State v. Conn

Smith, J., delivered the opinion of the Court. We hold that in this case the Court of Special Appeals erred in concluding that the testimony here in controversy constituted an opinion by a lay witness on the ultimate issue of sanity. Consequently, we shall reverse the judgment of the Court of Special Appeals in Conn v. State, 41 Md. App. 238 , 396 A.2d 323 (1979). We here conclude that under proper circumstances when an accused claims under Maryland Code (1957, 1972 Repl.

Vol.) Art. 59, § 25 (a) that he is not guilty by reason of insanity at the time of the commission of an alleged crime, a layman, based upon his observations, may express his conclusion or impression that an individual seemed to be mentally normal or abnormal. This is so because, as it was put in Carter v. United States, 252 F.2d 608, 618 (D. C. Cir. 1957), “Normal conduct and abnormal conduct are matters of common knowledge, and so lay persons may conclude from observation that certain observed conduct is abnormal.” Such testimony is relevant to the issue raised by the defense of the accused under § 25 (a). Accordingly, the Court of Special Appeals erred when it said that “the rule in Watts [v. State, ⁴⁰⁸ 99 Md. 30 , 57 A. 542 (1904),] is no longer viable.” [Id. 41 Md. App. at 249 .] For the purpose of the case here the facts are not in dispute. John Francis Conn was 16 and the victim 19 years old at the time of her death.

They were co-workers who apparently had found pleasure in each other’s company for some months prior to the incident in question. Conn was admitted to the victim’s home at approximately 7:30 p.m. on the evening of her death. Shortly thereafter screams were heard from the decedent’s bedroom. The victim ultimately was found lying in a pool of blood.

She had been fatally stabbed 19 times. Conn was taken into custody at approximately 8:00 p.m. on the same night and charged with murder. He entered pleas of not guilty by reason of insanity and not guilty. A Baltimore County jury convicted him of murder in the first degree.

At trial the following witnesses were called in the following order: the victim’s mother, her sister, her father, the police officer who went to the victim’s home at approximately 7:50 p.m. in response to directions received by radio, the medical examiner, a second police officer who arrived at the victim’s home at approximately 8:00 p.m., and Officer Joseph Thompson. The second officer identified Conn as one of the people he saw when he entered the victim’s residence. He testified that at that time Conn was crying, having his face in a towel. The record then reflects: Q What, if anything, did the Defendant say when you entered the home?

A When the Defendant saw I was a police officer he stood up in the chair and said: “Is she dead?” Q Now, Officer, would you describe for the ladies and gentlemen of the jury what the appearance and the actions of the Defendant were when you saw him that evening? A Yes, sir. The Defendant was, as I mentioned, was crying. He was sitting there with his face into a towel and was crying.

Q What did you do after the Defendant made the statement to you? ⁴⁰⁹ A At that point I walked up the remaining stairs and took the subject into custody, handcuffed him. The officer was then asked if he transferred custody to anyone else. He replied that he did, to Officer Joseph Thompson. The next witness was Officer Thompson.

He said that he reached the victim’s home at approximately 8:00 p.m. His purpose was “in search of a possible stabbing suspect [who] was supposedly at that location.” On arrival he saw Conn in custody. After Officer Thompson’s identification of Conn as the person then on trial, the record is: Q Can you describe to the ladies and gentlemen of the Jury what the Defendant Mr. Conn’s demeanor was, how he was acting? What was his appearance?

A He was obviously crying. He was somewhat grief-stricken. He seemed to be fit of mind. There wasn’t any situation where he seemed to be suffering from any kind of illness.

It seemed to be primarily grief. MR. CEDE: I object. A He was aware of what was going on when we talked to him.

MR. GEDE: I object and ask that it be stricken, that he didn’t seem to have any illness. THE COURT: That he observed. Overruled.

