Sherrill v. State

Murphy, C. J., delivered the opinion of the Court. Appellant was indicted on June 2, 1970 for the alleged kidnapping on September 26,1969 of six year old Julianne Voell, and for having assaulted and committed an unnatural and perverted sexual act upon her on the same date. At his arraignment on June 19, 1970 appellant pleaded that he was insane at the time of the commission of the alleged crimes. At that time the test of responsibility for criminal conduct was contained in Maryland Code, Article 59, Section 9 (a), viz., “A defendant is not responsible for criminal conduct and shall be found insane at the time of the commission of the alleged crime if, at the time of such conduct as a result of mental disease or defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the require ¹⁴⁸ ments of law.

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.” (Emphasis added.) On June 26, 1970 appellant was referred to Clifton T. Perkins State Hospital for a psychiatric examination to determiné his sanity. Chapter 407 of the Acts of 1970, which became effective July 1, 1970, repealed Article 59 of the Maryland Code in its entirety and enacted in its place a new Article 59. The test for criminal responsibility was set forth in Section 25 (a) of the new Act. It was identical to that contained in the repealed Section 9 (a) except that it substituted the term “mental disorder” for the phrase “mental disease or defect.” But unlike the former law, which contained no statutory definition of the terms “mental disease or defect,” the new law defined the term “mental disorder” in Section 3 (f) to mean “mental illness or mental retardation or any other form of behavioral or emotional illness resulting from any psychiatric or neurological disorder.” 1 The new Act contained no provision, one way or the other, respecting the applicability of the new Section 25 (a) test for criminal responsibility to the trial of cases which, though commencing after the new Act’s effective date (July 1, 1970), involved criminal acts perpetrated prior to that date. 2 The Perkins State Hospital filed its report on August 27, 1970.

It stated that appellant was presented before a medical staff conference on that date, and that it was the unanimous opinion of the medical staff (psychia ¹⁴⁹ trists Nabors, Adamo, Freinek, and Sauer) that “[appellant] * * * did not suffer from a mental disease or defect at the time of the alleged offense such as to cause him to lack substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.” The trial of the case began on October 27, 1970 before Judges Pugh, Mathias, and Moore, sitting without a jury in the Circuit Court for Montgomery County. The State adduced proof of the corpora delicti and of appellant’s criminal agency, and rested on the presumption of sanity. Four psychiatrists then testified on appellant’s behalf. Each was questioned as to appellant’s responsibility for his criminal conduct in terms of the test set forth in Section 9 (a), viz., whether in September 1969 when appellant allegedly committed the crimes, “as a result of mental disease or defect he * * * [lacked] substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.” Dr. Hertzberg testified that appellant was driven to commit his criminal acts by an “obsessive compulsive neurosis,” which he classified as a mental disease, but not a psychosis.

He said that appellant was suffering from pedophilia — the inability to gain sexual satisfaction except with very young children. He classified pedophilia as a “mental disorder,” as a “mental illness,” and as a “personality disorder.” He testified that a person could be just as mentally ill with a neurosis or personality or character disorder as a person with a psychosis. Judge Pugh indicated a belief that a “mental disorder” was not a “mental disease” within the meaning of Section 9; the witness said there was no difference between the two terms. He testified that appellant was not criminally responsible because he was unable to conform his conduct to the requirements of law.

Dr. Crowley agreed with Dr. Hertzberg’s diagnosis. He said appellant was suffering from a very severe and ¹⁵⁰ primitive personality disorder with extreme sexual deviation, namely pedophilia, which he classified as a “mental disorder.” 3 Dr. Crowley testified that appellant had a “mental disease” by reason of which he was unable to conform his conduct to the requirements of law. Dr. Cray testified that appellant suffered from the “mental disease” of latent schizophrenia. He said that while the disease manifested itself in pedophilia, it was but a symptom of appellant’s schizophrenia.

Dr. Gray testified that pedophilia was a perversion, not a psychosis. Judge Pugh again indicated a belief that pedophilia was not a “mental disease.” Dr. Gray testified in terms of the test for criminal responsibility outlined in Section 9 (a) that appellant lacked substantial capacity to conform his conduct to the requirements of law. Dr. Hamman agreed with Dr. Gray’s diagnosis that appellant was suffering from schizophrenia of a chronic nature and was not responsible for his criminal acts because by reason thereof he was unable to conform his conduct to the requirements of law. He testified that schizophrenia was a “mental disease.” Asked whether “pedophilia” was a “mental disease,” Dr. Hamman testified that it was a “mental illness,” and a symptom of basic schizophrenia.

He characterized pedophilia as a character neurosis, a character disorder, and a personality disorder. After the court indicated that appellant’s psychiatric evidence was sufficient to overcome the presumption of sanity, and that the State would be required to prove appellant’s sanity beyond a reasonable doubt (see Strawderman v. State, 4 Md. App. 689 ), the State called three of the four Perkins Hospital phychiatrists who had participated in appellant’s mental examination and who had found him responsible for his conduct at the time of the commission of the crimes. Dr. Sauer testified that appellant’s pedophilia was a ¹⁵¹ sexual deviation, a personality disorder, with no evidence of psychotic process. He rejected the diagnosis of the psychiatrists testifying on appellant’s behalf.

