Parker v. State

Orth, J., delivered the opinion of the Court. The appellant was convicted on 16 May 1967 by a jury in the Circuit Court for Wicomico County of first degree murder and robbery with a deadly weapon. He was sentenced to life imprisonment on the murder conviction and to a twenty year term on the robbery conviction, to run consecutively with the life sentence. The appellant’s principal defense at that trial was that he was insane at the time of the commission of the crime, the test of criminal responsibility then prevailing being the M’NaghtenSpencer test.

On appeal we reversed the judgments and remanded the case for a new trial because the lower court had erroneously charged the jury that the burden of proof was upon the defendant “to establish insanity by a preponderance of the evidence; but then the burden then shifts to the State to prove beyond a reasonable doubt that he was sane.” Parker v. State, 4 Md. App. 62 . By order of the Circuit Court for Wicomico County of 26 June 1968 the case was removed for trial to Caroline County upon suggestion of the appellant. The appellant went to trial on 21 August 1968 before a jury on pleas ¹⁷¹ of not guilty and that he was insane at the time of the commission of the alleged crimes. The verdicts of the jury were that he was sane at the time of the commission of the crimes, that he was guilty of murder in the first degree without capital punishment and that he was guilty of robbery with a deadly weapon.

The sentences of the court were that on the murder conviction he be committed to the jurisdiction of the Maryland Department of Correction for confinement for the balance of his natural life and on the robbery conviction that he restore the property taken or pay the full value thereof to the owner and be committed to the jurisdiction of said Department for confinement for 20 years to run consecutively with the life sentence. VOLUNTARY INTOXICATION AiND INSANITY At the time of the appellant’s trial on remand, the responsibility for his criminal conduct, raised by his special pleas, was no longer to be determined by the M’NaghtenSpencer test, but by the test prescribed by Chapter 709, Acts 1967, codified as Md. Code, Art. 59, § 9(a). We discussed this new test and the procedure to be followed when it is invoked, in Strawderman v. State, 4 Md. App. 689 . The lower court correctly followed the procedure and properly permitted the issue of the appellant’s sanity to go to the jury.

The appellant contends, however, that the court erred in instructing the jury with regard to the issue. In its advisory capacity the lower court read the jury Art. 59, § 9(a) and explained it, thoroughly and correctly. Part of the appellant’s defense was that he was intoxicated at the time of the commission of the crimes. The court said: “In respect to the contention of the accused that he was intoxicated at the time of the commission of the crimes charged, which condition he alleges contributed materially to his insanity, the jury are advised that you should inquire ¹⁷² whether the accused lacked completely the mental ability and willpower to abstain from taking the first drink on December 30, 1966.

If you find that he did lack such ability and willpower and further find that after taking the first drink he further lacked the mental ability and willpower to abstain from continued drinking until he reached a state of intoxication, then under those circumstances, his ultimate intoxication would be deemed involuntary and therefore should be considered together with all other evidence in determining his sanity or insanity under the test provided by law.” The court continued, and it is this part of the charge which the appellant challenges on appeal and preserved for review by timely exception below: “On the other hand, if the jury find either that the accused had sufficient mental ability and willpower to abstain from taking the first drink on December 30th, or that after taking the first drink he possessed the mental ability and willpower to abstain from continued drinking to the point of intoxication, then in the event of either of these conditions, his ultimate intoxication would be considered voluntary under the law, and therefore, could not of itself or even when considered together with existing mental conditions, which were in and of themselves insufficient to produce a lack of substantial capacity, constitute a grounds for finding that the accused lacked substantial capacity at the time of the alleged crimes so as to make him insane under the law. The State contends, however, that the accused was not intoxicated at the time of the alleged crimes, and if you find this contention to be true, then of course, you need not concern yourselves with the effect of his intoxication upon his sanity.” ¹⁷³ The appellant argues that “the effect of this instruction was that (he) could not be found insane if voluntary intoxication caused or contributed to a mental disease or defect which in turn caused (him) to lack the substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. In other words, the jury was instructed that even though they found that the appellant was insane as defined by Art. 59, § 9 (a) * * * they must find him legally sane if his insane condition was caused or contributed to by voluntary intoxication.” He urges: “Since insanity relates to a person’s capacity to commit a crime, it is immaterial what caused the insanity. The only issue should be whether or not (he) was insane at the time of the commission of the alleged crime under the applicable legal test of insanity.

