Lincoln v. Director, Patuxent Institution

Orth, C. J., delivered the opinion of the Court. It appears from a petition seeking a redetermination of defective delinquency status filed on 24 October 1973 by GEORGE JOSEPH LINCOLN in the Circuit Court for Prince George’s County that Lincoln was convicted in that ⁵⁹⁸ court of unnatural and perverted sexual practices and sentenced to 5 years on 21 May 1969. He was referred to Patuxent Institution for evaluation as a possible defective delinquent. Upon a finding in the Circuit Court for Prince George’s County on 10 August 1970 that he was a defective delinquent, he was committed to Patuxent for an indeterminate term.

He sought a redetermination of his status as a defective delinquent, and on 7 January 1974 was found by a jury to be a defective delinquent. The same day he was recommitted to Patuxent by order of Parker, J. He seeks leave to appeal from that order. 1 Lincoln’s reason why the order recommitting him to Patuxent should be reversed concerns Code, Art. 31B, § 7 (b). He asserts that the statute authorizes that he be examined by a psychiatrist of his own choosing. He claims that his counsel “was notified that funds for an independent psychiatric examination would not be available for an indigent”, that his counsel “only became aware the day before the January 7, 1974 hearing that [he] had a statutory guaranteed right to be examined by an independent psychiatrist”, that he moved for a continuance to obtain such an examination, and that the hearing judge denied the motion.

He urges that this was error, pointing out that “there would have been no prejudicial delay had the trial judge granted a continuance in order for an independent evaluation to be completed . ...” 2 ⁵⁹⁹ When the petition for redetermination came on for trial, Lincoln, out of the hearing of the jury, moved for a continuance. The transcript of the proceedings reads: “MR. POWERS [Lincoln’s Attorney]: Pursuant to Article 31B defendant at this time requests postponement in order to have an independent psychological or psychiatric evaluation of the defective delinquent. Defense counsel learned as late as a month ago that the Public Defender’s Office would not pay for an independent evaluation, but according to the rules it seems that an independent evaluation should be granted.

I believe that the State has an expert here today from the institution who will testify as to psychological and/or psychiatric status of this delinquent and defense counsel feels it is imperative that we have an opportunity, as provided by the statute under 31B, to have this man independently evaluated and those reports forwarded to the Court. THE COURT: Why didn’t you make application to the Court for appointment of a psychiatrist a month ago when you found out the Public Defender wouldn’t bear the expense? MR. POWERS: Your Honor, the Public Defender’s Office notified me by phone.

I was appointed; I am not on their staff. I am a private attorney and I was appointed to represent this man. I received appointment papers in the mail and made a phone call to Mr. Camus’ office, whereupon I was advised that the Public Defender’s Office does not provide money for it. THE COURT: I say a month ago when you knew that, why didn’t you file a petition in the case for appointment of a psychiatrist at that time?

MR. POWERS: Acting on the instructions of the Public Defender’s Office I failed to file a petition. THE COURT: The motion at this time is not timely so therefore it is denied. You can’t come in the day ⁶⁰⁰ of trial and ask for the appointment of a psychiatrist.

MR. POWERS: Your Honor — THE COURT: The jury is here and all the other witnesses for the State are here. MR. POWERS: The State has made it known to the defendant and to defendant’s counsel that there is no inconvenience to them and it would be approximately a thirty day delay.

And I think, since the rules provide that he will not be eligible again for three years should a redetermination be a certainty here today that he is still a defective delinquent, I think that it would be imperative for his rights that he be independently examined and a thirty day postponement is not unreasonable. THE COURT: I have ruled and we will let the record stand as it is. MR. POWERS: Very well, Your Honor.

THE COURT: We have rules to go by here by way of making a motion for continuance. If they are timely made and within reason we grant them. We don’t grant them on the date of trial.” Maryland Rule 527 a 1 authorizes the court, in its discretion, upon motion of any party, or upon its own motion, to “continue an action from time to time in order that a trial may be had upon the merits or as the interests of justice may require. . . .” See Butkus v. McClendon, 259 Md. 170 . Court Rule 527 of the Seventh Judicial Circuit is more specific.

