Brown v. Director of Patuxent Institution

Decision Date16 December 1960
Docket NumberNo. 14,14
Citation224 Md. 635,165 A.2d 895
PartiesHoward Davis BROWN, Jr. v. DIRECTOR OF the PATUXENT INSTITUTION. Application
CourtMaryland Court of Appeals


BRUNE, Chief Justice.

In his amended petition for relief under the Post Conviction Procedure Act, the applicant, Howard Davis Brown, Jr., contended that he had been denied 'constitutional rights' in connection with his hearing to determine whether or not he was a defective delinquent in that, first, he had not been furnished with a copy of the order for his examination at the Patuxent Institution to ascertain whether or not he was a defective delinquent, as required by Code (1957) Art. 31B, Sec. 6(b), and second, that no private psychiatrist had been appointed to examine him, in accordance with Sec. 7(b) of that Article.

The application was heard by Judge Marbury. He found that the original suggestion that Brown be sent to Patuxent for examination was made on October 15, 1958, by his then counsel just after Brown had pleaded guilty [to a charge of larceny], that it was made at the request of Brown's mother, that it was announced at the time he was sentenced, which was on the same day, that he would be sent to Patuxent for examination [the order being signed the next day], and that Brown knew the purpose of his transfer. He also found that no question had been raised as to the lack of service of a copy at Brown's hearing before Judge Gray and a jury on June 11, 1959, on the question of whether he was a defective delinquent, at which Brown was represented by the same counsel who had represented him in the criminal case. He was employed in the original trial by Brown or his family. He was later appointed by the Court to represent Brown in the defective delinquent case.

Judge Marbury held that under Sec. 7(b) of Art. 31B of the Code (1957), the applicant was not entitled to have the trial court appoint a psychiatrist for him. This holding was based upon the judge's reading of the terms of Sec. 7(b) as permitting the applicant to be examined by a psychiatrist of his own choice, and providing for the filing with the court of the report of the psychiatrist making such examination, but not as requiring the court to make the appointment of the psychiatrist. His view was that the court's only obligation was to order payment out of State funds of the fee of such a psychiatrist in an amount deemed reasonable by the court. This interpretation of the statute is given in Judge Marbury's opinion in this proceeding. Substantially the same view (omitting reference to the report) was also stated by him at the time of Brown's 'arraignment' in the proceedings to determine whether he was or was not a defective delinquent in an informal conference between Judge Marbury and the plaintiff's then counsel, according to the testimony of such counsel at the Post Conviction hearing. It also appears from the testimony of Brown's former counsel that he acquiesced in this interpretation of the statute, and (though his testimony as recorded is not easy to follow) it appears that he advised Brown accordingly. It further appears from his testimony that neither he nor Brown knew any psychiatrist to call upon, and that Brown, who had been in difficulties before, had been to many doctors, but did not have any particular psychiatrist. His counsel did know of one in Silver Spring. He stated: 'I did contact him, but his information, which he gave me and also a letter here which I think the Defendant gave me, from him would not have helped the Defendant at all, so I didn't bother with him.'

We think that the omission to raised any question about the alleged failure to serve a copy of the order for examination at the defective delinquency hearing amounted to a waiver of any right based thereon. As to the 'appointment' of an independent psychiatrist, we find it unnecessary to pass upon the correctness of the trial judge's construction of Sec. 7(b), supra. But whether the trial court's construction was correct or not, this point, too, we think, was waived by acquiescence and by failure to appeal. Each of the two rights now sought to be asserted could have been brought up for review on appeal in the defective delinquent proceedings, but there was no appeal. Rights which have been waived do not afford...

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11 cases
  • Wilhelm v. State
    • United States
    • Maryland Court of Appeals
    • September 26, 1974
    ... ... United States, 318 U.S. 236, 63 S.Ct. 561, 87 L.Ed. 734 (1943); Brown v. United States, 125 U.S.App.D.C. 220, 370 F.2d 242 (1966); Handford v ... ...
  • Sas v. State of Maryland
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • June 16, 1964
    ...In neither proceeding can the defective delinquent raise the question of his defective delinquency on the merits. See Brown v. Director, 224 Md. 635, 165 A.2d 895 (1960), cert. denied, 365 U.S. 859, 81 S.Ct. 830, 5 L.Ed.2d 825 The State's brief explains the objectives of the Act: "The Maryl......
  • Holbrook v. State
    • United States
    • Court of Special Appeals of Maryland
    • March 11, 1969
  • Torres v. Warden of Md. Penitentiary, 14
    • United States
    • Maryland Court of Appeals
    • November 28, 1961
    ...constitutionality of Narcotics Law by failure to raise it in trial court and pleading guilty; no appeal); Brown v. Director of Patuxent Institution, 224 Md. 635, 638, 165 A.2d 895, cert. den. 365 U.S. 859, 81 S.Ct. 830, 5 L.Ed.2d 825 (waiver by failure to question court's construction of De......
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