If he was, he was incapable of committing a crime and why he was incapable is not material. Although voluntary intoxication is not normally a defense to crime, if insanity results from the voluntary intoxication, the insanity is a complete defense, the same as insanity produced by any other cause.” The State counters this argument by asserting that voluntary drunkenness resulting in insanity excuses criminal conduct only when the insanity is permanent, that is a settled or fixed insanity, as distinguished from a temporary insanity. It claims that by the weight of authority temporary insanity from the voluntary use of intoxicants is rejected as a defense for the commission of a crime. There was expert testimony, as characterized in the appellant’s brief, that the appellant had a chronic brain syndrome or organic brain damage and character behavior disorder (classified by one expert as a mental defect) .

However, these, in themselves, did not cause the appellant to lack “substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.” But the ingestion of alcohol on the day of the offense produced an acute brain syndrome and this mental defect, so produced, rendered the appellant insane at the time of the commission of the of ¹⁷⁴ fenses as defined by the statute. Since the appellant would have been sane at the time of the commission of the crimes, although suffering from a mental disease or defect, and became insane only by reason of his drinking, the question is squarely put — whether, upon a finding by the jury that the drinking by the appellant on the day of the crime was voluntary, it could not consider such drinking, “of itself” or with the pre-existing mental disease or defect, in its determination of the issue of his insanity? We note at the outset that Md. Code, Art. 59, § 9 (a) does not expressly relate to the cause of insanity as therein defined except in negative terms: “The term, ‘mental disease or defect’ do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.” We note further that there is no statute in Maryland pertaining to intoxication as affecting criminal responsibility. However it is the established rule of law in this State that voluntary drunkenness is not a defense to crime, although whenever the actual existence of any particular motive, purpose or intent is a necessary element to constitute any particular species or degree of crime, the trier of fact may take into consideration the fact that the accused was intoxicated at the time in determining the purpose, motive or intent with which he committed the act.

Michael v. State, 1 Md. App. 243 . The great weight of authority is in accord with the rule as stated in 21 Am,. Jur. 2d, Criminal Law, § 44, p. 128: “It is well settled that temporary insanity which arises from present voluntary intoxication is no defense. This is true even though the defendant’s temporary state of mind may meet the requirements of legal insanity contained in the M’Naghten rule, or whatever test of criminal responsibility is applied in the particular jurisdiction.

On the other hand, if the accused was suffering from a settled or fixed insanity, ¹⁷⁵ even though caused by long-continued alcoholic indulgence, the rule is the same as in the case of insanity arising from any other cause. If the test of criminal responsibility locally applied is met, a settled or fixed insanity is a defense, even though it may have had its origin in long-continued voluntary intoxication, and regardless of whether defendant was under the influence of liquor at the time of the particular act.” Weihofen in Mental Disorder as a Criminal Defense, p. 124, states: “The courts have drawn a distinction between intoxication, the immediate effect of indulgence in acoholic spirits, and insanity, resulting from long continued habits of imbibing alcoholics. Voluntary intoxication, it is generally agreed, is no excuse for crime; and in most states, this is true even though the intoxication may result in temporary insanity, rendering the person for the time unconscious of his acts, or incapable of distinguishing right from wrong.” The rule is summarized in 8 A.L.R. 3d, Voluntary Intoxication — Defense: “Despite extensive developments in psychiatric research, widespread changes in social, medical, and legal attitudes toward alcoholism, and intense debate as to legal tests of mental responsibility of those charged with crime, the law with respect to the effect of voluntary intoxication upon criminal responsibility has shown little tendency to change or develop. The legal rules governing the question were early settled and may be briefly stated: intoxication, if voluntarily incurred, no matter how gross, is ordinarily no defense to a charge of crime based upon acts committed while intoxicated, (except as to specific intent crimes where the intoxica ¹⁷⁶ tion is such as to negative the intent) * * * It is apparently only when the alcoholism produces a permanent and settled insanity distinct from the alcoholic compulsion itself that the law will accept it as an excuse.” § 2, p. 1239. “Permanent insanity, although produced by the use of intoxicants, is treated as any other insanity and is a defense to the commission of a crime.” § 6(a), p. 1265. “Alleged temporary insanity resulting from the use of intoxicants has frequently been rejected as a defense, the courts treating this as merely having the effect of simple voluntary intoxication.” § 6(b), p. 1267.

