Young v. State

Orth, J., delivered the opinion of the Court. I An inhabitant of the State of Maryland, as a part of the legacy of the common law of England bequeathed him by the People, 1 is not responsible for his criminal conduct if he was insane at the time he committed the crime. 2 Blackstone in Chapter II of Book the Fourth of his Commentaries on the Laws of England, speaking of persons capable of crimes, asserts at 24, “In criminal cases, therefore, idiots and lunatics are not chargeable for their own acts, if committed when under these in-capacities ; no, not even for treason itself.” 3 The “de ⁵⁴¹ fense of insanity or lunacy on behalf of one charged with a crime, offense or misdemeanor” received statutory recognition in this jurisdiction in 1826. Ch. 197, § 1, Acts 1826. By 1889 the provisions of the statute were considered as having “long been part of the law of the State.” Devilbiss v. Bennett, 70 Md. 554, 556 . “They provide a mode by which lunatics, and insane persons when tried for or charged with a commission of crime shall be humanely dealt with and treated.

They recognize the rule which prevails in all civilized nations that such unfortunate persons ought not to be subject to the same penalties or treatment as are justly meted out to those who are sane.” Ibid. The kind and degree of unsoundness of mind could not be determined as a matter of law before pardons were issued as a matter of course upon a verdict that the accused committed the crime while mad, for prior thereto all depended upon the king’s “grace.” 2 Pollock & Maitland, 484 (2d ed. 1899). When the law began to notice insanity as a defense, Bracton, Chief Justiciary in the middle of the thirteenth century, defined a madman as “one who does not know what he is doing, who lacks in mind and reason and is not far removed from the brutes.” 4 Twenty-five years after Coke quoted Bracton’s definition in Beverley’s Case, he classified non compos mentis into the born idiot, the madman — one who “wholly loseth his memorie and understanding,” and the lunatic —one who has lucid intervals but is non compos mentis during periods when “he hath not understanding.” 2 Co. Litt. 247 a (Rev. ed. 1823) as cited in Perkins, supra, at 851. In any event, it was in 1843 in Daniel M’Naghten’s Case, 10 Clark & Fin. 200, 8 Eng.

Rep. 718 that the law ⁵⁴² as it had been developing for hundreds of years was crystallized. M’Naghten was tried on a charge of murdering one Edward Drummond. Lord Chief Tindal in his charge to the jury said: “The question to be determined is, whether at the time the act in question was committed, the prisoner had or had not use of his understanding, so as to know that he was doing a wrong or wicked act. If the jurors should be of opinion that the prisoner was not sensible, at the time he committed it, that he was violating the laws both of God and man, then he would be entitled to a verdict in his favour: but if, on the contrary, they were of opinion that when he committed the act he was in a sound state of mind, then their verdict must be against him.” The jury returned a verdict of not guilty, on the ground of insanity.

The verdict and the question of the nature and extent of the unsoundness of mind which would excuse the commission of a felony of this sort was made the subject of debate in the House of Lords and it was determined to take the opinion of the Judges on the law governing such cases. Mr. Justice Maulé and Lord Chief Justice Tindal appeared and answered five questions propounded to them. The opinion of the Judges was fully approved by the House of Lords and laid down as the settled law. It was so recognized by our Court of Appeals in 1888 in Spencer v. State, 69 Md. 28 .

Its understanding of the law as settled by M’Naghten was “that notwithstanding a party may do an act, being in itself criminal, under the influence of an insane delusion, with a view of redressing or revenging some supposed grievance, or injury, or of promoting some public good, he is nevertheless punishable, if he had the capacity to distinguish between right and wrong, and knew at the time that he was acting contrary to law. Therefore, if the party accused be conscious that the act was one that he ought not to do, that act being contrary to law, he is ⁵⁴³ punishable under the law.” At 38. The so-called “M’Naghten-Spencer” test of responsibility for criminal conduct came to be expressed as whether the accused had the capacity and reason sufficient to enable him to distinguish between right and wrong and understand the nature and consequences of his acts as applied to himself. Bradford v. State, 234 Md. 505, 510 ; Dubs v. State, 2 Md. App. 524, 534.

