Wise v. Director, Patuxent Institution

Per Curiam. The applicant was found guilt of sodomy and unnatural and perverted sexual practices by Judge J. DeWeese Carter sitting without a jury in the Circuit Court for Kent County on August 31, 1965. At the conclusion of the trial, Judge Carter •ordered that the applicant be examined at Patuxent Institution to determine whether or not he was a defective delinquent, and 'he was subsequently adjudged to be a defective delinquent in •a jury trial on July 18, 1966. This application for leave to appeal from that judgment was filed on July 29, 1966.

The applicant raises the following contentions in his appli•cation for leave to appeal: 1. The examining staff members at Patuxent did not comply with the requirements of Miranda v. Arizona, 384 U. S. 436 (June 13, 1966), in that they (a) failed to advise the applicant of his right to remain silent and to refuse to take the psychological test and I.Q. test; (b) failed to warn him that anything he said and that the results of any tests taken could and would be used as evidence against him to convict him of being a defective delinquent; and (c) failed to advise him of his right to have and consult with counsel before proceeding with the examination. 2. That evidence elicited from the applicant while at Patuxent should not have been admitted because he had not been warned of his right to remain silent. ⁴²¹ 3. That coercion was used to overcome his unwillingness and reluctance in submitting to the examination and, furthermore, that those who refuse to be examined on grounds of possible self-incrimination are, without exception, classified as defective delinquents. 4.

That the State did not prove him to be a defective delinquent by preponderance of the evidence. 5. That the State deliberately inflamed the minds of the jurors by repeatedly referring to his having been convicted of, and presently under sentence for, a sex act involving a twelve year old boy. 6. That the judge should have specifically instructed the jury not to allow those offenses to dominate and prejudice their minds against the applicant and that these offenses were not alone sufficient grounds to find him a defective delinquent. 7. That the court erred in admitting an unsworn hearsay psychiatric report from Patuxent Institution. 8.

That the court denied him due process and equal protection of the law by not having the petitioner brought before it (prior to being sent to Patuxent for examination), for the purpose of informing him of the order for examination and of his right to contest the order and to have counsel appointed to prosecute the appeal from the order. Contentions one, two, three, six and eight were not raised below and, therefore, are not properly before us on appeal and may be denied for that reason. Rule 1085; Crews v. Director, 245 Md. 174 ; Herrman v. Director, 229 Md. 613 ; McDonough v. Director, 229 Md. 626 . The fourth contention may also be denied for the same reason, in that the applicant failed to submit a motion for a directed verdict at the conclusion of the trial below.

McDonough v. Director, supra. The first two contentions endeavoring to invoke the protection of the Miranda decision must be denied for additional reasons. At the outset, it must be observed that the psychological and psychiatric examinations that are performed at Patuxent are not accusatorial stages of a criminal proceeding and do not ⁴²² constitute the type of “in-custody” interrogation with