways
              that he could get her to talk to him by threatening to bring civil
              action on her or have various agencies come in and stop her
              food stamps or get her husband in trouble. He wrote her letters
              saying, Please talk to me. He tried to contact her through
              Facebook, he had a friend call, and he—he recognized how out
              of control he was. He has for many years recognized this, but


                                             31
               he has that inability to stop himself and not act over and over
               again.

(Emphasis added).

       The court excluded Dr. Brandt’s testimony after concluding that there was no nexus

between Mr. Shiflett’s psychological profile and the specific intent required to prove first-

degree murder. The court compared this situation to those in Hartless v. State, 327 Md.

558 (1992) and Bryant v. State, 163 Md. App. 451 (2005), and found that the testimony

lacked an adequate factual basis, and had no relevance to any material issue or defense in

the case. The testimony, the court ruled, fell short of what Md. Rule 5-702 required for the

admission of expert testimony and would only confuse the jury. We agree.

       The State must prove every element of the crime beyond a reasonable doubt,

including intent. Generally, therefore, defense evidence that could prove that the intent

element of the crime did not exist, whether due to mental impairment or some other reason,

is admissible. Hoey v. State, 311 Md. 473, 494 (1988). Mr. Shiflett sought here to

demonstrate the absence of intent through expert testimony from a psychiatrist, and

“[e]xpert testimony may be admitted, in the form of an opinion or otherwise, if the court

determines that the testimony will assist the trier of fact to understand the evidence or to

determine a fact in issue.” Md. Rule 5-702. But expert testimony is admissible only if it is

relevant, i.e., “if the jury will find the testimony helpful in resolving the issues in the case.”

Bryant, 163 Md. App. at 473. And for expert testimony about Mr. Shiflett’s psychological

profile to be helpful to the jury in determining whether he formed the mens rea for first-

degree murder, the testimony must bear a “rational nexus to the issues of premeditation



                                               32
and intent.” Hartless, 327 Md. at 577. Whether that rational nexus exists, and whether

there is a sufficient factual basis to support the expert’s testimony, is a matter committed

to the sound discretion of the trial court, and a “court’s action in admitting or excluding

such testimony seldom constitutes grounds for reversal.” Bryant, 163 Md. App. at 472.

       Because psychiatrists are no more clairvoyant than any other witness, and lack the

ability to reconstruct the emotions of a person at a specific time, they ordinarily are not

competent to express an opinion as to the belief or intent a person harbored at a particular

time. Hartless, 327 Md. at 573. A trial court may allow an expert to testify (as long as the

testimony meets the requirements of Md. Rule 5-702) about a defendant’s psychological

profile if that testimony allows the jury to infer that the defendant was suffering from the

symptoms of that psychiatric disorder on the date in question. See Simmons v. State, 313

Md. 33, 48 (1988), Bryant v. State, 163 Md. App. at 476. But as we see from the cases in

which defendants have tried this approach before, there must be a direct connection

between the fact and symptoms of the asserted mental illness and the specific mental state

at issue—experts cannot simply identify an illness or symptom and opine generally on what

the defendant might or might not have been able to do at the time.

       On one hand, in Simmons, the defendant was accused of murder and, to support his

defense of imperfect self-defense, sought to introduce testimony from a psychiatrist to

confirm his subjective belief that he was in danger. 313 Md. at 48. The Court of Appeals

concluded that the psychiatrist’s testimony was “relevan[t] in that consistency between the

specific subjective belief testified to by Simmons and Simmons’s psychological profile

tend[ed] to make it more likely that Simmons in fact held that subjective belief . . .,” id. at


                                              33
39, because it went directly to the defendant’s claim of self-defense. In Hartless, on the

other hand, the Court of Appeals affirmed a trial court’s decision not to admit psychological

profile testimony for a defendant who had stabbed and killed a clerk during the course of

robbing a store because the testimony, which would have explained that the defendant “was

under a tremendous amount of stress from his father,” bore no rational nexus to the relevant

issues of premeditation and intent. 327 Md. at 575. The Court noted that a psychological

profile is admissible only if it carries significance beyond “a simple recitation of the

defendant’s background,” that the profile had to explain how the defendant did not intend

to commit murder, or how the murder was not deliberate and premediated, or else it would

not be helpful to the jury. Id. at 575-77.

