In Re Devon T.

MOYLAN, Judge. In a world dizzy with change, it is reassuring to find Daniel M’Naghten alive and well in juvenile court. It was, of course, M’Naghten's bungled attempt to assassinate Prime Minister Sir Robert Peel, killing by mistake Sir Robert’s private secretary Edward Drummond, that led to his prosecution for murder and the assertion of his now eponymic insanity defense. When the House of Lords placed its imprimatur upon the jury’s acquittal by reason of insanity, “the M’Naghten test” was impressed indelibly upon the Common Law of Anglo-America.

Regina v. M’Naghten, 10 Cl. and Fin. 200, 8 Eng.Rep. 718 (1848). ⁶⁷⁷ The M’Naghten test, by name, crossed to New England within the year. Commonwealth v. Rogers, 48 Mass. 500 (1844). It was adopted by the Court of Appeals in 1888 as the controlling standard in Maryland, Spencer v. State, 69 Md. 28, 37 , 13 A. 809 (1888); came to be called locally the “M’Naghten-Spencer’ ’ test, Bradford v. State, 234 Md. 505, 510 , 200 A.2d 150 (1964), Sherrill v. State, 14 Md.App. 146 , 148 n. 2, 286 A.2d 528 (1972); and remained the exclusive criterion of criminal insanity in this state until supplanted by the Acts of 1967, ch. 709. 1 The M’Naghten test was ultimately received by virtually every American jurisdiction and it remains the prevailing test for insanity in over one-half of American jurisdictions today. LaFave & Scott, Criminal Law (2d ed. 1986) at 312.

In enunciating a “right-wrong” test for criminal responsibility, the Law Lords in Regina v. M’Naghten did not radically break new ground but applied standards that had been with some regularity used in earlier English and American cases to measure criminal responsibility. 2 As the test assumed its proper name, however, it at least formal ⁶⁷⁸ ized a statement of law that had been theretofore more protean and elusive. The heart of the M'Naghten test was that there could be no moral blameworthiness and, hence, no criminal responsibility if: “... the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.” Regina v. M’Naghten, 8 Eng.Rep. at 720. The pivotal criterion was cognition, as the House of Lords explained that the question to be put to the jury was that of: whether the accused at the time of doing the act knew the difference between right and wrong.” Id. What has not been adequately noted in the case law is that this cognitive capacity to distinguish right from wrong in the language of M’Naghten was not a characteristic of the insanity defense exclusively.

It has traditionally been the common denominator criterion for a whole family of defenses based upon mental incapacity — insanity, infancy, mental retardation, intoxication (at least of the involuntary variety). The cause of the mental incapacity might vary from one such defense to the next but ther ultimate nature of the resulting incapacity was a constant. In any of its manifestations, criminal responsibility traditionally turned and largely still turns upon the difference between a mind doli capax (capable of malice or criminal intent) and a mind doli incapax (incapable of malice or criminal intent). Capability or capacity might be eroded in various ways but the ultimate quality of the required mental capacity itself was unchanging.

An understanding of the mental quality in issue in what had been one of its more familiar settings, therefore, will enhance our understanding of that same mental quality in other settings as well, including the here-pertinent setting of the infancy defense. ⁶⁷⁹ Hence, we tentatively advance the traditional M’Naghten test as pertinent to our present review of an adjudication of juvenile delinquency in the Circuit Court for Baltimore City. For the moment, however, let Daniel M’Naghten retire to the wings as we bring onto the stage the contemporary players. The Present Case The juvenile appellant, Devon T., was charged with committing an act which, if committed by an adult, would have constituted the crime of possession of heroin with intent to distribute. In the Circuit Court for Baltimore City, Judge Roger W. Brown found that Devon was delinquent.

The heart of the case against Devon was that when on May 25, 1989, Devon was directed to empty his pockets by the security guard at the Booker T. Washington Middle School, under the watchful eye of the Assistant Principal, the search produced a brown bag containing twenty zip-lock pink plastic bags which, in turn, contained heroin. Upon this appeal, Devon raises the following contentions: 1. That the State did not offer legally sufficient evidence to rebut his presumptive incapacity because of infancy; and 2. That the security guard’s direction that he empty his pockets violated his Fourth Amendment right against unreasonable search and seizure.

The Infancy Defense Generally At the time of the offense, Devon was 13 years, 10 months, and 2 weeks of age. He timely raised the infancy defense. Initially, we will look at the infancy defense in its original (and still primary) context of a criminal prosecution, before turning briefly to the applicability of the defense to juvenile delinquency proceedings. The case law and the academic literature alike conceptualize the infancy defense as but an instance of the broader phenomenon of a defense based upon lack of moral responsibility or capacity.

