Noble v. Director, Patuxent Institution

Lowe, J., delivered the opinion of the Court. A jury of the Criminal Court of Baltimore determined that appellant was a defective delinquent thereby consigning him indeterminately to Patuxent Institution. In this appeal, appellant raises eight issues relating to errors which allegedly occurred during the trial. We find him correct in only one.

A psychologist from Patuxent Institute was qualified as an expert and expressed his opinion that appellant was a defective delinquent within the meaning of Md. Code, Art. 31B, § 5. He explained that his opinion was based upon three things: “ . .. the raw data plus the information in the chart plus the interview by the diagnostic staff.” The “raw data” to which he referred were a series of psychological tests upon which he placed great reliance in formulating his opinion: “Q As a matter of fact, if for some reason you would not be able to make the tests, you would not actually be able to make a determination, could you? A I may in my own mind but I certainly wouldn’t come into Court without them. Q You would not testify without having.given the tests?

A I could not.” The four tests were described in general by the psychologist: “There are four tests known as the standard battery. There is a Wechsler Adult Intelligence Scale, which is self-explanatory. It produces an ¹⁹⁴ intelligence test, an I.Q., both verbal and performance sections. It is also interpretive of feeling status.

The second is a Rorschach, which is a series of ten ink blots. It is a projective test. The third is the Bender-Gestalt, a series of nine cards of geometric patterns that the patient is asked to copy as he sees them. This test will tell us something about any neurological problems that he has, any brain damage.

It also elicits many other emotional factors such as frustration tolerance, something about how he relates to people — men and women, and this kind of information. The fourth is a series of drawings called the house, tree, person. Q Could you speak up, Mr. Esserwein? A The fourth is a series of drawings called house, tree, person, in which he is required to draw each of these figures.

It too is a projective test which simply means that the patient tends to place in these figures elements of his personality which he is not aware that he is doing.” We pause to note that imperative to a finding of defective delinquency is that the defendant have "... either such intellectual deficiency or emotional unbalance, or both, as to clearly demonstrate an actual danger to society ... .” Art. 31B, §5. Apropos of that requirement, the psychologist testified that the tests of appellant revealed that: “He has a verbal I.Q. of 68. The mental defective range is from 60 to 69. His verbal I.Q. is 68, performance I.Q. is 77, full scale is 70.

This is one point off of the mental defective range. It is called borderline defective range. In terms of his emotional makeup, perhaps it is best to reach the summary. Q Please.

A ‘The patient’s value system and emotions ¹⁹⁵ remain essentially that of a child. Feeling inadequate as a man and dominated by strong dependency needs, he feels himself at a disadvantage in coping with the environment. Frustration tolerance is low when he doesn’t get his way and at these times he can erupt into explosive behavior.’ ” The psychologist was asked: “Q What attitude, if any, did your testing, did your examination of Mr. Noble reveal as his, with respect to his attitude towards women?”, and he replied: “The test results revealed that he, that is his basic problem but it’s more or less of a double bind upon him and that he places upon Linda Redd and would tend to place upon any woman that he was living with. On the one hand, one horn of the dilemma is that he wants the woman to mother him but it must be undercover.

He doesn’t want this out in the open. She is not supposed to mention it. And the other horn of the dilemma is she must look upon him as a very strong he man who can make decisions and she can lean on him so that outwardly she must show that she is leaning upon him while covertly it is the other way around. Now, when either one of these demands are threatehed or frustrated, this is what used to be a temper tantrum then comes into play.

It takes over his whole personality and he goes into a rage and loses control of himself. This was the major element on the test. Q Let’s get to the last part of the definition, which is that it clearly demonstrates an actual danger to society so as to require such confinement and treatment. Did you find this in Mr. Noble?

A Yes. Q What is the basis for this finding? ¹⁹⁶ A Both the results of the test and increasing severity of the assault pointing to a growth process of this pathology. It is increasing in intensity.” He described the conclusions he drew from the test results: “Q When you were describing the house, tree, person test.. . A Yes.

