Bricker v. State

⁵³⁴ ROSALYN B. BELL, Judge. James Deon Bricker was convicted by a jury in the Circuit Court for Prince George’s County of two counts of third degree sexual offense (counts 2 and 5) and two counts of assault and battery (counts 4 and 6). For counts 2 and 4, he was sentenced to 10 years imprisonment. For counts 5 and 6, a consecutive 10-year sentence was imposed.

The sole issue on appeal is whether the trial judge erred in ruling that Dr. Edward Schultze was not a qualified expert witness who could give an opinion that Bricker was not criminally responsible for his conduct. We hold the trial judge erred and explain. At trial, Dr. Schultze testified that he had received a bachelor’s degree in behavioral and social sciences, a master’s degree in psychology, a master’s degree in vocational education for the handicapped, and a doctorate of education in emotional disturbance (special education). Dr. Schultze also stated that he was presently employed as the principal of the Leary School in Virginia, and had personally observed Bricker who had been a student at Leary for approximately one year prior to his arrest.

Defense counsel then offered Dr. Schultze as an “expert in the area of handicapped, such as mental retardation.” After the offer, the State elicited testimony from Dr. Schultze in which he related that he was neither a practicing or licensed psychologist, nor was he a psychiatrist. The State then argued that, since Dr. Schultze was neither a psychiatrist nor a licensed psychologist, he could not give his opinion regarding Bricker’s criminal responsibility at the time he committed the subject offenses. Then the following exchange took place: “[DEFENSE COUNSEL]: * * * * * * “What you’re saying is, I can’t ask it based upon your opinion, was Mr. Bricker criminally responsible at the time? I was going to ask him if his mental retardation ⁵³⁵ would affect his ability to understand what he is doing and understand whether — whether Mr. Bricker understood that what he was doing was a crime. “THE COURT: You are walking right into the definition of nonresponsibility. “[DEFENSE COUNSEL]: But I am leaving it up to the jury.

I am not asking his opinion whether Mr. Bricker was responsible at the time. I am asking him if Mr. Bricker understood, from his mental level, understood what he was doing wasn’t proper at the time that he did it. “THE COURT: It sounds like you are raising the defense of diminished capacity, which is not recognized in Maryland. “[DEFENSE COUNSEL]: But I am not. I am going to argue to the jury insanity. “THE COURT: How are you going to argue insanity if you don’t have any expert saying that he was insane at the time? Don’t you have to have some medical expert get up here and say that he was not responsible because at the time he could not appreciate the criminality of his actions and conform his conduct to the level of the law? “[DEFENSE COUNSEL]: What we are dealing with is mental retardation here as opposed to your straight old-fashion insanity, mental disorder.

That is what we are talking about. Not criminally responsible.” After a recess, the trial judge ruled: “All right, I will tell you what the game plan is going to be. I will let this gentleman testify. I don’t believe, even as he testifies to the mental retardation of the defendant, that that testimony is sufficient to raise the issue of not criminally responsible. “In other words, it’s not probative on that issue and therefore, I could not let that issue go to the jury. “[DEFENSE COUNSEL]: Right.” The trial judge then permitted Dr, Schultze to testify out of the presence of the jury. ⁵³⁶ Based on his personal observations and the records he reviewed, Dr. Schultze testified that Bricker’s degree of retardation ran from a mild to a moderate range of retardation. 1 He also stated that Bricker’s ability to determine right from wrong was questionable since he often acted without regard to the consequences of his actions.

Dr. Schultze concluded that Bricker’s degree of mental retardation rendered him unable to understand the criminality of his act. Dr. Schultze was not permitted to testify at all in the presence of the jury and consequently, no evidence was submitted as to Bricker’s mental state. Later, the trial judge instructed the jury that, since no evidence was presented that Bricker was not criminally responsible, this was not an issue for the jury to determine. EXPERT TESTIMONY Appellant contends that Dr. Schultze should have been permitted to testify as an expert regarding appellant’s capacity to appreciate the criminality of his acts.