Rules as to insanity and drunkenness appear early in the law. Blackstone in his Commentaries on the Law (Gavit Ed.) said as to idiots and lunatics* Book 4, ch. 2, p. 760: “The defect of will, which excuses crimes, arises from a defective or vitiated understanding. In criminal cases, idiots and lunatics are not chargeable for their own acts, if committed when under these incapacities; no, not even for treason itself. * * * As to voluntarily contracted madness by intoxication, which depriving men of their reason, puts them in a temporary frenzy, our law looks upon this as an aggravation of the offence, rather than as an excuse for criminal misbehavior. Coke asserts, that a drunkard has no privilege thereby, but what hurt soever he does, his drunkenness aggravates it.” 1 ¹⁷⁷ Lord Hale, in 1 Pleas of the Crown, Ch.

IV, pp. 29-33 (1847) recognized three types of “idiocy, madness and lunacy” under the general name of “dementia.” 2 The third type was “dementia affectata, namely drunkenness.” “This vice doth deprive men of the use of reason, and puts many men into a perfect, but temporary phrenzy; and therefore, according to some Civilians, such a person committing homicide, shall not be punished simply for the crime of homicide, but shall suffer for his drunkenness answerable to the nature of the crime occasioned thereby; so that yet the formal cause of his punishment is rather the drunkenness, ¹⁷⁸ than the crime committed in it: but by the laws of England such a person shall have no privilege by this voluntary contracted madness, but shall have the same judgment as if he were in his right senses. But yet there seems to be two allays to be allowed in this case. 1. That if a person by the unskillfulness of his physician, or by the contrivance of his enemies, eat or drink such a thing as causeth such a temporary or permanent phrenzy, as aconitum or nux vomica, this puts him into the same condition, in reference to crimes, as any other phrenzy, and equally ex-cuseth him. 2. That although the simplex phrenzy occasioned immediately by drunkenness excuse not in criminals, yet if by one or more such practices, an habitual or fixed phrenzy be caused, though this madness was contracted by the vice and will of the party, yet this habitual and fixed phrenzy thereby caused puts the man into the same condition in relation to crimes, as if the same were contracted involuntarily at first.” pp. 31-33.

Thus Hale, as the law does today, distinguished between temporary insanity caused by voluntary drunkenness and that caused by involuntary drunkenness and he recognized that permanent insanity, even though caused by voluntary drinking, excused the commission of a crime. The rule of law with respect to responsibility for criminal conduct as affected by voluntary intoxication which has been consistently followed by the majority of courts in the United States is substantially that stated by Lord Hale. Regardless of what test is applicable to determining insanity, the majority distinguish between (1) the mental effect of voluntary intoxication which is the immediate result of a particular alcoholic bout; and (2) an alcoholic psychosis 3 resulting from long continued hab ¹⁷⁹ its of excessive drinking. The first does not excuse responsibility for a criminal act; the second may.

In other words, if a person drinks intoxicating liquor and is sane both prior to drinking and after the influences of the intoxicant has worn off, but is insane by the applicable test while under the influence of the intoxicant, he comes under the first category. If he is insane whether or not he is directly under the influence of an intoxicant, even though that insanity was caused by voluntary drinking, he comes under the second category. The cases usually refer to the first category as a “temporary” insanity and the second category as a “permanent,” “fixed” or “settled” insanity. These terms may be an oversimplification.