The test, although subject to vehement criticism, withstood constant attacks on its constitutionality and propriety. See Leland v. Oregon, 343 U. S. 790 ; Armstead v. State, 227 Md. 73 ; League v. State, 1 Md. App. 681 . Both the Court of Appeals and this Court felt that any modification of the rule was a prerogative of the legislature and not the courts and rejected pleas to modify or abandon it. The legislature responded in 1967.

By ch. 709, Acts 1967, it supplanted the M’NaghtenSpencer test with the American Law Institute test contained in § 4.01 of the Model Penal Code. Codified as Code, Art. 59, § 9 (a) it provided: “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 requirements 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.” The legislature did not define “mental disease or defect,” but it did expressly exclude therefrom “an abnormality manifested only by repeated criminal or otherwise antisocial conduct.” See Avey v. State, 9 Md. App. 227, 240-241 ; Millard v. State, 8 Md. App. 419 ; Greenleaf v. State, 7 Md. App. 575 ; Strawderman v. State, 4 Md. App. 689 . It was careful to spell out the applicability of the new test.

It further enacted by § 2 of ch. 709 “That the pro ⁵⁴⁴ visions of this Act shall be applicable to all cases tried or scheduled for trial on and after the effective date of this Act.” The effective date of the Act was established as 1 June 1967 by § 5. These provisions were a clear legislative expression that the Act apply to cases tried on or after 1 June 1967, and a fortiori, not to cases tried before 1 June 1967. We so stated in League v. State, supra, at 685. In Stokes v. State, 2 Md. App. 385, cert. den., 248 Md. 735 , we refused to depart from our holding in League in the face of the argument that the language of § 2 did not preclude giving retroactive effect to the Act: “that had the Legislature intended non-retro-activity, the word ‘only’ would have been employed,” and that, therefore, the Act should be construed as retroactive.

We observed, at 387: “Such a construction, in our opinion, is strained, sophistic, and one not intended by the Legislature.” We again affirmed our position in McCracken v. State, 2 Md. App. 716, 718. The new test of responsibility for criminal conduct was in effect for three years. Then in 1970, with none of the fanfare which surrounded the abolition of the venerable common law test, the legislature changed the new test. It came about by the repeal “in its entirety” of Code, Art. 59, title, “Lunatics and Insane”, and the enactment to stand in its place of a new Art. 59 under the new title “Mental Hygiene.” Acts 1970, ch. 407, § 2.

The test for responsibility for criminal conduct was set out in § 25 (a) of the new Article. The test was the same as the 1967 test with one exception; the terms “mental disease or defect” were replaced by the term “mental disorder.” This exception was of the utmost significance, however, in the light of other provisions of the new Act. Section 3 (f) defined “mental disorder” to mean “mental illness or mental retardation or any other form of - behavioral or emotional illness resulting from any psychiatric or neurological disorder.” Section 3 (g) defined “mental illness” to mean “any mental disorder, other than mental retardation, which so substantially impairs the mental or emotional functioning of an individual as to make it ⁵⁴⁵ 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.” It provided further: “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 but does not include mental retardation.” Section 3 (h) defined “mental retardation” to mean “a degree of subnormality of intellectual development expected to be of life duration which reduces the individual’s capability to manage himself or his affairs.” It provided further: “The term shall replace the terms ‘defective,’ ‘mental defective,’ ‘idiot,’ ‘feebleminded’ and ‘moron’ as they may appear in the statutes of the State of Maryland.” We see nothing in § 25 (a) to indicate that the term “mental disorder” was clearly intended to have a different meaning than as defined in § 3. 5 The test of responsibility for criminal conduct as enunciated in Art. 59, § 25 (a) is: “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, 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.” Applying the meaning of “mental disorder” and the meanings of the terms used in defining its meaning as set out in § 3, the test reads: A defendant is not responsible for criminal ⁵⁴⁶ conduct and shall be found insane at the time of the commission of the alleged crime, if at the time of such conduct he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law, because of: (1) any mental disorder which so substantially impaired his mental or emotional functioning as to make it necessary or advisable for his welfare or for the safety of the persons or property of others that he receive care and treatment; OR (2) a degree of subnormality of intellectual development expected to be of life duration which reduced his capability to manage himself or his affairs; OR (3) any other form of behavioral or emotional illness, which, as to any of the three, were the result of any psychiatric or neurological disorder other than an abnormality manifested only by repeated criminal or otherwise antisocial conduct.

