Bryant v. State

CATHELL, J. Michael Jerome Bryant, petitioner, was convicted by a jury in the Circuit Court for Montgomery County on May 23, 2003, of one count of first degree murder under the theories of premeditated murder and felony murder and one count of first degree burglary, which served as the basis for the felony murder conviction. He was subsequently sentenced to life without the possibility of parole for the first degree murder conviction and a concurrent twenty-year term for the burglary conviction. Petitioner timely filed an appeal with the Court of Special Appeals and that court affirmed the convictions. Bryant v. State, 163 Md.App. 451 , 881 A.2d 669 (2005).

Petitioner filed a petition for writ of certiorari on November 15, 2005. We granted certiorari on December 19, 2005. Bryant v. State, 390 Md. 284 , 888 A.2d 341 (2005). Petitioner presents two questions for our review: “1.

Whether a criminal defendant’s status as an inmate deprives him of the statutory privilege for communications related to his mental or emotional disorder to a nurse conducting a mental health assessment for diagnostic and treatment purposes at a county detention facility?” “2. Whether a criminal defendant must waive his constitutional right against self-incrimination as a condition prece ¹⁹⁹ dent to the introduction of expert testimony rebutting or explaining evidence that the state relies upon to establish the mens rea element of the offense charged?” We shall not address the first question as it is written because it makes an assumption not supported by the record. Instead, for the reasons that follow, we hold that petitioner’s statements during the intake process are not privileged. We further hold that the trial court did not abuse its discretion in prohibiting petitioner’s expert witness from testifying.

I. Facts The Court of Special Appeals provided a summary of the facts that led to the present appeal from which we present the following: “On July 20, 2002, [petitioner]^ ex-wife, Donna Martin, was fatally stabbed at her townhouse located on Merust Lane in Gaithersburg. The victim sustained numerous stab and cutting wounds, and was pronounced dead soon after she was transported to the hospital. “The State presented evidence that [petitioner] had threatened Ms. Martin a year before she was killed. Specifically, at a court proceeding held on April 9, 2001, Ms. Martin was speaking to a judge in the presence of [petitioner].[ 1 ] A tape of [petitioner’s comments was admitted in evidence, and showed that he made threatening comments to Ms. Martin at that time.[ 2 ] In addition, Cynthia Sargeant, a registered nurse, came into contact with [petitioner] on April 9, 2001, during an intake medical screening at the Montgomery County Detention Center. Sargeant testified: ‘[petitioner] indicated that he had a definite plan to kill her.

He indicated that he enjoyed seeing her blood. He ²⁰⁰ indicated that he was obsessed with killing her and that she messed with him.’ Sargeant added that [petitioner] also stated that the ‘[t]hought of killing her won’t go away.’ ” “Several witnesses; from the victim’s neighborhood testified that they saw a man, not specifically identified as [petitioner], near the victim’s home on July 20, 2002. For example, Mary Freckleton testified that on July 20, 2002, between 9:00 a.m. and 10:00 a.m., she was visiting her sister, who lived in an apartment on Merust Lane in Gaithersburg, when she looked out the window and noticed a man ‘walking back and forth.’ Freckleton, who visited her sister nearly every day, did not recognize the individual as someone who lived in the neighborhood. Later, between 12:00 p.m. and 1:00 p.m., Freckleton again saw the man.

Thereafter, between 3:30 p.m. and 4:00 p.m., Freckleton saw the man ‘sitting on the side of the embankment looking down at the apartments[.]’ ” “When asked to describe the man, Freckleton responded: ‘He was brown skin, short hair. I remember his lips was full. I say he was maybe six, five feet, something and he weighed about 200 and some pounds. He had real short close—short close hair.

His hair was cut real close. He was brown skin.... * * * “When I seen him the first time, he had a tee-shirt on. It wasn’t—it was not white. If it was white, it was dirty.

It was dirty, dirty. It wasn’t white. He had ... I don’t if it was jeans.

I can’t recall if it was blue jeans or black jeans.” “Stanley Bradley testified that, at 5:00 p.m. on the date in question, he was working with Joseph Hammond, a friend, on Hammond’s car, which was parked on Merust Lane. At ²⁰¹ that time, he noticed a woman with a baby in her arms and a little boy walking toward the door to a townhouse. When the woman was at the door, Bradley heard a bang followed by the woman ‘hollering.’ Upon looking toward the house, Bradley saw the arm of an African-American male grab the woman by the hair and he also ‘vaguely’ saw a knife. The woman yelled: ‘Somebody help me.

