McDonough v. Director of Patuxent Institution

• Decision Date: 25 July 1962
• Docket Number: No. 53,53
• Citation: 183 A.2d 368,229 Md. 626
• Parties: William Leighton McDONOUGH v. DIRECTOR OF PATUXENT INSTITUTION.
• Court: Maryland Court of Appeals

Page 626

229 Md. 626

183 A.2d 368

William Leighton McDONOUGH v. DIRECTOR OF PATUXENT INSTITUTION.

No. 53.

Court of Appeals of Maryland.

July 25, 1962.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT, HORNEY, MARBURY, and SYBERT, JJ.

BRUNE, Chief Judge.

In proceedings under the Defective Delinquent Law, Code (1961) (Cum.Supp.), Article 31B, the applicant, William L. McDonough, was found by a jury to be a defective delinquent and was ordered to be committed to the Patuxent Institution for an indeterminate period, without maximum or minimum limits. He seeks leave to appeal. ¹

It is somewhat difficult even to summarize the lengthy and largely repetitious documents filed by the applicant. His contentions seem to fall into four groups, which may be summarized as follows: first, that the Defective Delinquent Law is unconstitutional; second, (even if it were not) that the applicant's constitutional rights were infringed; third, that his commitment to the Patuxent Institution was not warranted under the Defective Delinquent Law; and fourth, that there were defects and irregularities in the trial at which he was found to be a defective delinquent.

Without a transcript of the proceedings at the trial it could not well be determined whether some of the questions sought to be raised had been raised below and, if so, whether they had sufficient apparent merit to warrant an appeal. Therefore, pursuant to Maryland Rule 894b, we ordered the transcript to be submitted; and it has, of course, been considered. An examination of the record, including the transcript, shows that very few of the points now sought to be raised were raised in the trial court, and hence they would not be properly before this court if an appeal were allowed. Md. Rule 885. Proceedings under the Defective Delinquent Law are civil in character. Eggleston v. State, 209 Md. 504, 121 A.2d 698; McElroy v. Director of Patuxent Institution, 211 Md. 385, 127 A.2d 380; Blizzard v. State, 218 Md. 384, 147 A.2d 227. See also the Report to the Legislative Council, dated January 25, 1961, of the Commission to Study and ReEvaluate Patuxent Institution, upon which Ch. 629 of the Acts of 1961 revising the Defective Delinquent Law (Art. 31B) was based. This Report, at pp. 18-20, makes it clear that the Commission recognized the civil nature of the proceedings and declined to recommend any change in that aspect of the law.

The applicant's first group of contentions--that the Defective Delinquent Law is unconstitutional--attacks the Law as (a) involving double jeopardy; (b) as creating an unwarranted discrimination against a person or group of persons in contravention of the Fourteenth Amendment to the Federal Constitution; (c) as an ex post facto law; (d) as imposing cruel and unusual punishment; (e) as a bill of attainder; and (f) as having a title defective under Art. III, Sec. 29 of the Maryland Constitution. None of them was presented in the trial court, and hence none of them would be available on appeal. Md. Rule 885. Probably the reason why they were not presented below is that the experienced and competent counsel who represented the applicant at the trial knew that they would not be sustainable in that court or this. The constitutionality of the Law has been upheld by this court. Eggleston v. State, supra; Simmons v. Director of Patuxent Institution, 227 Md. 661, 177 A.2d 409. The Eggleston case passed specifically upon the above grounds (a) to (d) inclusive, and rejected attacks based thereon. Simmons, which was decided a few days after the applicant's case was tried in the Circuit Court, cited and reaffirmed Eggleston on all of these points. Thus, even if these contentions of the applicant were properly before us, they would be unavailing. We see no reason to do as the applicant would have us do, that is, overrule the Eggleston case. We adhere to it and to the Simmons case. The applicant's further contention (e) that the Law constitutes a bill of attainder, even if it were properly before us, would be equally unavailing, and we perceive no basis upon which it would constitute a bill of attainder or what is included in it in the constitutional sense in which that term is used, a bill of pains and penalties. As to such bills, see Cummings v. Missouri, 4 Wall. (71 U.S.) 277, 323-324, 18 L.Ed. 356, and Drehman v. Stifle, 8 Wall. (75 U.S.) 595, 601, 19 L.Ed. 508. If this contention is simply another way of asserting that the Law is ex post facto or imposes cruel and unusual punishment, it is covered by Eggleston and Simmons.

