Marsh v. State

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

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.

Joseph S. Casula, Upper Marlboro, for appellant.

Francis B. Burch, Atty. Gen., Donald

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 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, 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 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 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 order of this Court and hereby imposes a sentence of an indeterminate period of time to be served at the Patuxent Institution until said defendant purges himself of contempt of this Court by submitting to the previously ordered examinations.'

This appeal followed.

The appellant makes the following contentions:

1. That the trial court lacked jurisdictional power to require the ordered examinations.

2. That the order of the trial court violated appellant's privilege against self-incrimination.

3. That appellant could not be held in contempt because the Patuxent Institution staff had reported to the court that it had made the evaluation that he was a defective delinquent.

We find issues 1 and 2 to be controlled by a prior decision of this Court. We shall discuss them together.

Jurisdiction-Self-Incrimination

The contentions relating to jurisdiction and self-incrimination are without merit. Savage v. State, 19 Md.App. 1, 308 A.2d 701, is dispositive as to both.

As to jurisdiction, in Savage v. State, supra, we said at page 12, 308 A.2d at page 707:

'Savage claims that the court below was without jurisdiction to order him to submit to an examination at Patuxent because there is no statutory authority for such an order. We think that the authority is implicit in Code, Art. 31B. Section 7(a) requires that the examination for possible defective delinquency shall be made by at least three persons on behalf of the Institution, one of whom shall be a medical physician, one a psychiatrist, and one a psychologist.'

As to self-incrimination, we said in Savage, supra, at pages 19-20, 308 A.2d at pages 711-712:

'* * * Despite, however, the absence of statutory authority to grant immunity, we think that under our holding, supra, a court has authority under Code, Art. 31B to order examination for evaluation of possible defective delinquency, that recognition should be given to the privilege against self-incrimination when communications, even though not privileged, made during the course of that examination, are attempted to be used to obtain a conviction for crime. Therefore, the privilege against self-incrimination is no bar to compelling the examination for possible defective delinquency.'

We adhere to those rulings.

The Effect of the Reports of the Institution

Savage, supra, is not dispositive of this issue for the reason that in that case Patuxent Institution had reported to the court that the patient's refusal to obey the court's order for examinations had produced the result that 'no recommendation in regard to defective delinquency can be made * * *.'

Article 31B, § 8 reads as follows:

' § 8. Hearings.

(a) When required; defendant to be advised of right to counsel.-If the institution for defective delinquents in its report on any person shall state that he is a defective delinquent, the court shall forthwith summon the person before it and advise him of the substance of the report and of the pendency of the hearing...