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Smallwood v. State

Court of Appeals of Maryland

January 23, 2017


          Argued: November 7, 2016

         Circuit Court for Baltimore County Case No. 03-K-843997

          Greene, Adkins, McDonald, Watts, Hotten, Getty, Harrell, Jr., Glenn T. (Senior Judge, Specially Assigned) JJ.


          Hotten, J.

         We consider whether a petition filed under §8-301 of the Criminal Procedure Article ("Crim. Proc.") of the Maryland Code, provides relief to a Petitioner who alleges "newly discovered evidence" that he was erroneously deemed criminally responsible during his 1985 reverse waiver hearing, when he should have been deemed not criminally responsible ("NCR").

         On October 22, 1984, then fifteen-year-old Dameron Smallwood ("Petitioner") fatally stabbed Madge K. Gibson ("Ms. Gibson") in her Baltimore County apartment. Petitioner was charged as an adult, but sought to be tried as a juvenile. At a reverse waiver hearing, [1] held February 6-7, and March 8, 1985, several psychiatric experts testified regarding Petitioner's amenability to treatment and opined that he was not "legally insane" at the time of the crime. The circuit court denied Petitioner's request to transfer the case back to juvenile court. Petitioner was subsequently convicted of first-degree murder and other related charges following a not guilty, agreed statement of facts proceeding, and sentenced to life in prison.

         Twenty-six years later, the psychiatrist who originally examined Petitioner concluded her original diagnosis was incorrect. The psychiatrist now opined that Petitioner should have been deemed NCR at the time of his 1985 proceedings. Petitioner subsequently filed a petition for "writ of actual innocence" under Crim. Proc. §8-301, alleging that this revised expert opinion constituted "newly discovered evidence" that generated a "substantial or significant possibility that the result [of Petitioner's 1985 proceeding] may have been different."

         For the reasons that follow, we shall affirm the Circuit Court for Baltimore County's denial of Petitioner's petition for a writ of actual innocence.


         For purposes of our discussion, the events giving rise to our inquiry revolve around three events: (1) the reverse waiver hearing held on February 6, 7 and March 8, 1985; (2) the plea agreement proceeding where Petitioner pled not guilty on an agreed statement of facts held on March 13, 1985; and (3) the motions hearing relative to the petition for writ of actual innocence held on November 2, 2012.

         According to Dr. Ellen McDaniel's ("Dr. McDaniel's") original January 24, 1985 psychiatric report, her testimony from Petitioner's 1985 reverse waiver hearing, and her deposition testimony from November 17, 2011, Petitioner grew up in a highly abusive, toxic domestic environment that greatly impacted his mental development. Petitioner's father was an alcoholic, and his mother was "an extremely bizarre, at times explosive woman" who suffered from severe mental illness. As a child, Petitioner was verbally and physically abused by his mother. She once beat Petitioner and his siblings so badly that they required hospitalization. She also threatened "to beat [Petitioner] on the head and watch his brains flow out." By the age of ten, Petitioner had lived in three foster homes, which were also abusive settings, and attended several different schools. Petitioner also spent two years in a residential psychiatric facility for children, before returning to live with his mother. During this time, Petitioner and his brother slept on the floor, and did not have sufficient clothing to wear to school.

         In the week prior to Ms. Gibson's death, Petitioner was suspended from school for talking back to a teacher. Petitioner's mother became angry and refused to let him leave the house for several days. She also screamed, nagged, and yelled at him repeatedly throughout the weekend. At one point, she told him "she was going to cut [him] up and put [him] in a bag and throw [him] in the dumpster."

         On the morning of October 22, 1984, Petitioner's mother finally let Petitioner leave the house to purchase cat food. While Petitioner was out, he continued to hear her voice, screaming, like a "buzzing in his ear, " and began fantasizing.[2] After purchasing the cat food, Petitioner went to his old neighborhood and the apartment building where he had previously lived with his mother. Petitioner knocked on the door of one of the apartments and a woman answered. Petitioner asked if the "man of the house was home, " but when the woman's husband came to the door, Petitioner mumbled about being at the wrong house and left.

