Hazel v. State

Hammond, J., delivered the opinion of the Court. Hazel, the appellant, was tried on a charge of rape by the Criminal Court of Baltimore, three judges sitting without a jury. He was found sane and guilty as charged, and sentenced to death. In the appeal to this Court sanity was not an issue, the sole question argued and decided being the sufficiency of the evidence to support the finding of guilt.

The judgment was affirmed in Hazel v. State, 221 Md. 464 . After the affirmance, and within weeks of the day Hazel ²⁵⁸ was to have been executed, the court-appointed lawyers who had represented him at his trial filed on his behalf a petition for relief under the Post Conviction Procedure Act, based on two grounds, one essentially factual, the other legal. First, they alleged that information which had come to them since the trial established that there had been a deprivation of due process of law at the trial in that officials of the State—the psychiatrist who was superintendent at Crownsville, and a young psychiatrist on its staff—(a) had given the trial court the false impression that there was no disagreement among the Crownsville medical staff or elsewhere in the Department of Mental Hygiene that Hazel was sane, when they knew, as a fact, that two members of the staff had “misgivings” as to Hazel’s sanity under psychiatric standards (although not under the Spencer-McNaghten Rule standard), and (b) had not informed the court that the Director of Correctional Psychiatry of the Department of Mental Hygiene, Dr. Morgenstern, who had concurred in the original conclusion of the Crownsville staff that Hazel was not sane had not been advised that the original conclusion had been revised, and was still of the opinion that it had been correct. The second ground was that the trial court lacked jurisdiction to try and convict Hazel because the controlling statute, Code (1957), Art. 59, Sec. 11, expressly required the report as to sanity to be made to the court by the Department of Mental Hygiene, and it had been made by the Superintendent of Crownsville.

Judge Warnken denied post conviction relief and we granted leave to appeal in forma pauperis. The contentions now made on appeal are the same as were made to Judge Warnken. On the first point he found as a fact from the testimony before him that there had been no false testimony, or knowledge of the State witnesses, that Dr. Morgenstern did not agree with the revised conclusions as to Hazel’s sanity. On the question of law he concluded that the jurisdiction of the Criminal Court of Baltimore did not depend upon literal compliance with the provisions of Art. 59 of the Code (as well as that the accepted practice had been for the Superintendents of the various mental institutions to make sanity reports to the courts as the representatives of ²⁵⁹ the Department of Mental Hygiene).

This conclusion was confirmed, after he had reached it, by the decision of this Court in Hamilton v. State, 225 Md. 302 . Judge Warnken’s opinion reviews and deals with the contentions of the appellant, factual and legal, in such detail and with such perceptive accuracy that, after that thorough consideration of the record which a capital case demands and receives, we have decided that it should be adopted as the opinion of the Court and, as such, reproduced in the official report. However, one aspect of the case should be amplified, although what is hereafter said is implicit in Judge Warnken’s findings. If it be assumed that Dr. Ward’s sincere statement there was no disagreement among the staff as to Hazel’s sanity, was incorrect and had the same effect as a material misstatement knowingly made, or left uncorrected, nevertheless, because the assumed mistake was not prejudicial, there resulted neither a denial of due process nor any other ground for relief under coram nobis (one of the remedies for which the Post Conviction statute, Code (1960 Cum.

Supp.), Art. 27, Sec. 645A, is a substitute) as there might otherwise have been. People v. Fisher, 192 N. Y. S. 2d 741, 746 (Ct. Gen. Sess. N. Y. Co.); Alcorta v. Texas, 355 U. S. 28, 31 ; Napue v. Illinois, 360 U. S. 264, 270, 272 ; United States v. Baldi, 195 F. 2d 815 (C. A. 3), cert. den. 345 U. S. 904 .

Dr. Morgenstern in his memorandum to his superior on August 14, 1959, complaining that he was not consulted nor told of the change in diagnosis, said he was still of the opinion Hazel “at the time of the conference was mentally ill * * He has not examined Hazel, reviewed the Crownsville files nor consulted anyone about Hazel since July 15, 1959. He has never said to anyone, or ever testified, that he thinks the ultimate diagnosis of sanity was wrong. Dr. Morgenstern’s complaint was that he had not been consulted further before Hazel was sent to court for trial, not that an insane man had been tried, convicted and sentenced to death. We cannot and do not believe Dr. Morgenstern would have remained silent, save for a complaint as to departmental procedure or protocol, ²⁶⁰ and never, to this day, have said Doctors Ward, Ramirez, Phillips and Guttmacher had reached a wrong result, if he believed an insane man was about to be executed.