Q ... you said something to the effect of a person’s character traits coming out that are in him that he is not aware of? A Personality traits, yes, that he places in these, projects onto the figures things about himself that he is not aware of, that he is not aware that he is putting there.”; however, his explanation of how he arrived at his conclusions was less than satisfactory. “Q What is your evidence that, in general or in specific — first take the general — that a person does really do that, that is, he takes from inside himself without knowing it and puts it on paper? A Just all of the past research on these four tests, known as the standard battery, the fact that they are generally accepted by all the behavioral sciences throughout the country. Q Generally accepted?

A Yes. Q Have you done any research? A No.” The cross-examination by appellant’s counsel sporadically elicited some explanation of each of the tests. For example, “Q Now, you did administer a Rorschach Test, is that correct?

A That’s correct. Q Is that sometimes known as an ink blot test? A Yes. ¹⁹⁷ Q And that means that you show some — they are not really ink blots, are they? A No, they are manufactured cards.

Q But they look like ink blots? A Yes. Q And you show these to the patient or subject? A That’s correct.

Q And he is supposed to explain what he sees in them? A That’s correct. Q Now, those responses on this test does not in any way connect with the patient’s past history, do they? Isn’t that a test that is due on the spot, so to speak?

A Yes. Q It has nothing to do with the past history. And could you describe very briefly how you do a Bender-Gestalt? A It is a series of nine geometric patterns which I place before the patient one at a time and simply instruct him to copy them just the way he sees them.

Q And, again, they are related to what he is, how he thinks at the time as opposed to history, isn’t that correct? A What is being tested is the person, his thinking, his feelings. It has nothing to do with any, you know, concrete historical events. Q And that is true of the projective drawings, isn’t it?

A. Yes. Q Drawing test. Now, wouldn’t you say that you are very dependent in making your analysis, or within this particular case, on the results of those tests? A That’s correct.” ¹⁹⁸ However, when appellant sought to have the source material for the psychologist’s opinion (which source material had been subpoenaed) placed in evidence before the jury, he was denied that right. “Q You have just been handed a group of documents.

Can you identify what those documents are? A This is the file on Ronald Noble that contain the test material and the Social Service Report and the Diagnostic Staff Report that is kept in the Psychology Department as a regular part of the business. MR. MARCUS: Your Honor, I offer this collection of papers collectively as Defendant’s Exhibit, I think it is Number One.

MR. WILDER: Objection, Your Honor. THE COURT: For what purpose? MR.

MARCUS: Your Honor, these are, as has been indicated to you, the actual materials and I think it is only fair for the jury to be able to examine the materials. MR. WILDER: I object to this too. THE COURT: Is it a duplication of reports in there?

MR. MARCUS: Your Honor, I believe there is some duplication but it is not total duplication. THE COURT: What does it consist of, the raw data of the tests actually made by Mr. Esserwein? MR.

MARCUS: I would hope so, Your Honor. THE COURT: Is that what it contains, Mr. Esserwein? THE WITNESS: Yes, Your Honor. I feel strongly that there is an ethical question involved.

THE COURT: Is it the raw data? THE WITNESS: Yes, Your Honor. ¹⁹⁹ THE COURT: Of your tests? THE WITNESS: Yes, Your Honor. THE COURT: Of what you made your opinion on?

THE WITNESS: Yes, sir. THE COURT: Objection sustained as to the introduction of that in evidence.” Presumably to preserve the issue for appeal and to provide a basis for cross-examination of the expert, appellant’s counsel asked: “All right, Your Honor. May they be marked simply for identification?”, but even that was denied. “THE COURT: No, they may not.” Although restricted by the ruling, appellant bore on, attempting to elicit the foundation for the psychologist’s damning conclusions: “Q Is it your testimony that you cannot look at any individual test protocol and get any meaningful information from that? A I didn’t say that.

I didn’t say you could not look at a test protocol and get meaningful information. Q What is a test