Devon T., In re

• Decision Date: 01 September 1989
• Docket Number: No. 1989,1989
• Citation: 584 A.2d 1287,85 Md.App. 674
• Parties: , 65 Ed. Law Rep. 422 In re DEVON T
• Court: Court of Special Appeals of Maryland

Page 674

85 Md.App. 674

584 A.2d 1287, 65 Ed. Law Rep. 422

In re DEVON T.

No. 1989 Sept. Term, 1989.

Court of Special Appeals of Maryland.

Jan. 30, 1991.

Mark Colvin, Asst. Public Defender (Alan H. Murrell, Former Public Defender, on the brief), Baltimore, for appellant.

Richard B. Rosenblatt, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. and Stuart O. Simms, State's Atty. for Baltimore City, on the brief), Baltimore, for appellee.

Submitted before MOYLAN, WENNER and CATHELL, JJ.

MOYLAN, Judge.

In a world dizzy with change, it is reassuring to find Daniel M'Naghten alive and well in juvenile court. It was, of course, M'Naghten's bungled attempt to assassinate Prime Minister Sir Robert Peel, killing by mistake Sir Robert's private secretary Edward Drummond, that led to his prosecution for murder and the assertion of his now eponymic insanity defense. When the House of Lords placed its imprimatur upon the jury's acquittal by reason of insanity, "the M'Naghten test" was impressed indelibly upon the Common Law of Anglo-America. Regina v. M'Naghten, 10 Cl. and Fin. 200, 8 Eng.Rep. 718 (1843).

The M'Naghten test, by name, crossed to New England within the year. Commonwealth v. Rogers, 48 Mass. 500 (1844). It was adopted by the Court of Appeals in 1888 as the controlling standard in Maryland, Spencer v. State, 69 Md. 28, 37, 13 A. 809 (1888); came to be called locally the "M'Naghten-Spencer" test, Bradford v. State, 234 Md. 505, 510, 200 A.2d 150 (1964), Sherrill v. State, 14 Md.App. 146, 148 n. 2, 286 A.2d 528 (1972); and remained the exclusive criterion of criminal insanity in this state until supplanted by the Acts of 1967, ch. 709. ¹ The M'Naghten test was ultimately received by virtually every American jurisdiction and it remains the prevailing test for insanity in over one-half of American jurisdictions today. LaFave & Scott, Criminal Law (2d ed. 1986) at 312.

In enunciating a "right-wrong" test for criminal responsibility, the Law Lords in Regina v. M'Naghten did not radically break new ground but applied standards that had been with some regularity used in earlier English and American cases to measure criminal responsibility. ² As the test assumed its proper name, however, it at least formalized a statement of law that had been theretofore more protean and elusive. The heart of the M'Naghten test was that there could be no moral blameworthiness and, hence, no criminal responsibility if:

"... the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong."

Regina v. M'Naghten, 8 Eng.Rep. at 720. The pivotal criterion was cognition, as the House of Lords explained that the question to be put to the jury was that of:

"... whether the accused at the time of doing the act knew the difference between right and wrong."

Id.

What has not been adequately noted in the case law is that this cognitive capacity to distinguish right from wrong in the language of M'Naghten was not a characteristic of the insanity defense exclusively. It has traditionally been the common denominator criterion for a whole family of defenses based upon mental incapacity--insanity, infancy, mental retardation, intoxication (at least of the involuntary variety). The cause of the mental incapacity might vary from one such defense to the next but the ultimate nature of the resulting incapacity was a constant. In any of its manifestations, criminal responsibility traditionally turned and largely still turns upon the difference between a mind doli capax (capable of malice or criminal intent) and a mind doli incapax (incapable of malice or criminal intent). Capability or capacity might be eroded in various ways but the ultimate quality of the required mental capacity itself was unchanging. An understanding of the mental quality in issue in what had been one of its more familiar settings, therefore, will enhance our understanding of that same mental quality in other settings as well, including the here-pertinent setting of the infancy defense.

Hence, we tentatively advance the traditional M'Naghten test as pertinent to our present review of an adjudication of juvenile delinquency in the Circuit Court for Baltimore City. For the moment, however, let Daniel M'Naghten retire to the wings as we bring onto the stage the contemporary players.

