Smith v. Director, Patuxent Institution

Orth, C. J., delivered the opinion of the Court. On 22 March 1971 at a bench trial in the Circuit Court for Frederick County Ronnie Smith was convicted of robbery and sentenced to 6 years. * . 1 The judgment was affirmed on appeal. Smith, et al. v. State, No. 242, September Term, 1971, filed 22 November 1971, unreported, cert. denied, 264 Md. 751 . ⁶²⁰ On 23 March 1971 the trial court ordered the Commissioner of Correction to deliver Ronnie into the custody of the Director of Patuxent Institution for examination and evaluation as a possible defective delinquent. Code, Art. 31B, § 6 (b).

Ronnie arrived at Patuxent on 25 May 1971. He refused to submit to examination or to participate in testing procedures. Because of his failure to cooperate, the Patuxent staff indicated about 30 June 1972 that they were unable to evaluate him. In July 1972 Ronnie was one of a number of Patuxent patients who petitioned the Circuit Court for Montgomery County for the issuance of a writ of habeas corpus, seeking release from the Institution because no evaluation of them had been made within six months of their arrival pursuant to Code, Art. 31B, § 7 (a).

On 14 August Patuxent filed a report in the Circuit Court for Frederick County giving the opinion that Ronnie met the definition of a defective delinquent. On 24 August the Circuit Court for Frederick County summoned Ronnie before it and advised him of the substance of the report. It informed him that there would be a hearing to determine whether he was a defective delinquent and that counsel would be appointed to represent him. Art. 31B, § 8 (a).

On 4 October 1972, the Circuit Court for Montgomery County, Shearin, J., acting in the habeas corpus proceeding, concluded that the reporting provisions of Art. 3lB, § 7 (a) 2 were mandatory and hence Ronnie was entitled to be released frqm Patuxent and transferred to the Division of Correction for the service of his original sentence. 3 It issued an order to that effect. The Director took a timely appeal ⁶²¹ from the order to the Court of Special Appeals. The Court of Appeals granted certiorari before decision by us. It reversed the order.

Director v. Cash, 269 Md. 331 , decided 14 June 1973. Ronnie was returned to Patuxent. On 8 October 1973 Patuxent resubmitted the evaluation of him made under date of 14 August 1972. On 23 October 1973 Ronnie was again summoned before the Circuit Court for Frederick County and advised pursuant to Art. 31B, § 8 (a).

Hearing for determination of defective delinquency was scheduled for 20 November. On 31 October Ronnie filed a motion to dismiss and on 5 November moved for permission to employ a private psychiatrist to examine him pursuant to Art. 31B, § 7 (b), and for a postponement of the hearing pending the examination. The motions were heard on 8 November. On 4 February 1974 the court denied the motion to dismiss, and granted the motion to employ a private psychiatrist and postpone the hearing.

In September 1974 Ronnie was informed that the hearing was set for 18 October. He again moved to dismiss the action. The motion was denied on 18 October and the hearing proceeded before a jury. The jury determined that he was a defective delinquent and by order issued the same date Ronnie was committed to Patuxent for an indeterminate period.

Application for leave to appeal was timely filed on 18 November. Art. 31B, § 11; Maryland Rule 1094 a l. 4 We granted the application on 21 January 1975 and ordered the case transferred to our regular appeal docket. Art. 31B, § 11; Rule 1094 c. Briefs were filed.

Oral argument was made on 23 June 1975. QUESTIONS PRESENTED Ronnie presents three questions for determination: I. “Whether the delay between [his] commitment to Patuxent and his trial was so great that it denied [him] due process of law.” II. “Whether the lower Court erred in refusing to instruct the jury that the experts’ finding of ⁶²² defective delinquency requires a ‘diagnosis and prognosis using acceptable and recognized medical and psychiatric procedure’.” III. “Whether the Court erred in failing to grant [his] timely motion for a mistrial during the testimony of Dr. Harold Boslow.” I The first question concerns the propriety of the denial of the motions made to dismiss the defective delinquency action with prejudice. Ronnie alleges that the delay between the time he arrived at Patuxent and the time he was evaluated to be a defective delinquent, and between the time he was so evaluated and the time of the defective delinquency hearing, denied him due process of law. The Lapse of Time between the Arrival at Patuxent and, the Evaluation We note first that the six months designation for the filing of the. written report of the examination of a possible defective delinquent is directory and not mandatory.

