Erdman v. State

CHARLES E. ORTH, Jr., Judge, Specially Assigned. I (A) In a criminal cause “[a] defendant may plead not guilty, guilty, or, with the consent of the court, nolo contendere. In addition to any of these pleas, the defendant may interpose the defense of insanity as permitted by law.” Md.Rule 4-242(a). If a defendant intends to rely on a plea of not criminally responsible, the defendant or defense counsel shall file a written plea alleging, in substance, that when the alleged crime was committed, the defendant was not criminally responsible by reason of insanity under the ⁴⁸ test for criminal responsibility in § 12-108 of [Title 12 of the Health-General Art. (HG), Md.Code (1982, 1988 Gum.

Supp.)]. Md.Code (1982, 1988 Cum.Supp.) § 12-109(a)(l) of the Health-General Article. A defendant is not criminally responsible for criminal conduct if, at the time of that conduct, the defendant, because of a mental disorder or mental retardation, lacks substantial capacity: (1) To appreciate the criminality of that conduct; or (2) To conform that conduct to the requirements of law. Id., § 12-108(a). 1 “The defendant has the burden to establish, by a preponderance of the evidence, the defense of not criminally responsible.” HG § 12-109(b).

If the trier of fact finds that the State has proved beyond a reasonable doubt that the defendant committed the criminal act charged, then, if the defendant has pleaded not criminally responsible, the trier of fact separately shall find, by a preponderance of the evidence, whether the defendant was at the time criminally responsible or not criminally responsible by reason of insanity under the test for criminal responsibility in § 12-108 of this title. HG § 12-109(c). (B) Acts 1984, Ch. 501, § 2, make “a major change in the law related to the disposition of a defendant who has ⁴⁹ established mental disorder or mental retardation sufficient to be found not criminally responsible.” Task Force Comment to HG § 12-111. See Treece v. State, 313 Md. 665, 686 , 547 A.2d 1054 (1988).

The Comment explains: The former law authorized the court to immediately commit the defendant to the Department but only for a limited time for the purpose of examination and evaluation. This was followed by a hearing, similar to the procedure for civil involuntary commitment, at which the State was required to prove by clear and convincing evidence that the individual was presently suffering from a mental disorder or mental retardation and was as a result dangerous. For the relevant statutory background of Acts 1984, Ch. 501, see Anderson v. Dept. of Health and Mental Hygiene, 310 Md. 217, 220-222 , 528 A.2d 904 (1987), cert. denied, — U.S. —, 108 S.Ct. 1088 , 99 L.Ed.2d 247 (1988). The 1984 Act states that the court, after a verdict of not criminally responsible, “immediately shall commit the defendant to the Department [of Health and Mental Hygiene] for institutional, inpatient care or treatment.” HG § 12-lll(a).

The court may order that such individual be released instead of committed “only” upon clearly spelled out conditions, namely: (1) The court has available an evaluation report within 90 days preceding the verdict made by an evaluating facility designated by the Department; (2) The report indicates that the individual would not be a danger, as a result of mental retardation or mental disorder, to self or to the person or property of others if released, with or without condition; and (3) The individual and the State’s Attorney agree to the release and to any conditions for release that the court imposes. HG § 12-111(e). Thus, the law provides in certain language that an individual found to be not criminally responsible is to be automatically committed to the Department of Health and Mental Hygiene to be confined in a psychiatric institu ⁵⁰ tion until such time as he proves eligibility for release. As we pointed out in Treece, 313 Md. at 686-687 , 547 A.2d 1054 , the 1984 Act markedly “increasfed] the chances of lengthy indefinite confinement for a defendant found not criminally responsible----” For the underlying rationale which permits the State to so authorize, see Task Force Comment to HG § 12-111.

