Wilson v. State

Lowe, J., delivered the opinion of the Court. The only significant holding of this opinion is that a trial judge may not order a second evaluation to determine delinquency by Patuxent authorities before the subject is provided a determination hearing (Md. Code, Art. 31B, § 8 (c)) upon the first evaluation of Patuxent authorities, once they have reported their findings that he was a defective delinquent. On June 14, 1974 appellant was ordered by the Criminal Court of Baltimore to submit to an examination to determine whether he was a defective delinquent. Five months later (November 19, 1974) the Patuxent authorities reported the results of their evaluation, recommending his commitment to Patuxent as a defective delinquent.

Counsel was appointed to represent appellant on January 14, 1975 and an order was issued for an independent psychiatric examination on January 28,1975. According to docket entries, the State’s motion to postpone, made in open court on the day of trial (June 16, ²⁵⁷ 1975), was granted. But for the docket entries, there is no record before us of what transpired at that time. 1 Without further explanation, the record discloses a second order dated June 16,1975, directing appellant to submit to another examination: “ .. . for the purpose of determining whether or not he is a Defective Delinquent as defined in Section 5, Article 31B of the Annotated Code of Maryland; and more specifically that he shall submit to the following, such psychological tests they deem appropriate; psychiatric evaluation, and that he shall cooperate with the staff in the examination; IT IS FURTHER ORDERED, that Respondent shall submit to and cooperate with these examinations on or before Avgust 1, 1975.” Coincidentally, on June 16, 1975, the date of the postponement and the order for reevaluation, the report of the independent psychiatrist was filed. This report disagreed with the Patuxent report, concluding that appellant was not a defective delinquent as defined by Md. Code, Art. 31B, § 5.

Appellant contested the jurisdiction of the court in ordering a second evaluation by attempting to appeal to this Court on June 27,1975. At the same time, he filed a “Notice of Stay of Interlocutory Order” pursuant to Md. Rule 1019. Treating the attempt to appeal as an application for leave to appeal, we dismissed that effort by unreported per curiam opinion on July 10, 1975, observing that since there is no ²⁵⁸ right to appeal from an interlocutory order, we denied the application therefor. On August 7, 1975, the judge was notified by letter from the Associate Director of Patuxent that appellant “continues to refuse the psychological examination and psychiatric examination as required by Article 31B and as ordered by you on June 20, 1975.” 2 Upon the State’s petition, the court ordered appellant to show cause on September 10, 1975 why he should not be held in contempt.

Following a hearing on that date, the court held appellant in contempt and orally ordered him to be recommitted to Patuxent until he purged himself. There followed an order (filed September 10, 1975) commanding cooperation 3 and specifying the tests to which appellant must submit pursuant to the court’s contempt finding. This appeal ensued and issue is joined on the basic question of whether the court, after ordering one examination of defendant for possible defective delinquency under the authority of Md. Code, Art. 31B, § 6, could then order a second examination or reevaluation of the same defendant. No question is raised as to the validity of the customary procedure of providing interval notes pre ²⁵⁹ paratory to trial bringing to date a previously completed examination.

The objection here is to a reevaluation de novo, i.e., from the beginning. In Marsh v. State, 22 Md. App. 173 , we dealt with a factual pattern similar to that here. The authority of the court to order a complete reevaluation was not the issue there, although the facts did reveal that an order for a second evaluation of Marsh had issued on March 12, 1973. Judge Menchine acknowledged the possibility of such an issue being raised at some other time but pointed out that such was not the issue to be decided there: “In the subject case there is no question respecting the trial court’s jurisdiction or its power, under other factual circumstances, to pass an order such as was passed on March 12, 1973.” Marsh v. State, 22 Md. App. at 185 .

It appears that the only jursidictional question raised in Marsh , and that only parenthetically, was the contention that the trial judge lacked the power to compel cooperation in the examination by exercise of the court’s contempt power. Short shrift was given that contention because we had answered it in Savage v. State, 19 Md. App. 1 . Left for another day was the question of whether the authority to compel cooperation, which we have held is implicit in the authority to order an examination, see Williams v. Fulwood v. Director, 276 Md. 272 , gives rise to another authority to order a second examination — which would in turn give rise to further implicit authority to compel cooperation at that examination — ad infinitum. Although that issue was not decided in Marsh , the direction we take today was pointed to by its holding.

It appeared that, although Marsh had at no time cooperated with the Patuxent authorities ordered to examine him, the Patuxent authorities were able to arrive at a conclusive diagnosis and reported, not once but twice, that Marsh was a defective delinquent. Id. at 177 . Based upon the fact that a report was not prevented by Marsh’s lack of cooperation, we held that he could not be found in contempt ²⁶⁰ for failure to cooperate in examinations subsequent to Patuxent’s report of its conclusion, nor could his cooperation be made a condition for the provision of certain prescribed statutory rights. We held there that, upon the court’s receipt of Patuxent’s written report declaring the patient a defective delinquent, the patient was then “forthwith” entitled to the rights guaranteed by the statute. “Under such circumstances, those rights may not be deferred because of an alleged failure of the inmate to submit to personal examinations.” Marsh v. State, 22 Md. App. at 182 .

We now move to the next step beyond Marsh and hold that, once a conclusion is reached based upon an examination conducted with the cooperation of the patient, and that conclusion is reported to the court by Patuxent authorities, there is no authority within the statute for the court to reorder a new examination or complete reevaluation. If the defendant’s condition has changed prior to, or at, the determination hearing, the customary procedural interval note may bring to the court’s attention any such changes manifested since the original examination which are proper considerations for the fact finders. In their brief, the State relies upon the rationale used in that portion of Williams and Fulwood v. Director, supra, which relied upon Restivo v. Princeton Constr. Co., 223 Md. 516, 525 , reasoning: “ ‘That which necessarily is implied in a statute is as much a part of it as that which is expressed. . . .’” Williams , 276Md. at303.

The State also notes that Williams relied on the retention of jurisdiction, added by amendment to Art. 31B, § 6 (e), and reasoned that: “The fact that the Court is to retain jurisdiction indicates to us that it would have the power to pass any orders that might be requisite under those sections.” Id. at 303. ²⁶¹ This language obviously refers to the power to carry out the authority conferred by the Legislature, not to the power to expand upon that authority. This reasoning was used in Williams to reach the result at which we arrived in Savage, i.e., that the power to order an examination of a person implicitly includes the authority to enforce that order. This is precisely what Judge Smith said in Williams . “It would be absurd to say that under the statute a