Bryant v. State

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Michael Jerome Bryant v. State of Maryland No. 102, September Term, 2005 Headnote: A criminal defendant s status as an inmate does not deprive him or her of the statutory privilege for communications related to a mental or emotional disorder. The privilege, howev er, does no t extend to c ommu nications to a nurse con ducting an intake screening at a county dete ntion facility for th e purpose of preve nt[ing] newly arrived inmates who pose a threat to their own or others health or safety to be admitted to the facility s g eneral p opulatio n. Although a defend ant does n ot have to w aive his right o f self-incrimination as a condition precedent to the introduction of expert testimony rebutting or explaining evidence that the State relies upon to establish the mens rea element of the offense charged, there must be a proper factua l found ation su pportin g the ex pert testim ony prof fered. Circuit Co urt for Mo ntgomery C ounty Case # 96381 & 97628 IN THE COURT OF APPEALS OF MARYLAND No. 102 September Term, 2005 Michael Jerome Bryant v. State of Maryland Bell, C. J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Cathell, J. Filed: June 5, 2006 Michael Jerome Bryant, petitioner, was convicted by a jury in the Circuit Court for Montgom ery County on May 23, 2003, of one count of first degree murder under the theories of premeditated murder and felony murder and one count of first degree burglary, which served as the basis for the felony murder conviction. He was subsequently sentenced to life without the possibility of parole for the first degree murder conviction and a concurrent twenty-year term for the b urglary co nviction . Petitioner timely filed an appeal with the C ourt of Special Appeals and that court affirm ed the c onvictio ns. Bryant v. S tate, 163 Md. App. 451, 881 A.2d 669 (2005). Petitioner filed a p etition fo r writ of certiora ri on N ovem ber 15, 2 005. We gran ted certiorari on De cemb er 19, 20 05. Bryant v. S tate, 390 Md. 284, 888 A.2d 341 (2005). Petitioner presents two questions for our review: 1. Whethe r a criminal d efendan t s status as an in mate dep rives him of the statutory privilege for communications related to his mental or emotional disorder to a nurse co nducting a mental he alth assessme nt for diagn ostic and treat men t purpose s at a county de tenti on facility? 2. Whether a criminal defendant must waive his constitutional right against self-incrimination as a condition precedent to the introdu ction of expert testimony rebutting or e xplaining e vidence th at the state relies u pon to establish the mens rea element of the offense charged? We shall not address the first question as it is written because it makes an assumption not supporte d by the record. Instead, for the reasons tha t follow, we hold tha t petitioner s statements during the intake process are not privileged. We further hold th at the trial court did not abuse its discretion in prohibiting petitioner s expert witness from testifying. I. Facts The Court of Special Appeals provided a summary of the facts that led to the present appeal from which we present the following: On July 20, 2002, [petitioner] s ex-wife , Donna Martin, w as fatally stabbed at her townho use located on Me rust Lane in Gaithersb urg. The v ictim sustained numerous stab and cutting wounds, and was pronounced dead soon after she w as transporte d to the hos pital. ... The State presented evidence that [petitioner] had threatened Ms. Martin a year before she was killed. Specifically, at a court proc eeding he ld on April 9, 2001, Ms. Martin was speaking to a judge in the presence of [petitioner]. [1] A tape of [petitioner] s comments was admitted in evidence, and showed that he made threatening comments to Ms. Martin at that time.[2] In addition, Cynthia Sargeant, a registered nurse, came into contact with [petitioner] on April 9, 2001, during an intake medical screening at the Montgom ery County D etention C enter. Sarge ant testified: [petitioner] indicated that he had a d efinite plan to kill her. He indicated that he enjoyed seeing her blood. H e indicated th at he was obsessed with killing her and that she messed with him. Sargeant added that [petitioner] also stated that the [t]hou ght of k illing he r won t go aw ay. ... Several witnesses from the victim s neighborhood testified that they saw a man, not specifically identified as [petitioner], near the victim s home on July 20, 2002. For example, Mary Freckleton testified that on July 20, 2002, between 9:00 a.m. and 10:00 a.m., she was visiting her sister, who lived in an apartment on Merust Lane in Gaithersburg, when she looked out the window and noticed a man walking back and forth. Freckleton, who visited her sister nearly every day, did not recognize the individual as someone who lived in the ne ighbor hood. L ater, betw een 12 :00 p.m . and 1:00 p.m ., Freckleton again saw the man. Thereafter, between 3:30 p.m. and 4:00 p.m., 1 The prior proceeding was a bond review hearing stemming from the alleged prior stabbin g of M s. Mar tin by petitio ner. 2 The tape was not transcribed in the record. Bryant, 163 Md. App. at 456 n.1, 881 A.2d at 672 n.1. -2- Freckleton saw the man sitting on the side of the embankment looking down at the apartments[.] When asked to describe the man, Freckleton responded: He was brown skin, short hair. I remember his lips was full. I say he was maybe six, five feet, something and he weighed about 200 and some pound s. He had real short close short close hair. His hair was cut real close. He was brown skin. . . . *** When I seen him the first time, he had a tee-shirt on. It wasn t it was not white. If it was white, it was dirty. It was dirty, dirty. It wasn t white. He had . . . I don t if it was jeans. I can t re call if it w as blue jeans o r black je ans. ... Stanley Bradley testified that, at 5:00 p.m. on the date in question, he was working w ith Joseph Ham mond, a friend, on H ammond s c ar, which was parked on Merust Lane. At that time, he noticed a woman with a baby in her arms and a little boy walking toward the door to a townhouse. When the woman was at the door, Bradley heard a bang followed by the woman hollerin g. Upon looking toward the house, Bradley saw the arm of an African-American male grab the woman by the hair and he also vaguely saw a knife. The woman yelled: Somebody help me. He is going to kill me . He saw a man drag the woman , who was still holding the baby, into the house, leaving the