And see Jones v. United States, 463 U.S. 354 , 103 S.Ct. 3043 , 77 L.Ed.2d 694 (1983). The State’s Attorney must be informed from time to time of the status of the committed individual. HG § 12-112(b)(1) provides: (1) The facility of the Department that has charge of the committed individual shall notify the State’s Attorney any time a committed individual: (i) Is transferred; (ii) Is approved for temporary leaves of more than 24 hours; or (iii) Is absent without authorization. “For information purposes, a copy of the notice shall be sent for inclusion in the court file and to counsel for the committed individual.” HG § 12-112(b)(2). HG § 12-113 sets out strictures for the release of a committed individual.

He has “the burden to establish by a preponderance of the evidence eligibility for discharge or eligibility for conditional release.” Id., subsection (d). He is eligible for discharge or conditional release only if he “would not be a danger, as a result of mental disorder or mental retardation, to self or to the person or property of others----” Id., subsections (b) and (c). Sections 12-114 through 12-121 establish the procedures relating to discharge or conditional release. They serve to insure, with reasonable certainty, that a committed individual will be discharged or conditionally released only if he would not be a danger to self or to the person or property of others.

II The drama of David Allen Erdman, played in the Circuit Court for Baltimore County, followed the scenario of the ⁵¹ statutes and rules concerning criminal responsibility. He pled not guilty to a variety of criminal offenses and, in addition, interposed a plea of not criminally responsible. He was convicted by a jury of robbery with a deadly weapon and an assortment of other crimes. The jury separately found that he was criminally responsible for his criminal conduct.

A substantial term of imprisonment was imposed. On appeal, the Court of Special Appeals affirmed the judgments. Erdman v. State, 75 Md.App. 560, 542 A.2d 899 (1988). Erdman questioned two rulings of the trial court relating to the plea of not criminally responsible.

The first was the court’s denial of his requests for an instruction concerning his disposition if the jury found that he was guilty of criminal conduct but not criminally responsible. The second was the court’s refusal to allow the defense to make the final argument to the jury on the issue of criminal responsibility. We granted Erdman’s petition for certiorari which requested that we review the determination of the intermediate appellate court that the trial court’s rulings were not erroneous. Ill The instruction which Erdman requested read: If the defendant is found not criminally responsible, the court will commit the defendant to the Department of Health and Mental Hygiene for institutional inpatient care.

In the future, the defendant will be entitled to release from custody of the Department of Health and Mental Hygiene only if this court or a jury finds he will not be a danger to himself or the person or property of another. We agree with the Court of Special Appeals that “[i]n the circumstances of this case, the proposed instruction appears to be a correct summary of what would have happened to Erdman if he had been found not criminally responsible---The issue, then, is not the correctness of the instruction but ⁵² its relevance.” Erdman v. State, 75 Md.App. at 563 , 542 A.2d 399 . In a thoroughly researched opinion, Wilner, J., speaking for a panel of the Court of Special Appeals, found that there was a “clear and substantial division of authority” throughout the country concerning the propriety of jury instructions with respect to the disposition of a defendant found to be not criminally responsible. Erdman v. State, 75 Md.App. at 576 , 542 A.2d 399 .

The court opted, however, to abide by its prior decisions following the traditional view to the effect that the jury was not concerned with the matter of punishment. See Tripp v. State, 36 Md.App. 459 , 374 A.2d 384 , cert. denied, 281 Md. 745 (1977); Brown v. State, 8 Md.App. 462 , 260 A.2d 665 (1970). The court observed, however, that the matter was one of policy that should be decided by the Court of Appeals which had not yet addressed the question. Erdman, 75 Md.App. at 576 , 542 A.2d 399 .

It is correct that there is a “clear and substantial division of authority” among other jurisdictions as to whether the jury should be instructed concerning the disposition of a defendant found to be not criminally responsible. A number of views on the matter have been recognized in the various jurisdictions. One view is that the instruction is not to be given. This stems from the well established doctrine, followed by the Court of Special Appeals, that the jury has no concern with the consequences of a verdict.

