Bush v. Director, Patuxent Inst., s. 962

CourtCourt of Special Appeals of Maryland
Citation324 A.2d 162,22 Md.App. 353
Docket NumberNos. 962,963,s. 962
Decision Date08 August 1974
John F. Fader, II, Towson, and Leonard C. Redmond, III, Baltimore, for appellant

Harry A. E. Taylor, Asst. Atty. Gen., and Walter Timothy Seidel, Asst. State's Atty. for Baltimore City, with whom were Francis B. Burch, Atty. Gen., and Milton B. Allen, State,'s Atty. for Baltimore City, on the brief, for appellee.

Argued before ORTH, C. J., and MORTON and GILBERT, JJ.


Tyrone Bush and Stanley Edward Mazan, appellants, in separate trials in the Criminal Court of Baltimore, were determined to be defective delinquents within the meaning of Md.Ann.Code art. 31B, § 5. Bush was so found by a jury and Mazan by a judge sitting without a jury. Both Bush and Mazan sought leave to appeal from the orders entered on the separate verdicts. We, in two unreported per curiam

opinions, 1 filed February 21, 1974, granted leave to appeal, transferred the cases to the regular appeal docket and set them for hearing. Counsel for Bush and Mazan petitioned to consolidate the two appeals, and we granted the consolidation. 2

Appellants argue:

1. They were '. . . denied due process of law by the application of the 'Preponderance of the Evidence' test by the lower court as the standard of proof to determine status as a defective delinquent.'

2. They were '. . . denied equal protection of the law by the application of the 'Preponderance of the Evidence' test by the lower court as the standard of proof to determine status as a defective delinquent.'

3. '. . . (T)he lower court erred in admitting evidence before the jury by the witness for Patuxent Institution outlining the purpose and goals of that institution, the methods of treatment, the types of education and job training and the success of the institution in correcting the recividist problem.'


The thrust of the appellants' argument with regard to their first contention is that defective delinquency cases, because of the statutory provision relative to confinement, are more like criminal proceedings than civil cases. Bottoming their asserveration on what they presume to be the soundness of their position, they assert that the State should be required to demonstrate the defective delinquency of a person 'beyond a reasonable doubt' or at the very least by 'clear and convincing evidence'. The civil case rule of 'preponderance of the evidence', appellants aver, should be

jettisoned. Appellants build their argument upon the majority's dicta in Tippett v. Maryland, 436 F.2d 1153 (C.A. 4, 1971), a concurring-dissenting opinion in the same case, 436 F.2d 1159, the dissenting opinion of Mr. Justice Douglas in Murel v. Baltimore City Criminal Court, 407 [324 A.2d 165] U.S. 355, 92 S.Ct. 2091, 32 L.Ed.2d 791 (1972), and an analogy with In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) and In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)

In Tippett the author of the majority opinion said at 1158 of 436 F.2d:

'. . . We might all be happier had it (the burden of persuasion) been stated in terms of clear and convincing proof rather than in terms of a preponderance of the evidence.'

The Court went on, however, to note that:

'In any event, in the present state of our knowledge, choice of the standard of proof should be left to the state . . ..

Since the Act's (Md.Ann.Code Art. 31B) provision for judicial review of a defective delinquent's initial commitment to Patuxent and his continued confinement there are adequate, we conclude that the Constitution does not require that the procedures under the Act be treated as if they were criminal proceedings subject to the self-defeating strictures which the Constitution appropriately throws around the shoulders of defendants facing criminal charges in adversary legal proceedings.'

We think it clear that the Tippett Court, while expressing a precatory utterance of what that Court may have wished the standard of proof to be in defective delinquency cases, nevertheless, recognized that Maryland is free to set its own standard. Tippett, in our view, also makes it appearent that the Constitution does not require that defective delinquency proceedings be treated the same as criminal cases, with their concomitant standard of proof.

Judge Sobeloff in a concurring-dissenting opinion in the same case, i.e., Tippett, supra, stated that he 'would hold' that due process 'requires that the State shall establish by at least 'clear and convincing evidence' that the individual is a defective delinquent.' We observe that Judge Sobeloff's opinion is not the majority holding, and, although we think that his point of view is entitled to great respect, we, nevertheless, reject the above quoted portion of it.