The criminal law generally will only ⁶⁸⁰ impose its retributive or deterrent sanctions upon those who are morally blameworthy — those who know they are doing wrong but nonetheless persist in their wrongdoing. After several centuries of pondering the criminal capacity of children and experimenting with various cut-off ages, the Common Law settled upon its current resolution of the problem by late Tudor and early Stuart times. As explained by LaFave & Scott, Criminal Law, (2d ed. 1986), at 398, the resolution was fairly simple: “At common law, children under the age of seven are conclusively presumed to be without criminal capacity, those who have reached the age of fourteen are treated as fully responsible, while as to those between the ages of seven and fourteen there is a rebuttable presumption of criminal incapacity.” The authors make clear that infancy was an instance of criminal capacity generally: “The early common law infancy defense was based upon an unwillingness to punish those thought to be incapable of forming criminal intent and not of an age where the threat of punishment could serve as a deterrent.” (footnote omitted). Id. at 399.

R. Perkins & R. Boyce, Criminal Law, (3d ed. 1982), in their chapter on “Limitations on Criminal Capacity,” consider, along with insanity and intoxication, the defense of infancy: “According to the common law a child under the age of seven has no criminal capacity; one who has reached the age of fourteen has the same criminal' capacity as an adult, that is, he is fully accountable for his violations of law unless incapacity is established on some other basis such as insanity; while between the ages of seven and fourteen there is a rebuttable presumption of criminal incapacity and conviction of crime is permitted only upon ⁶⁸¹ clear proof of such precocity as to establish a real appreciation of the wrong done.” (footnotes omitted). Id. at 936. Clark & Marshall, A Treatise on the Law of Crimes, (6th Wing. ed. 1958), at 391-392, emphasizes that the mental quality that is the sine qua non of criminal responsibility is the capacity to distinguish right from wrong: “Children Under the Age of Seven Years. — Children under the age of seven years are, by an arbitrary rule of the common law, conclusively presumed to be doli incapax, or incapable of entertaining a criminal intent, and no evidence can be received to show capacity in fact. Children Between the Ages of 7 and If — Children between the ages of 7 and 14 are presumed to be incapable of entertaining a criminal intent, but the presumption is not conclusive, as in the case of children under the age of 7.

It may be rebutted by showing in the particular case that the accused was of sufficient intelligence to distinguish between right and wrong, and to understand the nature and illegality of the particular act, or, as it is sometimes said, that he was possessed of ‘a mischievous discretion.’ ” (footnotes omitted). The reasoning behind the rule is made very clear, at 391: “A child is not criminally responsible unless he is old enough, and intelligent enough, to be capable of entertaining a criminal intent; and to be capable of entertaining a criminal intent he must be capable of distinguishing between right and wrong as to the particular act.” Walkover, The Infancy Defense in the New Juvenile Court, 31 UCLA L.Rev. 503, 507 (1984), distills the rationale to a single sentence: “The infancy defense was an essential component of the common law limitation of punishment to the blameworthy.” See also Woodbridge, Physical and Mental Infancy in the Criminal Law, 87 U.Pa.L.Rev. 426 (1939); Kean, The His ⁶⁸² tory of Criminal Responsibility of Children, 53 Law.Q. Rev. 364 (1937). With only dicta from Prevatte v. Director, 5 Md.App. 406, 412 , 248 A.2d 170 (1968), as its harbinger, it was Adams v. State, 8 Md.App. 684 , 262 A.2d 69 (1970), cert. denied, 400 U.S. 928 , 91 S.Ct. 193 , 27 L.Ed.2d 188 (1970), that recognized for the first time this venerable common law defense as part of the inherent law of Maryland: “Since the Code of Hammurabi (circa 2250 B.C.) and down through the ages, society, under the law, has viewed and treated offenders of tender years in a light differently and more favorably than that accorded adults accused of breaching the law. Over the centuries and during the evolution of the common law of England, there emerged a rule of law governing ‘the responsibility of infants’ under which an individual below the age of seven years cannot be found guilty of committing a crime; an individual above fourteen years charged with a crime is to be adjudged as an adult; and between the ages of seven and fourteen there is a rebuttable presumption that such individual is incapable of committing a crime.