What “permanent,” “fixed” or “settled” means within the frame of reference is that the insanity not only existed while a person was under the influence of intoxicating spirits as an immediate result of imbibing, but existed independent of such influence, even though the insanity was caused by past imbibing. So if a person while in the throes of delirium tremens which may meet the test for insanity, commits a crime, he is not responsible for his criminal conduct, although such defect, resulting remotely from excessive drinking is only a temporary toxic state. It would seem that the distinction, notwithstanding the language of the cases, is not so much between temporary and permanent insanity as it is one between the direct results of drinking, which are voluntarily sought after, and its remote and undesired consequences. We adopt the majority view.

As example of cases in accord with the rule which we have adopted see: United States v. Drew, 5 Mason 28 , United States Circuit Court for the District of Massachusetts (1828) ; State v. Wilson, 104 N. C. 868 , 10 S. E. 315 (1889) ; Kelly v. State, 20 S. W. 357 (Texas 1892) ; Evers v. State, 31 Tex. Crim. 318 , 20 S. W. 744 ¹⁸⁰ (1892) ; State v. Kidwell, 62 W. Va. 466 , 59 S. E. 494 (1907) ; Martin v. State, 100 Ark. 189 , 139 S. W. 1122 (1911) ; Rucker v. State, 119 Ohio 189 , 162 N. E. 802 (1928) ; Bryant v. State, 122 Tex. Crim. 385 , 55 S. W. 2d 1037 (1932) ; State v. Rio, 38 Wash. 2d 446 , 230 P. 2d 308 (1951) ; Griffin v. State, 96 So. 2d 424 (Fla. App. 1957) ; 4 State v. Clokey, 83 Idaho 322 , 364 P. 2d 159 (1961) ; Couch v. State, 375 P. 2d 978 (Okla.

Crim. 1962) ; McIntyre v. State, 379 P. 2d 615 (Alaska 1963). Compare People v. Cummins, 47 Mich. 334 , 11 N. W. 184 (1882). The appellant quotes 21 Am. Jur. 2d, Criminal Law, § 44, p. 128, in support of his argument.

The first sentence of his quotation is the last sentence of the quotation we set out supra and is preceded by what goes before in our quotation. He continued the quotation as follows: “It is not necessary, however, that a mentally diseased condition brought on by voluntary use of intoxicants must have reached a permanent or incurable condition before the accused will be held irresponsible; on the contrary, such conditions as delirium tremens, or alcoholic hallucinosis, may be sufficient even if the condition was temporary.” This is in accord with the frame of reference in which we have considered “permanent” insanity and the cases cited in § 44 in support of the statement are not to the contrary. He also relies on King v. United States, 372 F. 2d 383 (D. C. 1967), quoting a part of the opinion. Aside from the fact that the point referred to in the quote was characterized by the court as one of “the other aspects of the case” which it remarked on “without indicating ¹⁸¹ whether they would independently warrant reversal,” we construe the language of the court as quoted to be in accord with our rule that voluntary drunkenness may be taken into consideration whenever the actual existence of any particular motive, purpose or intent is a necessary element to constitute any particular species or degree of crime.

This is not in point in the question as presented by the appellant here. Nor is his reliance on Dubs v. State, 2 Md. App. 524 well placed. In Dubs the defendant took the position that if he was a chronic alcoholic, the rules of law as to voluntary intoxication were not applicable to him because then his drinking was involuntary. We rejected the argument, noting that the cases relied on in support of it applied to crimes which were acts compulsive as symptomatic of the disease of alcoholism.

The court instructed the jury in part as follows: “Voluntary intoxication in itself is no excuse for the commission of a crime but may be taken into consideration by the jury along with other facts in determining the existence of a particular intent and also in determining whether an accused person at the time of the alleged crime, had the requisite mental capacity and the reason to enable him to distinguish between right and wrong and to understand the nature and consequences of his acts as applied to himself. This test, that is the mental capacity last mentioned, is the one and only test as to sanity in Maryland, whether the claimed insanity be alleged to be due to alcoholism, intoxication, or any other cause.” Within the factual posture of the case, our finding no error in that particular part of the instruction, considered in the light of the instructions as a whole, did not mean that we subscribed to the notion that involuntary intoxication as inducing “temporary” insanity as herein defined could be considered by the trier of fact on the issue of insanity. And even if it be so construed, there was no ¹⁸² error in the instruction requiring reversal, as the defendant received more than that to which he was entitled. And we think that Parker v. State, supra, in which we reversed the appellant’s original conviction, cited by the appellant, is not inconsistent with our view herein expressed.