We summarized the procedure in applying the test in Sherrill v. State, 14 Md. App. 146 , after finding it clear that the change in the criminal responsibility test was intended by the legislature to be one of substance and not merely one of form: 6 “Thus, under the Section 25 ⁵⁴⁷ (a) test of criminal responsibility, recognizing that an abnormality manifested only by repeated criminal or antisocial conduct cannot qualify as a ‘mental disorder,’ psychiatrists would first be asked the threshold question — whether the accused, at the time of the crime, had a mental disorder, i.e., a ‘mental illness or mental retardation or any other form of behavioral or emotional illness’ ; if so, is it the result of ‘any psychiatric or neurological disorder’, and, if so, did it cause the accused to lack substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.” Unlike ch. 709, Acts 1967, replacing the M’NaghtenSpencer test with the “mental disease or defect” test, ch. 407, Acts 1970, contained no express provision with regard to the application of the Act within the frame of reference of cases. Section 4 of the Act merely prescribed “That this Act shall take effect on July 1, 1970.” The Act was approved 28 April 1970. It was inevitable that questions arise as to the application of the Act, spurred by the variety of degrees of retroactivity enunciated from time to time by the Supreme Court of the United States with respect to the application of principles and rules of law announced in its judicial opinions in criminal causes. See State v. Campbell & Reeves, 7 Md. App. 538, 542-549 (concurring ⁵⁴⁸ opinion).

Defendants interposing the defense of insanity will, for obvious reasons, be anxious to have the issue determined under the “mental disorder” test and when the crime alleged was committed before 1 July 1970 will not only urge a retroactive application of the new test but will seek to apply that particular degree of retro-activity most favorable to them. We had the first of such cases before us in Sherrill v. State, supra; we have the second before us now. Sherrill was indicted on 2 June 1970 for a crime committed on 26 September 1969. He pleaded insanity on 19 June 1970 and was referred for evaluation on 26 June.

The report of the Perkins State Hospital was filed on 27 August. The medical staff found that he was responsible for his criminal conduct under the “mental disease or defect” test. Sherrill’s trial began on 27 October 1970 before three judges. Two of them found he was sane and one thought that he was insane.

Each made his finding under the “mental disease or defect” test. We found this to be error. We pointed out that “[n]o savings clause was included in Chapter 407 extending the 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 to make it applicable in the post July 1, 1970 trial of cases which involved criminal conduct perpetrated prior to that date.” We otherwise found nothing in the provisions of ch. 407 even remotely indicating a legislative intention to carry over the “mental disease or defect” standard to govern the merits of insanity pleas asserted at trials commencing after 1 July 1970. 7 And we did not believe that the general sav ⁵⁴⁹ ings statute, Code, Art. 1, § 3 would make § 25 (a) apply to cases tried after 1 July 1970. 8 In the case here reviewed, WAYNE STEPHEN YOUNG was indicted on 3 October 1969 for crimes committed on 29 September 1969. He pleaded insanity on 8 October.

The resulting examinations of him with regard to his responsibility were clearly under the "mental disease or defect” standard. The indictment charging that he “feloniously, wilfully and of deliberate and premeditated malice aforethought, did kill and murder one Esther Lebowitz” came on for trial on 29 April 1970 before a jury in the Criminal Court of Baltimore under the special plea of insanity and the general plea of not guilty. 9 ⁵⁵⁰ The issue of Young’s sanity vel non was submitted to the jury, see Strawderman v. State, 4 Md. App. 689 , framed as follows: “At the time of the alleged crime on September 29, 1969, did the defendant, Wayne Stephen Young, as a result of mental disease or defect, lack substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law?” The verdicts of the jury were rendered on 5 May 1970. The jury found him responsible for his criminal conduct at the time of the commission of the murder (they answered “No” to the issue as framed), and guilty of murder in the first degree. Sentence was deferred pending the filing of a motion for a new trial.

