Prevatte v. Director, Patuxent Institution

• Decision Date: 18 November 1968
• Docket Number: No. 57,57
• Citation: 5 Md.App. 406,248 A.2d 170
• Parties: Billy Ray PREVATTE v. DIRECTOR, PATUXENT INSTITUTION. Post Conviction
• Court: Court of Special Appeals of Maryland

Page 406

5 Md.App. 406

248 A.2d 170

Billy Ray PREVATTE v.DIRECTOR, PATUXENT INSTITUTION.

Post Conviction No. 57.

Court of Special Appeals of Maryland.

Nov. 18, 1968.

Before MURPHY, C.J., and ANDERSON, MORTON, ORTH and THOMPSON, JJ.

ORTH, Judge.

On 13 July 1956 the applicant was indicted for murder in Prince George's County.He filed pleas of not guilty, not guilty by reason of insanity at the time of the commission of the offense and not guilty by reason of insanity at the time of the trial.By order of courthe was examined by the Department of Mental Hygiene and a report of the examination was filed.He elected a trial by jury and the case came on for trial on 31 October 1956 in the Circuit Court for Prince George's County, Judges J. Dudley Digges and John R. Fletcher presiding.The trial concluded on 2 November 1956 and the jury rendered verdicts of sane at the time of the commission of the offense, sane at the time of the trial and guilty of murder in the first degree without capital punishment.He was sentenced to life imprisonment.A motion for a new trial was made and subsequently withdrawn.No appeal from the judgment was filed.By order of courthe was examined for possible defective delinquency and upon a hearing before the court on 11 March 1957he was found to be a defective delinquent and committed to Patuxent Institution.On 26 February 1968he filed a petition for relief under the Uniform Post Conviction Procedure Act, and after counsel was appointed to represent him, two amended petitions, one on 7 May 1968 and the other on 17 May 1968 were filed.After an evidentiary hearing on 20 May 1968 in the Circuit Court for Prince George's County the relief prayed was denied by Judge Ralph W. Powers by order of 27 May 1968 accompanied by a memorandum.

The petition for relief as amended raised six allegations of error.The application for leave to appeal, timely filed, gives as the grounds why the order should be reversed that the court erred in finding no merit as to each of the allegations and sets forth with particularity the reasons therefor.We shall consider each of the allegations but not necessarily in the order presented by the applicant and shall group them under five headings.

I

The applicant alleged that he was denied a fair and impartial trial.This allegation encompasses three intermingled contentions, (1) that there was adverse newspaper publicity, (2) that the jury was not impartial, and (3) that his trial counsel were not competent.It appears that the applicant was represented by two experienced attorneys; one was a former State's Attorney 'who had served in that office for a number of years' and the other was a former Assistant State's Attorney.The hearing court found that the representation 'was of a caliber substantially above average and very likely better representation than he would have had if he engaged an attorney of his own.'In a memorandum in support of the petition for relief, counsel for the applicant referred to newspaper articles'widely circulated in the county prior to verdict.'He complained that none of the eight voir dire questions submitted asked prospective jurors if they had read any of the articles.The hearing court considered testimony given by one of the attorneys who represented the applicant at his trial.The attorney said that 'by the time the case came to trial (he) believed the climate here in Prince George's County would be just as favorable, if not more so, than any other place.'The hearing court stated it could not say that the decision of counsel not to exercise the right of removal (Constitution of Maryland, Art. IV, § 8;Md.Code, Art. 75, § 44;Md.Rules 738) was wrong and we cannot say that the hearing court was clearly erroneous in his judgment on the evidence before it.Newspaper disclosures standing alone do not support a defendant's suggestion that he was denied a fair trial.McLaughlin v. State, 3 Md.App. 515, 240 A.2d 298.Nor can we assume in the circumstances that the jury violated its sworn duty to render a fair and impartial verdict.SeeBaker v. State, 3 Md.App. 251, 238 A.2d 561;Jones v. State, 2 Md.App. 429, 234 A.2d 900.There was testimony adduced at the hearing that several members of the jury were 'well known at the Court House' but applicant's counsel testified that he was aware of this and said he'knew those jurors better than the State's Attorney did.'The decision of counsel that the jurors were acceptable, as was the decision not to remove the case, was a trial tactic and is not sufficient to show that the applicant was not afforded genuine and effective representation.SeeMcCoy v. Warden, Maryland Penitentiary, 1 Md.App. 108, 227 A.2d 375.The hearing court rejected the contentions that the applicant was denied a fair and impartial trial and effective representation and we cannot find that he was clearly erroneous in so doing.

