dissenting:
In at least two respects, I do not agree with the majority opinion in this case. First, for the reasons set forth in Judge Cole’s dissenting opinion, the representation by Johnson’s lawyer was so inadequate that the defendant was deprived of his right to counsel under the Sixth Amendment to the United States Constitution and Art. 21 of the Maryland Declaration of Rights. Second, for the reasons set forth below, I disagree with the majority’s holding that a criminal defendant, charged with first degree murder or other crime requiring specific intent, is not entitled to present evidence of his mental condition to show that necessary elements of the alleged offense were absent. The convictions should be reversed, and the case should be remanded for an entirely new trial.
I.
With regard to the admissibility of evidence concerning Johnson’s mental condition, the factual background is as follows. After the insanity plea was withdrawn, the only defense which Johnson’s attorney attempted to present in this capital case was that, in light of Johnson’s mental condition, the elements of first degree murder and other specific intent crimes were absent. For this purpose, defense counsel *445offered the testimony of an expert witness, a psychologist employed by the State of Maryland. The experienced trial judge, consistent with prior Maryland law, held that the evidence was admissible for such purpose.1 The psychologist then testified about Johnson’s mental condition, tests which he ran on Johnson, and his conclusions. In addition, portions of the psychologist’s report were admitted. On appeal to this Court, neither side raised any issue concerning the general admissibility of this type of evidence.2 Instead, the appellant contended that the trial judge erred in not allowing all of the psychologist’s report to be presented to the jury. The State, without disputing the admissibility of the expert testimony, argued that the trial court correctly excluded a portion of the *446report because it "was simply not germane to the issue of diminished capacity.” (Appellee’s brief, p. 23).
The majority opinion, instead of deciding the issue which was presented, briefed and argued by the parties, now holds that the entire expert testimony and the entire report were inadmissible. On this basis, the majority finds no reversible error in the exclusion of a portion of the psychologist’s report. Of course, an appellate court will ordinarily affirm a judgment of the trial court on any ground adequately shown by the record, even though the ground was neither relied on by the trial court nor raised by the parties. Temoney v. State, 290 Md. 251, 261, 429 A.2d 1018 (1981), and cases there cited. Consequently, I do not question the propriety of this Court’s dealing with the broad admissibility issue. However, I do question whether, under all of the circumstances, it is appropriate to resolve the issue against the defendant Johnson without first giving him an opportunity to brief and argue the matter.
II.
Turning to the merits of the majority’s position, in my view the trial court correctly held that evidence of Johnson’s mental condition was admissible for the purpose of showing the absence of certain elements of first degree murder and of the other specific intent crimes with which Johnson was charged. The majority’s contrary holding represents an abrupt departure from prior Maryland law as well as from the prevailing view throughout the country. Moreover, it constitutes an unwarranted limitation upon a criminal defendant’s constitutional right to present relevant evidence in his own defense.
The majority arrives at its holding by confusing two entirely distinct matters: (1) the existence of criminal conduct when a particular mental state is an element of the crime charged; (2) responsibility for criminal conduct. The confusion is enhanced by the majority’s use of the terms *447"capacity” and "capability” interchangeably with "responsibility” and "culpability.” 3
The defendant Johnson, inter alia, was charged with murder in the first degree under Maryland Code (1957, 1976 Repl. Vol.), Art. 27, § 407. In order to constitute first degree murder under § 407, the homicide must be a "wilful, deliberate and premeditated killing.” Consequently, the State had the burden of proving the existence of these three elements. See Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); State v. Evans, 278 Md. 197, 362 A.2d 629 (1976). The mental condition of a defendant is obviously relevant to willfulness, deliberation and premeditation. These elements of murder have been defined by this Court on numerous occasions. In Faulcon v. State, 211 Md. 249, 257, 126 A.2d 858 (1956), Judge Collins stated for the Court:
"For a homicide to be 'wilful’ there must be a specific purpose and design to kill. To be 'deliberate’ there must be a full and conscious knowledge of the purpose to kill. To be 'premeditated’ the design to kill must have preceded the killing by an appreciable length of time; that is, time enough to be deliberate. To justify a conviction of murder in the first degree the jury or court, sitting without a jury, must find the actual intent, the fully formed purpose to kill, with enough time for deliberation and premeditation.”