The motion was timely filed, heard on 12 November and denied. Thereupon, on that date, the judge imposed sentence: “I commit Wayne Stephen Young to the jurisdiction of the Department of Correctional Services for the balance of his natural life, beginning from the date of arrest * * * October 2, 1969.” In the case before us, as in Sherrill's case, the crime was committed, the accused was indicted, and the evaluation of his sanity was ordered before 1 July 1970, the effective date of ch. 407, Acts 1970. The difference between the two cases, in this context, is that the guilt stage of Young’s trial began and concluded prior to 1 July 1970 while Sherrill’s trial did not begin until after that date. As to Sherrill there was no question but that the mental disorder test was in effect at the time of his trial; as to Young, there was no question but that the mental disease or defect test was in effect at the time of his trial.

In Sherrill the question was whether the legislature intended the former mental disease or defect test to apply when the crime involved was committed prior to 1 July 1970 regardless of when the trial for that crime was had. As pointed out above, we concluded that such was not its intention. We found the intent to be, ⁵⁵¹ and so held, that the ’new mental disorder test was applicable in all cases in which the trial commenced on or after 1 July 1970. Thus, with respect to the applicability of the mental disorder test, we have adopted a standard comparable to that established by Johnson v. New Jersey, 384 U. S. 719 , for the application of the requirements of Miranda v. Arizona, 384 U. S. 436 , to statements obtained within Miranda’s contemplations.

See Boone v. State, 3 Md. App. 11, 31-36 . The Miranda exclusionary rules apply only to cases begun after the date of the Miranda decision; the mental disorder test of ch. 407, Acts 1970, applies only to cases begun after the effective date of the statute. In every case which has come before us presenting a question of the admissibility of a statement obtained within Miranda’s contemplation we have held, following the lead of the Court of Appeals in Westfall v. State, 243 Md. 413, 420 , that the Miranda principles do not apply when the trial of the case began before the date of the Miranda decision. See, for example, Crumb v. State, 1 Md. App. 98 ; Sherrod v. State, 1 Md. App. 433 .

Young does not quarrel with the rule that generally the mental disorder test does not apply to trials beginning before the effective date of the Act enunciating it. But, he argues, with regard to appellate review, the new test should apply to cases still alive on appeal on 1 July 1970, a point not presented on the facts of Sherrill . What he urges is that with respect to the mental disorder test of responsibility for criminal conduct, its application should follow the standard adopted by the Court of Appeals as to the legal principle enunciated in Schowgurow v. State, 240 Md. 121 . 10 We have not so applied the ex- ⁵⁵² elusionary rule of Miranda . We have consistently held it to be immaterial that the case was not finally decided because an appeal was in fact pending or because it was still within the possibility of appeal.

See Robinson v. Warden, 5 Md. App. 68 . We took the same view with respect to the application of the mental disease or defect test. We said flatly in League v. State, supra, at 685, on citation of Johnson v. New Jersey, supra, and Westfall v. State, supra: “Moreover, we do not find that the administration of justice requires that the concept be given retroactivity to cases pending on direct appeal where the trial thereof took place prior to June 1, 1967 [the effective date of the Act prescribing the mental disease or defect test].” We followed this finding in deciding Stokes v. State, supra, and McCracken v. State, supra, refusing to apply the mental disease or defect test retroactively to trials begun prior to its effective date even though each case was pending on direct appeal on such date. Young, intimating that we were wrong in League , exhorts us to depart from its finding with respect to the new mental disorder test.