II

The applicant alleged that the procedure in allowing the jury to consider both the issue of sanity and the issue of guilt or innocence was improper, claiming that the sanity issue should have been determined out of the jury's presence and claiming further that the issue of his sanity at the time of the trial should have been determined first and separately from the issue of his sanity at the time of the commission of the offense.The standard for determining sanity with respect to criminal responsibility was, at the time of the applicant's trial, under the provisions of Md.Code, Art. 59, § 7, as then in effect.¹In McCracken v. State, 2 Md.App. 716, 237 A.2d 87we stated that it was only when the evidence was sufficient to raise the question in the minds of reasonable men whether the defendant was or was not insane at the time of the commission of the offense and at the time of the trial that the issue is submitted to the jury.We said that it was preferable, therefore, that evidence on the issue be adduced out of the presence of the jury 'to avoid any possible prejudice and to obviate the necessity, when the evidence is found to be insufficient, of instructing the jury that the issue is not before them and that they are to disregard such evidence in their deliberations of whether the State has proved the commission of the crime beyond a reasonable doubt.'2 Md.App. at 720, 237 A.2d at 89.In the instant case the applicant does not claim that the evidence on the issue was not properly submitted to the jury (expert witnesses appeared on behalf of the applicant and on behalf of the State) and if he would so claim, he could not have been prejudiced as the jury found him sane and the submission to the jury would be more than he was entitled to.SeeFowler v State, 237 Md. 508, 512, 206 A.2d 802.And if the issue was properly submitted to the jury, he cannot say that he was prejudiced by its submission.We think it clear that the statute in effect at the time of the applicant's trial contemplated, when the issue was before it, that the jury deciding the guilt or innocence of a defendant at the same time determined the issue of his sanity both at the time of the commission of the offense and at the time of the trial.Under that statute the jury was not required to state in its verdict that the defendant was so sane, it being conclusively presumed that they found the defendant sane if they did not specifically so state, although the court upon application of the State or the defendant or by its own motion could require the jury to find specially by its verdict whether the defendant was sane at the time of the commission of the offense and whether he was sane at the time of the trial.This allegation is no ground for the reversal of the order denying relief.

III

The applicant alleged that as he was under the age of 18 years at the time of the commission of the crime and at the time of his arrest and at the time of his trial he was a 'delinquent child' by the definition under Md.Code, Art. 26, § 52.He urges that the provision of the statute excluding him from such definition because the law he violated was punishable by death or life imprisonment, thus automatically waiving the jurisdiction of the juvenile court and requiring his prosecution as an adult, denied him the equal protection of the law.We see no merit to this allegation.The statutes dealing with juvenile delinquents and with adults who contribute to their delinquency have established the public policy of this State relating thereto.SeeTaylor v. State, 214 Md. 156, 133 A.2d 414, 65 A.L.R.2d 740.The exclusionary provisions as to children who violate a law punishable by death or life imprisonment or the authority of the juvenile court to waive jurisdiction in its discretion in cases involving the violation by children of laws not so punishable (Md.Code, Art. 26, § 54) have not been held unconstitutional (seeBean v. State, 234 Md. 432, 199 A.2d 773;Snyder v. State, 189 Md. 167, 55 A.2d 485) and all presumptions favor the constitutionality of a duly enacted statute.It will not be declared unconstitutional unless it plainly contravenes the federal or state constitutions.Woodell v. State, 2 Md.App. 433, 234 A.2d 890.The statute here challenged applies equally to all those within a specified class and it is not arbitrary or unreasonable.Celanese Corp. of America v. Davis, 186 Md. 463, 47 A.2d 379.We see no denial to the applicant of equal protection of the law.

IV

The applicant alleged that the State failed to rebut the presumption that he was incapable of forming criminal intent.At common law while a person under 7 years of age and a person between 7 and 14 years of age are both presumed to be doli incapax, the presumption as to the latter is not conclusive as it is as to the former.The presumption as to a person between 7 and 14 years of age may be rebutted, the maxim being ...