Section b prescribes, as to civil trials: “Upon receipt of notice of the trial date from the Assignment Clerk counsel must promptly communicate with the Assignment Clerk if there are any reasons, including, but not limited to, a conflict of dates with some other court proceeding, unavailability of witnesses, and pending discovery proceedings, for which such date is not acceptable. Failure to notify the Assignment Clerk will be ⁶⁰¹ construed as acquiescence in the date, which shall become absolutely binding after thirty days from the date of notice. Thereafter, no continuance will be granted unless the Court shall be satisfied that such an emergency has arisen, not reasonably foreseeable, as would result in an injustice if the trial is required to take place.” The initial question is whether the judge abused his discretion by denying a continuance. The record affirmatively shows that Lincoln’s counsel was notified of the hearing date in ample time to comply with Seventh Circuit Rule 527.

On 29 October 1973 the court below issued an order that Lincoln be brought before it for a redetermination hearing as to his defective delinquency status and that his counsel “be notified of the hearing date at least thirty days in advance in order that the defendant may secure the attendance of witnesses on his behalf by process.” Under date of 13 November 1973 counsel was notified by letter from the Assistant State’s Attorney that the case was “set for jury trial on Monday, January 7, 1974 at 10:00 A.M.” On 29 November 1973 counsel filed a line to issue summonses for six witnesses to appear on the date set. Assuming arguendo that Lincoln was entitled to be examined by a psychiatrist of his own choice, it appears from the face of the record that there was ample time for counsel to so request the court and to have obtained a report before the date set for trial. Counsel’s reasons to the court below why he had not done so alleged that he had learned “as late as a month ago” that the Public Defender’s Office, by whom he was appointed to represent Lincoln, would not pay for an independent evaluation. Asked by the judge why he had not prayed the court to appoint a private psychiatrist, his answer was, “Acting on the instructions of the Public Defender’s Office I failed to file a petition.” We observe that he introduced no evidence whatsoever to support his claim, but, for the purpose of decision, we consider his statements a proffer of evidence, and accept, as apparently the court below did, that the Office of the Public ⁶⁰² Defender told him that it would not pay a private psychiatrist to examine Lincoln.

Accepting this, however, does not explain why counsel did not request the court to appoint a private psychiatrist. The substance of Code, Art. 31B, § 7 (b) has been in effect since 1951, see Acts 1951, ch. 476, § 7 (b), and, assuming for purpose of resolution of the matter of the continuance, that the statute is applicable in the circumstances, if counsel was not in fact aware of its provisions, he was certainly charged with knowledge of them. We conclude that, under the local rule of court, as no emergency had arisen which was not reasonably foreseeable, the court below did not abuse its discretion in failing to grant the continuance requested. Our conclusion, however, that there was no abuse of judicial discretion in refusing to grant a continuance in the circumstances, does not end the matter.

Lincoln obviously wanted to be examined by a psychiatrist of his choice. If he was legally entitled to such an examination, the failure of counsel to make timely request for it might well be prejudicial, and, thus, Lincoln would not have received genuine and effective assistance of counsel. 3 Our inquiry necessarily turns to whether Lincoln was entitled to be examined by a private psychiatrist. A request that a person be examined for possible defective delinquency may be made upon conviction of that person of certain crimes. Code, Art. 31B, § 6 (a).

The request may be made, not only by the State’s Attorney prosecuting the person and by the court on its own initiative, but by the person himself or his attorney in his behalf. § 6 (b). The examination shall be made by at least three persons on ⁶⁰³ behalf of Patuxent Institution, as spelled out by § 7 (a). See Fox v. Director, 6 Md. App. 475 . Section 7 (b) provides for an additional psychiatric examination.

It reads: “In addition to the examination provided in the foregoing subparagraph (a), whenever a request has been made to examine any person for defective delinquency, other than a request made by such person himself or by his attorney on his behalf, and whenever the court has on its own initiative ordered