Appellant posits that Dr. Schultze’s specialized educational background and personal knowledge of appellant’s mental capabilities qualified Dr. Schultze to give an opinion whether appellant was responsible for his criminal conduct. The State argues that under State v. Conn, 286 Md. 406, 425 , 408 A.2d 700 (1979), Dr. Schultze could not be questioned regarding whether, in his opinion, appellant was responsible for his criminal conduct, as that is a medical question. Under Conn , the State argues, only a medically trained psychiatrist can testify on the ultimate issue. In addition to medically trained psychiatrists, the State correctly points out that licensed psychologists are also permitted to testify regarding the ultimate issue of whether the accused is criminally responsible.

Md. Cts. & Jud.Proc.Code Ann. § 9-120 (1974, 1984 Repl.Vol.). 2 ⁵³⁷ Appellant counters, however, that Conn did not apply to the mentally retarded since the statute in effect at that time made no reference to mental retardation in the test for criminal responsibility. 3 Appellant maintains that, since “mental retardation” was specifically excluded from the definition of “mental disorder” in the 1972 amendments, the opinion required by a medically trained psychiatrist set forth in Conn applied only to an individual with a “mental disorder.” Thus, appellant concludes that the 1982 amendment, which added “mental retardation” to the test for criminal responsibility, broadened the class of experts whose testimony is admissible on this issue, because mental retardation is not strictly a “medical question.” We do agree with appellant that at the time Conn was decided “mental disorder” did not include “mental retardation” in the statutory test for criminal responsibility. We explain. Prior to 1972, “mental disorder” was defined as a “[m]ental illness or mental retardation or any other form of behavioral or emotional illness resulting from any psychiatric or neurological disorder.” Md.Code Ann. Art. 59, § 3(f) (1957, 1968 Repl.Vol., 1970 Cum.Supp.) (emphasis added). In Johnson v. State, 292 Md. 405, 426-27 , 439 A.2d 542 (1982), the Court of Appeals noted: ⁵³⁸ “In 1972, the term ‘mental retardation’ was deleted from the section 3(f) definition of ‘mental disorder’ and the definition was made to expressly preclude mental retardation. 1972 Md. Laws, ch. 345; Md. Code (1957, 1979 Repl.Vol.), Art. 59, § 3(f).

Because at common law, mental retardation alone was not generally considered sufficient to support the defense of insanity, it appeared that the foregoing amendments precluded the insanity defense based on that mental condition. When, in 1978 the Attorney General of this State expressed the view that, in light of these statutory changes, ‘the Legislature intended that the defense of insanity based upon mental retardation would be unavailable to defendants in the future.’ 63 Op.Md.Att’y.Gen. 230, 235 (1978), the General Assembly, in response, redefined ‘mental disorder,’ as expressed in Code (1957, 1979 Repl.Vol., 1981 Cum.Supp.), Art. 59, § 3(f), ‘[for] the purpose of including mental retardation in the definition of mental disorder’ when that term is used to define insanity as a defense in criminal cases. 1980 Md. Laws, ch. 823. Thus, by readjusting the concept of criminal insanity to include mentally retarded defendants, the legislature has made manifest that any such mentally deficient persons having met the section 25(a) definition of insanity are not to be held accountable for behavior in breach of societal norms as those precepts are expressed in the criminal law.” (Brackets in original.) (Footnote omitted.) (Some citations omitted.) Article 59 was later repealed, however, and § 25(a) was replaced by Md. Health-Gen.Code Ann. § 12-107 (1982), 1982 Md. Laws ch. 21. 4 “Rather than define ‘mental disor ⁵³⁹ der’ in a manner that contradicts the usual definition of the term ... specific reference to ‘mental retardation’ ” was added to the test for criminal responsibility in 1982. Md. Health-Gen.Code Ann. § 12-~101(f) (1982), Special Revisor’s Note.

As a result of these statutory changes, it is evident that mental retardation was not included in the statutory test for criminal responsibility when Conn was decided. Thus, Conn is not necessarily controlling where we are dealing with an individual suffering from mental retardation. Appellant posits that the inclusion of the words “mental retardation” constitutes the basis for broadening the class of experts whose testimony is admissible on the issue of criminal responsibility. We agree with appellant’s position, but only to the extent of broadening the class of experts in an exceptional case where a witness, who by reason of an exceptionally wide experience and/or association with the accused, is qualified to testify regarding mental retardation on the same basis as a psychiatrist or a licensed psychologist.