boy outside. Bradley also heard yelling coming from inside the house. A woman went to the door and took the child, who had been left outside. The police were called and, when they arrived approximately five minutes later, Bradley related what had occurred. ... Ms. Martin sustained multiple stab and cutting wounds. She was flown to Suburban Hospital, where she was pronounced dead. An autopsy performed by Dr. Zabiullah Ali revealed that Ms. Martin received eight stab wounds and nine cutting wounds. Two of the stab wound s injured Ms. Martin s le ft lung and one of the m injured h er heart. ... On the morning of July 24, 2002, [petitioner] was arrested in an apartment on North Summ it Drive in G aithersburg . The police found h im sitting in a bedroom closet behind a closed door. A wristwatch that appeared to have drie d blood o n it was reco vered from [petitioner] s w rist. -3- ... In the defense case, counsel read the following statement to the ju ry: On Feb ruary 14th of 2002, the defendant made the following statement to a physician, quote: I don t have the urge to kill any more like before. [Petitio ner] did not testif y. Bryant, 163 Md. A pp. at 455-62, 881 A .2d at 672-76 (som e footnotes omitted). II. Standard of Review The first question presented for our review requires our interpretation of Maryland Code (1973, 2002 R epl. Vol.), § 9-109(a)(3) of the C ourts & Judicial Proce edings Article ( C.J. ), which states: Patient means a person who communicates or receives services regarding the diagnosis or treatment of h is mental or emotional disorder from a psychiatrist, licensed psychologist, o r any other pers on participa ting directly or vitally with either in rendering those services in consultation with or under direct su pervisio n of a p sychiatrist o r psycho logist. 3 We have often stated that the cardinal rule of statutory interpretation is to ascertain and effectuate the intention of the legislature. Melto n v. State, 379 Md. 4 71, 476, 842 A.2d 743, 746 (2004) (quoting Holbroo k v. State, 364 Md. 354, 364, 772 A.2d 1240, 1245-46 (2001)). The first step in our analysis is to examin e the plain language of the statute. Grandison v. State, 390 Md. 412, 445, 889 A.2d 366, 385 (2005). We will not look beyond the plain mea ning of the statute when the wo rds use d are un ambig uous. Grandison, 390 Md. at 445, 889 A.2d at 38 5; Deville v. Sta te, 383 M d. 217, 858 A.2d 48 4 (2004); Melton, 379 3 It is unclear whether the word either in the statute refers to diagnosis or treatment or wheth er it refers to a psychiatrist [or] lice nsed psycho logist. Our a nalysis and holding are the same under both interpretations. -4- Md. at 477, 842 A.2d at 746. When the statute provides definitions of a particular term, we use the statutory definition in determining the scope of the specifi c word s used. Gilmer v . State, 389 Md. 656, 667, 887 A.2d 549, 556 (2005). Fu rthermore, e ach wo rd of the statu te must be re ad so as to not render it surplu sage, su perfluo us, mea ningles s, or nug atory. Gilmer, 389 Md. at 663, 887 A.2d at 553; Lawson v. State, 389 Md. 57 0, 583, 886 A.2d 876, 883 (2005 ); Moore v. State, 388 Md. 446, 453, 879 A.2d 1111, 1115 (2005). The Court has also stated that privilege statutes a re interp reted na rrowly. E.I. du Pont de Nemours & Co. v. Forma-Pack, Inc., 351 Md. 396, 406, 718 A.2d 1129, 1134 (1998) ( The attorney-client privilege as applied in judicial pro ceedings is narrowly co nstrued . . . . ); Sears, R oebuc k & Co. v. Gussin, 350 Md. 55 2, 562, 714 A.2d 188, 192 (1998 ) (stating that the statutorily created accountant-client privilege is narrowly construed because it is in derogation of the common law). 4 The second question presented for our review requires the C ourt to determine whether the tr ial co urt abuse d its d iscre tion in ex clud ing p etitio ner s exp ert w itnes s test imony. We have often stated that the admissibility of expert testimony is a matter largely within the 4 Petitioner argues that the psychiatris t/psychologist-p atient privilege is analogou s to the attorney-client privilege and that the statements made to the nurse sho uld be equ ated to those made to a paralegal during an intake interview of a potential client for a lawyer. The statutory language governing attorney-client privilege, codified unde r C.J. § 9-108, how ever, is completely different than that of C.J. § 9-109. While C.J. § 9-108 codifies the common law attorney-client privilege, C.J. § 9-109 is an entirely statutory construct. As a result, C.J. § 9-109 s interpretation must be restricted to the statutory language used in that section. -5- discretion of the trial court, and its action in admitting o r excluding such testimo ny will seldom constitute a ground for reversal. Clemo ns v. State, ___ Md. ___, ___ A.2d___ (Slip. Op. at 18, No. 70 , Sept. Term, 2005, filed A pril 19, 2006); Wilson v. Sta te, 370 Md. 191, 200, 803 A.2d 1034, 1039 (2002) (quoting Oken v. S tate, 327 Md. 628, 659, 612 A.2d 258, 273 (1992)); Hartless v. S tate, 327 Md. 558, 576, 611 A.2d 581, 590 (1992); Johnson v. State, 303 Md. 48 7, 515, 495 A.2d 1, 15 (1985), cert. denied, 474 U.S . 1093, 106 S.Ct. 868, 88 L.Ed.2d 90 7 (1986); Stebbing v . State, 299 M d. 331, 3 50, 473 A.2d 9 03, 912 , cert. denied, 469 U .S. 900 , 105 S . Ct. 276, 83 L. Ed. 2d 212 (1 984); but see Ke lly v. State, ___ Md.___, ___ A.2d___ (No. 49, September Term, 2005, filed May 8, 2006) (stating that the trial court has lim ited discretion in excludin g all testimon y from all factual witnesses of a particular party); Redditt v. Sta te, 337 Md. 621, 655 A.2d 39 0 (1995) (same); Void v. Sta te, 325 Md. 386, 601 A.2d 124 (19 92) (same); McC ray v. State, 305 Md. 126, 501 A.2d 856 (1985) (same). We have further held that [i]n exercising the wide discretion vested in the trial courts concerning the admissibility of expert testimony, a critical test is whether the expert s opinion will aid the trier of fact. Rollins v. Sta te, ___ M d. ___, ___ A.2d__ _ (Slip op at 50, No. 19, Sept. Term, 2005, filed May 5, 2006) (quoting I. W. Berman Properties v. Porter Bros. Inc., 276 Md. 1, 12-14, 344 A.2d 65, 73-74 (1975)). We must, therefore, also determine whether the trial court abused its discretion in excluding the pe titioner s expert witn ess te stimony. -6- III. Discussion A. The Psychotherapist/Psychologist-Patient Privilege While not specif ically privileged under the common law, communications between a patient and his or her psychotherapist or psychologist are now statutorily