He is going to kill me.’ He saw a man drag the woman, who was still holding the baby, into the house, leaving the boy outside. Bradley also heard yelling coming from inside the house. A woman went to the door and took the child, who had been left outside. The police were called and, when they arrived approximately five minutes later, Bradley related what had occurred.” “Ms. Martin sustained multiple stab and cutting wounds.

She was flown to Suburban Hospital, where she was pronounced dead. An autopsy performed by Dr. Zabiullah Ali revealed that Ms. Martin received eight stab wounds and nine cutting wounds. Two of the stab wounds injured Ms. Martin’s left lung and one of them injured her heart.” “On the morning of July 24, 2002, [petitioner] was arrested in an apartment on North Summit Drive in Gaithersburg. The police found him sitting in a bedroom closet behind a closed door.

A wristwatch that appeared to have dried blood on it was recovered from [petitioner]^ wrist.” “In the defense case, counsel read the following statement to the jury: On February 14th of 2002, the defendant made the following statement to a physician, quote: T don’t have the urge to kill any more like before.’ [Petitioner] did not testify.” Bryant, 163 Md.App. at 455-62 , 881 A.2d at 672-76 (some footnotes omitted). ²⁰² II. Standard of Review The first question presented for our review requires our interpretation of Maryland Code (1973, 2002 Repl.Vol.), § 9-109(a)(3) of the Courts & Judicial Proceedings Article (“C.J.”), which states: “‘Patient’ means a person who communicates or receives services regarding the diagnosis or treatment of his mental or emotional disorder from a psychiatrist, licensed psychologist, or any other person participating directly or vitally with either in rendering those services in consultation with or under direct supervision of a psychiatrist or psychologist.” 3 We have often stated that “the cardinal rule of statutory interpretation is to ascertain and effectuate the intention of the legislature.” Melton v. State, 379 Md. 471, 476 , 842 A.2d 743, 746 (2004) (quoting Holbrook v. State, 364 Md. 354, 364 , 772 A.2d 1240, 1245-46 (2001)). The first step in our analysis is to examine the plain language of the statute. Grandison v. State, 390 Md. 412, 445 , 889 A.2d 366, 385 (2005).

We will not look beyond the plain meaning of the statute when the words used are unambiguous. Grandison, 390 Md. at 445 , 889 A.2d at 385 ; Deville v. State, 383 Md. 217 , 858 A.2d 484 (2004); Melton, 379 Md. at 477 , 842 A.2d at 746 . When the statute provides definitions of a particular term, we use the statutory definition in determining the scope of the specific words used. Gilmer v. State, 389 Md. 656, 667 , 887 A.2d 549, 556 (2005).

Furthermore, each word of the statute must be read so as to not render it “surplusage, superfluous, meaningless, or nugatory.” Gilmer , 389 Md. at 663 , 887 A.2d at 553 ; Lawson v. State, 389 Md. 570, 583 , 886 A.2d 876, 883 (2005); Moore v. State, 388 Md. 446, 453 , 879 A.2d 1111, 1115 (2005). The Court has also stated that privilege statutes are interpreted narrowly. E.I. du Pont de ²⁰³ Nemours & Co. v. Forma-Pack, Inc., 351 Md. 396, 406 , 718 A.2d 1129, 1134 (1998) (“The attorney-client privilege as applied in judicial proceedings is narrowly construed.... ”); Sears, Roebuck & Co. v. Gussin, 350 Md. 552, 562 , 714 A.2d 188, 192 (1998) (stating that the statutorily created accountant-client privilege is narrowly construed because it is in derogation of the common law). 4 The second question presented for our review requires the Court to determine whether the trial court abused its discretion in excluding petitioner’s expert witness testimony. We have often stated that “ ‘the admissibility of expert testimony is a matter largely within the discretion of the trial court, and its action in admitting or excluding such testimony will seldom constitute a ground for reversal.’ ” Clemons v. State, 392 Md. 339, 359 , 896 A.2d 1059, 1071 (2006); Wilson v. State, 370 Md. 191, 200 , 803 A.2d 1034, 1039 (2002) (quoting Oken v. State, 327 Md. 628, 659 , 612 A.2d 258, 273 (1992)); Hartless v. State, 327 Md. 558, 576 , 611 A.2d 581, 590 (1992); Johnson v. State, 303 Md. 487, 515 , 495 A.2d 1, 15 (1985), cert. denied, 474 U.S. 1093 , 106 S.Ct. 868 , 88 L.Ed.2d 907 (1986); Stebbing v. State, 299 Md. 331, 350 , 473 A.2d 903, 912 , cert. denied, 469 U.S. 900 , 105 S.Ct. 276 , 83 L.Ed.2d 212 (1984); but see Kelly v. State, 392 Md. 511 , 898 A.2d 419 (2006) (stating that the trial court has limited discretion in excluding all testimony from all factual witnesses of a particular party); Redditt v. State, 337 Md. 621 , 655 A.2d 390 (1995) (same); Void v. State, 325 Md. 386 , 601 A.2d 124 (1992) (same); McCray v. State, 305 Md. 126 , 501 A.2d 856 (1985) (same).