Continue. Officer Thompson then testified as to his search of Conn, and that while he was “patt[ing Conn] down [Conn] advised: T am not armed, I have thrown the weapon away, or I have thrown the knife away.’ ” The Court of Special Appeals said that this testimony by Officer Thompson was “that the appellant was not mentally ill.” Id. at 239 . The State framed the following three questions to us in its request for the writ of certiorari: 1. Did the Court of Special Appeals erroneously conclude that the testimony of police officer ⁴¹⁰ Thompson constituted an opinion by a lay witness on an ultimate issue regarding the sanity of Respondent? 2.

Assuming, arguendo, that the testimony of Officer Thompson was inadmissible, was its admission under the circumstances of this case harmless error? 3. Did the Court of Special Appeals err in holding that the decision of this Honorable Court in Watts v. State, 99 Md. 30 (1904), is no longer viable? I The Watts Rule •S 3 We shall first consider the viability of the rule enunciated Watts and the circumstances under which a lay opinion as mental capacity may be expressed. In Watts the trial court had sustained the objection of the State to the testimony of three fellow policemen of the accused.

Judge Pearce said for the Court: Ever since the case of Townshend v. Townshend, 7 Gill, 10 [(1848)], it has been settled law in this State, in cases where mental sanity is in issue, that a non-expert witness may give his opinion in evidence, in connection with his personal observation of the facts upon which it is founded, and as derived from them. It must appear that the witness had adequate opportunity for forming a rational conclusion, since the mere opinions of witnesses are entitled to little or no regard unless they are founded on facts which warrant them in the opinion of the jury. “If the reasons are frivolous or inconclusive, the opinions of the witness are worth nothing.” The weight to be given to such an opinion is for the jury, subject of course to the qualification that where the facts stated are such as would not, in the judgment of the Court, enable any rational mind to draw any conclusion therefrom, the opinion proposed to be given may be properly excluded. In Conn. Ins.

Co. v. Lathrop, 111 U.S. [612,] 620, [ 4 S.Ct. 533 , 28 L.Ed. ⁴¹¹ 586 (1884),] Mr. Justice Harlan said, “Where a cause fairly depends upon the effect or weight of testimony, it is one for the consideration and determination of the jury. s‘ * * It should never be withdrawn from them unless the testimony be of such a conclusive character as to compel the Court, in the exercise of a sound legal discretion, to set aside a verdict returned in opposition to it * * *. The natural and ordinary operations of the human intellect, and the appearance and conduct of insane persons as contrasted with the appearance and conduct of persons of sound mind, are more or less understood and recognized by every one of ordinary intelligence who comes in contact with his species. The extent to which such opinions should control or influence the Court or jury, must depend upon the intelligence of the witness as manifested by his examination, and upon his opportunities to ascertain all the circumstances that should properly affect any conclusion reached.” [Id. at 36-87.] The Court then proceeded to consider the testimony of each óf those individuals. One officer testified he had known the accused for 15 years during which time they were in frequent communication with each other; that the accused was a man of eccentric ways; that he would tell how if he had money he would turn it and make millions; that he had many imaginary ideas; that he would frequently “fuss with his wife”; and that sometimes when he met that particular witness he would greet him by his first name and at other times used “Mr.” and his last name.

The Court said it was of the opinion that these facts were “not such as that any rational conclusion as to the mental soundness of the accused c[ould] be deduced from them.” However, it held that the trial court had erred in denying the admission of the testimony of two other officers. The point is illustrated by reference to what the Court said as to one of them: Officer May testified that he had seen much of the defendant since August, 1900, and met him four or ⁴¹² five times a day till he was dismissed from the force, and had frequently noticed his strange and peculiar conversation; that whenever they would, meet, and would enter into any conversation, Watts would leave him and start up the road, and then call to him that he would be back in ten minutes; that when he returned witness would ask him what took him off, and he would reply he just wanted to go up the road; that he could not talk continuously upon any subject; that he held his head down while talking, and sometimes you could see his eyes rolling; and that he had seen him while on duty playing with the children, crawling on his hands and knees, “bending the crab,” and sometimes “sitting down in the sand pile, patting sand and water, the same as the children.” [Id. at 38.] No reversible error was found in Baldwin v. State, 226 Md. 409 , 174 A.2d 57 (1961). In his opinion for the Court there Chief Judge Bruñe mentioned Watts and the rule relative to lay witnesses: The testimony of the two lay witnesses which was not admitted pertained to their respective contacts with and observations of the defendant, one in the afternoon, the other in the evening of the day preceding the shooting. We agree with the defendant’s contention that the testimony of lay witnesses as to their observations of a defendant’s conduct and condition is ordinarily admissible, and if sufficient, that their conclusions based thereon with regard to his sanity are also admissible.