privileged. The privilege was created by the legislature and is codified in C.J. § 9-109, which states: Unless otherw ise prov ided, in all judicial, legislative, or administrative proceedings, a patient or the patient s authorized representative has a privilege to refuse to disclose, and to prevent a witness from disclosing: (1) Communications relating to diagnosis or treatment of the patient; or (2) Any information that by its nature would show the existence of a med ical reco rd of th e diagn osis or tre atmen t. C.J. § 9-109(b) (emp hasis added). Petitioner contends that he is a patient as contem plated und er the afore said subsection (a)(3), which states: Patient means a person who communicates or receives services regarding the diagnosis or treatment of his mental or emotional disorder from a psychiatrist, licensed psychologist, or any other pe rson participa ting directly or vitally with either in rendering those services in consultation with or under direct su pervisio n of a p sychiatrist o r psycho logist. C.J. § 9-109(a)(3). In petitioner s view, the communications made to Ms. Sargeant as a part of the intake medical screening at the time of the prior proceeding on April 9, 2001, were made for diagnosis or treatment and nurse Sargeant qualified as a ny other person participating directly or vitally in petitioner s dia gnosis or treatment. As a consequence of what he deems his status as a patient at the prior intake screening, petitioner argues that -7- his comments to the nurse at that time were privileged and that the court erred in allowing the State to elicit those statements during the su bsequent trial for the present offenses for which he was convicted. Petitioner s initial argument is not based upon a reading of C.J. § 9-109, but upon a general overview of Maryland s public policy of providing mental healthcare serv ices to inmates. Petitioner points to the thousands of inmates and parolees who are in need of mental healthcare. He contends that as a result of such a great number of people in need of attention, the State ha s adopted a policy of pro viding me ntal healthcare services for all inmates who ne ed it. This po licy, petitioner posits, h ad its origin in the case of Estelle v. Gamb le, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); where the Supreme Court of the United States held that the governmen t has an obligation to prov ide medical care for those whom it is punishing by incarceration. Id. at 103, 97 S.Ct. at 290, 50 L.Ed.2d 251. Furthermore, the United States Co urt of Ap peals for the Fourth Circuit has held that the medical treatment to which inmates are entitled includes mental healthcare services. Bowrin g v. God win, 551 F.2d 44, 47 (19 77). Based upon th e public policy he proffe rs exists, p etitioner reasons that the communications between an inmate and any nurse or other person interviewing a potential inmate as to he alth con ditions, d uring a ll intake s creenin gs mus t be priv ileged. He alleges support exists in Maryland Code (1999), § 11-203 of the Corre ctional Serv ices Article ( C.S. ), which requires local correctional facilities to provide for the safety, health, and -8- welfare of inmates. The statute requires the local fac ility to provide (i) food and board, and (ii) any article of comfort that is considered necessary for a sick inmate by the physician attending the inmate. C.S. § 11-2 03(a). Petitioner also points to CO MAR 12.14.04.02(15), which requires local facility ma nagers to hav e a writte n policy that inclu des, inter alia, the identification, housin g, treatm ent, sup ervision , and ref erral of a men tally ill inma te. Fina lly, petitioner states that Montgomery County Code Part 2 § 13-9, which requires the correctional facility to provide a medical examination and access to daily medical o r sick call facilities, brings the in take screening within the scope of C.J. § 9-109. The State does not dispute that public policy requires correctional facilities to provide mental healthcare services to inmates. It argues, however, that the intake screening process is not part of the mental health treatment provided by these institutions. We first turn to the meaning of the wo rd patient in C.J. § 9-10 9. The statu te itself provides the definition of patient and, therefore, as we stated earlier, we need not go beyond that lang uage in order to determ ine petitio ner s sta tus. Gilmer, 389 Md. at 667, 887 A.2d at 556. Section 9-109(a)(3), provides the definition of patient as stated supra, and for the purpose of this case, it can be reduced to two specific requirements: First, there must be a communication regarding the diagnosis or treatment of the person s mental or emotional disorder; second, the communication must be with a psychiatrist, licensed psychologist or any other person participating directly or vitally with either in rendering those services in consultation with or under direct supervision of a psychiatrist or psychologist. (Emphasis added.) Our inquiry focuses on the purpose of the communication: Is the exchange between the -9- inmate and the screener regarding diagnosis or treatment? In order to answer this question we look to the purpose of the intake screening. Petitioner argues that the intake screening is an integral part of the inmate s treatment. He relies on the National Commission on Correctional Health Care ( NCCHC ) Standards for Health in Jails (2003).5 Montgomery County follows the NCCHC standards. Both petitioner and the State rely on these standards in support of their respective positions. One of the requirements for NCCHC accreditation, which Montgomery County Correctional Facilities has achieved, is that the institution must provide mental healthcare services for all inmates who require them. NCCHC standard J-G-04. NCCHC has also provided guidance on what is required for providing mental healthcare services to inmates. In 1992, it issued a Position Statement, Mental Health Services in Correctional Settings. The statement provided that based upon the decision in Ruiz v. Estelle, 503 F.Supp. 1265, 1339 (S.D. Tex. 1980), rev d in part, 679 F.2d 1115 (5th Cir. 1982), cert. denied, 460 U.S. 1042, 103 S.Ct. 1438, 75 L. Ed. 2d 795 (1983), the minimum requirements for mental health services in correctional settings must include: ¢ screening and evaluation to identify those needing mental health care; ¢ a treatment plan for identified problems; ¢ qualified mental health staff sufficient to treat the population; ¢ a health records system; ¢ a suicide prevention