We have further held that “[i]n exercising the wide discretion vested in the trial courts ²⁰⁴ concerning the admissibility of expert testimony, a critical test is ‘whether the expert’s opinion will aid the trier of fact.’ ” Rollins v. State, 392 Md. 455 , 897 A.2d 821 (2006) (quoting I.W. Berman Properties v. Porter Bros. Inc., 276 Md. 1, 12-14 , 344 A.2d 65, 73-74 (1975)). We must, therefore, also determine whether the trial court abused its discretion in excluding the petitioner’s expert witness testimony.

III

Discussion A. The Psychotherapist/Psychologist-Patient Privilege While not specifically privileged under the common law, communications between a patient and his or her psychotherapist or psychologist are now statutorily privileged. The privilege was created by the legislature and is codified in C.J. § 9-109, which states: “Unless otherwise provided, in all judicial, legislative, or administrative proceedings, a patient or the patient’s authorized representative has a privilege to refuse to disclose, and to prevent a witness from disclosing: (1) Communications relating to diagnosis or treatment of the patient; or (2) Any information that by its nature would show the existence of a medical record of the diagnosis or treatment.” C.J. § 9-109(b) (emphasis added). Petitioner contends that he is a “patient” as contemplated under the aforesaid subsection (a)(3), which states: “ ‘Patient’ means a person who communicates or receives services regarding the diagnosis or treatment of his mental or emotional disorder from a psychiatrist, licensed psychologist, or any other person participating directly or vitally with either in rendering those services in consultation with or under direct supervision of a psychiatrist or psychologist.” C.J. § 9-109(a)(3). In petitioner’s view, the communications made to Ms. Sargeant as a part of the intake medical screening at the time of the prior proceeding on April 9, 2001, were ²⁰⁵ made for diagnosis or treatment and nurse Sargeant qualified as “any other person participating directly or vitally” in petitioner’s diagnosis or treatment.

As a consequence of what he deems his status as a “patient” at the prior intake screening, petitioner argues that his comments to the nurse at that time were privileged and that the court erred in allowing the State to elicit those statements during the subsequent trial for the present offenses for which he was convicted. Petitioner’s initial argument is not based upon a reading of C.J. § 9-109, but upon a general overview of Maryland’s public policy of providing mental healthcare services to inmates. Petitioner points to the thousands of inmates and parolees who are in need of mental healthcare. He contends that as a result of such a great number of people in need of attention, the State has adopted a policy of providing mental healthcare services for all inmates who need it.

This policy, petitioner posits, had its origin in the case of Estelle v. Gamble, 429 U.S. 97 , 97 S.Ct. 285 , 50 L.Ed.2d 251 (1976); where the Supreme Court of the United States held that the government has an “obligation to provide medical care for those whom it is punishing by incarceration.” Id. at 103 , 97 S.Ct. at 290 , 50 L.Ed.2d 251 . Furthermore, the United States Court of Appeals for the Fourth Circuit has held that the medical treatment to which inmates are entitled includes mental healthcare services. Bowring v. Godwin, 551 F.2d 44, 47 (1977). Based upon the public policy he proffers exists, petitioner reasons that the communications between an inmate and any nurse or other person interviewing a potential inmate as to health conditions, during all intake screenings must be privileged.

He alleges support exists in Maryland Code (1999), § 11-203 of the Correctional Services Article (“C.S.”), which requires local correctional facilities to provide for the safety, health, and welfare of inmates. The statute requires the local facility to provide (i) food and board, and (ii) “any article of comfort that is considered necessary for a sick inmate by the physician attending the inmate.” C.S. § ll-203(a). Petitioner also points to COMAR 12.14.04.02(15), which requires local ²⁰⁶ facility managers to “have a written policy” that includes, inter alia, the “identification, housing, treatment, supervision, and referral of a mentally ill inmate.” Finally, petitioner states that Montgomery County Code Part 2 § 13-9, which requires the correctional facility to provide a medical examination and access to daily medical or sick call facilities, brings the intake screening within the scope of C.J. § 9-109. The State does not dispute that public policy requires correctional facilities to provide mental healthcare services to inmates.

