State v. Tull, 387

• Decision Date: 20 August 1965
• Docket Number: No. 387,387
• Citation: 240 Md. 49,212 A.2d 729
• Parties: STATE of Maryland v. James Omar TULL.
• Court: Maryland Court of Appeals

Page 49

240 Md. 49

212 A.2d 729

STATE of Maryland v. James Omar TULL.

No. 387.

Court of Appeals of Maryland.

Aug. 20, 1965.

John W. Sause, Jr., Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., Baltimore, Wade D. Ward, State's Atty. for Somerset County, Princess Anne, and C. Awdry Thompson, State's Atty. for Dorchester County, Cambridge, on the brief), for appellant.

George E. Bahen, J., Salisbury (Hughes & Bahen, Salisbury, on the brief), for appellee.

Before HAMMOND, HORNEY, MARBURY, OPPENHEIMER and BARNES, JJ.

HAMMOND, Judge.

The State has appealed from the granting of a motion for a new trial to the appellee, Tull, filed a month after his judgment and sentence of death for the murder of his wife was affirmed by this Court in Tull v. State, 230 Md. 596, 188 A.2d 150. At the original trial Tull's real defense was that he was insane at the time of the killing. Both Dr. William G. Cushard, superintendent of Clifton T. Perkins State Hospital, and Dr. John M. Hamilton, its clinical director, testified that Tull was then sane, while Dr. Oscar G. Prado, State-wide director of correctional psychiatry of the Department of Mental Hygiene, who because of personnel shortages at Perkins had been the psychiatrist in charge of Tull at Perkins, testified that he was insane. Some ten months after Tull had been convicted, his lawyers in a chance conversation with one Ralph G. Oropollo, the chief clinical psychologist at Perkins, found that he had given psychological tests to Tull at the hospital, tests which formed a part of the background of the opinions of the respective psychiatrists who testified, and that he had been at the time of the original trial and still was of the same opinion as Dr. Prado, namely that Tull was insane when he killed his wife.

The lawyers thereupon filed a motion for a new trial, alleging that they had discovered subsequent to the trial that 'Mr. Ralph Oropollo, a clinical psychologist employed by Perkins State Hospital,' was of the opinion that Tull had been legally insane at the time of the commission of the crime for which he was convicted, and praying that Oropollo's testimony be heard before the court acted. Mr. Oropollo's testimony was received. He gave his name as Ralph P. Oropollo, his profession as clinical psychologist and his employment as chief clinical psychologist at Perkins. Neither his scholastic background and achievements nor his qualifications to pass on the sanity of Tull months before he saw him were given. His opinion was that Tull, when he killed his wife, had been the victim of a 'schizo-affective type of schizophrenic reaction' and that 'it was my feeling that the patient would fall under the Spencer [M'Naghten] rule.' Chief Judge Duer and Judge Taylor said that they were aware of the rule concerning the time within which motions for new trials have to be filed, but that 'we are not going to hold to that strict interpretation of the rule * * * in a case as serious as this we don't think that the Court of Appeals would require us to.'

Maryland Rule 759 a provides that a motion for a new trial in criminal cases, as in civil, 'shall be filed within three days after the reception of a verdict' (such a motion was duly filed within three days after the verdict in the original trial on June 6, 1962, and denied). We held in Giles v. State, 231 Md. 387, 190 A.2d 627, (in which the sequence of events was almost identical to that here, the second motion for a new trial having been made there some two months after the original judgment and sentence had been affirmed here) that the rule meant what it said and was valid. The apposite language in part was:

'Maryland Rule 567 a provides that a motion for a new trial 'shall be filed within three days after the reception of a verdict' and subsection e of that Rule provides that '[i]f a motion for a new trial be not made, within the time prescribed by section a * * * the Clerk shall enter a final judgment as of course.' Since appellants' motion was not filed within three days after reception of the verdict, it was properly denied.'

