Argued: November 7, 2016
Court for Baltimore County Case No. 03-K-843997
Greene, Adkins, McDonald, Watts, Hotten, Getty, Harrell, Jr.,
Glenn T. (Senior Judge, Specially Assigned) JJ.
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
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,  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
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
reasons that follow, we shall affirm the Circuit Court for
Baltimore County's denial of Petitioner's petition
for a writ of actual innocence.
AND PROCEDURAL BACKGROUND
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.
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.
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."
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. 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.
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. 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.
Reverse Waiver Hearing
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.
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.
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.
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.
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
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,  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
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.
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
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.
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.
Dr. McDaniel's Revised Psychiatric Diagnoses
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").
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,
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. 
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.
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 and after the crime,  but that
Petitioner slipped into an "altered state of
consciousness" at the time he stabbed Ms.
Gibson. 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.
Petition for Writ of Actual Innocence
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
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. 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.
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
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
[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
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. 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. 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.
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
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.
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.
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." (Emphasis in original).
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
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.
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