It argues, however, that the intake screening process is not part of the mental health treatment provided by these institutions. We first turn to the meaning of the word “patient” in C.J. § 9-109. The statute itself provides the definition of “patient” and, therefore, as we stated earlier, we need not go beyond that language in order to determine petitioner’s status. Gilmer, 389 Md. at 667 , 887 A.2d at 556 .

Section 9-109(a)(3), provides the definition of “patient” as stated supra, and for the purpose of this case, it can be reduced to two specific requirements: First, there must be a communication regarding the diagnosis or treatment of the person’s mental or emotional disorder; second, the communication must be with a psychiatrist, licensed psychologist or “any other person participating directly or vitally with either in rendering those services in consultation with or under direct supervision of a psychiatrist or psychologist.” (Emphasis added.) Our inquiry focuses on the purpose of the communication: Is the exchange between the inmate and the screener “regarding diagnosis or treatment?” In order to answer this question we look to the purpose of the intake screening. Petitioner argues that the intake screening is an integral part of the inmate’s treatment. He relies on the National Commission on Correctional Health Care (“NCCHC”) Standards for Health in Jails (2003). 5 ²⁰⁷ Montgomery County follows the NCCHC standards. Both petitioner and the State rely on these standards in support of their respective positions.

One of the requirements for NCCHC accreditation, which Montgomery County Correctional Facilities has achieved, is that the institution must provide mental healthcare services for all inmates who require them. NCCHC standard J-G-04. NCCHC has also provided guidance on what is required for providing mental healthcare services to inmates. In 1992, it issued a Position Statement, Mental Health Services in Correctional Settings.

The statement provided that based upon the decision in Ruiz v. Estelle, 503 F.Supp. 1265, 1339 (S.D.Tex.1980), rev’d in part, 679 F.2d 1115 (5th Cir.1982), cert. denied, 460 U.S. 1042 , 103 S.Ct. 1438 , 75 L.Ed.2d 795 (1983), the “minimum requirements for mental health services in correctional settings must include: • screening and evaluation to identify those needing mental health care; • a treatment plan for identified problems; • qualified mental health staff sufficient to treat the population; • a health records system; • a suicide prevention and treatment program; and, • the appropriate use of behavior-altering medications.” The position letter further provided a standard for mental health evaluations that is very similar to Montgomery County Code Part 2 § 13-9. It requires an inmate examination within fourteen days of admission for evaluation of that inmate’s mental healthcare needs. Petitioner asserts that NCCHC standard J-H-02 requires that health records and information must be kept in confidence and that staff must be trained to maintain the confidentiality of inmates’ records and information. Furthermore, petitioner contends, NCCHC standard J-A-09 requires that all “clinical encounters ” be ²⁰⁸ conducted in private and must encourage the inmate to participate in subsequent healthcare services.

In petitioner’s view, the entire process, including the intake screening, is for the purpose of providing mental healthcare services to the inmate and that any communication relating to that process is for the diagnosis or treatment of the inmate. Hence, he asserts, it must be privileged. The State also relies on the NCCHC standards, but it gives them a narrower reading. It points to NCCHC J-E-02 entitled “RECEIVING SCREENING,” which provides: “Standard Receiving screening is performed on all inmates immediately upon arrival at the intake facility.

Compliance Indicators 2. Qualified health care professionals or health-trained personnel perform the receiving screening. 3. The receiving screening takes place immediately for all inmates. 5. Reception personnel, using a health-authority-approved form, inquire about [the inmate’s medical and mental history] • • • Discussion Receiving screening is a process of structured inquiry and observation designed to prevent newly arrived inmates who pose a threat to their own or others’ health or safety from being admitted to the facility’s general population, and to get them rapid medical care.

It is intended to identify potential emergency situations among new arrivals to the facility, and also to ensure that those patients with known ²⁰⁹ illnesses and currently in medication are identified for further assessment and continued treatment. ... [T]his standard allows receiving screening to be conducted by health-trained comctional staff members. The training correctional officers are given depends upon the role they are expected to play in the receiving screening process. At a minimum, they receive instruction on how to take a medical history; how to make the required observations; how to determine the appropriate disposition of an inmate based on responses to questions and observations; and how to document their findings on the receiving screening form. (Emphasis added.) We can gather a number of insightful points from the NCCHC’s description of the intake screening process.