Accord: Gladden v. State, 273 Md. 383, 387-388, 330 A.2d 176 (1974), and cases there cited. "Specific purpose and design to kill” and "full and conscious knowledge of the purpose to kill” certainly involve a defendant’s mental state. Evidence designed to show that a particular defendant was incapable of having the requisite mental state is nothing more or less than evidence designed to show that he did not commit the crime with which he was charged.
*448On the other hand, under Maryland law criminal responsibility due to mental condition is a wholly different matter. Unlike the common law concept of "not guilty by reason of insanity,” the Maryland statutory scheme concerning criminal responsibility contemplates an initial determination that the defendant did commit the crime charged before there is an inquiry into his responsibility therefore. This was made clear recently in Langworthy v. State, 284 Md. 588, 399 A.2d 578 (1979), in which we held that a defendant, charged with rape, was entitled to take an appeal even though he successfully interposed the defense that he was insane when the alleged crime was committed. Judge Orth there stated for a unanimous Court (284 Md. at 598):
"The Court of Special Appeals dismissed Langworthy’s appeal, holding that 'a defendant, except under rare circumstances not here apposite, has no right to take an appeal from an acquittal.’ Langworthy v. State, 39 Md. App. at 559-560. The fallacy in this reasoning is that Langworthy was found guilty of rape, and the dismissal of the appeal precluded appellate review of that conviction. As we have seen, the existing statutory scheme patently contemplates that there be first a determination of guilt or innocence under the general plea.
* * *
"In short, the clear legislative intent regarding the successful interposition of a plea of insanity is not that an accused is to be found not guilty of the criminal act it was proved he committed, but that he shall not be punished therefor. Rather than be punished, he may go free or, under prescribed circumstances, be provided treatment for his mental disorder. Thus, the Court of Special Appeals was not correct when it indicated that Langworthy was 'not guilty’ by reason of insanity nor was the trial judge correct when he spoke in those terms in indicating from the bench what he intended to do.”
*449The Court went on to note the difference between the mens rea, which is an element of the crime, and the mental state required for an insanity defense (id. at 599, n.12):
"We believe the reference to 'not guilty by reason of insanity’ is a holdover from common law concepts and prior statutory provisions regarding insanity and the commission of crimes. In light of the clear provisions of § 25, we do not consider §§27 and 28 as authorizing or calling for a verdict of 'not guilty by reason of insanity.’
"We do not subscribe to the theory of the Court of Special Appeals that a finding that a defendant was insane a+ the time of the commission of the crime means that '[t]here is no crime.’ Langworthy v. State, 39 Md. App. 559, 561, 387 A.2d 634 (1978). Its reasoning was that the finding of insanity establishes a lack of the mens rea. Id. We do not think that this is so in light of the conditions prescribed for a finding of insanity, namely 'as a result of mental disorder, [a defendant] lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.’ Code (1957, 1972 Repl. Vol.) art. 59, § 25 (a). Neither of these tests is necessarily at variance with a general intent to commit a crime. See Gardner v. State, 41 Md. App. 187, 396 A.2d 303 (1979).”
Until today, this Court has regularly distinguished evidence of a defendant’s mental state designed to negate the existence of a crime from evidence of insanity designed to show that he was not responsible for a crime which was in fact committed. Whenever the existence of a particular mental state is an element of a criminal offense with which the defendant has been charged, the Court has consistently held that evidence of the defendant’s mental capability is admissible to show the absence of that element, and thus the absence of criminal conduct.
