Marsh v. State, No. 902

• Court: Court of Special Appeals of Maryland
• Writing for the Court: MENCHINE
• Citation: 322 A.2d 247,22 Md.App. 173
• Parties: Joseph Franklin MARSH v. STATE of Maryland.
• Decision Date: 19 July 1974
• Docket Number: No. 902

Page 173

22 Md.App. 173 322 A.2d 247 Joseph Franklin MARSH
v.
STATE of Maryland. No. 902. Court of Special Appeals of Maryland. July 19, 1974.

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[322 A.2d 248] Joseph S. Casula, Upper Marlboro, for appellant.

Francis B. Burch, Atty. Gen., Donald

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R. Stutman, Asst. Atty. Gen., Arthur A. Marshall, Jr., State's Atty. for Prince George's County and E. Garrison Neal, Asst. State's Atty. for Prince George's County, for appellee.

Presented to MORTON, MENCHINE and LOWE, JJ.

MENCHINE, Judge.

Joseph Franklin Marsh had been convicted and sentenced in the Circuit Court for Prince George's County for robbery with a dangerous and deadly weapon. On February 22, 1972 the trial court upon its own initiative ordered examination of Marsh under § 6 of Article 31B of the Annotated Code of Maryland. On September 20, 1972 the Director of Patuxent Institution, acting pursuant to the provisions of § 7 of that Article, transmitted a report to the Circuit Court for Prince George's County concluding as follows:

'Therefore, based on all the available accumulated records and recent past examinations, it is concluded that Joseph Marsh does meet the statutory definition of being a Defective Delinquent under Article 31B of Annotated Code of Maryland and his commitment is recommended. It would have been well for Mr. Joseph Marsh to have obeyed the Order of Court and taken advantage of the opportunity for direct, personal, up-to-date psychological, psychiatric examinations.' (Emphasis added.)

Upon receipt of that report the court passed an order on September 21, 1972 setting the case for hearing for determination of defective delinquency in accordance with the provisions of § 8 of Article 31B. The hearing was scheduled for January 25, 1973.

On January 22, 1973, however, the State filed a motion for continuance, alleging that necessary witnesses were unavailable on the scheduled date. The hearing was rescheduled for trial on March 12, 1973, but was not then heard. Instead, on that date the State's Attorney for Prince George's County sought and obtained an 'Order for further

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examination at Patuxent Institution' providing, inter alia, the following:

'ORDERED, that in accordance with the provisions of Article 31B of the Annotated Code of Maryland, the said defendant be taken directly from whatever place he may presently be confined and delivered to the custody of the Director of the Patuxent Institution, who shall cause him to be examined for the purpose of determining whether or not he is a defective delinquent as defined in Section 5 of said Article; and more specifically that he shall submit to the following testing procedures; (1) The Wechsler Adult Intelligence Scale; (2) the Bender-Gestalt Test; (3) the Projective Drawing Test; (4) The Rorschak Ink Blot Test; (5) A Social Service Interview; (6) An electroencephalogram; (7) A psychiatric interview; and that he shall cooperate with the staff in the examinations;' (Italics supplied.)

On July 26, 1973 the State's Attorney for Prince George's County, alleging the refusal by Marsh to obey the order of March 12, 1973, filed a petition for a Rule to Show Cause why Marsh should not be held in contempt. Appended to that petition as Exhibit A was an interval note of the Patuxent Institution declaring that as the result of a reevaluation on May 1, 1973, 'it was the conclusion of the Staff that Joseph Franklin Marsh met the statutory definition of being a Defective Delinquent,[322 A.2d 249] under Article 31B of the Annotated Code of Maryland, and his commitment to this Institution was recommended.' The interval note ended with the comment: 'It would be desirable to perform a complete personal psychiatric and psychological examination on this patient.'

On the same date the following order was passed by the Circuit Court for Prince George's County:

'IT IS ORDERED; this 26th day of July, 1973, by the Circuit Court for Prince George's County, that the defendant, Joseph Franklin Marsh, show cause

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at a hearing to be held on the 28th day of August, 1973, at 10:00 o'clock, why he should not be held in contempt of this Court for not cooperating with the staff of Patuxent Institution and submitting himself for examination and evaluation as per the Order of this Court dated March 12, 1973.

'IT IS FURTHER ORDERED, that Harold M. Boslow, M. D., Director, Patuxent Institution, or his designee(s), appear at said hearing for the purpose of advising this Court of the efforts that have been made to complete the examination and evaluation, why it is not possible to furnish a report to the Court and what acts of cooperation on the part of the defendant, Joseph Franklin Marsh, are required in order that said examination and evaluation can be completed.' (Italics supplied.)

We reiterate that at that point in time, Patuxent authorities twice had reported to the court that the appellant was a defective delinquent.

On August 31, 1973 an 'Amended Rule to Show Cause' was passed in the proceedings. That amended rule to show cause provided, inter alia:

'IT IS ORDERED; this 31st day of August, 1973, by the Circuit Court for Prince George's County, that the defendant, Joseph Franklin Marsh, show cause at a hearing to be held on the 7th day of September, 1973, at 10:00 A.M., why he should not be held in comtempt of this Court for not cooperating with the staff of Patuxent Institution and submitting himself for examination and evaluation as per the Order of this Court dated March 12, 1973.

'IT IS FURTHER ORDERED, that Harold M. Boslow, M.D., Director, Patuxent Institution, or his designee(s), appear at said hearing for the purpose of advising this Court of the efforts that have been made to complete the examination and evaluation, and what acts of cooperation on the part of the

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defendant, Joseph Franklin Marsh, are required in order that said examination and evaluation can be completed.'

Except for deletion of the words we have shown in italics in the order of July 26, 1973, the second order was identical to the first. The missing words are of significance here. Their absence, in effect, constituted a ruling by the trial court that an inmate must submit to personal examinations even though the institution was able, by other means, to make the definitive report to the court required by § 7(a) of the Act and that the mandate of § 8 must be deferred until such submission has occurred.

On September 27, 1973 the Director of Patuxent Institution transmitted a third report to the court that 'the patient has continued to refuse psychiatric and psychological evaluation. There is nothing to indicate that any change has occurred in this patient since the original evaluation. Therefore, this original diagnostic report is again being proffered to the Court as the Institution's current evaluation in this particular case.'

Upon proof at hearing that the appellant had refused to obey the order of March 12, 1973, the trial court passed an order on October 25, 1973 that:

'* * * this Court hereby finds the defendant to be in contempt of a lawful [322 A.2d 250] order of this...