         Petitioner then knocked on Ms. Gibson's door, and announced he had a package to deliver that required Ms. Gibson's signature. When Ms. Gibson opened the door, while on the phone with her daughter, Petitioner stabbed her ten times.[3] Thereafter, Petitioner fled, and was observed disposing of a bloody, brown paper bag, and several articles of clothing disappeared from his person. Ms. Gibson later died from her injuries.

         I. Reverse Waiver Hearing

         After Petitioner was indicted for first-degree murder and related offenses, his attorneys petitioned for a reverse waiver hearing to transfer Petitioner's case from adult to juvenile court. During the reverse waiver hearing, held on February 6, 7 and March 8, 1985, Petitioner's attorneys first called Dr. Lawrence Donner ("Dr. Donner"), a psychologist, to testify about his diagnoses of Petitioner. Dr. Donner testified that he diagnosed Petitioner with: (1) major depression, recurrent, and (2) an identity disorder. Dr. Donner defined "identity disorder" as:

a condition which if not treated develops into a borderline personality, which indicates that an individual who is rather extremely unpredictable, may have explosive rage attacks, has problems about their own identity because they have never had a role model to identify with, have marked changes in their mood have [a] poor notion of who they are.

         Dr. Donner also explained that a diagnosis of borderline personality disorder was excluded as to Petitioner because

[t]here is a problem with diagnostic impressions, and that is his age. He fits very well a diagnosis of borderline personality, but because of his age one cannot make that diagnosis in view of that diagnosis involves the fact that he suffers from, what I see as major depression, recurrent, that he has been depressed much of his life and that he suffers from an identity disorder.
You cannot make the diagnosis of borderline personality until an individual is 18 years of age because they are still malleable, still plastic. But if [Petitioner] had the same features that he has now at 18 years of age there is no question in my mind a diagnosis - I would diagnose him as a borderline personality just by virtue of age.

         Dr. Donner also opined that Petitioner did not suffer from a mental disorder that caused him to be "legally insane, " specifically stating that:

[] I am airing conservatively[.] [I]t's conceivable he was having a psychotic episode, but I am not testifying to that effect. I cannot say that that didn't happen, but I am not testifying that it did. [Petitioner] has difficulty distinguishing at times between reality and fantasy. I am not here to testify that he was psychotic at the time, but I cannot say that he wasn't psychotic.

         Dr. Donner concluded that, without treatment, Petitioner had "a good chance of becoming a borderline personality." Dr. Donner recommended that Petitioner be waived to juvenile court so he could be admitted into a secure treatment facility.

         Petitioner's attorneys then called Dr. McDaniel to testify regarding her diagnoses of Petitioner and the January 24, 1985 psychiatric report she authored regarding his mental status. Dr. McDaniel concluded that Petitioner was "definitely suffering from a mental disorder[, ]" and "his problems were intimately tied up [with] the crime." Dr. McDaniel also found that Petitioner had been "absorbed" in his "Jack the Ripper fantasy" when he attacked Ms. Gibson, see supra n. 2, but noted that Petitioner told her Ms. Gibson's "screams 'made me snap out of it. I realized that what I was doing was wrong.'" Dr. McDaniel also noted several times in her report that Petitioner appeared "depressed" during her interviews with him. Ultimately, Dr. McDaniel concluded in her report that

[Petitioner] is an emotionally disturbed fifteen year old boy who lives a great portion of his life in fantasies. He has suffered through significant trauma during his childhood; including physical and emotional abuse, constant separations and abandonments by family members, and institutionalization in foster homes and a psychiatric facility. The content of his fantasies partially reflects his rage and feelings of helplessness that have developed over years of repeated severe stress. These fantasies also protect him from feeling despair by endowing him with superpowers which enable him to avoid oppression by adults and win admiration. I do not find him psychotic because he does not demonstrate the thought process disturbance, the paranoid ideation, or the extreme mood swings that are symptoms of psychotic illness. However, [Petitioner's] contact with reality is tenuous and when under stress, he withdraws into his daydreams for comfort and escape.