There the evidence concerning the appellant’s lack of criminal responsibility, unlike the instant case, was sketchy and the point was whether it was sufficient to permit the issue to go to the jury. We found that it was, the import of our holding being that from the evidence in that case presented the jury could have found that the appellant had a “permanent” insanity “brought on by ingestion of alcohol over a long period of time.” In the instant case the expert witnesses called by the appellant in his own behalf testified that if he had not ingested alcohol on the day of the offense he would have been responsible for his acts. It appeared clear from the evidence that the appellant was not suffering from a “permanent” insanity. The rule we have adopted may at first glance seem harsh.

But as early as Blackstone the law would not allow voluntary drunkenness to palliate a crime, “considering how easy it is to counterfeit this excuse, and how weak an excuse it is.” Blackstone’s Commentaries on the Law, (Gavit Ed.) book 4, ch. 2, p. 761. And Lord Hale, recognized that the determination of incapacity by intoxication as causing insanity “is a matter of great difficulty, partly from the easiness of counterfeiting this disability, when it is to excuse a nocent, and partly from the variety of degrees of this infirmity, whereof some are sufficient, and same are insufficient to excuse persons in capital offences.” But he justified the rule: “Yet the law of England hath afforded the best method of trial, that is possible, of this and all matters of fact, namely, but a jury of twelve men all concurring in the same judgment, by the testimony of witnesses viva voce in the presence of the judge and jury, and by the inspection and ¹⁸³ direction of the judge.” 1 Hale, Pleas of the Crown, ch. IV, pp. 32-33. Alcoholism is looked upon today with more compassion than in Blaekstone’s time. The medical profession may consider acute alcoholism as a “disease” as have some courts as to acts compulsive as symptomatic of alcoholism.

But it is not to disparage the medical profession and the psychiatric discipline, despite the extensive developments in psychiatric research and the widespread changes in social, medical and legal attitudes towards alcoholism, to say that the underlying rationale of the rule as early expressed and its justification over the years are still appropriate. It may be that “all alcoholism deviates from the norm of good health, but it is more likely to be in the nature of a character defect, for which the law holds the person responsible, than a mental disorder which the law recognizes as ‘insanity.’ ” Weihofen, Mental Disorder as a Criminal Defense, p. 125. We believe it in the interest of public justice and not unfair to the individual, surrounded as he Is with the safeguards in the procedures required in the determination of his responsibility, that he be held so responsible. Applying the rule we have adopted to the challenged instruction, we have no difficulty in finding that it was proper.

The charge of the lower court, going as it did to a temporary insanity as the immediate result of voluntary intoxication, was a correct statement of the law. There was no question raised as to the appellant’s competency to stand trial, see Md. Code, Art. 59, § 7 and Strawderman v. State, supra, and the evidence was that he was sane while not under the influence of alcohol. That he had a mental disease or defect short of the applicable definition of insanity before he drank, and that this mental disorder may have had some consequential effect with the intoxicant so as to induce insanity are not material. Some individuals have a lower tolerance to alcohol than others for various reasons, reacting to even moderate amounts, but this plays no part in regard to their re ¹⁸⁴ sponsibility for their criminal conduct while voluntarily intoxicated. 5 We hold that the advice to the jury that if it found that the drinking by the appellant on the day of the crime was voluntary, it could not consider such drinking, of itself, or with pre-existing mental disease or defect, in its determination of the issue of his insanity was not error.