For example, in Chisley v. State, 202 Md. 87, 107-109, 95 *450A.2d 577 (1953), involving a conviction of first degree murder and the imposition of a death sentence, evidence of the defendant’s mental capability due to drunkenness was deemed properly admissible in order for the jury to determine the degree of homicide. The Court, in an opinion by Judge Hammond, quoted with approval Warren on Homicide, Vol. 1, § 61, that "[w]here murder is divided into degrees, the fact of drunkenness at the time of the homicide may be considered by the jury in determining the degree of murder.” 202 Md. at 107. This Court went on to cite Hopt v. People, 104 U.S. 631, 26 L.Ed. 873 (1882), for the principle "that under a statute establishing different degrees of murder, the question of whether the accused was in such a condition of mind by reason of drunkenness, or otherwise to be capable of deliberation and premeditation, becomes a material subject of consideration by the jury.” 202 Md. at 107, emphasis supplied. The Court in Chisley concluded this portion of the opinion by indicating that the jury was properly charged "as to the necessity for considering the effect of intoxication on the formation and existence of willfulness, deliberation and premeditation.” Id. at 108.
Later, in Beall v. State, 203 Md. 380, 385, 101 A.2d 233 (1953), the Court reiterated that mental incapability due to drunkenness may be considered by the jury in determining the degree of murder. See also Avey v. State, 249 Md. 385, 388, 240 A.2d 107 (1968), where this Court expressly approved of the statement by the Court of Special Appeals that "where intoxication exists to a degree that it deprives the accused of his capacity to form a specific intent, he cannot be convicted of a crime requiring that intent ....” 4
In support of its holding that the expert psychological testimony was inadmissible in this case to show that the degree of homicide was less than first degree murder and to show *451the absence of the specific intent required under some of the other charges, the majority cites Armstead v. State, 227 Md. 73, 175 A.2d 24 (1961) and Allen v. State, 230 Md. 533, 188 A.2d 159 (1963). However, these cases do not support the majority position. Moreover, they clearly recognize the distinction which the majority today blurs, that is the distinction between evidence of mental incapacity, which is admissible to show lack of premeditation and deliberation, and the test for criminal responsibility. In Armstead v. State, supra, the defendant was convicted of first degree murder. At the trial, evidence was admitted showing that the defendant was "an epileptic who, occasionally, had suffered seizures of the grand mal type,” 227 Md. at 74. On the other hand, a letter from the Chief Medical Officer of the Supreme Bench of Baltimore City, Dr. Manfred Guttmacher, was introduced into evidence, in which Dr. Guttmacher stated that the defendant "had too clear a memory of what transpired at the time of the offense for it to have occurred during an epileptic seizure.” Id. at 75. The defendant in Armstead conceded that she was not insane under the McNaughten test for insanity then in effect and conceded that the evidence showed that she was guilty of second degree murder. Nevertheless, she argued that the trial court should have directed a verdict as to first degree murder on a diminished responsibility theory because she was an epileptic. Id. at 74-75. The defendant recognized that her argument required a modification in the test for insanity. She further recognized that her particular diminished responsibility theory, although close, was different from the principle that mental condition is relevant in determining capability to deliberate and premeditate. Id. at 75-76. Faced with this argument, the Court in Armstead refused to modify the McNaughten test for insanity and adopt the criminal responsibility theory propounded by the plaintiff. At the same time, the Court in Armstead did set forth "the well-recognized principle of law that when a statute establishes different degrees of murder and requires deliberate premeditation in order to constitute murder in the first degree (as ours does), the question of whether the accused is *452in such condition of mind as to be incapable of deliberate premeditation necessarily becomes a material subject of consideration. Hopt v. People, 104 U.S. 631; Chisley v. State, 202 Md. 87, 95 A.2d 577.” 227 Md. at 76, emphasis supplied.
Allen v. State, supra, the second Maryland case relied on by the majority, is somewhat similar to Armstead. In Allen, the defendant was convicted in a nonjury trial of first degree murder. During the trial, he was allowed to introduce evidence showing that he was an epileptic. Also introduced in evidence was a medical report. The trial judge, as trier of fact, "found on the basis of the medical report that epilepsy played no primary role in the affair,” 230 Md. at 534. The defendant in this Court argued that he was incapable of the premeditation necessary to sustain a charge of first degree murder. Ibid. This Court, treating the argument as having two prongs, first held that there was "no basis upon which to overturn his [the judge’s] findings of fact.” Ibid. In addition, the Court referred to Armstead as having rejected the "so-called diminished responsibility rule.” Ibid.