       Finally, in Bryant, a defendant charged with the first-degree murder of his ex-wife

sought to rebut the State’s claim that the murder was premeditated with psychiatric

testimony that he suffered from an impulse control disorder. 163 Md. App. at 463. We

affirmed the trial court’s decision not to admit that testimony,8 noting the objective

evidence that the defendant acted with premeditation by pacing near the victim’s residence

for hours, asking neighbors about who lived in the victim’s residence, and cutting the phone

cords in the victim’s house, and that even with the disorder, the defendant was sometimes

able to control his impulses. Id. Nothing connected his disorder to the criminal act itself:

“The doctor’s testimony would merely have presented evidence that appellant suffered


8
  We also held in Bryant that there could be no rational nexus between the proffered
testimony and the particular facts of this case because the defendant denied ever
committing the crime. Id. at 480-81.



                                             34
from an impulse control disorder, which sometimes prevented him from controlling his

aggressive impulses. There was simply no evidence that Ms. Martin’s murder was the

result of an impulsive act.” Id. at 482.

       This case and the testimony Mr. Shiflett sought to introduce are much more like

Hartless and Bryant than Simmons. Dr. Brandt’s testimony that Mr. Shiflett obsessed over

Ms. Hadel, threatened her, acted with an intent to evoke a response from her, and had

difficulty controlling his impulses would have borne no rational nexus to his ability to plan

and carry out Ms. Hadel’s murder. To the contrary, Dr. Brandt conceded that Mr. Shiflett

had thought about killing Ms. Hadel for years, but had managed to avoid acting on that

impulse in the past. She also would have offered no evidentiary basis to support Mr.

Shiflett’s claim that his mental illnesses prevented him from premeditating Ms. Hadel’s

murder. And as in Bryant, the evidence demonstrates that the murder was deliberate and

premeditated: Mr. Shiflett walked from Annapolis to Reisterstown, staked out Ms. Hadel’s

apartment for two full days, then waited until her husband was gone before he killed her.

Without some direct connection between Mr. Shiflett’s disorders and his ability to plan and

carry out this murder, Dr. Brandt’s testimony would have invited the jury to speculate about

what was or wasn’t in his mind at the time, and was therefore properly excluded.

       D.     Mr. Shiflett Was Competent To Stand Trial.

       Fourth, Mr. Shiflett argues that the circuit court erred in finding him competent to

stand trial. At the conclusion of the third day of trial, the court ordered a competency

evaluation in response to Mr. Shiflett’s request to discharge his counsel. Over the next two

days, the court heard testimony from Doctors Stephen Siebert, Christiane Tellefsen, and


                                             35
Joanna Brandt; Dr. Siebert9 and Dr. Tellefsen ultimately concluded that Mr. Shiflett was

competent, and Dr. Brandt testified that he was not. After hearing all the testimony, the

court ruled Mr. Shiflett competent:

              I find that not only does he understand the nature and object of
              the proceeding, but that he is absolutely able to assist in his
              defense, has assisted in his defense, shows a high level of
              insight into the nature of the case, the witnesses presented.
              And although he has shown a—a dissatisfaction with counsel .
              . . that is not the standard. And this Court feels that h[e] is able
              to control his actions when it suits him, and understands how
              this case is proceeding and can assist in his defense.

       A criminal defendant has a Fourteenth Amendment Due Process right not to be tried

while incompetent, and this prohibition “is fundamental to an adversary system of justice.”

Sibug v. State, 445 Md. 265, 301 (2015) (quoting Drope v. Missouri, 420 U.S. 167, 172

(1975)). A defendant is incompetent if he or she is unable to understand the nature or

object of the proceeding, or to assist in [his or her] defense. Md. Code (2001, 2008 Repl.