In the absence of any pertinent legislative enactment in this State, the common law principles, as stated above, would appear to govern in Maryland and we so hold.” (footnotes omitted) (emphasis supplied). 8 Md.App. at 687-688 , 262 A.2d 69 . See also Matter of Davis, 17 Md.App. 98, 100 , 299 A.2d 856 (1973); In re William A., 313 Md. 690, 692-694 , 548 A.2d 130 (1988). The Infancy Defense in Juvenile Court With the creation shortly after the turn of the present century of juvenile courts in America, diverting many youthful offenders from criminal courts into equity and other civil courts, the question arose as to whether the infancy defense had any pertinence to a juvenile delinquency adjudication. Under the initially prevailing philosophy that the State was acting in delinquency cases as parens patriae (sovereign parent of the country), the State was perceived to be not the retributive punisher of the child for ⁶⁸³ its misdeeds but the paternalistic guardian of the child for its own best interests.

Under such a regime, the moral responsibility or blameworthiness of the child was of no consequence. Morally responsible or not, the child was in apparent need of the State’s rehabilitative intervention and the delinquency adjudication was but the avenue for such intervention. This was the philosophy that persuaded this Court, speaking through Judge Orth, in Matter of Davis, supra, to forbear from extending the defense of infancy to juvenile court proceedings as an inapposite criterion. The philosophical major premise from which we proceeded was explained by Judge Orth, at 17 Md.App. at 103-104 , 299 A.2d 856 : “It being clear that the finding in a juvenile proceeding that a child is delinquent is not the equivalent of a determination arrived at in a criminal proceeding that he has committed a crime, it follows that it is not a prerequisite to a finding that a person is a delinquent child that the State show under the common law rule that the child had such maturity in fact as to have a guilty knowledge that he was doing wrong, that is the capacity to commit crime---- The child is delinquent, not because he committed a crime, but ... because he requires supervision, treatment or rehabilitation____ He is not to be punished but afforded supervision and treatment to be made aware of what is right and what is wrong so as to be amenable to the criminal laws.” Over the course of the century, however, buffeted by unanticipated urban deterioration and staggering case loads, the reforming vision of Judge Julian Mack and the other founders of the movement faded.

Although continuing to stress rehabilitation over retribution more heavily than did the adult criminal courts, delinquency adjudications nonetheless took on, in practice if not in theory, many of the attributes of junior varsity criminal trials. The Supreme Court, in In re Gault, 387 U.S. 1 , 87 S.Ct. 1428 , 18 L.Ed.2d 527 (1967), and In re Winship, 397 U.S. 358 , 90 S.Ct. 1068 , ⁶⁸⁴ 25 L.Ed.2d 368 (1970), acknowledged this slow but inexorable transformation of the juvenile court apparatus into one with increasingly penal overtones. It ultimately guaranteed, therefore, a juvenile charged with delinquency most of the due process protections afforded an adult charged with crime. Among those guarantees is that spelled out by In re Winship, at 397 U.S. 364 , 90 S.Ct. at 1072-73 . “Lest there remain any doubt about the constitutional stature of the reasonable-doubt standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Mullaney v. Wilbur, 421 U.S. 684 , 95 S.Ct. 1881 , 44 L.Ed.2d 508 (1975), soon made explicit what was implicit in Winship , that among the elements of a crime that the State is constitutionally obligated to prove beyond a reasonable doubt are mental elements as well as physical elements.

A crime, by definition, consists of guilty mind as well as a guilty act — the mem rea as well as the actus reus. It follows ineluctably that if the State, when the issue is properly generated, is required to prove beyond a reasonable doubt the existence of a criminally responsible mem rea when proceeding against an adult, it cannot be relieved of that burden when proceeding in a quasi-penal fashion against a juvenile. In terms of the applicability of the infancy defense to delinquency proceedings, the implications of the new dispensation are clear. A finding of delinquency, unlike other proceedings in a juvenile court, unmistakably connotes some degree of blameworthiness and unmistakably exposes the delinquent to, whatever the gloss, the possibility of unpleasant sanctions.

Clearly, the juvenile would have as an available defense to the delinquency charge 1) the fact that he was too criminally insane to have known that what he did was wrong, 2) that he was too mentally retarded to have known that what he did was wrong, or 3) that he was too involuntarily intoxicated through no fault of his own to ⁶⁸⁵ have known that what he did was wrong. It would be inconceivable that he could be found blameworthy and suffer sanctions, notwithstanding precisely the same lack of understanding and absence of moral accountability, simply because the cognitive defect was caused by infancy rather than by one of the other incapacitating mechanisms. In Walkover, The Infancy Defense in the New Juvenile Court, 31 UCLA L.Rev. 503 (1984), the author, at 549-552, criticizes Matter of Davis, supra, specifically as well as the parens patriae approach generally. See also Fox, Responsibility in the Juvenile Court, 11 Wm. & Mary L.Rev. 659 (1970); Westbrook, Mens Rea in the Juvenile Court, 5 J.Fam.L. 121 (1965).