He points out that we observed that the facts in League would have compelled a finding that he was sane and responsible for his acts no matter whether the new or old test was applied. 1 Md. App. at 686. Although we cited Johnson v. New Jersey, supra, and Westfall v. State, supra, in League , we do not believe that the same considerations are involved in determining the retroactivity vel non of a judicially formulated principle or rule of law as are involved in determining the retroactivity vel non of a legislative enactment. As to the former, the criteria guiding resolution of the retro-activity or non-retroactivity (and if retroactive, the degree thereof) of decisions expounding new constitutional rules affecting criminal trials implicate the purpose to be served by the new standards, the extent of the reliance by law enforcement authorities on the old standards, and the effect on the administration of justice of a retroactive application of the new standards. Desist v. United States, ⁵⁵³ 89 S. Ct. 1030 ; Stovall v. Denno, 388 U. S. 293 ; Scott v. State, 7 Md. App. 505 .

And the question is properly to be resolved by the courts. But as to statutes, it is the intent of the legislature in enacting the law which controls. We made this clear in McCracken v. State, supra, at 718, in applying the League holding. So the question with respect to statutes is actually resolved by the Legislature, and the courts’ function goes only to a determination, when such is necessary, of the legislative intent.

See Limitation of New Judge — Made Law to Prospective Effect Only; “Prospective Overruling” or “Sunbursting”, by Thomas E. Fairchild, 51 Marquette Law Review 254-270 (1967-1968) ; The Control of “Sunbursts”: Techniques of Prospective Overruling, by Walter E. Schaefer, 42 New York University Law Review 631-646 (1967). Young relies primarily for support of his position that his responsibility should be judged under the mental disorder test, on what he alleges is Maryland’s recognition that under its common law an appellate court applies the law in effect at the time of its decision even though the law was different at the time of the trial below. Bell v. State, 236 Md. 356 , bespoke of the rule, but in terms of the repeal of a criminal offense, directly or by implication. The Court said, at 363: “It is clear that the common law of Maryland is that the repeal of a statute creating a criminal offense, after conviction under the statute but before final judgment, including the final judgment of the highest court empowered to review the conviction, requires reversal of the judgment, because the decision must accord with the law as it is at the time of final judgment * * *; and the general rule would seem to be the same * * (citations omitted) It was this rule which apparently prompted the enactment of savings clauses which now comprise the substance of Code, Art. 1, § 3. 11 That section provides that ⁵⁵⁴ in the absence of an express provision to the contrary, no penalty, forfeiture or liability, either civil or criminal, shall be released, extinguished, altered, modified or changed, in whole or in part, by the repeal of any statute.

We think, as we stated in Sherrill , see note 8 supra, that a “penalty, forfeiture, or liability” within the contemplation of the statute was “something in the nature of a criminal or civil sanction actually incurred by reason of the statute’s operative provisions.” We felt that the defense of insanity in criminal cases was not a “penalty, forfeiture, or liability, actually incurred, within the meaning of Section 3 or the Maryland cases construing that statute.” For reasons like those leading to the conclusion that the statute preventing the application of the common law rule does not encompass the defense of insanity in criminal cases, we believe that the rule itself as articulated in Bell does not encompass the defense of insanity in criminal cases. There was no criminal offense created by ch. 709, Acts 1967, which was repealed by ch. 407, Acts 1970. Bell v. Maryland, 378 U. S. 226 , does not lead to a different conclusion. Bell v. State, 236 Md. 356 , above discussed, rendered on remand from the Supreme Court Bell, was aso decided, of course, in the context of the repeal of a criminal offense, as were the cases relied on therein, namely Smith v. State, 45 Md. 49 , Beard v. State, 74 Md. 130 , State v. Gambrill, 115 Md. 506 , and State v. Clifton, 177 Md. 572 .

Nor do we find that the other cases cited by Young support his position that his responsibility must be determined by the test now in effect rather than by the test in effect at the time of his trial. They recite the general proposition that “an appellate court is bound to decide a case according to existing laws, even though a judgment rightful when rendered by the court below should be reversed as a consequence.” Woman’s Club v. State Tax Comm., 195 Md. ⁵⁵⁵ 16, 19. Or, put another way, “a change in the law after a decision below and before final decision by the appellate court will be applied by that court unless vested or accrued substantial rights would be disturbed or unless the legislature shows a contrary intent.” Yorkdale v. Powell, 237 Md. 121, 124 . But the proposition has never been applied as Young suggests it now be applied.