and treatment program; and, ¢ the appropriate use of behavior-altering medications. The position letter further provided a standard for mental health evaluations that is very similar to 5 NCCHC is a non-profit organization created as a result of an American Medical Association s study of jails. http://www.ncchc.org/about/index.html (last visited May 15, 2006). The organization develops standards for healthcare in correctional facilities. It also provides accreditation for the institutions that meet its requirements. -10- Mongomery County Code Part 2 § 13-9. It requires an inmate examination within fourteen days of admission for evaluation of that inmate s mental healthcare needs. Petitioner asserts that NCCHC standard J-H-02 req uires that hea lth records an d informa tion must b e kept in confidence and that staff must be trained to maintain the confidentiality of inmates records and information. Furthermore, petitioner contends, NCCHC standard J-A-09 requires that all clinical encounters be conducted in private and must enco urage the in mate to participate in subsequ ent healthca re services. In petitioner s vie w, the entire process, including the intake screening, is for the purpose of providing mental healthcare s ervices to the inmate and that any communication relating to that process is for the diagnosis or treatment of the inmate. Hence, he asserts, it must be privileged. The State also relies on the NCCHC standards, but it gives them a narrower reading. It points to NCCHC J-E-02 entitled RECE IVING SCR EENING , which provides: Standard Receiving screening is performed on all inmates immediately upon arrival at the in take faci lity. Compliance Indicators ... 2. Qualified health care professionals or health-trained personnel perform the receiving screening. 3. The receiving screening takes place immed iately for all inmates. ... 5. Reception personnel, using a health-authority-approved form, inquire about [the inm ate s m edical a nd me ntal histo ry] . . . ... -11- Discussion ... Receiving screening is a process of structured inquiry and observation designed to prevent newly arrived inmates who pose a threat to their own or others health or safety from being admitted to the facility s general population, and to get them rapid medical care. It is intended to identify potential emergency situations amo ng new a rriva ls to the fa cility, and also to ensure that those patients with known illnesses and currently in medication are identified for further assessme nt and con tinued treatm ent. ... . . . [T]his stand ard a llow s rec eivin g scr eeni ng to be co nducted by healthtrained correctional staff members. The training correctional officers are given depends upon the role they are expected to play in the receiving screening process. At a minimum, they receive instruction on how to take a medical histo ry; how to make the required observations; how to determine the appropriate disposition of an inmate based on responses to questions and observations; and how to document their findings on the receiving screening form. (Emp hasis ad ded.) We can gather a number of insightful points from the NCCHC s description of the intake screening process. First, it is immediately given to every inmate without regard to their actual medical or mental needs. Second, it can be conducted by a healthcare professional or health-trained personne l, it does not require that the person doing the intake screening be a mental healthcare provider or be associated with any psychiatrist or psychologist. Third, the intake follows a specific form designed to determine any possible concerns about the inmate. Finally, the screening is designed to prevent newly arrived inmates who pose a threat to their own or others health or safety from being admitted to the facility s general population . . . . (Empha sis added.) T he NC CHC s own sta ndards, w hich are utilized in Montgom ery County, provide that the prima ry purpose o f the screen ing is to protect not o nly -12- the individual inmate but the general population from the inmates possible physical and mental issues and not for diagnosis or treatment of the inmates. Although the screening may ultimately lead to diagnosis or treatment, such a result is only incidental at the time the immediate intake screening is conducted. Assuming, arguendo, that the communication was for the purpose of diagnosis or treatment of the inmate, the person with whom the inmate communicates, at the time of intake screening, must be participating directly or vitally . . . in consultation with or under direct supervision of a psychiatrist or psychologist, in order for the inmate to be a patient. C.J. § 9-109(a)(3) (emphasis added). In construing the statute we must give force to each word and not make any word superfluous or nugatory. Gilmer, 389 Md. at 663, 887 A.2d at 553; Lawson, 389 Md. at 583, 886 A.2d at 883; Moore, 388 Md. at 453, 879 A.2d at 1115. The words directly and vitally modify the statement with either in rendering those services, i.e., diagnosis or treatment. They play a significant role in our interpretation because under the plain understanding and use of the English language they serve to narrow the scope of the statute. We will briefly discuss the statute s legislative history. The psychiatrist/psycholog istpatient statutory privileged was first enacted as Chapter 503 of the Acts of 1966. The stated purpose of the statute was: AN ACT . . . providing th at certain disclosures and communications between a patient and a certified psychologist or a person licensed to practice medicin e while actin g in the cap acity of a psychiatrist s hall be privileged commu nications un der certain circ umstance s and relating genera lly to the term s and co ndition s for this privileg e. The act went on to define the word patient, stating: -13- As used in this section patient means a person who communicates regarding or receives services for the diagnosis or treatment of his mental or emotional disorder from a ps ychiatrist, certified psychologist, or other persons participating DIRECTLY AND VITALLY with either in rendering such services in consultation with, or under the direct supervision and direction of a psychiatrist or psychologist . . . . Italicized text in the statute indicated new matter added to existing law. Thus, Chapter 503, an addition to Article 35 of the 1957 Code, was new law. Moreover, text set in ALL CAPITALS indicated am endmen ts to the bill. It is clear, then, that the words directly and vital ly were spe