Watts v. State, 99 Md. 30 , 57 A. 542 , a murder case. Cf. Price v. State, 159 Md. 491, 495 , 151 A. 409 [(1930)], also a murder case (testimony by lay witnesses as to facts from which an inference of insanity might be drawn). See, also, among non-criminal cases involving mental capacity: Townshend v. Townshend, 7 Gill 10 ; Doyle v. Rody, 180 Md. 471 , 25 A.2d 457 [(1942)]; Sellers v. Qualls, 206 Md. 58 , ⁴¹³ 110 A.2d 73 [(1954)]; Masius v. Wilson, 213 Md. 259 , 131 A.2d 484 [(1957)]; and West v. Fidelity-Baltimore National Bank, 219 Md. 258 , 147 A.2d 859 [(1959)]. [Id. at 413.] The rule relative to lay testimony as to mental capacity in civil cases was summarized and explained for the Court by Judge Hammond in Masius v. Wilson, 213 Md. 259 , 131 A.2d 484 (1957): The rule is established in Maryland that the statement of a non-expert witness as to the sanity or insanity of one whose appearance and conduct have come under his personal observation is not the expression of mere opinion but actual knowledge of a fact.

Yet the opinion cannot be given unless a proper factual basis has been laid for it. The limitation is well expressed in Doyle v. Rody, 180 Md. 471 , 481: “But a non-expert witness is qualified to express an opinion as to a testator’s mental capacity only where the acts and circumstances, of which the witness had personal knowledge, are sufficient to form a basis for the formation of rational opinion. He must state the facts as far as he can and disclose what led to his conclusion. If the whole testimony of the witness fails to show facts sufficient to justify the conclusion reached by him, he should not be permitted to express an opinion.” The presumption that a person is sane and has remained sane lasts until the contrary is established.

For this reason, evidence tending to show incapacity must relate to the critical date, whereas evidence as to competency may extend further afield, both before and after the critical date. It may be that the principle that underlies this distinction, although not articulated in the cases, has found expression and effect in the decisions as to what is a factual basis for an opinion by a lay witness. The test has been strictly applied in cases where the witness has sought to testify as to incapacity. Johnston v. Schmidt, 158 Md. 555, 566-567 [, 149 A. 283 (1930)]; Plummer v. Livesay, ⁴¹⁴ 185 Md. 450, 456-457 [, 44 A.2d 919 (1945)]; Smith v. Biggs, 171 Md. 528, 534, 535 [, 189 A. 256 (1937)]; Sellers v. Qualls, 206 Md. 58, 67 , [ 110 A.2d 73 (1954)].