Director v. Cash, supra, at 341-345. Therefore, Ronnie was not entitled to have the report of the examination of him filed within six months of his arrival at Patuxent as a matter of statutory right. Ronnie’s argument goes this way. State v. Musgrove, 241 Md. 521 , held, at 532, that despite the provisions as to time for reporting in § 7 (a), “the order of a court referring a person to Patuxent for an examination until such time as the procedures for determining whether or not such person is a defective delinquent have been completed could not be defeated by the refusal of such person to submit to the examination required by § 7 (a) if the Patuxent staff cannot make its determination without it.” The Court found it “clear. that a person cannot complain of the action, or iiiaction, of others when he is the cause of the delay that ensues.” Pointing to the phrase “if the Patuxent staff cannot make its determination without it” as a proviso to the rule ⁶²³ that a person may not defeat the purpose of the statute by refusing to submit to examination, Ronnie cites the express approval of the Court in Roberts v. Director, 226 Md. 643, 650 , to the assertion that a person is entitled to have the issue of defective delinquency tried within a reasonable time after the Institution has had reasonable time to make its findings.

He refers to the statement in McNeil v. Director, 407 U. S. 245, 251-252 , after holding, at 250, that it is a denial of due process to hold a person on the basis of an ex parte order committing him for observation, that “if the Patuxent staff was prepared to conclude, on the basis of petitioner’s silence and their observations of him over the years, that petitioner is a defective delinquent, then it is not true that he has prevented them from evaluating him. On that theory, they have long been ready to make their report to the Court, and the hearing on defective delinquency could have gone forward.” (emphasis added by Ronnie). Due process, the Court continued, requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed. It is Ronnie’s view that Patuxent has answered the question whether the lapse of time between his arrival at the Institution and the evaluation report was reasonable by filing a report despite the refusal of him to cooperate.

He asserts: “Patuxent has taken itself out from under the protective umbrella of Musgrove , for Patuxent has admitted that, as to [him], the Patuxent staff could make its determination without a personal examination. Therefore the ‘non-cooperation’ was irrelevant to their ability to make such an evaluation.” Thus, the failure to evaluate him for some 15 months, he concludes, was unreasonable and a denial of due process. We find the answer to this argument in Cash . As we have noted, Ronnie was the petitioner in one of the cases before the Court in Cash .

The Court found McNeil clearly distinguishable from the cases before it and saw indication in McNeil that the decision was to be narrowly applied. 269 Md. at 345 . “We do not consider any of the petitions filed in Cash to be within the holding of the Supreme Court in McNeil and, further, we do not perceive any holding in ⁶²⁴ McNeil that our opinion in Musgrove is impaired. Indeed, in McNeil , the Supreme Court in Note 2 of its opinion cites Musgrove and Mullen v. Director, 6 Md. App. 120 , 250 A. 2d 281 (1969), applying Musgrove for the proposition that the Maryland Courts have construed § 7 (a) ‘to permit extension of the allowable time ... in the case of a noncooperative defendant who resists examination.’ There is no suggestion that this was unconstitutional or otherwise improper.” Id. at 349. The Court specifically approved the procedure followed with regard to Ronnie, id. at 347: “After the decision by the Supreme Court in McNeil on June 19, 1972, the staff was faced with the problem that an undiagnosed person would be released when his sentence expired. After consultation with the Patuxent Board and with counsel, the staff attempted, where possible, to diagnose individuals referred for examination who had declined to cooperate in the examination process on the bases of historical data in the file of each individual.