The differences between the Armstead and Allen cases on the one hand, and the instant case on the other, are substantial. Unlike the majority’s holding today, neither Armstead nor Allen suggested that the evidence of each defendant’s abnormal mental condition was inadmissible to show the lack of willfulness, premeditation and deliberation. Instead, the inference from both cases is that the evidence was admissible. While those cases refused to change the test for criminal responsibility, they do not support the majority’s holding regarding evidence showing incapability of having the mental state required for a first degree murder conviction. Instead, as previously mentioned, the Court in Armstead cited Chisley v. State, supra, 202 Md. at 107, for the rule that when a statute divides murder into degrees and requires deliberation and premeditation for first degree murder, "the question of whether the accused is in such condition of mind as to be incapable of deliberate premeditation necessarily becomes a material subject of consideration.” 227 Md. at 76. The Armstead Court described this as a "well-recognized principle of law,” ibid.
*453The majority purports to recognize that the State must prove every element of a crime, including mental elements such as specific intent, premeditation and deliberation. Nevertheless the majority asserts, without any reasoning, that "Ltjhere is a fundamental difference between evidence demonstrating that the defendant did not as a fact possess the requisite mental state, here premeditation and deliberation, as opposed to evidence establishing that the defendant was generally less capable than a normal person of forming a requisite mens rea.” However, I fail to perceive this "fundamental difference” referred to by the majority. A particular individual’s abnormal mental capability is a fact. It is part of his mental state or condition. A defendant having an epileptic seizure is "generally less capable than a normal person” of premeditation and deliberation, as indicated by this Court in Armstead v. State and Allen v. State.
The majority also asserts that "the governing principle of the criminal law [is] that all legally sane individuals are equally capable of forming and possessing the same types and degrees of intent.” No Maryland authority is cited for this proposition. Furthermore, it directly conflicts with the principle set forth in Armstead, in Chisley v. State, and other cases, that a defendant’s mental condition is material in determining whether he is ’’capable of deliberation and premeditation,” 202 Md. at 107, emphasis supplied.
The error and confusion in the view adopted today by the majority, was very well described by Chief Justice Weintraub for the Supreme Court of New Jersey in State v. DiPaolo, 34 N.J. 279, 294-296, 168 A.2d 401, cert. denied, 368 U.S. 880, 82 S.Ct. 130, 7 L.Ed.2d 80 (1961):
"Next defendant contends that evidence of mental illness is competent upon the issue whether the crime was murder in the first degree or murder in the second degree.
"The difficulty seems to be that the topic is sometimes explored under the label of 'partial *454responsibility’ or 'diminished responsibility’ or perhaps confused with some other concept intended to be so described. Both of those characterizations are misleading since they tend to connote an 'affirmative’ defense designed to defeat a case the State has otherwise established and thus to suggest the intrusion of an amendment to the established basis for criminal accountability. Actually the question is simply whether there shall be excluded evidence which merely denies the existence of facts which the State must prove to establish that the murder was in the first degree.
* * *
"We here áre concerned with the category described as a 'willful, deliberate and premeditated killing.’ ... As settled by judicial construction, the first element is premeditation, which consists of the conception of the design or plan to kill. Next comes deliberation. The statutory word 'deliberate’ does not here mean 'willful’ or 'intentional’ as the word is frequently used in daily parlance. Rather it imports 'deliberation’ and requires a reconsideration of the design to kill, a weighing of the pros and cons with respect to it. Finally, the word 'willful’ signifies an intentional execution of the plan to kill which had been conceived and deliberated upon. . . .
"The three mental operations we have just described are matters of fact. The judiciary cannot bar evidence which rationally bears upon the factual inquiry the Legislature has ordered. The capacity of an individual to premeditate, to deliberate, or to will to execute a homicidal design, or any deficiency in that capacity, may bear upon the question whether he in fact did so act. Hence evidence of any defect, deficiency, trait, condition, or illness which rationally bears upon the question whether those mental operations did in fact occur must be accepted.