Vol.), § 3-101(f) of the Criminal Procedure Article (“CP”); Thanos v. State, 330 Md. 77,

84-85 (1993). If the defendant’s competency is in doubt, whether the question is raised by

counsel or the court decides to pursue the matter sua sponte, the court must conduct a

hearing to determine “whether [the accused] has sufficient present ability to consult with

his lawyer with a reasonable degree of rational understanding, and whether he has a rational


9
  In his initial testimony, offered September 18, 2014, Dr. Siebert concluded that Mr.
Shiflett was not competent and would be unable to follow the proceedings or meaningfully
answer questions, citing his concern that Mr. Shiflett was unable to explain what he was
charged with during his competency evaluation. However, after reviewing video
recordings of Mr. Shiflett at the detention center and listening to recorded telephone
conversations between Mr. Shiflett and his father, Dr. Siebert changed his opinion and
testified that he believed Mr. Shiflett was competent.

                                              36
as well as factual understanding of the proceedings against him.” Sibug, 445 Md. at 300-

01 (quoting Dusky v. United States, 362 U.S. 402, 402 (1960)).

       A court may consider competency at any time before or during trial, and must

undertake a competency review if the defendant appears to be incompetent or alleges

incompetence.    Peaks v. State, 419 Md. 239, 252 (2011).         The court starts with a

presumption of competence and must determine, based on the record, that the defendant is

competent to stand trial beyond a reasonable doubt. Id. at 251-52; CP § 3-104(a). The

inquiry is highly fact-specific, and we review competency decisions for clear error. Id. at

252.

       Mr. Shiflett contends that the court’s conclusion that he was competent, which

rested on Mr. Shiflett’s alleged ability to control his actions, was not supported by the

doctors’ testimony. We disagree, and find that the doctors’ testimony provided ample

evidence to support the court’s conclusion. For example, Dr. Tellefsen testified that Mr.

Shiflett not only was competent, but had a fairly sophisticated level of knowledge about

the trial and the defenses available to him. In her opinion, Mr. Shiflett could control his

behavior, particularly when he believed it was to his advantage to do so, and his disruptive

behavior in the court room flowed from his desire to “impress everyone that he’s mentally

ill.” Similarly, Dr. Siebert concluded that Mr. Shiflett was competent to stand trial,

notwithstanding his erratic behavior, after listening to a recorded phone call between Mr.

Shiflett and his father after the first day of trial in which Mr. Shiflett made specific

statements about his capacity to regulate his own behavior:




                                            37
                     For example, he said that he—if anybody tried to put a
              shock bracelet on him, that he was going to swing on them. He
              even said that he told the—the sheriffs that . . . I have been
              giving none of you problems up at this—up to this point, but if
              they try to put that shock bracelet on—on me, I will swing at
              them.

                     At the very end of the phone call he said to the father,
              he said the following: I have been giving them a raft of hell and
              they know it. And I believe he was referring to the—this trial.
              In other words, I—I believe that he was referring in that
              telephone call to the fact that . . . his disruptive behavior has
              been disruptive to the flow of this criminal trial up to the
              present time.

       Mr. Shiflett responds by pointing to Dr. Brandt’s findings that he was unable to

control his behavior when agitated, and would be unable to testify in his own defense in a

relevant manner. He attacks Dr. Tellefsen’s conclusions, saying that she conceded he was

out of control at times and unable to communicate with his attorney, and argues that Dr.

Siebert was wrong to rely on a phone call he made the first day of trial because his mental

state deteriorated as the trial went on. But although the experts reached conflicting

conclusions, the standard doesn’t require unanimity, and the trial court’s finding that Mr.

Shiflett was competent was supported by ample evidence. Both Dr. Tellefsen and Dr.

Siebert concluded that Mr. Shiflett was, for the most part, able to control his behavior, and

demonstrated a sophisticated understanding of the proceedings against him and his

defenses, and both doctors found that Mr. Shiflett was aware that emphasizing his mental

illness would work to his advantage. “Weighing the credibility of witnesses and resolving

any conflicts in the evidence are tasks proper for the fact finder,” Pinkney, 151 Md. App.




                                             38
at 326 (quoting State v. Stanley, 351 Md. 733, 750 (1998)), and we see no error in the

court’s decision to credit Dr. Tellefsen’s and Dr. Siebert’s conclusions over Dr. Brandt’s.