This is particularly so where the proffered testimony is sought from the witness as both a fact witness and an expert. In order to determine whether Dr. Schultze is within that exception, we must first examine the principles relating to the admissibility of expert testimony. In Simmons v. State, 313 Md. 33 , 542 A.2d 1258 (1988), the Court of Appeals set forth the findings the trial court must make when ruling on the admissibility of expert testimony. Initially, the trial judge must determine whether the proffered evidence is a proper subject for expert testimony.

The test is “whether the jury will receive appreciable help from the expert testimony in resolving the issues presented in the case.” Simmons, 313 Md. at 41 , 542 A.2d 1258 . The issue in the instant case involves the statutory ⁵⁴⁰ test of criminal responsibility. This test is predicated upon “mental disorder or mental retardation” and thus requires an assessment of the defendant’s mental status. This involves an examination of the defendant to reconstruct his or her behavior and mental status at the time of the offense.

Based upon this examination and testing, the expert must then determine whether a causal connection exists between the defendant’s past or present mental condition and his or her criminal conduct. This determination is clearly a subject on which the fact finder can receive appreciable help from an expert. Once the trial judge determines that the proffered evidence is a proper subject for expert testimony, the trial judge must next determine whether the proposed expert is qualified to testify by virtue of education and experience. Simmons, 313 Md. at 41 , 542 A.2d 1258 .

Under Conn , a medically trained psychiatrist will generally qualify as an expert on mental disorders. By statute, a licensed psychologist is also permitted to testify. 5 The issue here, however, is whether an unlicensed psychologist is qualified to testify regarding the existence of mental retardation and whether there is a causal relationship between the mental retardation and the crime committed. Our research into Maryland case law and that of our sister jurisdictions failed to reveal any cases which have addressed the precise issue presented in the instant case. As a starting point, we did, however, find that the majority of jurisdictions permit a properly qualified psychologist to testify on issues concerning mental condition.

See Annotation, Qualification of Nonmedical Psychologist to Testify as to Mental Condition or Competency, 78 ALR 2d 919 (1961) & supplement thereto in ALR 2d Later Case Service 407 (1986); 3 C. Torcia, Wharton’s Criminal Evidence § 551 (14th ed. 1987). ⁵⁴¹ The basic principle that we glean from the cases is that as a general rule the qualification of a psychologist as an expert will depend in each case upon the extent of the particular psychologist’s education, training and experience, rather than a rule which fixes the qualifications to some degree or title. As pointed out in Jenkins v. United States, 113 U.S.App.D.C. 300 , 307 F.2d 637 (1962) (en banc), “[t]he determination of a psychologist’s competence to render an expert opinion based on his findings as to the presence or absence of mental disease or defect must depend upon the nature and extent of his knowledge. It does not depend upon his claim to the title ‘psychologist.’ ” Jenkins, 307 F.2d at 645 . Instead, “[t]he critical factor in respect to admissibility is the actual experience of the witness and the probable probative value of his opinion.” Jenkins, 307 F.2d at 646 .

In his concurring opinion, Justice Burger emphasized that “many factors other than academic degrees go to the admissibility and weight of the expert testimony.” Jenkins, 307 F.2d at 650 . See, e.g., United States v. Gilliss, 645 F.2d 1269, 1278 (8th Cir.1981); United States v. Portis, 542 F.2d 414, 419 (7th Cir.1976); United States v. Riggleman, 411 F.2d 1190, 1191 (4th Cir.1969); Hidden v. Mutual Life Ins. Co. of New York, 217 F.2d 818, 821 (4th Cir.1954); United States v. Tesfa, 404 F.Supp. 1259, 1273 (E.D.Pa.1975), aff'd, 544 F.2d 138 (3rd Cir.1976), cert denied, 430 U.S. 910 , 97 S.Ct. 1185 , 51 L.Ed.2d 588 (1977); United States v. Green, 373 F.Supp. 149, 158 (E.D.Pa.1974), aff 'd, 505 F.2d 731 (3d Cir.1974), cert. denied, 420 U.S. 978 , 95 S.Ct. 1405 , 43 L.Ed.2d 659 (1975);