Lawless v. Director, Patuxent Institution

Lowe, J., delivered the opinion of the Court. The issues are too clear and the law too well settled to require extended factual synopses or lengthy legal analyses to arrive at our result. Richard William Lawless, a young man whose name is not new to appellate reports, was received in Patuxent Institution for examination December, 1969, by order of the Circuit Court for Montgomery County. There followed a series of legal attempts by appellant to overcome that referral.

These attempts covered a two year period. Following their unsuccessful conclusion, the State requested a hearing on September 15, 1972 presumably based upon the Diagnostic Staff Report dated August 22, 1972. There was an unexplained hiatus of more than two years before the trial was finally held on December 12, 1974, before a jury of the Circuit Court for Montgomery County. Dr. Charles Cherry, a staff psychologist, was the only State witness.

Through him the Patuxent records relating to Mr. ⁴⁵⁵ Lawless and the August 22, 1972 evaluation report were introduced. A full reading of the record reveals that Mr. Lawless consistently refused examination and it appears the Patuxent officials acquiesced in that refusal. Dr. Cherry’s testimony clearly revealed that he did not personally examine Lawless and he further indicated that neither had the director nor the resident psychiatrist who also signed a Diagnostic Staff Report on Lawless dated August 22, 1972. Dr. Cherry admitted he had not even seen Lawless in over a year.

He testified that his evaluation, and inferentially that of all the staff members who signed the report, was made on the strength of Lawless’s record which contained prior examination reports and evaluation from the Clifton T. Perkins Institution. At the close of the State’s case appellant moved for a directed verdict grounded upon the State’s failure to show compliance with Md. Code, Art. 31B, Sec. 7 which requires that an evaluation of defective delinquency shall be upon examination “ . . . made by at least three persons on behalf of the institution for defective delinquents, one of whom shall be a medical physician, one a psychiatrist, and one a psychologist.. . .” This examination, following a compilation of pertinent information about the person to be examined, provides the basis for the staff determination. “On the basis of all the assembled information, plus their own personal examination, and study of the said person, they shall determine whether in their opinion, or in the opinion of a majority of them, the said person is or is not a defective delinquent. . . .” [Emphasis added]. Although comprehending the purport of appellant’s motion, the trial judge utilized Dr. Cherry’s testimony to explain that the Patuxent officials’ interpretation of the ⁴⁵⁶ statute was contrary to the statute’s words. Unfortunately the judge adopted that interpretation. “As I understand his motion, though, as presented, is that there was no personal examination in the prescribed review by — by prescribed I mean that prescribed by the Staff, and that is not in conformity with the decisional law on this matter now.

They have determined that the phrase used in the statute is, does not mean that, that it is necessary to have a personal examination, and that it is appropriate to present this matter at the staff evaluation in the form of prior reports, and which have been reviewed by the staff and wherein their opinion, those prior reports, broad enough in significance, enough for them to make the finding that they have declared, and in this case the staff which included a physician-psychiatrist and a psychologist, that they concluded from all of the available evidence that they had, accumulated records and recent past examinations, that they had an opinion. Now, under those circumstances, particularly where it was buttressed by the testimony from the psychologist who participated in that, that it was not merely a matter of having prior reports and evaluations available, but weighing and considering them, there was no necessity deemed by the Institution to seek the examination which might be undertaken by way of contempt and whether or not they are correct in their determination or the method that they used to proceed to determine it and the value of it is a matter for the jury to decide, and the motion must be overruled because I can’t indulge in the propensity that I might have to weigh the evidence.” That ruling would have been in accord with our opinion in State v. Weeder, 22 Md.