The Supreme Court of the United States in Murel, supra, 3 a per curiam opinion, dismissed a Writ of Certiorari after having at first issued it. The Court reasoned that the statutes governing civil commitment in this State were undergoing 'a substantial revision', and that it was an 'inopportune time' for the Court 'to consider a comprehensive challenge to the Defective Delinquency Law.' Mr. Justice Douglas, however, dissented. He said:

'When a State moves to deprive an individual of his liberty, to incarcerate him indefinitely, or to place him behind bars for what may be the rest of his life, the Federal Constitution requires that it meet a more rigorous burden of proof that that employed by Maryland to commit defective delinquents. The Defective Delinquency Law does not specify the burden of proof necessary to commit an individual to Patuxent, but the Maryland Court of Appeals has determined that the State need only prove its case by the 'fair preponderance of the evidence.' E. g., Crews v. Director, 245 Md. 174, 225 A.2d 436 (1967); TERMIN V. DIRECTOR, 243 MD. 689, 221 A.2D 658 (1966)4; Dickerson v. Director, 235 Md. 668, 202 A.2d 765 (1964); Purks v. State, 226 Md. 43, 171 A.2d 726 (1961); Blizzard v. State, 218 Md. 384, 147 A.2d 227 (1958); and see Sas v. Maryland, 334 F.2d 506 (CA 4 1964); Walker v. Director, 6 Md.App. 206, 250 A.2d 900 (1969). Petitioners have

thus been taken[324 A.2d 166] from their families and deprived of their constitutionally protected liberty under the same standard of proof applicable to run-of-the-mill automobile negligence actions.' (Footnote omitted)

We are unpersuaded by Mr. Justice Douglas's dissent. We point out that a defective delinquency proceeding is not a criminal case. An individual who is found to be a defective delinquent is not taken from his family and deprived of his liberty on the basis of the same standard of proof used to determine 'run-of-the-mill' motor torts. On the contrary, the individual has been 'taken from (his) family and deprived of (his) . . . liberty' as the result of a prior criminal trial wherein the standard of proof was 'guilt beyond a reasonable doubt'. It is only the commitment to Patuxent Institution for treatment that requires proof, by a preponderance of the evidence, of the individual's meeting of the statutory definition 5 of a defective delinquent.

Moreover, a defective delinquency proceeding may not arise until the individual has first been adjudicated guilty of one of the criminal offenses enumerated in Md.Ann.Code art. 31B, § 6(a), and the individual is not found 'guilty' of being a defective delinquent. The Defective Delinquency Act is Maryland's answer to the everincreasing volume of crime committed by persons who are not insane within the meaning of Md.Ann.Code art. 59, § 9(a), and Sherrill v. State, 14 Md.App. 146, 286 A.2d 528 (1972), but who, nevertheless, suffer from 'intellectual deficiency or emotional unbalance, or both,' Md.Ann.Code art. 31B, § 5, and are 'an actual danger to society so as to require such confinement and treatment. . . .' See Director v. Daniels, 243 Md. 16, 30-31, 221 A.2d 397 (1966).

When the Defective Delinquent Act was adopted in Maryland, Laws 1951, Ch. 476, § 11 thereof provided:

'(Appeal) From any court order issued under the provisions of section 9, or of section 10, there shall

be the same right of appeal to the Court of Appeals as after any conviction of felony.' (Emphasis supplied)

In 1957 the Legislature amended § 11 by striking out the words 'as after any conviction of felony' and substituting in lieu thereof 'as in other civil proceedings'. See Laws 1957, Ch. 558. The statute was again amended by Laws 1960, Ch. 43. The phrase 'as in other civil proceedings' was deleted and § 11 was changed to read in substantially the same form as is now embodied in Md.Ann.Code art. 31B, § 11. Even though the General Assembly deleted the words 'as in other civil proceedings', we think it undeniable that they intended that the nature of defective delinquency proceedings be civil rather than criminal. This is so because the Legislature is presumed to be cognizant of the opinions of the appellate courts. Director v. Cash, 269 Md. 331, 305 A.2d 833 (1973); Creaser v. Owens, 267 Md. 238, n. 4, at 240, 297 A.2d 285 (1973); Stack v. Maryney, 252 Md. 43, 248 A.2d 880 (1969); Gibson v. State, 204 Md. 423, 104 A.2d 800 (1954); Herbert v. Grey, 38 Md. 529 (1873). Consequently, they are presumed to know that the decisions of the Court of Appeals and this Court have repeatedly stated that defective delinquency proceedings are civil cases. See n. 7 infra. The General Assembly has met at least annually in the City of Annapolis since the Court of Appeals first applied the 'civil case' standard to Laws 1960, § 11, but it has not seen fit to alter the statute in any material manner. 6

To analogize Gault and Winship with a defective delinquency case, we think, requires[324 A.2d 167] a strained construction both of Gault and Winship. In those two cases the Supreme Court...

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