The Supreme Court of California in the case of In re Gladys R., 1 Cal.3d 855 , 83 Cal.Rptr. 671 , 464 P.2d 127 (1970), pioneered the application of the infancy defense to delinquency proceedings. The Court of Appeals, overruling Matter of Davis , brought Maryland in line with the modern trend in In re William A., 313 Md. 690 , 548 A.2d 130 (1988). Judge Eldridge pointed out, at 313 Md. at 696 , 548 A.2d 130 : “A principal reason supporting the applicability of the defense is that juvenile statutes typically require, for a delinquency adjudication, that the child commit an act which constitutes a crime if committed by an adult, and if the child lacks capacity to have the requisite mens rea for a particular crime, he has not committed an act amounting to a crime.” The Court of Appeals went on to observe the changing nature of juvenile delinquency proceedings, pointing out, at 313 Md. 697 -698, 548 A.2d 130 : “An additional reason given by the cases upholding the applicability of the infancy defense in juvenile delinquency proceedings, relates to the evolving nature of those proceedings. As explained by the Supreme Court of Washington in State v. O.D., supra, 102 Wash.2d [19] at 23, 685 P.2d [557] at 560 [1984]: ‘The juvenile justice system in recent years has evolved from parens patriae scheme to one more akin to adult ⁶⁸⁶ criminal proceedings.

The United States Supreme Court has been critical of the parens patriae scheme as failing to provide safeguards due an adult criminal defendant, while subjecting the juvenile defendant to similar stigma, and possible loss of liberty.’ ” It goes on, at 313 Md. at 698 , 548 A.2d 130 , to quote with approval from Walkover, supra, 31 UCLA L.Rev. at 562: “Careful review of the recent history of the juvenile court reveals that the juvenile justice system has turned from rehabilitation to principles of accountability in dealing with youthful offenders. In light of this, continued reliance on the rehabilitative ideal to undercut key protections against sanctioning the innocent in the justice process, such as the infancy defense, is intellectually and institutionally problematic.” The infancy defense was not applied to all juvenile court proceedings but only to delinquency adjudications, where moral blameworthiness is an integral part of the wrongdoing. “We point out, however, that our holding is limited to delinquency actions.” 313 Md. at 699-670 , 548 A.2d 130 (emphasis in original). With respect to other situations, where the conduct itself of the juvenile, irrespective of moral accountability, calls for some rehabilitative intervention on the part of the State, Judge Eldridge carefully pointed out that the State may still file a petition alleging a Child in Need of Supervision (CINS) or a Child in Need of Assistance (CIÑA). “As these proceedings are not necessarily based on the commission of acts constituting crimes, the infancy defense obviously has no relevance to them.” Id. at 700 , 548 A.2d 130 . In a juvenile delinquency adjudication, however, the defense of infancy is now indisputably available in precisely the same manner as it is available in a criminal trial.

Subsidiary Incidents of the Infancy Defense The availability of such a defense raises several subsidiary questions. What precisely is the probandum — the ⁶⁸⁷ quality of mind that has to be proved? To whom are allocated the burdens of proof (production and persuasion) with respect to that probandum ? What are the standards or levels of proof necessary to carry those burdens?

With respect to the allocation of both burdens, the answer is clear. Once the question of criminal incapacity because of infancy is legitimately in the case, the unequivocal command of the due process clause is that the burdens of proof (assuming the proper generation of the issue) are allocated to the State. In re Winship, 397 U.S. 358, 364 , 90 S.Ct. 1068, 1072-73 , 25 L.Ed.2d 368 (1970). It is equally clear, under Winship , that the State’s constitutionally mandated standard of persuasion is that of beyond a reasonable doubt.

Those questions do not concern us here. Our attention, rather, turns to the two remaining questions: 1) what precisely is that quality of mind that constitutes criminal capacity in an infant? and 2) was the State’s evidence in this case legally sufficient to satisfy its burden of production that the infant here possessed such mental capacity? What is Criminal Capacity in an Infant? Before the juvenile master, the appellant timely raised the infancy defense.

One party or the other (it matters not which) introduced the undisputed fact (it would not have mattered if the fact had been disputed) that at the time of the allegedly delinquent act, Devon was 13 years, 10 months, and 2 weeks of age. Thus, the issue of mental incapacity due to infancy was properly generated and before the court. On that issue, Devon initially had the benefit of presumptive incapacity. The presumption having been generated, the State had the burdens (of both production and persuasion) of rebutting that presumption.