Dr. Boslow further testified, in effect, that he and the staff prefer not to make a diagnosis without a personal interview, but that such a diagnosis would be ‘valid’ in the absence of a showing of an intentional and deliberate designation on the part of the officials of Patuxent to postpone the diagnosis for an unreasonable time (and there is no such evidence in the present cases). The procedure presently followed by the Patuxent officials is proper in accordance with our opinion in Musgrove.” 5 ⁶²⁵ In the light of the Court of Appeals opinions that the procedure followed with respect to Ronnie was proper, we hold that he was not denied due process of law thereby. The Lapse of Time between the Report of Examination and the Date of the Hearing The report of examination opining that Ronnie was a defective delinquent was first filed on 14 August 1972; the hearing to determine defective delinquency was on 18 October 1974. Art 31B, § 8 deals with defective delinquency hearings.

If the report of the Institution states that a person is a defective delinquent, the court shall forthwith summon the person before it. It shall advise him of the substance of the report, of the pendency of a hearing, and of his right to be represented by counsel of his choice or by competent counsel appointed by the court. Subsection (a). “Unless appearance of counsel chosen by the person is entered within twenty days following the proceeding set forth in subsection (a) hereof, the court shall appoint counsel to represent the person.” Subsection (b). “The hearing for determination of defective delinquency shall be held no less than thirty days following designation of counsel, unless acceleration of the time is requested by the person or his counsel.” Subsection (c). 6 In Marsh v. State, 22 Md. App. 173, 181 , we found it clear that § 8 mandates arraignment, appointment of counsel, and hearing upon receipt by the court of a report from Patuxent that an inmate is a defective delinquent. We held, at 182, that “§ 8 becomes effective whenever Patuxent’s written report commanded by § 7 (a) declares that a patient is a defective delinquent.” We observed: “Upon the filing of such a report the patient named therein forthwith is entitled to the rights granted by subsections (b) and (c) of § 8.

Under such circumstances, those rights may not be deferred because of an alleged failure of the inmate to submit to personal examinations.” Id. Here there was compliance with the provisions of § 8 (b). ⁶²⁶ Ten days after the report of Patuxent was filed in the Circuit Court for Frederick County Ronnie was brought before the court and advised pursuant to the statute. On 8 October 1973, when Patuxent resubmitted the report, he was again summoned before the court and so advised. Section 8 (c) does not specify a maximum time within which a hearing must be held.

It prohibits a hearing within 30 days of the designation of counsel unless the person believed to be a defective delinquent or his counsel requests an earlier hearing. No such request was made here. In fact, when Ronnie appeared before the Circuit Court for Frederick County on 24 August 1972 to be advised pursuant to § 8 (b), he said he had counsel, and asked how Patuxent could find him to be a defective delinquent without interviewing him. He inquired about the habeas corpus proceeding pending in the Circuit Court for Montgomery County.

When told by the court that the hearing to determine the question of his defective delinquency would be a maximum of 50 days hence, 7 8 he asked if he could get it postponed. Several times thereafter during the course of the hearing he said he wanted a postponement of the defective delinquency hearing. We see nothing unreasonable in continuing the defective delinquency proceedings until the final disposition, at least in the Maryland courts, of the habeas corpus action instituted by Ronnie in Cash? Obviously, had the order of the Circuit Court for Montgomery County been upheld, the question of defective delinquency vel non would have been moot.

We note that under the order issued in that proceeding Ronnie was removed from Patuxent, apparently ⁶²⁷ in October 1972, to the custody of the Division of Correction and not returned to Patuxent until the end of June 1973. The court below found that three months were allowed after Ronnie’s return to Patuxent to ascertain if he would then cooperate in the examination procedures. When it was certain that he would not, the Institution, on 8 October 1973, resubmitted its evaluation report of 4 August 1972 to the Circuit Court for