cifically added to the propo sed bill during the Legislative process. As a result, it is reasonable to infer that the General Assembly intended those words to play a specific role in th e effec t of the la w, i.e., limiting the scope of the privilege and who qualifies as a recipient of privileged information. The word s direc tly and v itally, are n ot defin ed in the statute. W e can ascerta in their common ever y day m eani ng th roug h the use o f a di ction ary. State Dep t of Assessm ents and Taxation v. Maryland-National Capital Park and Planning Comm n, 348 Md. 2, 14, 702 A.2d 690, 696 (1997) ( [I]n de cidin g wh at a te rm s ordinary a nd natural me anin g is, w e ma y, and often do, c onsult the dic tionary. ). In using dictionaries to interpret the intent of the legislature we hav e further state d: Because we are attempting to ascertain the intent of the Legislature in choosing certain language at a point in time, resort to a dictionary, legal or otherwise, should logically include consultation of those editions (in addition to current editions) of dictionaries that were extant at the time of the pertinent legislative enactments. Harvey v. Marshall, 389 Md. 243, 260-61 n.11, 884 A.2d 1171, 1181 n.11 (2005). -14- Directl y means: without any intervening space or time: next in order[,] . . . without divergence from the source or the original[,] . . . in close relational proximity[,] . . . without any intervening agency or instrumentality or determining influence: without any intermediate step . . . . Webster s Third New International Dictionary 641 (Unabridged ed. 1961)( Webster s ); The Random House Dictionary of the English Language 407 (Unabriged ed. 1983)( Random House ) ( in a direct line, way, or manner; straight . . . . ); Black s Law Dictionary 492 (8th ed. 2004) ( 1. In a straigh tforw ard ma nner. 2. In a straight line or cour se. 3. Imme diately. ). In the context of C.J. § 9-109, directly mean s that there cannot be an intermediate or intervening step between the person receiving the information and the diagno sis or treatmen t. In the present case, as explained supra, the communication is not directly related to the diagnosis or treatment of the inmate. Furthermore, the nurse at the time of th e intake scre ening do es not wo rk directly with a psychiatrist or psychologist. 6 6 Nurse Sargeant, during a hearing on a defense s motion in limine to suppress her testimony at the murder trial (as to what had been said at the intake screening relating to the prior stabbing incident), stated that she was an employee of the Montgomery County Department of Corrections and provided the following explanation of the intake process: I think I was working in the medical [department] that afternoon , and peop le come to the medical service after they re processed through the other services in the jail. It s on a first come first serve in terms of new lockups. They are brought up and put into, we sort of call it the bull pen, waiting to be meeting with a nurse. And then one of us nurses just grabs the new lockup, screen, (contin ued...) -15- Vitally is the adverb of the word vital, which means: [O]f the utmost importance: essential to the continued existence, vigor, efficiency, independence, or value of something expressed or implied . . . ; often: taking priority in consideration over other factors or elements . . . . Webster s at 2558; Random Ho use at 1597 ( necessary to the existence, continuance, or well-being of something; indispensable; essential . . . . ). The use of the word vitally in C.J. § 9-109 means that the person receiving the information must be essential or indispen sable for the diagnosis o r treatment o f the individ ual. The intake nurse, 6 (...continued) introdu ces him self and asks the person to com e into the exam room. In addition, Arthur M. Wallenstein, the director of the Montg omery Cou nty Department of Corrections and Rehabilit ation, at the sam e hearing te stified that the in take screen ing is conducted by community health registered nurses, not mental health specialists. He pointed out that referrals from the intake sc reening are not to the jail ps ychiatrist, but to the C risis Intervention Unit ( CI U ), wh ich then ref ers the inma te to the app ropriate spec ialist. Ms. Sargeant also explained that in addition to conducting intake screenings she also subseque ntly worked with the jail psychiatrist and transcribed orders for medications. She further testified that after petitioner was referred to the CIU, as a result of the intake screening at issue here, sh e eventua lly participated in the petitione r s psychiatric treatm ent. She stated, how ever, that at the time of the intake screening she was not providing medical care or treatment to the petitioner. Neither at the hearing, nor at the subsequent trial for the murder of Ms. Martin, was the nurse asked to reveal any communications that may have taken place during petitioner s treatment after the intake screening. The nurse s subsequent role in the diagn osis or treatm ent of an in mate doe s not chan ge the purp ose of the intake screening, which, as already stated, is to protect the inmate and the general population of the jail from the inmate s possible physical and mental issues. When Ms. Sargeant testified at trial, the defense attempted to elicit information regarding her subseq uent treatme nt of the petitioner. The trial court, upon the State s objections, did not allow Ms. Sarg eant to mention her participation in petitioner s treatment after the intake screening was conducted and petitioner w as referred to the jail psychiatrist. Petitioner has not appealed the trial court s ruling on the exclusion of that testimony and, therefore, the propriety of tha t ruling is not be fore the C ourt. -16- (or other intake screener), does not meet either of these requirements. Her role in the diagnosis or treatment of the inmate, at that time, ends with a referral for further evaluation prior to actual treatm ent being re ndered. H er function, at that point, does not include treatment. In light of the clear meaning of the statute, the terms directly or vitally must be read as narrowing the scope of the privilege (even if it were to apply generally to all intake proceedings). The statute restricts the privilege to those communications taking place between an individual and som eone who is intima tely related to that individual s psychological or psychiatric trea tment and additionally is directly associated with a psychiatrist or psycholog ist. Were w e to