Assuming that it met its burden of production, an issue we shall turn to in the next section of this opinion, the State successfully carried its burden of persuasion. The fact finder was ⁶⁸⁸ persuaded. Since the weighing of evidence (that admissible data which may persuade one fact finder not at all or only a little bit may persuade another fact finder a lot) is the exclusive prerogative of the fact finder, there is nothing before us with respect to the burden of persuasion. 3 To overcome the presumption of incapacity, then, what precisely was that quality of Devon’s mind as to which the State was required to produce legally sufficient evidence? It was required to produce evidence permitting the reasonable inference that Devon — the Ghost of M’Naghten speaks: — “at the time of doing the act knew the difference between right and wrong.” We resort to the analogy between this particular incapacity and other incapacities as a precedential “backup” because the Maryland case law bearing directly upon this particular instance of the larger phenomenon is so scant.

Only Adams v. State, 8 Md.App. 684 , 262 A.2d 69 (1970), and In re William A., 313 Md. 690 , 548 A.2d 130 (1988), make any reference to the required state of mind. In In re William A., moreover, although the references are by way of well-considered dicta, the actual holding, overturning Matter of Davis, 17 Md.App. 98 , 299 A.2d 856 (1973), dealt with the general applicability of the infancy defense to delinquency proceedings. The first of our analogues is incapacity due to involuntary intoxication. Although as a policy matter, general mental incapacity (even when, in fact, present) may never be predicated upon voluntary intoxication, involuntary intoxication may give rise to a defense of mental incapacity in much the same way that insanity traditionally did.

The ⁶⁸⁹ authorities generally analyzed the intoxication (provided it was involuntary) in terms of its corrosive effect upon the cognitive ability of the mind to discriminate between right and wrong. R. Perkins & R. Boyce, Criminal Law, (3d ed. 1982), observed, at 1005: “He does not have criminal capacity if his mind is so deranged for the moment that he is unable ‘to know what he is doing and that it is wrong/ and if the particular jurisdiction goes beyond the right-wrong rule in dealing with insanity it should do likewise in cases of involuntary intoxication.” (footnotes omitted). W. LaFave & A. Scott, Criminal Law, (2d ed. 1986), point out, at 393-394: “Involuntary intoxication, on the other hand, does constitute a defense if it puts the defendant in such a state of mind, e.g., so that he does not know the nature and quality of his act or know that his act is wrong, in a jurisdiction which has adopted the M’Naghten test for insanity.” (footnote omitted). The second of our analogues is incapacity due to mental retardation.

The Common Law always treated mental retardation as a separate category of mental incapacity, although it analogized it to both infancy and lunacy as an effective cause of the inability to know right from wrong, to distinguish between good and evil. Woodbridge, Physical and Mental Infancy in the Criminal Law, 87 U.Pa.L.Rev. 426, 438 (1939), observed: “Early in the law it was recognized that idiocy was a factor negating criminal responsibility, with complete ignorance as its hall-mark.” (footnote omitted). “The Origins of the ‘Right and Wrong’ Test,” at 1233, quotes St. Augustine as he equates infants, idiots, and possibly lunatics as those unable to tell the difference between right and wrong: “All men have freedom but it is restrained in children, in fools, and in the witless who do not have reason whereby ⁶⁹⁰ they can choose the good from the evil.” (footnote omitted). Lambard, an Elizabethan writer, in his Eirenarcha, or the Office of Justices of Peace (1581), at 218, analogized the insane, the mentally retarded, and children as three classes all lacking capacity to distinguish right from wrong: “If a madman or a natural fool, or a lunatic in the time of his lunacy, or a child that apparently hath no knowledge of good nor evil, do kill a man, this is no felonious act, nor anything forfeited by it ... for they cannot be said to have any understanding will.” M. Dalton, The Countrey Justice (1630), observed, at 244: “If one that is ‘non compos mentis,’ or an ideot, kill a man, this is no felony; for they have not knowledge of good and evill, nor can have a felonius intent, nor a will or minde to doe harm____ An Infant ... may commit Homicide, and shall bee hanged for it, viz. if it may appeare ... that he had knowledge of good and evill, and of the perill and danger of that offence.” (footnote omitted). The Origins of the ‘Right and Wrong’ Test, passim, points out that Sir Edward Coke, Sir Matthew Hale, and Sir William Blackstone all regularly referred to the “good and evil” test as the distinction between those who are morally responsible for their criminal acts and those who are not, applying that test to “infants, idiots and lunatics” alike.

Mental retardation, just as the other incapacity defenses,