       E.     The Burglary Charge Is Not Duplicative.

       Finally, Mr. Shiflett argues that the circuit court erred by refusing to dismiss his

first-degree burglary charge. Count Three of Mr. Shiflett’s indictment alleged that:

              on or about 2/5/2013, in Baltimore County, did unlawfully
              break and enter the dwelling of Katie Ann Hadel-Gordon,
              located at [victim’s address], in violation of Criminal Law
              Article 6-202 of the Annotated Code of Maryland; against the
              peace government and dignity of the State.

       A person commits first degree burglary under CR § 6-202 by “break[ing] and

enter[ing] the dwelling of another with the intent to commit theft or a crime of violence.”

(Emphasis added.) Mr. Shiflett appears to argue that the indictment, by simply referencing

CR § 6-202 rather than specifying whether the alleged burglary was committed with the

intent to commit theft or the intent to commit a crime of violence, in effect charges him

with more than one substantive offense in a single count. The State counters that the

language in the indictment tracks precisely the language of CR § 6-210, which provides

that a charging document for burglary is sufficient “if it substantially states: ‘(name of

defendant) on (date) in (county) did break and enter (describe property) or (describe other

crime) in violation of (section violated) against the peace, government, and dignity of the

State.’” We agree with the State.

       The charging document is meant to fulfill the constitutional requirement of Article

21 of the Declaration of Rights that each person charged with a crime have notice of the

accusations. Jones v. State, 303 Md. 323, 336 (1985). Thus, the charging document must


                                            39
allege the essential elements of the offense charged, and only one offense may be charged

in a single count. Ayre v. State, 21 Md. App. 61, 64 (1974). Mr. Shiflett points to Thanos

v. State, in which the Court of Appeals held that when a statute forbids several separate

actions and states those actions disjunctively—with an “or”—simply referring to the statute

in a single count of the indictment to allege that the defendant committed one of those

actions “will be defective as indefinite, since the disjunctive renders it uncertain which

alternative is intended.” 282 Md. at 716-17. In Thanos, the State prosecuted a shoplifter,

and the charging document stated that she had removed the tag from a garment for sale in

a Towson department store. Id. at 710. The court explained that had the charging

document duplicated the language of the shoplifting statute exactly, and charged the

defendant with “alter[ing], remov[ing], or otherwise disfigur[ing] a price tag,” rather than

removal, it would have been defective for uncertainty. Id. at 717 (internal quotations

omitted) (emphasis added).

       Since Thanos, however, both this Court and the Court of Appeals have confirmed

that the charging document need not set forth all essential elements of the crime, and that

some elements may be implied. Jones, 303 Md. at 337. For example, in Whitehead v.

State, this Court found that the simply citing the statute number was essentially

“incorporation by reference,” having the same effect as if the text of the statute had been

set forth in full. 54 Md. App. 428, 445 (1983). Thus, we held that the language of an

indictment was not duplicitous when it charged the defendant with theft “in violation of

Art. 27, § 342 of the Annotated Code of Maryland.” Id. at 441. Although the statute listed,

in the disjunctive, five different ways in which the crime of theft can be perpetrated, we


                                            40
found that the reference to theft by using the short form § 342 in effect charged the

defendant conjunctively with any or all of the five methods. Id. at 442; see also Jones, 303

Md. at 338 (confirming that the Court of Appeals “share[s] the views so well expressed in

Whitehead”).

       By citing to CR § 6-202, the indictment charged Mr. Shiflett with committing

burglary by “any or all” of the requisite intents listed. The State volunteered, at a hearing

five months prior to trial, that it would proceed on the theory that Mr. Shiflett broke into

the victim’s home with the intent to commit a crime of violence. If Mr. Shiflett required

more notice of what he was being charged with, he could have requested a bill of

particulars, but he didn’t, nor does he dispute that the indictment complied with the

language required by CR § 6-210.

                                          JUDGMENT OF THE CIRCUIT COURT
                                          FOR BALTIMORE COUNTY AFFIRMED.
                                          COSTS TO BE PAID BY APPELLANT.




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