We do not find the cases he cites to be apposite in fact or in their rationale in applying the rule. 12 As set out herein, ⁵⁵⁶ when the legislature supplanted the M’Naghten-Spencer test with the mental disease or defect test, the judicial construction of the intent was that the new test did not apply to cases the trial of which began before the effective date of the Act whether or not they had been finally decided. That construction was enunciated almost three years before the legislature replaced the mental disease or defect test with the mental disorder test and in those three years has been affirmed and followed. We cannot say that the legislature was unaware of it when ch. 407 was enacted. Even if § 25 (a) were otherwise subject to the general rule as urged by Young we do not believe that the legislature intended that rule to apply.

We think ⁵⁵⁷ it intended the mental disorder test to be applied in the same manner as the mental disease or defect test had been applied. We think that by merely designating the effective date of ch. 407 without further qualification the legislature intended that persons whose trial on a criminal charge began before that date be responsible vel non for their criminal conduct under the mental disease or defect test and that the test being the proper one to be applied below, it was the proper one to be applied on appeal. In so concluding we observe that there is no constitutional provision either requiring or prohibiting retro-activity in this regard. Hammer v. State, 3 Md. App. 96 .

II Young questions the sufficiency of the evidence to sustain his conviction. The question is before us on the denial of a motion for judgment of acquittal made at the close of all the evidence. Rule 755 b; Williams v. State, 5 Md. App. 450 . As presented and argued the contention is limited; it goes only to Young’s criminal agency and not to the corpus delicti, and, in claiming that the evidence was not sufficient to establish that he was the murderer Young relies on the “circumstantial evidence rule” as set out in Vincent v. State, 220 Md. 232 .

It appears, and we so gathered from oral argument, that Young concedes that under the usual test as set out in Williams v. State, supra, the evidence was properly submitted to the jury. But he maintains that the evidence as to his criminal agency was solely circumstantial and therefore “the circumstances, taken together, must be inconsistent with, or such as to exclude every reasonable hypothesis or theory of innocence.” He urges that the evidence did not meet this stricter test and mentions “a few of the theories of innocence which might reasonably flow from the circumstances adduced,” asserting “and many more plausible than these would be quite evident” if the facts were reviewed under a burden imposed on the State that “the circumstances were so strong that they exclude any reasonable chance of defendant’s in ⁵⁵⁸ nocence.” We discussed the so-called circumstantial evidence rule at length in Nichols v. State, 5 Md. App. 340 , indicating that perhaps it did not mean precisely what it appeared to say. In Metz v. State, 9 Md. App. 15 , 23 we said flatly that “* * * the test for sufficiency is the same whether the evidence be direct, circumstantial, or provided by rational inferences therefrom.” In Streat v. State, 11 Md. App. 543 , 547 we noted that in applying the sufficiency of the evidence rule as set out in Williams “no distinction is made between a case where there is direct evidence of guilt and a case where the evidence is circumstantial.” And in Graham v. State, j.3 Md. 171, 178 we observed that the statement that for evidence solely circumstantial to be sufficient to convict, the circumstances, taken together, must be inconsistent with, or such as to exclude every reasonable hypothesis or theory of innocence, does not accurately reflect the law, pointing to Metz and Streat . So even if the evidence as to Young’s criminal agency were solely circumstantial, and we do not think it was, we find on our review of the transcript of the trial that the evidence adduced was sufficient in law, for it either showed directly or supported a rational inference of the facts to be proved, from which the jury could be properly convinced, beyond a reasonable doubt, of Young’s guilt of the offense charged.

We note that psychiatrists who testified on behalf of Young recounted what were admissions by Young of his criminal agency. For example, Dr. William N. Fitzpatrick, called by the defense, in discussing Young’s responsibility for his