The Present Case

The juvenile appellant, Devon T., was charged with committing an act which, if committed by an adult, would have constituted the crime of possession of heroin with intent to distribute. In the Circuit Court for Baltimore City, Judge Roger W. Brown found that Devon was delinquent. The heart of the case against Devon was that when on May 25, 1989, Devon was directed to empty his pockets by the security guard at the Booker T. Washington Middle School, under the watchful eye of the Assistant Principal, the search produced a brown bag containing twenty zip-lock pink plastic bags which, in turn, contained heroin. Upon this appeal, Devon raises the following contentions:

1. That the State did not offer legally sufficient evidence to rebut his presumptive incapacity because of infancy; and

2. That the security guard's direction that he empty his pockets violated his Fourth Amendment right against unreasonable search and seizure.

The Infancy Defense Generally

At the time of the offense, Devon was 13 years, 10 months, and 2 weeks of age. He timely raised the infancy defense. Initially, we will look at the infancy defense in its original (and still primary) context of a criminal prosecution, before turning briefly to the applicability of the defense to juvenile delinquency proceedings.

The case law and the academic literature alike conceptualize the infancy defense as but an instance of the broader phenomenon of a defense based upon lack of moral responsibility or capacity. The criminal law generally will only impose its retributive or deterrent sanctions upon those who are morally blameworthy--those who know they are doing wrong but nonetheless persist in their wrongdoing.

After several centuries of pondering the criminal capacity of children and experimenting with various cut-off ages, the Common Law settled upon its current resolution of the problem by late Tudor and early Stuart times. As explained by LaFave & Scott, Criminal Law, (2d ed. 1986), at 398, the resolution was fairly simple:

"At common law, children under the age of seven are conclusively presumed to be without criminal capacity, those who have reached the age of fourteen are treated as fully responsible, while as to those between the ages of seven and fourteen there is a rebuttable presumption of criminal incapacity."

The authors make clear that infancy was an instance of criminal capacity generally:

"The early common law infancy defense was based upon an unwillingness to punish those thought to be incapable of forming criminal intent and not of an age where the threat of punishment could serve as a deterrent." (footnote omitted).

Id. at 399.

R. Perkins & R. Boyce, Criminal Law, (3d ed. 1982), in their chapter on "Limitations on Criminal Capacity," consider, along with insanity and intoxication, the defense of infancy:

"According to the common law a child under the age of seven has no criminal capacity; one who has reached the age of fourteen has the same criminal capacity as an adult, that is, he is fully accountable for his violations of law unless incapacity is established on some other basis such as insanity; while between the ages of seven and fourteen there is a rebuttable presumption of criminal incapacity and conviction of crime is permitted only upon clear proof of such precocity as to establish a real appreciation of the wrong done." (footnotes omitted).

Id. at 936.

Clark & Marshall, A Treatise on the Law of Crimes, (6th Wing. ed. 1958), at 391-392, emphasizes that the mental quality that is the sine qua non of criminal responsibility is the capacity to distinguish right from wrong:

"Children Under the Age of Seven Years.--Children under the age of seven years are, by an arbitrary rule of the common law, conclusively presumed to be doli incapax, or incapable of entertaining a criminal intent, and no evidence can be received to show capacity in fact.

Children Between the Ages of 7 and 14.--Children between the ages of 7 and 14 are presumed to be incapable of entertaining a criminal intent, but the presumption is not conclusive, as in the case of children under the age of 7. It may be rebutted by showing in the particular case that the accused was of sufficient intelligence to distinguish between right and wrong, and to understand the nature and illegality of the particular act, or, as it is sometimes said, that he was possessed of 'a mischievous discretion.' " (footnotes omitted).

The reasoning behind the rule is made very clear, at 391:

"A child is not criminally responsible unless he is old enough, and intelligent enough, to be capable of entertaining a criminal intent; and to be capable of entertaining a criminal intent he must be capable of distinguishing between right and wrong as to the particular act."

Walkover, The Infancy Defense in the New Juvenile Court, 31 UCLA L.Rev. 503, 507 (1984), distills the rationale to a single sentence:

"The infancy defense was an essential component of the common law limitation of punishment to the blameworthy."

See also Woodbridge, Physical and Mental Infancy in the Criminal Law, 87 U.Pa.L.Rev. 426 (1939); Kean, The History of Criminal Responsibility of Children, 53 Law.Q.Rev. 364 (1937).

With only dicta from Prevatte v. Director, 5 Md.App. 406, 412, 248 A.2d 170 (1968), as its harbinger, it was Adams v. State, 8 Md.App. 684, 262 A.2d 69 (1970), cert. denied, 400 U.S. 928, 91 S.Ct. 193, 27 L.Ed.2d 188 (1970), that recognized for the first time this venerable common law defense as part of the...