         During the reverse waiver hearing, Dr. McDaniel acknowledged she had difficulty diagnosing Petitioner due to his age because he was "emotionally still in the process of changing, " and she "could not pigeonhole him into a diagnosis[.]" On that basis, Dr. McDaniel chose diagnostic categories that were flexible, but not necessarily the most "accurate reflections of what[] [was] going on." Ultimately, Dr. McDaniel diagnosed Petitioner with: (1) atypical conduct disorder of adolescence, [4] and (2) mixed personality disorder with depressive and schizoid features. Dr. McDaniel indicated that she diagnosed Petitioner with a conduct disorder due to his age. She also noted that when she discussed mixed personality disorder with depressive and schizoid features, she was emphasizing her two main findings: (1) that Petitioner was severely depressed, and (2) that Petitioner deals with his conflicts and depression by withdrawing into a fantasy world- the schizoid aspect. Dr. McDaniel further explained that:

When I talk about a personality disorder I am - what is referred to is a sort of a life-style of difficulty, usually in the area of interpersonal relationships. When I say mixed personality disorder, again, I don't think that [Petitioner] has solidified in that diagnostic category. So it's one of those diagnoses that says he really doesn't belong in any other diagnosis [sic], that it's an open door yet. But basically what I am referring to is a lifelong history of difficulty in relationships with others. In large part this has been because he has not had any stable, consistent, supportive figures with whom to relate. And it has been reflected in other areas, such as his peer group relationships, his difficulty relating to authority figures and his retreat from relationships into his fantasy world. That's what I meant by the personality disorder.

         Despite these diagnoses, Dr. McDaniel concluded that Petitioner was not "legally insane" at the time he stabbed Ms. Gibson. Dr. McDaniel also recommended that Petitioner be adjudicated by the juvenile court because he would benefit from treatment in a secure facility rather than in prison.

         Dr. James E. Smith, II, a court psychiatrist, also testified, but was not asked about Petitioner's criminal responsibility. Dr. Smith stated that on the one occasion he met with Petitioner, Petitioner was oriented, coherent, and displayed no signs of psychosis. Dr. Smith diagnosed Petitioner with a personality disorder.

         The circuit court denied Petitioner's request for a reverse waiver. At no point during the proceeding was the extent of Petitioner's criminal responsibility contested or discussed at length by either party or any of the psychiatric experts who testified.

         Thereafter, on March 13, 1985, Petitioner followed the advice of his attorney and entered a plea of not guilty on an agreed statement of facts. On the same day, Petitioner was convicted of first-degree murder and other related offenses, and sentenced to life in prison.

         II. Dr. McDaniel's Revised Psychiatric Diagnoses

         In 2009, Petitioner was represented by a new attorney who requested Dr. McDaniel reconsider her prior opinion that Petitioner was not "legally insane" at the time of the 1985 reverse waiver hearing. Dr. McDaniel reassessed her 1985 opinion, and in 2011 reached the contrary conclusion that Petitioner was NCR when he stabbed Ms. Gibson in 1984. Dr. McDaniel determined that at the time of the offense, Petitioner was actually suffering from: (1) major depressive disorder, severe, with episodes of dissociation, and (2) post-traumatic stress disorder ("PTSD").

         Dr. McDaniel attributed her revised opinion to several findings that she argued were not available when she originally evaluated Petitioner. Notably, Dr. McDaniel cited scientists' better understanding of dissociation, [5] particularly in connection to PTSD. Dr. McDaniel also noted that scientists had learned more about PTSD and how "stress actually changes the anatomical features of the brain[.]" She also found that trauma "changes the brain circuitry[]" and can increase the chance of developing certain disorders, including PTSD. These changes can also cause someone to "misperceive[] current day situations[.]" Dr. McDaniel stated that research on the biological basis for this phenomenon appeared only in the last several years, even though the PTSD diagnosis has existed since before the 1980s. [6]

         Dr. McDaniel also contended that the "diagnostic nomenclature" in the DSM had changed. For example, in the 1980s the DSM-III said that "diagnosis of a Personality Disorder should be made only when the characteristic features are typical of the individual's long-term functioning[, ]" but the manual observed that "manifestations are generally recognizable by adolescence or earlier and continue throughout most of adult life…." DSM-III at 305. In contrast, the DSM-IV-TR, published in 2000, states that "Personality Disorder categories may be applied to children or adolescents" only in "relatively unusual instances, " because "traits of a Personality Disorder that appear in childhood will often not persist unchanged into adult life." Am. Psychiatric Ass'n, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 687 (4th ed., text rev., 2000). Considering those scientific advances, revisions in the DSM, and her post-hoc professional experience since the 1980s, Dr. McDaniel concluded that her initial diagnosis of an atypical conduct disorder or mixed personality disorder was naïve and incorrect.

