State v. Burton

Gilbert, J., delivered the opinion of the Court. Sherman Burton was convicted by Judge William J. O’Donnell, at a non-jury trial, in February 1965 of burglary, and sentenced to four years imprisonment. Burton was, on July 2, 1965, referred to Patuxent Institution for an ⁵⁹² evaluation. Subsequently, on May 25, 1966, Burton was found by Judge James K. Cullen, at a non-jury proceeding, to be a defective delinquent within the meaning of Md. Ann. Code art. 31B, § 5, and Burton was committed to Patuxent.

Later, in November 1969, Burton had a redetermination hearing by a jury, presided over by Judge Cullen. The jury found Burton to be a defective delinquent, and this Court denied Burton’s application for leave to appeal. 1 In January 1974 Burton once again petitioned for a redetermination of whether he was a defective delinquent. At the conclusion of the State’s presentation of evidence, Burton moved for a directed verdict. Judge Mary Arabian granted the motion, dismissed the jury and ordered Burton released from Patuxent.

The State was aggrieved and sought leave to appeal to this Court. We granted the leave, and the matter was transferred to the direct appeal docket. The case is now before us on the sole issue of whether Judge Arabian erred in granting Burton’s motion for a directed verdict. At the trial of this matter the State introduced the testimony of Charles Brennenger, a staff psychologist of the Patuxent Institution.

Mr. Brennenger testified that “the Institutional Diagnostic Staff on September 23, 1969” examined the appellee and found that he “continue[d] to satisfy the criteria of defective delinquent. ...” Subsequent to the September 1969 finding there was no similar conclusion reached by the Diagnostic Staff, although the Institutional Board of Review hearing report for the period June 21, 1973 to June 20, 1974, had stamped upon it, in red ink, “Still a defective delinquent.” There was no evidence as to who placed the stamp upon the record, or more important who authorized such stamping. Mr. Brennenger, who had never personally examined the ⁵⁹³ appellee, conceded that the appellee was suffering from schizophrenia, however, Brennenger took the position that schizophrenia is not a mental illness, but rather an emotional disturbance. Mr. Brennenger then reasoned that appellee, being emotionally unstable, fell within the meaning of Md. Ann. Code art. 31B, § 5, and was, consequently, a defective delinquent. The psychologist stated flatly that he disagreed with the American Psychiatric Association that schizophrenia is a mental illness.

The witness concluded that the appellee is a defective delinquent because (1) he had seen nothing in the records that indicated appellee had changed since he first went to Patuxent, and (2) because appellee had active episodes of psychosis. Judge Arabian asked: “But let me understand what you said, sir. You say that schizophrenia is not a mental illness? The Witness: I do not look upon it as a mental illness.

The Court: But you have been referring to it as a psychosis? The Witness: Yes, ma’am. The Court: Is not a psychosis a mental illness? The Witness: No, ma’am, not in my opinion.” The witness went on, in answer to the judge’s questions, to agree that appellee was mentally ill within the meaning of Md. Ann. Code art. 59, § 3 (g).

See also Sherrill v. State, 14 Md. App. 146 , 286 A. 2d 528 (1972). The State’s second witness, Dr. Carmacita Mola, a staff psychiatrist from Clifton T. Perkins Hospital, testified without equivocation that the appellee was schizophrenic, paranoid type, and was suffering from a mental illness within the meaning of the Maryland Code. Dr. Mola was unable to give an opinion as to whether appellee was a defective delinquent because she was unfamiliar with the definition of the term. She did say, however, that “when . . . [a person] is having a mental illness he can at times be emotionally unbalanced.” ⁵⁹⁴ Maryland Ann. Code art. 31B, § 5 provides: “. . . [A] defective delinquent shall be defined as an individual who, by the demonstration of persistent aggravated anti-social or criminal behavior, evidences a propensity toward criminal activity, and who is found to have either intellectual deficiency or emotional unbalance, or both, as to clearly demonstrate an actual danger to society so as to require such confinement and treatment, when appropriate, as may make it