This Court has recognized the doctrine with respect to the possibility of parole in proceedings involving the adjudication of guilt or innocence, see Shoemaker v. State, 228 Md. 462, 473 , 180 A.2d 682 (1962), but, as the Court of Special Appeals noted, has not spoken on the matter with respect to criminal responsibility. See Doering v. State, 313 Md. 384, 410 , 545 A.2d 1281 (1988), which acknowledged the rationale of the doctrine but observed that it was “not directly applicable to proceedings involving determination of sentence by a jury.” Some jurisdictions require such an instruction, and, in some, failure to give it is reversible error. Some require it unless ⁵³ the defendant requests that it not be given. Some require it on request of the defendant.

Others leave the giving of the instruction to the discretion of the trial judge. In some jurisdictions the instruction is required by statute. See cases cited in Erdman, 75 Md.App. at 568 n. 8; 569 nn. 4 & 5; 571 nn. 6 & 7; 572 n. 8, 542 A.2d 399 . In our scanning of the cases, we notice that, no matter what the reasons given or the rationale advanced, there is a correlation between the status of the law with respect to the disposition of a defendant found to be not criminally responsible and the determination whether to inform the jury on the matter.

It appears that, usually, the instruction is required or permitted in those jurisdictions in which commitment, in practical effect, is automatic, and the eligibility of the committed individual for release is so structured as to give reasonable assurance that he will not be returned to society while still a danger to himself or to the person or property of others. It seems that an instruction as to disposition is looked upon with disfavor in those jurisdictions in which automatic commitment is not mandated, and it is unclear what disposition, in fact, would be made of the defendant found to be not criminally responsible. So, the weight of authority is not to be ascertained simply by the number of jurisdictions which require or permit the instruction as against the number of jurisdictions which preclude it. The decision in a particular jurisdiction must be viewed in the context of the status of the law with regard to commitment in that jurisdiction.

See Erdman, 75 Md.App. at 568 , 544 A.2d 399 . When the cases are examined in that light, a clear majority of the jurisdictions which have mandated commitment require or permit the instruction. See Appendix. The Maryland statutes of 1984 place this State in the category of those jurisdictions which mandate commitment.

As we have noted, supra, the Court of Special Appeals was “not persuaded to depart from [its] own holdings in Brown [v. State, 8 Md.App. 462 , 260 A.2d 665 ] and Tripp [v. State, 36 Md.App. 459 , 374 A.2d 384 ]” even though both ⁵⁴ were decided before the laws of 1984 were enacted. Erdman, 75 Md.App. at 576 , 542 A.2d 399 . It found that Brown and Tripp were “consistent with the majority view around the country____” But it did not analyze the cases in the frame of reference of status of the commitment laws in the jurisdiction in which the cases were decided. The intermediate court recognized both the substantive and procedural changes in the criminal responsible (“insanity”) law made in 1984, but saw “no compelling reason to embark on a new course.” Erdman, 75 Md.App. at 576 , 544 A.2d 399 .

We think that, in the light of the 1984 statutes, there is compelling reason to embark on a new course. The Court of Special Appeals pointed out in Erdman that the American Bar Association has recommended the giving of an instruction on the consequences of a verdict of nonresponsibility. The court referred to Standard 7-6.8 of the Criminal Justice Mental Health Standards and quoted, at 574, the provision that [t]he court should instruct the jury as to the dispositional consequences of a verdict of not guilty by reason of mental nonresponsibility [insanity]. The intermediate court looked to the Commentary to the Standard, which set out the reasons espoused on both sides of the issue, and then further quoted the conclusion of the ABA (omitting the footnote): Both stances are based on assumptions about jury knowledge and the effects of instructions.

Given the absence of solid empirical data supporting either view, common sense and policy considerations must provide guidance. Providing for an instruction seems the most sensible approach given the potential for prejudice to defendants when the alternative course is followed. Particularly in cases in which defendants are charged with violent crimes (which is usually the case if the nonresponsibility issue is tried to a jury, as opposed to a judge), juries need to be told about the