         Based on her revised diagnoses, Dr. McDaniel further concluded that Petitioner was NCR at the time of the offense because his "major depression with dissociative episodes and PTSD" rendered him unable to conform his behavior to the requirements of law. Dr. McDaniel concluded that during the stabbing of Ms. Gibson, Petitioner had "brok[en] with reality during [his] periods of dissociation, " including the day of the offense. Dr. McDaniel acknowledged that Petitioner made decisions and acted deliberately before[7] and after the crime, [8] but that Petitioner slipped into an "altered state of consciousness[]" at the time he stabbed Ms. Gibson.[9] Dr. McDaniel also indicated that Petitioner's deliberate actions before and after the offense may "look[] like conscious behavior, but we don't know what he [was] doing in his mind;" and his actions could have been a "reflection of this fantasy[, ]" see supra fn. 2.

         III. Petition for Writ of Actual Innocence

         On August 29, 2011, Petitioner filed a Petition for Writ of Actual Innocence pursuant to Crim. Proc. §8-301. Petitioner requested the court vacate his conviction and order a new trial because "the discovery of the lack of criminal responsibility…is newly discovered evidence which creates a substantial or significant possibility that the result of [his] prosecution…in 1984-85 may have been different."

         On November 2, 2012, the Circuit Court for Baltimore County conducted an evidentiary hearing on the petition. The circuit court received Dr. McDaniel's 2011 deposition testimony discussing the bases for her revised diagnoses.[10] The Court also heard live testimony from the State's expert, clinical psychiatrist Dr. Christiane Tellefsen ("Dr. Tellefsen"), who disputed the psychiatric basis for Dr. McDaniel's revised opinion. Dr. Tellefsen first noted that PTSD was an available diagnosis in 1984 and was included in the DSM III, see supra fn. 6, and that it was actually a more common diagnosis in the 1980s then it is now. [11] Dr. Tellefsen testified that Petitioner's history was consistent with a diagnosis of PTSD, and that a key symptom for individuals suffering from PTSD is "avoidance[, ]" meaning the individual tends "to withdraw from society or withdraw from situations that are stressful to them."

         Dr. Tellefsen also noted that dissociation is a symptom rather than a diagnosis, and that when a person dissociates "they're often engaged in automatic behavior so they're not engaged in novel behavior[, ]" and one of the first things a diagnostician looks at if someone says they dissociated is "what [] the thing [was] that they were doing, was this a novel physical activity for them or a novel activity in general for them. Did it involve automatic behavior, sort of reflexive behavior or not, did it involve intentional behavior or not[?]" Dr. Tellefsen further testified that,

[i]n rare cases, someone might diagnosis [sic] a teenager with a personality disorder, but you really - you have to be very careful about that because you don't know what development is going to do to them as they get older. They don't know if they're going to grow out of it essentially. And that has always been understood through the, you know, the DSM III, DSM IV, [DSM] IV-TR… that you have to be very careful about doing that. And there are - I think it's written as a caveat in both editions of the manual.

         Dr. Tellefsen concluded the facts in the instant case did not support Dr. McDaniel's revised diagnoses for several reasons. First, Dr. McDaniel's diagnosis of dissociation did not make sense because people who dissociate tend to engage in repetitive, rather than novel behavior, and Petitioner did not have a history of violence. Second, there were no indications that Petitioner was dissociating at any other point before or after the offense.[12] Third, Petitioner was not previously diagnosed with dissociation. Dr. Tellefsen also noted that Petitioner was not diagnosed with psychotic behavior, and that individuals who typically satisfy the NCR test have severe mental disorders that cause the individual to lose touch with reality or become psychotic.[13] Finally, Dr. Tellefsen testified that Dr. McDaniel could not "weave" the PTSD and dissociation diagnoses into Petitioner's activities because the evidence indicated that Petitioner acted deliberately and was able to "curb[] his behavior" at various points before and after the stabbing. [14]

