State v. Williams

361 A.2d 122, 278 Md. 180

• Court: Court of Appeals of Maryland
• Decided: September 1, 1976
• Docket: [No. 23 (Adv.), September Term, 1976.]
• Status: Published

Opinions

Levine, J.,

delivered the opinion of the Court. Smith, Eldridge and Grady, JJ., dissent and Smith, J., filed a dissenting opinion in which Grady, J., concurs at page 187 infra. Eldridge, J., filed a dissenting opinion at page 195 infra.

This appeal arises from a proceeding to redetermine appellee’s status as a defective delinquent. At the hearing in the Circuit Court for Baltimore County, the trial judge (Haile, J.) ruled that a psychologist on the staff of Patuxent Institution (Patuxent), though qualified as an expert witness in his field, could not render an opinion on the ultimate issue, whether appellee was a defective delinquent.¹ That ruling is challenged on appeal by the State in consequence of a jury verdict that appellee was no longer a defective delinquent. We granted certiorari to decide this important question prior to consideration by the Court of Special Appeals.

After receiving a five years’ sentence in November 1967 for the crime of assault, the third in a series of convictions spanning several months, appellee was found to be a defective delinquent and was transferred to Patuxent in 1969. A like adjudication was made at a redetermination proceeding in 1972. The issue resulting in this appeal arose at a second redetermination hearing in 1975.

Immediately prior to the commencement of the latest hearing, the court granted appellee’s motion to delete from the Patuxent reports all expressions of opinion by a staff psychologist that appellee was a defective delinquent. During the trial, the State called as its only witness the same psychologist, Alan W. Strange, who held a master’s degree in both clinical and community psychology and had by then been on the Patuxent staff for approximately one year. Previously, he had participated in two internships in the field of child guidance and had served as a personnel psychology specialist at a military hospital for two years, as a caseworker with the Travelers’ Aid Society for one year and as a social worker in the child welfare field for 1 V2 years.

During his testimony, the psychologist was permitted to read to the jury, subject to the excisions which the trial judge had previously ordered, the latest Patuxent report of appellee’s condition. This report, prepared in accordance with Maryland Code (1957, 1976 Repl. Vol.) Art. 31B, § 7 (a), had been signed by a psychiatrist, another physician, and by the psychologist himself. That portion of the report which was read to the jury revealed an opinion of the examining team that appellee’s status as a defective delinquent had not changed since the 1972 hearing and a recommendation that his commitment to Patuxent be continued. The witness was also permitted to relate the various psychological tests he had conducted on appellee, and to inform the jury of the results. Additionally, appellee’s course of conduct at Patuxent, not all of which reflected favorably upon him, was described to the jury. Finally, although the psychologist was precluded from rendering his individual opinion that appellee yet remained a defective delinquent, he was permitted by the court to state that he agreed with the recommendation contained in the report. The only psychiatrist to testify at the hearing was one who had been appointed by the circuit court at the request of appellee to conduct an examination and to appear as a witness on his behalf. This psychiatrist testified that in his opinion appellee was no longer a defective delinquent.

As we have indicated, the trial judge, while allowing the psychologist to relate to the jury the recommendation in the Patuxent report that appellee’s confinement be continued, excised from the report the witness’s opinion on the ultimate issue of defective delinquency and prevented him from testifying in that regard during the trial. Although the precise basis for these rulings was not stated, it is apparent that the court agreed with appellee’s argument — also made here — that the ultimate diagnosis of defective delinquency is a medical question upon which a psychologist may not give his opinion.

In attacking the circuit court ruling, the State relies on a handful of cases decided by this Court. Since none lends support to its position, they merit only brief comment. Thus, the State cites McDonough v. Director, 229 Md. 626, 634, 183 A. 2d 368 (1962), as “approving] testimony by a psychologist on the ultimate issue as to whether the individual was a defective delinquent.” Actually, the only question considered in McDonough which is even remotely relevant to this case was whether the report of a psychologist formerly employed at Patuxent but not available to testify, containing the results of standard tests and his evaluation of the inmate, could be read to the jury by another psychologist then a member of the Patuxent staff. In Crews v. Director, 245 Md. 174, 179, 225 A. 2d 436 (1967), we were concerned with whether a psychiatrist not licensed in the State of Maryland could testify as an expert witness. While certain of the dicta in that opinion might be taken as approving the admissibility of a defective delinquency opinion of a psychologist, that proposition was neither decided nor presented.