First, it is immediately given to every inmate without regard to their actual medical or mental needs. Second, it can be conducted by a healthcare professional or “health-trained” personnel, it does not require that the person doing the intake screening be a mental healthcare provider or be associated with any psychiatrist or psychologist. Third, the intake follows a specific form designed to determine any possible concerns about the inmate. Finally, the screening is “designed to prevent newly arrived inmates who pose a threat to their own or others’ health or safety from being admitted to the facility’s general population ...." (Emphasis added.) The NCCHC’s own standards, which are utilized in Montgomery County, provide that the primary purpose of the screening is to protect not only the individual inmate but the general population from the inmates’ possible physical and mental issues and not for diagnosis or treatment of the inmates.

Although the screening may ultimately lead to diagnosis or treatment, such a result is only incidental at the time the immediate intake screening is conducted. Assuming, arguendo, that the communication was for the purpose of diagnosis or treatment of the inmate, the person with whom the inmate communicates, at the time of intake ²¹⁰ screening, must be “participating directly or vitally ... in consultation with or under direct supervision of a psychiatrist or psychologist,” in order for the inmate to be a “patient.” C.J. § 9-109(a)(3) (emphasis added). In construing the statute we must give force to each word and not make any word superfluous or nugatory. Gilmer , 389 Md. at 663, 887 A.2d at 553 ; Lawson, 389 Md. at 583 , 886 A.2d at 883 ; Moore, 388 Md. at 453 , 879 A.2d at 1115 .

The words “directly” and “vitally” modify the statement “with either in rendering those services,” i.e., diagnosis or treatment. They play a significant role in our interpretation because under the plain understanding and use of the English language they serve to narrow the scope of the statute. We will briefly discuss the statute’s legislative history. The psychiatrist/psychologist-patient statutory privilege was first enacted as Chapter 503 of the Acts of 1966.

The stated purpose of the statute was: “AN ACT ... providing that certain disclosures and communications between a patient and a certified psychologist or a person licensed to practice medicine while acting in the capacity of a psychiatrist shall be privileged communications under certain circumstances and relating generally to the terms and conditions for this privilege.” The act went on to define the word “patient,” stating: “As used in this section ‘patient’ means a person who communicates regarding or receives services for the diagnosis or treatment of his mental or emotional disorder from a psychiatrist, certified psychologist, or other persons participating DIRECTLY AND VITALLY with either in rendering such services in consultation with, or under the direct supervision and direction of a psychiatrist or psychologist Italicized text in the statute indicated new matter added to existing law. Thus, Chapter 503, an addition to Article 35 of the 1957 Code, was new law. Moreover, text set in ALL CAPITALS indicated amendments to the bill. It is clear, then, that the words “directly and vitally” were specifically ²¹¹ added to the proposed bill during the Legislative process.

As a result, it is reasonable to infer that the General Assembly intended those words to play a specific role in the effect of the law, i.e., limiting the scope of the privilege and who qualifies as a recipient of privileged information. The words “directly” and “vitally,” are not defined in the statute. We can ascertain their common every day meaning through the use of a dictionary. State Dep’t of Assessments and Taxation v. Maryland-National Capital Park and Planning Comm’n, 348 Md. 2, 14 , 702 A.2d 690, 696 (1997) (“[l]n deciding what a term’s ordinary and natural meaning is, we may, and often do, consult the dictionary.”).

In using dictionaries to interpret the intent of the legislature we have further stated: “Because we are attempting to ascertain the intent of the Legislature in choosing certain language at a point in time, resort to a dictionary, legal or otherwise, should logically include consultation of those editions (in addition to current editions) of dictionaries that were extant at the time of the pertinent legislative enactments.” Harvey v. Marshall, 389 Md. 243 , 260-61 n. 11, 884 A.2d 1171 , 1181 n. 11 (2005). “Directly” means: “without any intervening space or time: next in order[,] ... without divergence from the source or the original,] ... in close relational proximity[,] ... without any intervening agency or instrumentality or determining influence: without any intermediate step.... ” Webster’s Third New International Dictionary 641 (Unabridged ed. 1961)(“Webster’s”); The Random House Dictionary of the English Language 407 (Unabridged ed. 1983)(“Random House”) (“in a direct line, way, or manner; straight....”); Black’s Law Dictionary 492 (8th ed.2004) (“1. In a straightforward manner. 2. In a straight line or course. 3. Immediately.”).

In the context of C.J. § 9-109, “directly” means that there cannot be an intermediate or intervening step between the person receiving the information and the diagnosis or treatment. In the present case, as explained supra, the communication is not “directly” related to the diagnosis or treatment of the inmate. Furthermore, the nurse—at the time of the ²¹² intake screening-—does not work “directly” with a psychiatrist