         During closing arguments, the circuit court observed that Dr. McDaniel's deposition testimony was "rife with inconsistencies, " specifically noting that:

I didn't understand anything about - Dr. McDaniel's testimony in the deposition, and I read it carefully and [heard] about this notion that there was no such thing as post-traumatic stress disorder back in 1984 and that she didn't have the ability to diagnose that then, which is what I understood her testimony to have been. That is preposterous. Post-traumatic stress disorder plainly existed as a DSM diagnosis back in 1984. I do not know why she couldn't have diagnosed it back in 1984. She can diagnose it in 2011.
This episodic dissociation business, you know, I just - I - that's not a DSM III or IV diagnosis. And I recognize that there's some legitimate debate between the parties as to whether or not the evidence supports a logical conclusion that this could have been some sort of a dissociation episode under the circumstances. But again, I imagine, although I didn't hear this, that there was no reason why that couldn't have been a part of the analysis back in 1984.
And there's this odd business in [Dr. McDaniel's] testimony about the fact that she now believes that you cannot diagnosis [sic] someone under the age of 18 with a personality disorder, but that she was incapable of reaching that conclusion back in 1984. I don't understand that at all.

         On February 12, 2013, the circuit court denied the petition. In its memorandum, the circuit court concluded that Petitioner "is ineligible to seek relief under an 'actual innocence' statute[]'" because "he is maintaining that he is actually guilty, but is not criminally responsible." After reviewing the legislative history of Crim. Proc. §8-301, the circuit court found that,

the plain language of the statute and its legislative history suggest that its application was meant to be limited to those who are innocent of the crime. Nothing about the legislative history of the provision suggests that it was intended to include a claim made decades after a conviction that a defendant was guilty of a crime, but not criminally responsible for its commission.

         The circuit court also observed that,

[w]hile expert opinion testimony is certainly 'evidence' in the broad sense of the word, the courts must be especially vigilant in assessing the reliability and the credibility of an opinion which comes about more than a quarter century after a final verdict under these circumstances. Generally, it is safe to conclude that an expert's opinion, which changes 26 years after the original opinion is rendered, because the expert "lacked experience" when the original opinion was rendered will never be considered "newly discovered evidence" under any rational standard.

         The circuit court concluded that Dr. McDaniel's revised opinion was not "newly discovered evidence, " because "[t]here was no change between 1984 and the present in the facts of this case. No new or different fact was unearthed or otherwise discovered suggesting that the Petitioner's [proceeding] was unfair in 198[5]." (Emphasis in original).

         The circuit court also found that, even if a revised expert's opinion qualified as newly discovered evidence, Dr. McDaniel's revised testimony should be accorded "[virtually no weight]." The circuit court noted that Dr. McDaniel's testimony was "generally replete with psychological double-speak and rationalizations designed to obfuscate." The circuit court also found that "throughout [Dr. McDaniel's] testimony she refused to commit to a concrete timeframe within which the Petitioner was allegedly dissociating, or an explanation as to why this dissociation would have formed an adequate basis for a plea of not criminally responsible." The circuit court concluded,

Dr. McDaniel failed utterly to convince the undersigned that she could not have made the same diagnosis in 1984 as she made in 2011; or that she could not have reached the same conclusion concerning the lack of criminal responsibility in 1984 as she purported to reach in 2011. She did not persuade the undersigned that the DSM-III contained material mistakes or errors in 1984 that, if changed, would have affected her opinion as to criminal responsibility in 1984. Her 2011 analysis was illogical, and her conclusions were unreliable as a matter of the application of ordinary common sense.

         The circuit court also concluded it could not "attribute significant weight to [Dr. McDaniel's] 'new' opinions[]" because she described Petitioner's mental state as "fantasy, " "a daydream, " and "breaking with reality, " but "fail[ed] to commit herself to a logically conclusive window of time within which the Petitioner could be deemed to have been incapable of conforming his behavior to the requirements of the law." The circuit court observed this was in "stark contrast to the cogent analysis by Dr. Tellefsen. While Dr. Tellefsen did not evaluate the Petitioner, and while she did not render an opinion on ...

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