Crews v. Director, Patuxent Institution, No. 137

• Court: Court of Appeals of Maryland
• Writing for the Court: Before HAMMOND; BARNES
• Citation: 245 Md. 174,225 A.2d 436
• Parties: Isaac Lee CREWS v. DIRECTOR, PATUXENT INSTITUTION. Defective Delinquent
• Decision Date: 11 January 1967
• Docket Number: No. 137

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245 Md. 174 225 A.2d 436 Isaac Lee CREWS
v.
DIRECTOR, PATUXENT INSTITUTION. Defective Delinquent No. 137. Court of Appeals of Maryland. Jan. 11, 1967.

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[225 A.2d 437] Before HAMMOND, C. J., and HORNEY, OPPENHEIMER, BARNES and McWILLIAMS, JJ.

BARNES, Judge.

The applicant, Isaac Lee Crews, was convicted in 1963 of obtaining money by false pretenses and sentenced to serve six years in the House of Correction. (This sentence was later reduced to two years). Mr. Crews was transferred in October, 1963, to Patuxent Institution for diagnostic evaluation. The report of Patuxent, filed February 19, 1964, recommended Mr. Crews' commitment as a defective delinquent. On January 6, 1965, a jury found Mr. Crews to be a defective delinquent. Mr. Crews filed an application for leave to appeal and a petition to proceed in forma pauperis on January 20, 1965. He requested that counsel be appointed to assist him in the prosecution of that application.

Almost two years have elapsed since the filing of the application in a futile effort by the courts to appoint counsel acceptable to the applicant. ¹ We have [225 A.2d 438] been very liberal in postponing

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a determination of this application. But, for the proper administration of justice, we can postpone decision no longer. Mr. Crews has had ample opportunity to have counsel assist him in the prosecution of his application for leave to appeal. He has refused such assistance. We hold that he has waived whatever right of counsel may be given him by Code, Article 31B, sec. 11A, and proceed to the merits of the case.

(1)

Mr. Crews raises nine points in his application filed in proper person. The first five of these contentions may be treated together and summarized as follows:

1. His examination at Patuxent Institution was made by two institutional employees, Giovanni Croce and Louis M. Florenzo,

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neither of whom were licensed in Maryland as a psychologist or psychiatrist.

2. Because of the alleged lack of qualifications of these two employees, the resulting diagnosis and report classifying him as a defective delinquent is invalid and should not have been admitted into evidence at trial.

3. The applicant was deprived of his liberty because of fraud, false representations, false pretenses and deceit of the two employees mentioned.

The short answer to these contentions is that they were not made below, and therefore, cannot be considered on this application for leave to appeal. Herrman v. Director, 229 Md. 613, 182 A.2d 351 (1962); McDonough v. Director, 229 Md. 626, 183 A.2d 368 (1962); Elliott v. Director, 232 Md. 615, 192 A.2d 501 (1963). Contrary to the applicant's allegations, moreover, the report is not signed by Giovanni Croce. It is signed by 'Joe R. Cantrell, M.D. Staff Psychiatrist'; 'Louis M. Florenzo, Psychologist'; and 'Domingo C. Sorongen, M.D.'; as well as Dr. Harold M. Boslow, Director of Patuxent Institution. The record discloses no objection to the qualifications of these men and no evidence whatsoever to impugn their professional competence. ² Nor is there a shred of evidence that any of them or Dr. Croce acted fraudulently, falsely or deceitfully.

(2)

In his sixth contention, the applicant claims that the Circuit Court erred in permitting Dr. Croce, the Associate Director of Patuxent and the chief of its Psychiatric Department, to testify as an expert witness concerning the applicant's mental condition. The basis of the applicant's objection is that Dr. Croce was not licensed to practice medicine in the State of Maryland. We hold that the trial court did not abuse its discretion in admitting the opinion testimony of Dr. Croce.

The common law does not require that an expert witness

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on a medical subject shall be a person licensed to practice medicine. Wilson v. State, 243 Ala. 1, 8 So.2d 422 (1942); 2 Wigmore, Evidence, sec. 569 and cases cited therein. In Maryland this requirement has not been introduced by statute in respect to defective delinquent proceedings.

We believe the Court of Appeals for the District of Columbia Circuit aptly stated [225 A.2d 439] the proper view concerning the competency of medical experts in Jenkins v. United States, 113 U.S.App.D.C. 300, 307, 307 F.2d 637, 644 (1962):

'The kinds of witnesses whose opinions courts have received, even though they lacked medical training and would not be permitted by law to treat the conditions they described, are legion. The principle to be distilled from the cases is plain: if experience or training enables a proffered expert witness to form an opinion which would aid the jury, in the absence of some countervailing consideration, his testimony will be received.'

Our predecessors agreed with this principle when they defined 'medical experts' merely as 'persons possessing...