In cases where the opinion of the lay witness was that the tranferor was mentally sound, it has been admitted on factual bases seemingly no more extensive and detailed than those found insufficient where the opinion was as to incapacity. See Bowers v. Kutzleb, 149 Md. 308, 317 [, 131 A. 463 (1925)]; Cronin v. Kimble, 156 Md. 489, 499, 500 [, 144 A. 698 (1929)]; Harris v. Hipsley, 122 Md. 418, 434, 435 [, 89 A. 852 (1914)]; Grill v. O’Dell, 113 Md. 625, 633 [, 77 A. 984 (1910)]. [Id at 268.] See also Sachs v. Little, 245 Md. 343, 351 , 226 A.2d 283 (1967); P. Sykes, Contest of Wills in Maryland § 67 (1941); and A. Bagby, Jr., Maryland Law of Executors and Administrators § 20 at 35-36 (2d ed. rev. 1927). Early in its opinion in this case, citing Gregory v. State, 40 Md. App. 297, 328-29 , 391 A.2d 437 (1978), and Bremer v. State, 18 Md. App. 291 , 307 A.2d 503 , cert. denied, 269 Md. 755 (1973), and 415 U.S. 930 (1974), the Court of Special Appeals said, “Although this Court has previously indicated, in dicta, that the opinion of a lay witness on the ultimate question of an accused’s sanity is inadmissible, it has never so held.” Id. 41 Md. App. at 240 . In Gregory , as the Court of Special Appeals there put it, “Defense counsel sought, unsuccessfully, to question the various bank employees who testified for the State about their perception and opinion as to appellant’s rationality at the time of the incident.” Id. at 328 .

The court said: It is clear that lay witnesses are incompetent to render an opinion as to a defendant’s “sanity”. Such an opinion may be rendered only by a “medically trained psychiatrist”, or, since July 1, 1978, by a certified psychologist. See Saul v. State, 6 Md. App. 540 [, 252 A.2d 282 ] (1969), aff’d [on other grounds], 258 Md. 100 [, 265 A.2d 178 (1970)]; Bremer v. State, 18 Md. App. 291, 317, 318 (footnote 9) (1973), ⁴¹⁵ cert. denied 415 U. S. 930 ; Laws of Md., 1978, ch. 481. To the extent that the opinions sought to be elicited from these lay witnesses were intended to bear upon the issue of appellant’s responsibility — i.e., sanity — the witnesses were not competent to give them.

Id. at 328-29. In Bremer a special plea had been entered raising the defense of insanity. He had been ordered delivered to the custody of Clifton T. Perkins State Hospital in order that an examination be there made by the Department of Mental Hygiene for the purpose of determining whether he was insane at the time of the commission of the alleged offenses and whether he was of such mental incapacity as to prevent him from properly conducting his defense. He contended that the trial court erred in not rescinding its order for the mental examination.

The court discussed Bremer’s contention that such a mental examination would infringe upon his right against self-incrimination. It said in the process of that discussion, “The State should not have to rely on examinations made only by experts chosen by Bremer, leaving it with recourse only to cross-examination of them, or to its selected experts whose testimony would be predicated upon courtroom observations and hypothetical questions.” Id. at 317 . It was in this context that a footnote was placed which read: 9. An opinion by a layman on the matter of insanity is inadmissible.

An opinion as to the ultimate fact, whether or not the accused is insane under the appropriate test, “in fairness both to the accused and the State, should be reached by a medical diagnosis. Thus the opinion must be made by a medically trained psychiatrist in order to be admissible in evidence.” Saul v. State, 6 Md. App. 540, 549-550 . [Id. at 317-18.] In Saul v. State, 6 Md. App. 540, 548 , 252 A.2d 282 (1969), it was contended that the trial court had erred in excluding the opinion of a clinical psychologist “that [Saul] was suffering from a mental disease or defect and lacked ⁴¹⁶ substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law." This testimony was not based upon observations of the accused similar to that made in Watts and Masius and commented upon in Baldwin . In short, what was contemplated was an opinion no different from the opinion which would be offered by a psychiatrist after examination of the accused. It was in this context that the statement quoted in the footnote in Bremer was made.

It thus will be seen that Gregory is the only opinion of the Court of Special Appeals cited by it in this case which is factually analogous to the issue now before the Court. It further will be seen that the cases cited in Gregory actually did not address the type of situation with which we are here confronted. The so-called M’Naghten Rule (from Regina v. M’Naghten, 10 Clark & F. 200, 8 Eng. Rep. 718 (1843)) was adopted in an opinion by Chief Judge Alvey for this Court in Spencer v. State, 69 Md. 28, 37 , 13 A. 809 (1888). 1 In 1957 the General Assembly directed the Legislative Council to appoint a committee to study the Maryland laws for the commitment of mentally ill persons.