We find nothing to indicate that if the trial judges had known that Dr. Morgenstern had not in fact acquiesced in Dr. Ward’s report and conclusions prior to the trial in the criminal court (as Dr. Ward and Hazel’s lawyers justifiably believed) the result would have been different. For the reasons set forth in Judge Warnken’s opinion, as here amplified, the order appealed from will be affirmed. Order affirmed. Opinion and Order oe Judge Warnken.

Clifford E. Hazel was convicted of rape by Judges Tucker, Carter and Sodaro, without a jury, on August 11, 1959, and was sentenced to death by lethal gas on August 14, 1959. The verdict included a finding that he was sane at the time of the commission of the crime and sane at the time of the trial. The judgment of conviction and sentence imposed was affirmed by the Court of Appeals on February 17, 1960, where the sole question presented was whether the evidence was sufficient to prove that he raped the prosecuting witness. Hazel v. State, 221 Md. 464 .

No question was raised there as to his sanity. At both trials he was represented by court appointed counsel, Messrs. Milton B. Allen and Jacques E. Leeds. The same counsel prepared and filed on behalf of Hazel, on May 6, 1960, a Post Conviction Procedure petition in which the relief prayed is that the findings of sanity and guilt be stricken out and a retrial be had after an appropriate examination and report by the Department of Mental Hygiene.

After the filing of an amended petition a hearing was held at which numerous witnesses testified. Some weeks later when the hearing was resumed so that a deposition of an absent witness could be read in evidence an amendment of the amended petition was filed and the case was submitted by counsel without argument. The jurisdiction of the trial court is challenged under the Federal (14th Amendment) and Marjdand (Article 23) con ²⁶¹ stitutions. Specifically and briefly stated, it is contended: (1) That the jurisdiction of the court to proceed with the trial was dependent upon findings and a report of the Department of Mental Hygiene, pursuant to Article 59, section 11 of the Code, as to the sanity of the petitioner, that such report was not furnished and if it had been the petitioner would not have been subjected to trial.

(2) That the testimony of Dr. Ward, Superintendent of Crownsville State Hospital, “was incorrect and false” and if the actual facts had been produced in court, the petitioner would not have been subjected to trial. (3) That the court was misled by state officials, Drs. Ward and Ramirez, “who knowingly allowed the court to exclude from its consideration information peculiarly within their (the officials) knowledge, which would have resulted in the defendant petitioner not coming to trial on August 7, 1959, or resulted in a finding of insanity had he come to trial.” 1. Petitioner bases the lack of jurisdiction of the trial court on the alleged failure to comply with Article 59, section 11 of the Code.

The exact point is that the report to the court as to the sanity of petitioner was furnished by Dr. Ward, Superintendent of Crownsville State Hospital, instead of the Department of Mental Hygiene. Article 59 is headed “Lunatics and Insane.” Section 16 abolished the Board of Mental Plygiene and provided that “There shall be a Department of Mental Hygiene under the direction of the Commissioner of Mental Hygiene, with full power and authority to supervise, direct and control all State institutions caring for or treating persons of unsound mind and with such other rights, powers, duties, obligations and functions as are now or hereafter may be conferred upon the Department or the Commissioner by law.” The Commissioner of Mental Hygiene is directed to “make rules and regulations, * * * as he may deem proper and necessary for the administration of the Department and the State institutions under its direction and control.” As the Department of Mental Hygiene, as such, is not defined in Article 59 I assume it is a method of designating a department of the state government consisting of the Com ²⁶² missioner of Mental Hygiene and such personnel as he may appoint to assist him. At the trial I endeavored to ascertain who constituted the Department of Mental Hygiene and whether there was any written designation of the members thereof by the Commissioner of Mental Hygiene but no one seemed to know. Dr. Morgenstern, hereinafter more fully referred to, seemed to indicate that ultimately he was the Department of Mental Hygiene in so far as the requirements of section 11 are concerned, although he styled his position as Director of Correctional Psychiatry of the Department of Mental Hygiene.

As section 11 incorporates by reference some part of sections 7 and 9, the purpose and relevancy, if any, of each to this case will be briefly mentioned. Section 7 primarily concerns the method of pleading insanity and the duty of the jury or court in rendering a verdict where such a plea is filed. It concludes by giving the court power, before trial, to order an examination of the mental condition of the defendant by the Department of Mental Hygiene and prescribes the manner in which such an examination shall be made. Section 9 provides that as to any person charged with the commission of a crime, the court may cause the Department of Mental Hygiene to inquire whether such person is insane or lunatic, or of such mental incapacity as to prevent him from properly conducting his defense.