interpret this section as allo wing the p rivilege to cover any communication that might ultimately lead to treatment as privileged, the words directly and vitally would be rendered superfluous. Had that been the intent of the Legislature , it could have enacted the statute as it was originally presented in the bill. The General Assembly, howe ver, expressly added these two qualifiers and they must be given the effect intended. The trial court, in accordance with this interpretation, properly stated: The intake screener s duties are to take inform ation from recent inm ates conce rning their whole medical condition. Information concerning their mental health status is just one of [many] topics about which the inmate is queried . . . . [Emphasis added.] As a result, The intake screener at MCDC cannot be construed as a person participating directly or vitally with [a -17- psychiatrist o r psycholo gist] . . . . Petitioner claims that the Court of S pecial Appeals and the trial court s decisions, in effect, make an inmate s mere status as a detainee determinative of his right to claim the privilege afforded by the statute. It is not the status of the inmate as a detainee, however, that is determinative. It is the status of the person to whom he communicated his remarks that normally will determine whether the privilege applies. Whether the individual is an inmate or not, he or she must be able to show that the person to whom the communication is directed belongs to one of the statutory classifications in order to claim the privilege. Lastly, petitioner argues that such narrow interpretation of the statute is contra ry to holdings from other courts. We disagree. Petitioner of fers the follo wing ex amples: United States v. Lincoln, 403 F.3d 703, 705 (9th Cir. 2005) (the federal patient-psychotherapist privilege protected c ontents of a workbook written by an inmate as part of anger management classes, thus it was related to treatment); State v. Jenkins, 271 Conn. 165, 180, 856 A.2d 383, 392 (2004) (statutory privilege protects In-Patient Mental Health Nursing Assessment of inmate); In re Joy P., 200 Wis. 2d 227, 234, 546 N.W.2d 494, 498 (Ct. App. 1996) (communications with jail psycho logist are privile ged); State v. Langley, 314 Or. 247, 264, 839 P.2d 692 , 703 (199 2) (written as signmen ts, i.e., treatment, in a program for menta lly and emotiona lly disturbed inmates are privileged). The fatal flaw in petitioner s argument is that all these cases refer to activities involving individuals who would likely qualify under C.J. § 9-109 in light of our interpretation of the statute. -18- Our analysis of C.J. § 9-109 leads to the conclusion that the trial court in the present case properly admitted nurse Sargeant s testimony, as to the petitioner s statements at an intake screening in relation to a prior incident. That intake screening was not conducted for the purpose of communicating information relating to the diagnosis or treatment of the inmate, but to protect the inmate and the general population of the facility. Furthermore, the evidence in the record does not reflect that nurse Sargeant was directly or vitally related to diagnosis or treatment generally, or of the petitioner specifically; nor does the evidence indicate that at the time s he condu cted petitione r s intake scre ening, she w as then actin g in concert w ith a psychiatrist or p sychologist. B. Expert Testimony Petitioner was convicted of premeditated first degree murder under Maryland Code (1957, 1987 Repl. Vol.), Article 27 § 407, which states: All murder which shall be perpetrated by means of poison, or lying in wait, or by any kind of willful, deliberate and premeditated killing sh all be m urder in the first d egree. 7 The jury found that petitioner s actions were premeditated. In Mitchell v. S tate, 363 Md. 130, 767 A.2d 844 (2001), we stated: The element that distinguishes this form of second degree murder from first degree murder is that of deliberation and prem editation. Fo r murder to be deliberate there must be a full and conscious knowledge of the purpose to kill; and to be premeditated the design to kill must have preceded the 7 Effective October 1, 2002, first degree murder is now codified as Maryland Code (2002), § 2-201 of the Criminal Law Article. -19- killing by an apprec iable length o f time, th at is, time e nough to be de liberate. Tichnell v. State, 287 Md. 695, 717, 415 A.2d 83 0, 842 (19 80). We a dded in Tichnell, howev er, that [i]t is unn ecessary that the deliberation or premeditation shall have existed for any particular leng th of time. Id. at 717-18, 415 A .2d at 84 2. Appreciable length of time simply means any amount of time sufficient to convince the trier of fac t that the purp ose to kill was not the immediate offspring of rashness and impetuous temper, but was the product of a mind fully conscious of its own design. Willey v. State, 328 Md. 12 6, 133, 613 A.2d 956, 959 (1992 ). Quoting from Colvin v. State, 299 Md. 8 8, 108, 4 72 A.2 d 953, 9 63, cert. denied, 469 U.S. 873, 105 S.Ct. 226, 83 L. Ed. 2d 155 (1984), we confirmed in Willey that [i]f the killing results from a choice m ade as the result of thought, however short the struggle between the intention and the act, it is sufficient to characterize the crime as deliberate and premeditated murder. Willey, supra, 328 Md. at 133, 613 A.2d at 959. In deed, a delay between firing a first and second shot is enough time for reflection and decision to justify a finding of premeditation. Hunt v. State, 345 Md. 1 22, 161 , 691 A .2d 125 5, 1274 , cert. denied, 521 U.S. 1131, 117 S.Ct. 2536, 138 L.Ed.2d 1036 (1997) and cases cited therein. Id. at 148-49, 767 A.2d at 854. Petitioner claims that he should have been allowed to present testimony from an expert witness to the effect that he suffered from an impulse control disorder, which resulted in his inability to form the required mens rea of premeditation. Before trial, petitioner info rmed the S tate that he w ould seek to introduce the testimony of two experts, Sus an Fiester, M.D., an d Mich ael O Co nnell, Ph.D . The exp erts were to testify that petitioner suffered from an im pulse con trol disorder a nd that, due to this ailment, petitioner was unable to form the required mens rea for premeditated murder. The State moved to exclude the testimony, arguing that a condition such as impulse control disorder was not re levant unle ss the defe ndant adm itted that he ha d comm itted the crim e. The trial court den ied the mo tion, stating that it