The claim that the title of the Defective Delinquent Law is invalid was not asserted below and is not properly before us. If it were, it would be patently untenable. See Acts of 1951, Ch. 476 (the original Act) and Acts of 1961, Ch. 629 (the general revision and re-enactment of Art. 31B).

The applicant's second group of contentions (with one possible exception) also would not be properly before us on appeal because not raised at the trial. This group includes claims that the applicant was denied his constitutional rights: (a) by his examination at Patuxent in that (i) he was forced to incriminate himself and (ii) he was denied freedom of speech; (b) by his being denied a speedy trial; (c) by not being confronted by the witnesses against him; and (d) by a denial of the equal protection of the laws, because, as he now asserts, others worse than he have been released from Patuxent. Even if properly before us, we do not regard any of these objections as tenable.

With regard to his examination at Patuxent, the applicant refused on at least two occasions to take a psychological examination, assigning as a ground for refusal his rights under the Fifth Amendment. The examination was not given, and no factual basis for his claim of being forced to incriminate himself is apparent. His claim that he was denied freedom of speech is equally unfounded. In essence it comes down to this: such things as he did say, including his refusals to be examined, were construed by members of the Patuxent staff as indicating that he was a hostile person and were so reported. Whether he wanted to be examined and to speak freely and fully was, of course, a matter of his own choice; he was invited to speak, but he refused to do so. That hardly seems a denial of free speech.

The complaint that the applicant was denied a speedy trial was not made below and in any event is not well founded. The Defective Delinquent Law, we repeat, is not a penal statute and a trial under it is not a criminal prosecution. The times here involved would not support the claim, even if the point had been raised and if the constitutional provision were applicable. The proceedings were initiated and the trial held in due time under the statute. Compare Roberts v. Director of Patuxent Institution, 226 Md. 643, 172 A.2d 880. Nor do we regard his claim of denial of the equal protection of the laws as sustainable.

Since this is not a criminal case, the claim of lack of confrontation of a witness is not applicable. It is controlled by a different rule considered below. Objection was made to the admission of the report of a psychiatrist who had examined the applicant, but who was no longer at Patuxent and was not present at the trial. The applicant's contention that others worse than he had been released from Patuxent is not supported by anything in the record of the proceedings, nor was any such contention made at the trial. It would, therefore, not be reviewable on appeal. If reviewable, it would seem to have no merit. Cf. Apple v. State, 190 Md. 661, at 668, 59 A.2d 509; Howard v. Fleming, 191 U.S. 126, 135-136, 24 S.Ct. 49, 48 L.Ed. 121. Also cf. Ellinger v. Warden, 224 Md. 648, 653, 167 A.2d 334 (a Post Conviction case).

The applicant's third main contention--that the offense for which he was convicted did not warrant his being committed to Patuxent--does not clearly appear to have been raised at the trial, but it is, an any event, clearly untenable. He was convicted in a Circuit Court of a crime of violence, and following his conviction for such an offense he was sent to Patuxent for examination. This was done after he had been examined by the Court Psychiatrist for Baltimore County and on his recommendation. The particular offense for which the applicant was convicted was assault and battery committed upon the mother of a friend of his. A conviction for a crime of violence is one of the grounds upon which a person may be referred to Patuxent under Sec. 6(a) of Art. 31B, supra, and he may be so referred by the court of its own motion under Sec. 6(b). The applicant had a record of a number of convictions for assault, chiefly attacks on police officers. It is wholly immaterial that any or all of his prior convictions were in magistrates' courts; all of them could properly be considered in determining whether or not he was likely to be a danger to society in reaching a conclusion as to whether or not he was a defective delinquent within the meaning of Sec. 5 of Art. 31B, supra.

Of the applicant's numerous claims of irregularities or defects in the proceedings against him, little need be said of most of them.

One objection is that he went to trial in his clothing as an inmate of Patuxent, although his family had provided ordinary...