If the finding is that he is so incapacitated, the court shall, in its discretion, direct him to be confined in a mental institution until he shall have recovered and shall stay the proceedings against him until that time, and upon recovery the court shall proceed with the trial. Section 11 gives a judge of any court or a justice of the peace having criminal jurisdiction, as to any person brought before him charged with any offense and who is committed in default of bail, the power to commit such person either to a mental institution or to jail to await further proceedings if he appears to be or is alleged to be insane or lunatic. If such person is committed to a mental institution the Department of Mental Hygiene is required to determine whether he is insane or lunatic and within two weeks report its findings ²⁶³ to the court or justice. If the Department shall find such person insane or lunatic, he shall remain in a mental institution until he shall be tried or until the court shall in its discretion give the direction provided for in section 9 (set out above).

In all cases not punishable by death or confinement in the penitentiary the examination provided for in this section and in sections 7 and 9 may be made by the superintendent of the mental institution in which the person may be confined pending trial, instead of the Department of Mental Hygiene. It is quite clear that these sections impose no preliminary requirement or condition to proceeding with the trial of a person charged with the commission of a crime even though he appears to be or is alleged to be insane. They merely provide the court with means to obtain information as to sanity if it desires it for such use it cares to make of it. Whether to seek such information and its action thereafter is entirely discretionary.

Jurisdiction to proceed with the trial is in no wise affected. The power of the court to validly commit the accused to a mental institution and to stay the trial is given upon an affirmative finding of incapacity by the Department of Mental Hygiene. In the absence of such power and finding the legal place of confinement would doubtless be jail pending trial. Section 11 permits, in certain cases, the finding and report as to sanity to be made by the superintendent of the mental institution rather than the Department of Mental Hygiene.

But whether made by one rather than the other or by neither, or if the court decides not to wait for the report, its right to proceed with the trial is not constitutionally or by statute prevented. A finding of insanity by the Department of Mental Hygiene would not oust the court of jurisdiction to proceed with the trial and adjudicate that issue. Even if it be assumed, for the sake of argument, that the court should not have proceeded with the trial without a report from the Department of Mental Hygiene rather than receiving Dr. Ward’s report, its action could only be a procedural error which must be timely raised, and if rejected the only redress is by a motion for new trial or an appeal. The latter was taken but the point was not made and the ²⁶⁴ affirmance of the judgment by the Court of Appeals has foreclosed the question.

Contentions which go to the regularity, rather than to the validity of the proceedings, cannot be raised by habeas corpus or Post Conviction Procedure. Dwyer v. Warden, 223 Md. 641 , 162 A. 2d 726 , is one of the latest of numerous cases which so hold. With respect to the provisions of section 11 which seem to mean that the examination and report in capital and penitentiary cases shall be made by the Department of Mental Hygiene, there is a real conflict between Drs. Ward and Tuerke on the one hand and Dr. Morgenstern on the other, as to what constitutes a report by the Department.

Dr. Ward testified that Dr. Morgenstern is not the representative of the Department of Mental Hygiene, but that in such matters the Department is represented by the hospital and the superintendent of the hospital where the accused is confined. He also said that it has been the custom for the official opinion to be furnished by the Superintendent of the hospital; and that the hospital’s opinion can only be given by him and not by the staff. He said “this is the way we function” and that he still acts as though the superintendent of the hospital represents the Department of Mental Hygiene. Dr. Ward also said when Dr. Morgenstern has participated in a staff examination of an accused, he always sends him a copy of the report which he furnishes to the court, so that if Dr. Morgenstern differs with it he can also present his opinion to the court.

Dr. Ward stated that Dr. Morgenstern functions as consultant to the mental hospitals but carries no administrative authority and that he has no responsibility over the hospitals and does not have to be called when a patient is permitted to leave the hospital. Dr. Tuerke, who is now the Commissioner of Mental Health, testified that while he was superintendent of Springfield State Hospital he followed the practice testified to by Dr. Ward with respect to capital and penitentiary cases. Against the above is the testimony of Dr. Morgenstern that he is the supervisor of staff conferences dealing with forensic cases which come from a court to a hospital for discussion, evaluation and report back to the court. He also indicated ²⁶⁵ that the report required by law of the Department of Mental Hygiene must be made by him.

I find from all the testimony that the practice has been in accordance with the testimony of Drs. Ward and Tuerke. This conflict at least shows how fortunate it is that the jurisdiction of the court is not dependent upon such a slender reed as the answer to the question of whether the report as to sanity of the petitioner, which the court received, was made by the Department of Mental Hygiene. 2 and 3. These contentions of the petitioner require a review of the facts in the order of their