He said pedophilia was “a definite mental disorder characterized by intense desires to engage in fondling or sexual acts with children.” He said that appellant’s mental disorder was not of such intensity as to cause him to lack substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. He agreed in a general sense that appellant was “mentally ill” and had a “mental disease”; he said, however, that “pedophilia is not usually considered a disease,” but instead was “a personality disorder, a sexual deviation.” Dr. Sauer testified that there was no difference between a mental disease and a mental disorder. 4 Dr. Nabors testified that appellant did not have a mental disease or defect rendering him not responsible for his criminal conduct. She said there was “no evidence that he is psychotic, and would, therefore, not be responsible for what he did.” She indicated that the diagnosis of two of appellant’s psychiatrists of “obsessive compulsive neurosis” was only a neurosis (as opposed to a psychosis) and was “not a mental disease that prevents people from conforming to the law.” Asked what type of “mental disease” would cause a person to lack capacity to conform his conduct to the requirements of law, Dr. Nabors again indicated that a psychosis would constitute such a disease. Asked whether to be insane a person would have to have a psychosis, she replied that he would.

She said that appellant suffered from pedophilia, a sexual deviation not classified as a mental illness. She restated her opinion that to be insane or “crazy,” a person had to have “that kind of sickness * * * we call psychotic.” Asked whether there were any other functional mental illnesses other than psychosis, Dr. Nabors ¹⁵² said there were “a few, what they call effective mental diseases that are forms of psychosis, like manic-depressive psychosis and just a few others.” She said that character neuroses are not generally considered mental illness. She said that pedophilia was not a mental disease, but was a mental disorder, the two terms being different. She said that there were “character disorders” and “neuroses” and that in addition “you have your mental diseases; psychoses and so forth.” Dr. Adamo next testified for the State.

Asked in terms of the Section 9 (a) test whether appellant had a “mental disease or defect,” Dr. Adamo answered that he “was not suffering from a mental disorder of such intensity as to cause him to lack capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.” He testified that appellant had a sexual deviation, namely pedophilia; that it made no difference whether it was called a “mental disease” or a “mental disorder”; that appellant's disorder was not sufficiently severe to impair his capacity to appreciate the criminality of his conduct. He agreed that pedophilia is symptomatic of a more serious mental disorder “as in schizophrenia,” but said that appellant did not suffer from schizophrenia nor did he have an “obsessive compulsive neurosis.” Two of the three judges of the court concluded that appellant “was sane at the time of the commission of the offense, as defined by Section 9 of Article 59 of the Code”; the other judge concluded that appellant was not responsible for his criminal conduct under the Section 9 (a) test. Each judge outlined the reasons for his decision. Judge Pugh found beyond a reasonable doubt that appellant was sane at the time of the commission of the offense because he “was not suffering from a mental disease as defined by said section [9 (a)].” Judge Moore found beyond a reasonable doubt that the appellant was suffering from a mental disease or defect, but that it did not cause him to lack substantial capacity to conform his ¹⁵³ conduct to the requirements of law.

He expressly disagreed with Judge Pugh’s view “that no mental disease or defect was shown.” Judge Mathias, dissenting from the majority conclusion, stated that he was not convinced beyond a reasonable doubt that the defendant was legally sane under Section 9 (a) of Article 59. The majority of the court convicted appellant of kidnapping and he was sentenced to twenty years imprisonment. I Appellant contends that the majority of the court was clearly erroneous in finding him responsible under Section 9 (a) for his criminal acts. He asserts that the State’s psychiatrists who found him sane had, at best, minimal contact with him.

He claims that Dr. Nabors erroneously equated the term “mental disease or defect” with the term “psychosis,” and that the court should have entirely disregarded her testimony. 5 We observe at the outset that both counsel and the court were in error in believing that the test of criminal responsibility contained in Section 9 (a) was applicable at appellant’s trial in October of 1970. As heretofore indicated, that section was repealed effective July 1, 1970 by Chapter 407 of the Acts of 1970, which simultaneously reenacted, in new Section 25 (a), the identical provisions of the repealed Section 9 (a) test of criminal responsibility with two significant differences: First, it substituted the term “mental disorder” for “mental disease or defect,” and, second, unlike the term “mental disease or defect,” which had never been legislatively defined, the term “mental disorder” was defined with great specificity in Section 3 (f) to mean and broadly encompass “mental illness or mental retardation or any other form of behavioral or emotional illness resulting from any psychiatric or neurological disorder.” No savings clause was included in Chapter 407 extending the ¹⁵⁴ operative effect of the “mental disease or defect” standard formerly contained in Section 9 (a) beyond the effective date of the new Act so as