THE READING OF THE DEFINITION OF INSANITY TO THE JURY In its charge to the jury the court read Md. Code, Art. 59, § 9(a) verbatim to the jury. The appellant excepted to the inclusion of that part of the statute which provides : “As used in this section, the terms ‘mental disease or defect’ do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.” His exception was based on the ground that there was no evidence in the case that the accused was suffering from an abnormality manifested only by repeated criminal or otherwise antisocial conduct. His argument on appeal is ¹⁸⁵ in substance the same. In denying the exception the court said: “The Court overrules this exception for the reason that it is our belief that the question of whether such an abnormality as mentioned in the law does or does not exist is a question of fact for the jury’s determination, and that there is sufficient evidence in this case to permit an affirmative finding on this point; that is, the testimony of some of the medical witnesses for the State testified to the effect that in their opinion the accused did not have either a mental disease or defect but did have a character or personality disorder, and was a chronic alcoholic and a habitually excessive drinker.

We believe that these facts introduced in evidence are legally sufficient to permit and allow the jury to conclude that his habitual drinking without a mental disease or defect under these circumstances to be an abnormality as mentioned in the exceptions of the law; therefore, the exception is overruled.” In explaining the statute the court said: “In other words, if all that can be said about a person’s mental powers and abilities is that he has been a persistent law-breaker or that he is disposed to repeated antisocial conduct, that obviously in and by itself offers no support for concluding that his law-breaking or antisocial conduct should be attributed to a mental disease or defect rather than simple viciousness of character.” We think the reasons given by the court in denying the exception were sound. His statements as to the facts are borne out by the record. In any event we think the jury were entitled to the entire definition of insanity. Their obligation was to determine whether or not the appellant was insane under the test prescribed by the legislature. ¹⁸⁶ In so doing, as judges of the law and fact, they had to ascertain the intent of the statute and the challenged part is an integral element of what constitutes insanity, even though expressed in negative terms.

It at least tends to explain the positive definition and the jury were entitled to have it. We find no prejudicial error. THE SEARCH AND SEIZURE The appellant does not now contest the legality of his warrantless arrest; the lower court found that it was based on probable cause to believe that a felony had occurred and that the appellant committed it and from our review of the evidence we agree. Officer Edward M. Thomas testified that he received an order to go to the apartment of the appellant and keep it under surveillance.

He did so. The Chief of Police, Brice Kinnamon, the Assistant Chief of Police, James C. Leonard, and Officer Harry Hansen arrived. He and Hansen received orders from Kinnamon to arrest the appellant and they went upstairs to the appellant’s apartment. “As we approached the door * * * we knocked on the door two or three times loud, and advised whoever was in the apartment that it was the Cambridge Police Department. We got no response at that time.” There was a glass pane in the door and with the aid of a flashlight they saw someone on the bed.

They forced the door and entered. “We went directly to the bedroom where the defendant, Jackie Parker, was lying in bed, and he was arrested * * No one else was in the apartment. A few seconds later Leonard came in. The appellant was handcuffed and Kinnamon ordered that he be taken to the Dorchester County Jail. 6 “Right after that I was ordered to search the apartment * * *” by Kinnamon. The apartment, on the second floor of the premises, consisted of a kitchen, a dining room, two bedrooms and a bath. “As we were standing there we smelt smoke.” The appellant had just left.

The smoke came from the north bedroom (not the one ¹⁸⁷ in which the appellant was found) and Thomas, Leonard and Kinnamon went to that bedroom. A small rug next to the bed was on fire. Thomas got a glass of water and put out the fire. There was money on the top of the bed, underneath the bed and under the mattress.

The money was put in a paper bag found in the kitchen. Kinnamon ordered him “to search for a possible gun in the apartment and Kinnamon and Leonard left. Thomas found a pistol, a .82 automatic, in the north bedroom in a laundry basket. Leonard testified that some of the money found “was loose and some was in wrappers * * * bank wrappers.” The pistol was given to him by Thomas.

It was “fully cocked — she was off safety * * * It had a clip and all in it.” We find that as the arrest was valid, the search of the apartment and seizure of the money and gun were reasonable as incident and substantially contemporaneous thereto. In ruling on the point below the trial court said: “I think the evidence shows on this point that there was nobody there (in the