would revisit the issue during trial and evaluate whether the defense had provided a sufficient factual basis for admitting the -20- testim ony. When the State closed its case, petitioner s counsel attempted to have one of the expert witnesses, Dr. Fiester, testify. The expert witness offered her testimony outside of the presence of the ju ry. During that direct examination, the expert testified that petitioner had impulse control disorder. She explained that this condition consisted of the occurrence of discrete episodes of a failure to control or resist aggressive impulses. Bryant, 163 Md. App. at 466, 881 A.2d at 678. She also testified that the ability to hav e that intent an d the ability to control one s beh avior can v ary from mo ment-to-m oment, day-to-day, month-to-month, or year-to-year in any given individual, even with a baseline set of personality or psychiatric symptom s. Id. at 467, 881 A.2d at 678-79. During cross-examination, Dr. Fiester further testified that [ t]he disorde r is present all the time, but the ability of the individual to resist those impulses can vary. Id. at 470, 881 A.2d at 680. The trial court questioned the expert witness when the State completed its crossexamination: THE COURT: You are not saying, are you, that every person or even this person who has impulse control disorder isn t capable of controlling his actions, are you? THE W ITNES S: At all poin ts in time, no. T hat s correct. THE COU RT: So, a nyone with th is disorder is ca pable of p lanning a f uture action. Is that co rrect? THE WITNESS : Yes. Just the presence of the disorder itself, without further information, would [lead] me to say that it s possible an individual that carries this diag nosis co uld plan a crime . Id. at 470, 881 A.2d at 680. After petitioner s counsel and the State completed their -21- examination of the witness, the court stated: I am holding that [Dr. Fiester s] testimony is not competent and is not relevant to this case. There is no evidence that there was an absence of a particular mental element of the crimes charged in this case. At the most, we have testimony from Dr. Fiester that the defendant suffers from impulse control disorder, which affects him from time-to-time. Whether that disorder affected him at the time of the crimes committed here would be completely speculative. This testimony would not assist the jury, but w ould ra ther con fuse th em. Id. at 470-71, 881 A.2d at 680. In reviewing the trial court s decision, the Court of Special appeals fo und that Dr. Fiester s testimony was not relevant to the issues in the case. The doctor s testimony would mere ly have presented evidence that [petitioner] suffered from an im pulse con trol disorder, which so metimes p revented h im from controlling his agg ressive i mpuls es. There was simply no evidence that Ms. M artin s m urder w as the re sult of a n impu lsive act . Id. at 482, 881 A.2d at 687. We agree. Petitioner argues that the Court of Special Appeals decision required the petitioner to testify in order to present evidence refuting the mens rea of premeditated m urder. In support of this contention, petitioner points to the intermediate appellate court s statement that: Among other things, [petitioner] never acknowledged that he murdered Ms. M artin. Id. at 481, 881 A.2d at 686 (emphasis ad ded). It is clear, however, that petitioner s failure to testify was but one of a number of reasons for which the Court of Special Appeals found that t he trial co urt prope rly exclud ed th e exp ert w itnes s test imony. The admissibility of expert testimony is governed by Maryland Rule 5-702, which provides: -22- Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whe ther a suf ficie nt fa ctua l basis exists to supp ort th e exp ert te stimony. We have prev iously described the basic stan dard for th e initial inquiry into th e admissib ility of expert testimony in State v. Smullen, 380 Md. 233, 844 A.2d 429 (2004), where Judge Wilner, writing for the Court, stated: Even reliable evidence is admissible only if it is relevant in the particular case, i.e., if it has a tend ency to mak e the existen ce of a fac t that is of consequence to the determination of the action more probable or less probab le than it would be without the evidence. Maryland Rules 5-401 and 5-402. The requirement of relevance applies no t just to factual evidence but to ex pert testimony as well. Testimony by experts is adm issible only if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue, and, in making that determination, the court must decide, among other things, whether a sufficient factu al basis exists to supp ort the ex pert testim ony. M aryland R ule 5-7 02. The question, in this regard, is whether an issue of consequ ence in this c ase was s ufficiently genera ted to w hich the propo sed evi dence would be relev ant. Id. at 268-69, 844 A.2d at 450. The Court of Special Appeals appropriately relied on Hoey v. State, 311 Md. 473, 546 A.2d 622 (1988), for the proposition that evidence negating the mens rea of an alleged offense is relevant an d admissib le for that purpo se. Bryant, 163 Md. App. at 474, 881 A.2d at 682. A s the inte rmedia te appe llate cou rt pointe d out, Hoey was follo wed by Simmons v. State, 313 Md. 33, 542 A.2d 1258 (1988), where this Court determined that expert testimony is admissible for showing that a defendant had a subjective belief that the use of force was -23- necessary to prevent imminent death or serious bodily injury in support of the defenda nt s imperfect self-de fense c laim. Id. at 48, 542 A.2d at 12 58. These opinion s did not, howeve r, hold that expert testimony offered to negate the mens rea of an alleged offense was admissible without a proper foundation. We find Hartless v. S tate, 327 Md. 558, 611 A.2d 581 (1992), to be on point. Dav id Andrew Hartless w as convicte d of the pre meditated f irst degree m urder of a 2 0-year-old clerk at a High s Dairy store. Before trial, the defense informed the State that it intended to provide expert psychiatric testimony negating the mens rea of prem editated murde r. At trial, the defense attempted to introduce the psychological profile of Hartless through the testimony of his p sychiatrist, D r. McD aniel. The testimony was to point out that Hartless was subject to a high level of stress from his father. The trial court then stated that such testimony alone would not be s ufficie ntly releva nt to be a dmissib le. The follo wing colloquy, relevant to the case at bar, ensued: DEFENSE COUN SEL: . . . What