Although at first blush Hall v. Director, 245 Md. 687, 691, 226 A. 2d 669 (1967), appears to stand for the proposition that a psychologist can testify on the ultimate issue of defective delinquency, and also seems to attribute such a holding to Caplin v. Director, 244 Md. 103, 223 A. 2d 166 (1966), the actual issue there was whether a psychologist could so testify despite his failure to produce in court the tests which formed the basis for his opinion. The reference there to Caplin is qualified in terms of whether the psychologist’s scientific competence was challenged, a question raised in neither of those cases. Finally, in Schultz v. Director, 227 Md. 666, 177 A. 2d 848 (1962), the issue was whether, in admitting opinion testimony by a psychiatrist and a psychologist on the ultimate issue of defective delinquency vel non, the court had thus allowed the witnesses to usurp the function of the jury. In sum, we have yet to reach the question presented here.

Nor have we ever flatly decided the closely related though, in our view, distinguishable question whether a psychologist’s opinion is admissible in criminal cases on the subject of mental disease or responsibility. Although raised in State v. Tull, 240 Md. 49, 212 A. 2d 729 (1965), we did not pass on the issue, having decided that case on other grounds. In a scholarly discussion, however, Judge Hammond there reviewed for the Court a number of decisions in other jurisdictions and found them divided “on whether a psychologist is qualified to express an opinion as to mental disease or condition, as opposed to giving factually the results of his tests on and observations of the patient.” State v. Tull, supra, 240 Md. at 55. This division of authority still persists, although it now appears that a majority of courts would admit such testimony, at least in those instances where the witness meets appropriate standards prescribed for psychologists who seek to qualify as expert witnesses on the subject of criminal responsibility.² Although we are not concerned here with the matter of criminal responsibility, it bears mentioning that a secondary argument made by appellee is that the psychologist in this case was not qualified under the exacting standards which must be met by one rendering an expert opinion on what is generally recognized as a medical subject. We shall not, however, rest our decision on that premise, since we think the issue before us is controlled by narrow statutory considerations and is therefore distinguishable, in any event, from the question involved in cases where criminal responsibility is at issue.

The early history of the defective delinquency law, and the procedure under which it operates, was extensively reviewed in Director v. Daniels, 243 Md. 16, 221 A. 2d 397, cert. denied, 385 U. S. 940 (1966), where the law was subjected to constitutional attack on various grounds. There, we quoted with approval from Sas v. State of Maryland, 334 F. 2d 506, 516 (4th Cir. 1964):

“ ‘... [The defective delinquency statute] substitutes the concept that there is a category of legally sane persons who by reason of mental or emotional deficiencies “evidence a propensity toward criminal activity,” which they are incapable of controlling. For those in the category who are treatable it would substitute psychiatric treatment for punishment in the conventional sense and would free them from confinement, not when they have “paid their debt to society,” but when they have been sufficiently cured to make it reasonably safe to release them.’ ” (emphasis added). Director v. Daniels, supra, 243 Md. at 31.

Elsewhere we stated:

“ ... [T]here does in fact exist a class or group of persons falling within the definition [of defective delinquency], constituting a danger to the health and safety of people and who, with the aid of medical expert testimony, after appropriate examination, using recognized medical techniques, are discernible and recognizable by lay persons, including judge or jury.” (emphasis added) Id. at 33.

Indeed, without belaboring this opinion, it is safe to say that Daniels is riddled with emphasis on the condition of defective delinquency as a psychiatric concept, while acknowledging that when properly applied and related to the individual subject by expert medical testimony, the term itself is one readily understood by lay persons. Although intellectual deficiency, one of the two alternative criteria for determining defective delinquency under the § 5 definition, is apparently regarded as a “psychiatric-psychological” term, the other, emotional unbalance, “referfs] to a definite type of medically recognized psychiatric disorder,” Director v. Daniels, supra, 243 Md. at 54.

That the professionals affiliated with Patuxent themselves have consistently recognized that the diagnosis of defective delinquency rests primarily on psychiatric criteria is overwhelmingly reflected in literature authored, in whole or in part, by members of the Patuxent staff, all of which we considered as part of the record in Daniels.³ While none of the massive collection of data assembled for the benefit of the General Assembly by the architects of the defective delinquency law explicitly states that expert medical testimony is a sine qua non to the adjudication of defective delinquency, one cannot read these documents without concluding that from the very beginning this was nevertheless intended to be the case.