*455"It has long been settled that voluntary intoxication or the voluntary use of drugs may be shown for the jury’s consideration with respect to whether a defendant did in fact premeditate, deliberate and willfully kill.
"Surely if voluntary intoxication or use of drugs is evidential with respect to the degree of murder, mental illness or deficiency should be accepted as a legally competent 'cause.’ ”
See also, e.g., United States v. Brawner, 471 F.2d 969, 999 (D.C. Cir. 1972); Commonwealth v. Gould, 405 N.E.2d 927 (Mass. 1980); Lewin, Psychiatric Evidence in Criminal Cases for Purposes Other than the Defense of Insanity, 26 Syracuse L. Rev. 1051, 1092, 1104 (1975).
As Justice Powell stated for the Supreme Court in Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973), "[f]ew rights are more fundamental than that of an accused to present witnesses in his own defense.” By holding that one accused of first degree murder is no longer entitled to present relevant testimony of his mental condition for the purpose of negating the elements of first degree murder, the majority today imposes an unjustified limitation upon the right of a criminal defendant to present evidence in his own behalf.
Finally, the majority adopts this new rule in a case where the State is seeking the death penalty. The consequences of not permitting evidence of a defendant’s mental condition in support of his contention that the homicide is something less than first degree murder, may be extreme in cases like this. Even in murder cases where the death penalty is not being sought, due process would seem to require that a defendant be permitted to introduce evidence of his mental condition as bearing upon the degree of murder. In a capital case, however, I would find it extremely difficult to conclude that the *456death penalty could be imposed consistent with due process requirements when the defendant is not allowed to introduce relevant evidence indicating the absence of the elements of first degree murder.
Judges Cole and Davidson have authorized me to state that they concur with the views expressed herein.. After defense counsel questioned Dr. Ernest Kamm concerning his qualifications, the following colloquy took place:
"DEFENSE ATTORNEY: Your Honor, I would offer him as an expert.
"PROSECUTING ATTORNEY: No objection. But I object to his testimony.
"JUDGE BOWEN: What?
"PROSECUTING ATTORNEY: I don’t object to his qualifications but I object to his testimony.
"DEFENSE ATTORNEY: He hasn’t testified yet.
"PROSECUTING ATTORNEY: I’d like to approach the Bench.
"JUDGE BOWEN: All right.
"(Whereupon a conference is held at the Bench out of the presence of the Jury and with the defendant present, and the following proceedings were had:)
"PROSECUTING ATTORNEY: Your Honor, the defense has withdrawn their insanity pleas and we object to his testimony.
"DEFENSE ATTORNEY: I don’t intend to do that.
"JUDGE BOWEN: Do you want to proffer what you are trying to do?
"DEFENSE ATTORNEY: Your Honor, I’m trying to show how Doctor Kamm evaluated the defendant for the State. He ran certain tests. I am not trying to show that the defendant was incompetent or mentally incompetent at the time of the offense. I want the report and testimony of Doctor Kamm to go to the mitigation of First Degree Murder and any specific crimes. I have no intention of offering his —
"JUDGE BOWEN: You’re talking about intelligence?
"DEFENSE ATTORNEY: Intelligence and the rest of it.
"JUDGE BOWEN: Within that limits we will permit it.”
. Although appellants’ attorneys did discuss the general question in a footnote in their brief in this Court, the discussion was in connection with the question of trial counsel’s inadequacy.
. Unfortunately, the careless use of the English language in this regard is not limited to the majority’s opinion. See, e.g., W. R. La Fave & A. W. Scott, Jr., Handbook on Criminal Law, 325-332 (1972).
. With regard to diminished mental capacity due to intoxication, the majority today states that the "degree of intoxication necessary to negate mens rea is great and is comparable with that degree of mental incapacity that will render a defendant legally insane” and that "[1 lesser degrees of incapacity, whether produced by intoxication or organic mental impairment will not relieve a defendant of full responsibility for his acts.” This statement is contrary to Chisley, Beall and other Maryland cases.