w e re saying is he re we hav e the right to show that a particula r mental elem ent of a crim e did not exis t. If we put on D r. McDaniel to testify as to what a psychological profile was, what his state of mind was, what stress was there, what other matters were brought to bear on him, they re subject not only to my direct examin ation but to the State s cross-examination. . . . She s also subject to the State s rebuttal witnesses. THE C OURT : What wou ld be the conclusion of the doctor? DEFENSE COUNSEL : Your Honor, the conclusion is the psychological profile. THE COURT: What would be the conclusion? The conclusion is that he has a psychological profile so does everyone. DEFENSE COU NSEL : And that s a factor to be taken into determination by the . . . THE C OUR T: For w hat purpo se, Mr. K raft? -24- DEFENSE COU NSEL : To determine whether he had the sufficient mens rea to create the inten t. It s all do ne by inf erence , Your Hono r. Id. at 575-76, 611 A.2d at 589-90. The trial court then found that the defe nse had f ailed to prov ide a n approp riate fact ual f oundatio n for the testim ony. We affirmed the trial court decision in Hartless; Judge McAuliffe, writing for the Court explained: In Hartless case, the psychological testimony, standing alone, had little or no rational nexus to the issues of premeditation and intent. It is thus unclear how a jury could have found the profile helpful in determining those issues. The absence of a nexus between a psychological profile of the defendant that Dr. McDaniel might have been able to relate and the issues before the jury resulted, at least in part, fro m the abse nce of an adequate evidentiary foundation. As the trial judge noted, the defendant failed to produce admissible evidence of some facts that Dr. McDaniel wished to rely on in determinin g the defe ndant s psych ological ba ckgroun d, and failed to produce evidence of particular facts relating to the occurrence of the criminal event, i.e., the defendant s version of what happened, that were essential, not only to the formation of the expert s opinion but to the relevance of that opinio n to the is sues in th e case. Id. at 577, 611 A.2d at 590. As Hartless demonstrates, although expert testimony can be admitted to negate the mens rea element of a specific intent crime, a proper eviden tiary foundation normally must be laid. Petitioner contends that such a foundation was properly established in the case sub judice. In his view a proper inference can be drawn that the killing was impulsive. First, he contends, that the manner of Ms. Martin s death is entirely consistent with an explosive act of rage; she w as stabbed multiple time s in an app arently impulsive manne r . . . . According -25- to petitioner bec ause there w as no clea r execution style stab or cut the killing must have been impulsive. Second, he states that the killer s apparent exit through a window, broken in the proces s, was indic ative of a state of panic a fter the stabb ing. Finally, petitioner contends, that the presence of male clothing and a picture of petitioner with Ms. Martin and their children found in the apartment suggested that the couple had reconciled. These inferences, which arguably may be proper, do not adequ ately support petitioner s contention that a proper fo undation h ad been la id to admit the expert testimony. We agree w ith the Court of Specia l Appeals conclusio n that the objective evide nce clearly sho wed that th e murdere r acted with premeditation. We note, for example, that an individual was seen pacing near Ms. Martin s residence for hours before the murder, and the same person questioned a boy to learn where Ms. Martin lived. Inside Ms. M artin s residence, the cord to one telephone was cut and the other was missing. Two knives were found , as was a stick u sed to sh arpen k nives. This conduct is the antithesis of an impulsive act. Therefore, Dr. Fiester s testimony would not have made it more likely that the murderer acted without premeditation. In addition, although [petitioner] sought to admit expert testimony that he suffered from an imp ulse diso rder, Dr. Fiester indicated that, even with the disorder, [petitioner] was still sometimes able to control his impulses and he would be capable of planning a crime. Accordingly, the effect of the disorder on [petitioner ] s ab ility to form the requisite mens rea , and in exp laining his earlier threats against Ms. Martin, was speculative. Bryant, 163 Md. A pp. at 481, 881 A .2d at 686-87 (emp hasis added). We are not holding, and ne ither did the Court of Special Appeals, that a defendant must testify in order to introduce expert testimony in respect to the mens rea for premeditated first degree murder. T here must be sufficient evidence on the record, however, of whatever nature, supporting the expert witness s testimony. In the case sub judice, as the trial court -26- pointed out, there is insufficient foundational evidence to support petitioner s argument that he suffers from impulse control disorder and that the death of the M s. Martin w as the result of that affliction. In fact, as the Court of Special A ppeals recognized, the totality of the evidence points tow ards prem editation. W e find that the trial court did n ot abuse its discretio n wh en it d enie d petition er s r equest to allow his expert to te stify. IV. Conclusion We hold that a criminal defendant s status as an inmate does not deprive him or her of the statutory privilege for communications related to his mental or emo tional disorder. The privilege, however, does not extend to communications to a person, nurse or otherwise, conducting an intake screening at a county dete ntion facility for the purpose of prevent[ing] newly arrived inmates who pose a threat to their own or others health or safety to be admitted to the facility s general population. As a result, the trial court properly admitted the n urse s tes timo ny. We also hold that, although a defendant does not have to waive his right of selfincrimination as a condition precedent to the introduction of expert testimony rebutting or explaining evidence that the State relies upon to establish the mens rea element of the offense charged, there must be a proper factual foundation supporting the expert testimony proffered. Con sequ ently, the trial court did not abuse its discretion in exc luding petitioner s testim ony. JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED WITH COSTS. -27- -28-

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