Concededly, the statute itself is not explicit on this point. Section 8 of Art. 31B, entitled “Hearings,” makes no reference to the witnesses who are to testify in court on the issue of defective delinquency. Section 7, entitled “Examinations,” though, is perhaps more expressive of the legislative intent. Subsection a of § 7 requires that examinations to determine possible defective delinquency be conducted by at least three persons, a medical physician, a psychiatrist and a psychologist. Thus, medical doctors play the dominant role under the statute in the diagnosis of defective delinquency. More revealing, however, is subsection b, which provides that in addition to the examination prescribed by subsection a, the person being examined, if he himself has not initiated the defective delinquency proceedings, is entitled to be examined by a psychiatrist of his own choice, the reasonable costs of which must be paid by the State. As we noted earlier, the psychiatrist selected by appellee was the only expert in that field to testify. Sheer logic, as appellee cogently observes, should indicate that the Legislature would not have provided for a psychiatrist to testify in behalf of the inmate had it not intended that a medical expert likewise appear in court as a state witness on the issue of defective delinquency, and had it not viewed the question of defective delinquency as primarily a medical problem.

We hold, therefore, that a psychologist, though otherwise qualified as an expert witness, may not render an opinion on the ultimate issue of defective delinquency, whether it be at the initial hearing or for purposes of redetermination. Nothing we have said, of course, should be taken as a lack of professional respect for the psychologist who testified in this case or for his profession. We make it plain that psychologists should not only fulfill their statutory duties under Art. 31B, but, if otherwise qualified as expert witnesses, may continue, as here, to testify in defective delinquency proceedings regarding their factual findings, to describe the various tests which they have administered as part of their examinations and report the results thereof, and to give their personal judgments and interpretations relating to those tests.

Judgment affirmed; appellant to pay costs.

1 . A “defective delinquent” is defined by Maryland Code (1957,1976 Repl. Vol.) Art. 31B, § 5 “as an individual who, by the demonstration of persistent aggravated antisocial or criminal behavior, evidences a propensity toward criminal activity, and who is found to have either such intellectual deficiency or emotional unbalance, or both, as to clearly demonstrate an actual danger to society so as to require such confinement and treatment, when appropriate, as may make it reasonably safe for society to terminate the confinement and treatment.”

2 . See, e.g., United States v. Green, 373 F. Supp. 149 (E.D. Pa.) aff'd without opinion, 505 F. 2d 731 (3rd Cir. 1974), cert. denied, 420 U. S. 978 (1975); United States v. Riggleman, 411 F. 2d 1190, 1191 (4th Cir. 1969); Jenkins v. United States, 307 F. 2d 637, 643-46 (D.C. Cir. 1962); People v. Pennington, 66 Cal. 2d 508, 58 Cal. Rptr. 374, 426 P. 2d 942, 950 (1967); Henderson v. State, 308 N.E.2d 710 (Ind. App. 1974); State v. Robertson, 108 R. I. 656, 278 A. 2d 842, 845-46 (1971); Roberts v. State, 41 Wis. 2d 537, 164 N.W.d 525, 532 (1969); contra, People v. Gilliam, 16 Ill. App. 3d 659, 306 N.E.2d 352, 355-56 (1974); State v. Alexander, 252 La. 564, 211 So. 2d 650, 654 (1968); Sherrill v. State, 14 Md. App. 146, 158, 286 A. 2d 528 (1972); Millard v. State, 8 Md. App. 419, 428-29, 261 A. 2d 227, cert. denied, 257 Md. 735 (1970); Saul v. State, 6 Md. App. 540, 548-50, 252 A. 2d 282 (1969), aff'd, 258 Md. 100, 265 A. 2d 178 (1970).

3 . See, e.g., Boslow, Rosenthal, and Gliedman, The Maryland Defective Delinquency Law: Psychiatric Implications for the Treatment of Anti-Social Disorders Under the Law (1959); Boslow, Rosenthal, Kandel and Manne, Methods and Experiences in Group Treatment of Defective Delinquents in Maryland, 7 The Journal of Social Therapy (1961); Boslow and Kohlmeyer, The Maryland Defective Delinquency Law: An Eight Year Follow-Up.