Mastromarino v. Director, Patuxent Institution

• Decision Date: 12 December 1966
• Docket Number: No. 326,326
• Citation: 224 A.2d 674,244 Md. 645
• Parties: Michael Kerr MASTROMARINO v. DIRECTOR, PATUXENT INSTITUTION.
• Court: Maryland Court of Appeals

Page 645

244 Md. 645

224 A.2d 674

Michael Kerr MASTROMARINO v. DIRECTOR, PATUXENT INSTITUTION.

No. 326.

Court of Appeals of Maryland.

Dec. 12, 1966.

James C. Cawood, Jr., Washington, D.C., for appellant.

Alfred J. O'Ferrall, III, Asst. Atty. Gen. (Robert C. Murphy, Atty. Gen., Baltimore, and Arthur A. Marshall, Jr., State's Atty., for Prince George's County, Upper Marlboro, on the brief), for appellee.

Before HAMMOND, C.J., and HORNEY, MARBURY, BARNES and McWILLIAMS, JJ.

HAMMOND, Chief Judge.

Mastromarino, the appellant, was determined to be a defective delinquent by a jury which had been required to swear to a belief in God as a prerequisite to service. While his application for leave to appeal was pending, we decided Schowgurow v. State, 240 Md. 121, 213 A.2d 475, in which at the suit of a Buddhist who did not believe in God, we held the provisions of the Maryland Constitution that require a demonstration of a belief in God as a qualification for service as a grand or petit juror to be invalid as in conflict with the fourteenth amendment of the federal Constitution (by reason of its making the first amendment binding on the States), with the result that a conviction of crime after indictment or trial by a jury so chosen could not stand, even though no prejudice in fact was shown. We also held that the principle and holding of the case were not to be applied retroactively except as to those convictions that had not become final at the time of the rendition of the Schowgurow opinion on October 11, 1965.

In making the determination of non-retroactivity, we relied on Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601, in which the Supreme Court held that the rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (which required exclusion of illegally seized evidence in state criminal prosecutions) was not to be applied retrospectively to cases finally decided prior to the Mapp case. In so doing, the Supreme Court summarily rejected the idea that retroaction must always prevail in the area of constitutional adjudication (including adjudications in criminal cases), holding that the federal Constitution neither prohibits nor requires such retrospectivity. Whether it is a statute or an established common law rule or a constitutional adjudication which is overturned, the merits and demerits of retrospectivity in each case must be weighed using the scales of history, the purpose and effect of the rule of the decision and whether retrospective operation will further or retard its operation. The Court felt that to make Mapp operate retrospectively would tax the administration of justice to the utmost and that, unlike other cases ¹ in which retroactivity had been ordered, neither the fairness of the trial nor the integrity of the fact finding process was involved.

Schowgurow was followed first by State v. Madison, 240 Md. 265, 213 A.2d 880, which held that a believer in God who had been convicted of crime and whose case had not become final on October 11, 1965, could avail himself of the invalidity of a jury chosen under the system condemned in Schowgurow and next by Schiller v. Lefkowitz, 242 Md. 461, 219 A.2d 378, cert. denied, November 14, 1966, 87 S.Ct. 319, in which we ruled that a jury chosen under the system condemned in Schowgurow was invalid in a civil case, that, as in a criminal case, the invalidity of the jury did not go to the fairness of the conduct of the trial, the integrity of the fact finding process or the personal qualifications or competency of the members of the jury but that, unlike our holding as to criminal cases, prejudice would not be presumed in civil cases but would have to be proved. We determined further that due process does not demand that a civil case be treated like a criminal case, and found no consideration of justice or public policy to require us to extend to civil cases the Schowgurow exception to complete non-retroactivity.

The case now before us can be decided on the holding of Schiller v. Lefkowitz, supra, since defective delinquency proceedings have been held to be civil in both their substantive and procedural aspects. We held in Blizzard v. State, 218 Md. 384, 386, 390, 147 A.2d 227, 229, 231, that:

'It is clear * * * that a proceeding under the Defective Delinquent Law (Article 31B of the 1957 Code) is in substantive matters a civil proceeding; * * *. We also think it is now quite clear that it is the intention of the General Assembly that such proceedings be regarded as civil in nature as to procedural matters as well.

'Commitment proceedings under Article 31B (quite properly, we think) throw extensive protections around the person involved therein; and in many respects they are such protections as are afforded to the accused in a criminal case. However, such proceedings do not charge the person involved with any crime. They are not prosecuted on indictment or information, but are based upon a report of a clinical examination. Conviction and sentence for crime are historical facts which are prerequisites to the examination leading up to the commitment proceedings, but there is no issue as to guilt of innocence of any crime or crimes of which the person involved has already been convicted.'

See also Eggleston v. State, 209 Md. 504, 514, 121 A.2d 698, 703 ('In character the Act is not unlike statutes providing for a civil inquiry into the sanity of a person. This character is not altered by the fact that it deals only with persons who have demonstrated criminal tendencies resulting in criminal convictions, nor by the fact that it utilizes some of the traditional methods of adjudication and review that have been developed in the criminal law * * *'); McElroy v. Director, 211 Md. 385, 127 A.2d 380; Director of Patuxent Institution v. Daniels, 243 Md. 16, 221 A.2d 397; Sas v. State of Maryland, 4 Cir., 334 F.2d 506.

A conclusion that the non-final exception of Schowgurow should be applied to defective delinquent proceedings is neither compelled nor indicated by the undoubted analogies between such proceedings and criminal cases. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, decided that neither Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, nor Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, which held certain confessions...