A number of distinguished Maryland doctors, lawyers, judges, and legislators were appointed and constituted the Committee to Study Commitment Laws. 2 It submitted its report to the Legislative Council in December ⁴¹⁷ 1958. Its recommendation as to the proper test to be applied in criminal cases ultimately was adopted by Chapter 709 of the Acts of 1967, then codified as Code (1957, 1967 Cum. Supp.) Art. 59, § 9 (a), now Code (1957, 1972 Repl. Vol.) Art. 59, § 25 (a), currently saying: (a) 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 disorder, [3] he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.

As used in this section, the terms “mental disorder” do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct. This rule derives from the Model Penal Code of the American Law Institute, § 4.01. 4 ⁴¹⁸ Art. 59 of the Maryland Code, formerly entitled “Lunatics and. Insane,” was repealed and reenacted as the Mental Hygiene Law by Chapter 407 of the Acts of 1970. At that time a definition of “mental disorder” was inserted.

Code (1957, 1972 Repl. Yol.) Art. 59, § 3 now reads in pertinent part: (f) “Mental disorder” means mental illness or any other form of behavioral or emotional illness resulting from any psychiatric or neurological disorder. The term shall not include mental retardation. (g) “Mental illness” means any mental disorder which so substantially impairs the mental or emotional functioning of an individual as to make it necessary or advisable for the welfare of the person so suffering or for the safety of the persons or property of others that the mentally ill person receive care and treatment.

The term shall replace the words “insane,” “insanity,” “lunacy,” “mentally sick,” “mental disease,” “unsound mind” and similar words as they appear in the statutes of the State of Maryland. In its opinion in this case the Court of Special Appeals pointed out that Watts was decided under the M’Naghten Rule. It reasoned ( 41 Md. App. at 246, 247 ) that after the revision of the test for insanity the Court of Special Appeals had expressed itself, as we have heretofore pointed out, on the admissibility of testimony as to the sanity of an accused; ⁴¹⁹ that “[u]nder the rules of statutory construction the Legislature is assumed to have knowledge of and to act in accordance with the decisions of the appellate courts” 5 ; and that the General Assembly, “aware of [the Court of Special Appeals’] decisions indicating that only a physician could testify on the question of sanity, amended article 59” by substituting the words “mental disorder” for the words “mental disease or defect” appearing in the original version of the new Maryland test for insanity and then added the definition of those terms which we have heretofore quoted. The Court of Special Appeals then went on to say: The phrase “mental disease or defect,” the definition of which had provoked disagreement among psychiatrists, was replaced by the term “mental disorder,” a standard which psychiatrists could more readily define and uniformly apply, thereby improving the quality of psychiatric testimony.

The term “mental disorder” was defined as a mental, behavioral or emotional illness and the words “insane and insanity” were equated with the words mental illness, thereby underscoring the medical nature of a determination of sanity. Finally, the term “mental illness” was defined as a disorder which so impairs an individual that it is necessary for him to receive care and treatment in order to protect himself or others, thereby establishing a standard analogous to that used to determine whether a person suffering from a mental disorder may be involuntarily committed. This analogy leads to the conclusion that because involuntary commitment is dependent upon a determination by two physicians that a person has a mental disorder and needs care ⁴²⁰ or treatment for his or others’ safety, a finding on the ultimate question of sanity in a criminal action is also dependent upon a similar determination by a physician. Thus, these amendments establish that the Legislature implicitly agreed with this Court’s conclusion that the question of sanity is a medical question and that an opinion on the ultimate question of an accused’s “mental illness” or its equivalent “sanity” is admissible only if offered by a physician. [Id. at 247-48 (emphasis in original, footnotes omitted).] It then pointed to the enactment of Chapter 481 of the Acts of 1978, now Code (1974, 1979 Cum.

Supp.) § 9-120, Courts and Judicial Proceedings Article,