See also Drehoff v. Warden, 231 Md. 654, 656, 191 A.2d 421; Cook v. State, 225 Md. 603, 608, 171 A.2d 460; Carr v. State, 218 Md. 318, 320, 146 A.2d 192; Johnson v. State, 215 Md. 333, 336-337, 138 A.2d 372.

The trial court had no power to grant a new trial under Rule 759a.

If the second motion for a new trial is treated as an application for post conviction relief and this appeal as an application by the State for leave to appeal, the result would be the same.

Judges Duer and Taylor said 'as we review the testimony of Mr. Oropollo, had he been here on the day of the trial in Cambridge * * * he would have in a sense affirmed the testimony of Dr. Prado. * * * We think without any doubt that perhaps this is important testimony * * *. We think Mr. Oropollo would have been a competent witness to testify.'

It is far from clear that Mr. Oropollo would have been a competent witness. There has been and is a sharp disagreement as to whether a clinical psychologist is scientifically competent and hence legally qualified to make a diagnosis of the existence and character of a mental disease or condition and determine accurately whether there was a causal relationship between such a disease or condition and an unlawful act. A resolution was adopted in 1954 by the American Medical Association, the Council of the American Psychiatric Association and the Executive Council of the American Psychoanalytical Association, ¹ which included this:

'The medical profession fully endorses the appropriate utilization of the skills of psychologists, social workers, and other professional personnel in contributing roles in settings directly supervised by physicians. It further recognizes that these professions are entirely independent and autonomous when medical questions are not involved; but when members of these professions contribute to the diagnosis and treatment of illness, their professional contributions must be co-ordinated under medical responsibility.'

The three psychiatrists who testified at Tull's original trial seemingly agreed. Dr. Cushard, Dr. Hamilton and Dr. Prado all attended two staff conferences at which Tull's case was discussed and decided. Dr. Cushard explained the mechanics of the staff conferences at Perkins in part in this way (E 87--Original Trial Extract):

'First, I might go back to the point where a patient is first admitted to the hospital. He is examined by a psychiatrist and a preliminary mental examination is done, and a physical. Then later a more extensive history and psychiatric examination is done, or are done, rather. In addition to that there's a psychological examination, social service investigation, and a social worker talks to the patient's own relatives and friends, and various laboratory tests including electroencephalogram to rule out or find out if the person has organic damage to the brain, and any other examinations which may be indicated in the individual case.

'Now then, after all of this information and--all of this information is compiled and related to the total case, he is presented by the doctor who had the case, did the case study, the case is presented, that is, before a staff conference which is attended by the members of the staff and also by the clinical, the psychologists, and the social workers, and the nursing service, and the rehabilitation service, all of whom present their respective observations and what they had learned about the patient. In other words, there is a total and complete presentation as possible of all the information that we have been able to gather during hospitalization.

'The patient is then brought in before the staff and is questioned by the physicians who are present, and the object of this examination is to fill in and complete, or add whatever may be added to, the already available information.

'It affords each physician a chance to ask any questions about which he is not quite clear as to the answers, or any additional information he would like to have, or how the patient is feeling at that time.

'In other words, this examination proceeds until all physicians present are satisfied with the information available and are ready to form and express an opinion.

'The patient then leaves the staff conference and the various physicians give their opinions regarding the man's mental condition and opinions as to responsibility and so forth.'

Dr. Prado testified that Dr. Cushard's description of a staff conference was complete and accurate.

It would appear that the clinical psychologists, like the social workers and representatives of the nursing and rehabilitation services 'present their respective observations' but do not give opinions, as such, and that the medical men and women 'form and express on opinion' and then, after the subject leaves, 'the various physicians give their opinions regarding the man's mental condition and opinions as to responsibility and so forth.'

The Courts have divided on whether a psychologist is qualified to express an opinion as to mental disease or condition, as opposed to giving factually the results of his tests on and observations of the patient. See the cases and text and law review writes referred to in the Annotation 'Qualification of nonmedical psychologist to testify as to mental condition or competency,' 78 A.L.R.2d 919, and a full discussion of...