Savage v. State

• Decision Date: 20 August 1973
• Docket Number: No. 879,879
• Parties: Harlan Lee SAVAGE v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 1

19 Md.App. 1

308 A.2d 701

Harlan Lee SAVAGE v. STATE of Maryland.

No. 879.

Court of Special Appeals of Maryland.

Aug. 20, 1973.

Charles F. Morgan, Baltimore, for appellant.

Donald R. Stutman, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Edward F. Borgerding, Chief, Crim. Div., Asst. Atty. Gen., and J. Owen Wise, State's Atty., for Caroline County, on the brief, for appellee.

Argued before ORTH, C. J., and THOMPSON and MENCHINE, JJ.

ORTH, Chief Judge.

The current saga of Harlan Lee Savage in the courts of Maryland began on 10 December 1970 when he was held for action of the grand jury upon a warrant charging that he assaulted and robbed Dale Murphy. He waived indictment by the grand jury and sought immediate trial upon a criminal information. Maryland Rule 709. On 16 December a criminal information was filed presenting that on 28 November 1970 he robbed Murphy (1st count), assaulted Murphy with intent to steal (2nd count), assaulted and beat Murphy (3rd count), and stole goods under the value of $100 from Murphy (4th count). On 18 December the information came on for trial in the Circuit Court for Caroline County. Savage pleaded not guilty as to the first and second counts and requested a trial by jury. He pleaded guilty to each of the third and four counts. The court accepted the guilty pleas and rendered a verdict of guilty under each of the third and fourth counts. The State entered a nolle prosequi in open court to the first and second counts, without objection by Savage. Maryland Rule 711. On 22 December sentences were imposed. The docket entry reads:

'Judgment and sentence of the Court is that the Defendant, as a punishment for his offense, under 3rd. Count of Information be committed to Jurisdiction of Md. Dept. of Correction to be imprisoned for a period of 18 months.

Judgment and sentence of the Court is that the Defdt., as a punishment for his offense, under fourth count of Information be committed to Jurisdiction of Md. Dept. of Correction to be imprisoned for a period of 18 months, sentence under 4th. Count of Information to run consecutive to sentence under third count of Information, credit to be given for 24 days spent in Caroline County Jail.' ¹

On 28 December the court ordered that Savage be delivered to the custody of the Director of Patuxent Institution for examination and evaluation of possible defective delinquency in accordance with Code, Art. 31B. On 2 August 1972 the Circuit Court for Caroline County, Rasin, J., passed an order which recited:

'Harlan Lee Savage, having been sentenced in this Court on December 22, 1970, to two eighteen month sentences to run consecutively (credit to be given for 24 days spent in the Caroline County Jail) and, on December 28, 1970, the Court having passed an Order for examination of the said Harlan Lee Savage at Patuxent Institution for the purpose of determining whether he is a defective delinquent; Patuxent Institution, by letter dated April 18, 1972, having reported to this Court that the said Harlan Lee Savage has refused to submit to testing and other examination so that it is not possible for Patuxent Institution to complete its evaluation and express an opinion as to whether the said Harlan Lee Savage, in the opinion of the staff, meets the definition of a defective delinquent under the provisions of Article 31B of the Maryland Code; the Supreme Court of the United States, in the case of Edward Lee McNeil, Petitioner vs. Director, Patuxent Institution, on June 19, 1972, having ruled that a hearing should be held with respect to any inmate who refuses to cooperate in the evaluation process by Patuxent Institution so that it can submit a report to the Court; the said Harlan Lee Savage, on June 29, 1972, having filed a petition for the issuance of a writ of habeas corpus claiming that he is entitled to be released because his sentence has expired and he has not been committed as a defective delinquent to Patuxent Institution, and it appearing to the Court that a hearing should be held forthwith to determine why the said Harlan Lee Savage has not been examined, evaluated and a hearing held to determine whether he is a defective delinquent, * * *.

Upon these recitals, the court commanded that Savage show cause at a hearing to be held on 22 September why he should not cooperate with the staff at Patuxent. The State answered the order to show cause, representing:

'That Respondent has consistently refused to cooperate in the diagnostic procedures at Patuxent Institution in that he has refused psychological examination on April 17, 1971, January 31, 1972, and June 6, 1972; that he further refused to be examined by a psychiatrist at Patuxent Institution on June 7, 1971, January 5, 1972, January 23, 1972, and June 1, 1972; and that he further refused to take the Stanford Achievement Test on June 8, 1971.'

It attached as an exhibit a Diagnostic Staff Report signed by the Director of the Institution and two staff members, a psychologist and a medical doctor. The report concluded:

'Therefore, because of the patient's refusal to obey the Court's order for examination and since there are no past examinations that one might be able to evaluate, no recommendation in regard to defective delinquency can be made at this time.'

The answer requested that the court order Savage to submit to psychological testing and psychiatric interviews at Patuxent and that if he refused so to submit that he be held in contempt of court and confined at Patuxent until such time as he submits himself to the testing procedures. The show cause order came on for hearing on 3 October. Savage was vociferous in his refusal to participate in the hearing, claiming that he was not prepared and disclaiming the public defender representing him. ² The hearing proceeded, and on 3 October the court ordered:

'That the Defendant, Harlan Lee Savage, shall be returned to Patuxent Institution for the following purposes: That he shall submit after request of the staff of Patuxent Institution to the personal examinations required by Article 31B, Section 7(a), Annotated Code of Maryland, and more specifically shall submit to the following testing procedures: (1) Weschler Adult Intelligence Scale; (2) the Bender-Gestalt Test; (3) Draw A Person Test; (4) the Rorschack Ink Bolt Test; (5) a Social Service interview; (6) an electroencephalogram; (7) a psychiatric interview; and that he shall cooperate with the staff in the examinations; and

IT IS FURTHER ORDERED, That any information elicited from the Defendant during the course of his examination and evaluation at Patuxent Institution shall not be used, directly or indirectly, as a basis for subsequent criminal prosecution of the Defendant; and

IT IS FURTHER ORDERED, That Patuxent Institution notify this Court within 30 days whether the Defendant has cooperated in the evaluation procedures in order that Patuxent Institution is able to file its formal staff evaluation as required by Article 31B, Section 7(a).'

A motion of the District Public Defender to strike his appearance was granted on 18 October and appearance of other counsel for Savage was entered. On 30 October an appeal was noted from the order of 3 October. It was dismissed by order of this Court of 15 December for reason that it was an appeal from an interlocutory order.

In the meantime, Savage was one of 50 patients at Patuxent who filed petitions for the issuance of a writ of habeas corpus in the Circuit Court for Montgomery County before Judge Plummer M. Shearin. The petitions alleged in substance that Patuxent had not evaluated the petitioners, pursuant to Art. 31B, § 7(a), within six months of their transfer to Patuxent for examination, and as a consequence, they were entitled to be removed. Judge Shearin concluded that the language of § 7(a) was mandatory and hence the petitioners were entitled to be released from Patuxent and transferred to the Division of Correction for the service of their original sentences. He so ordered on 4 October. The Director of Patuxent appealed to this Court and then filed a petition for a writ of certiorari with the Court of Appeals which was granted pursuant to Code, Art. 5, § 21B. The Court of Appeals granted the petition for the issuance of the writ on 12 December 1972. The Court of Appeals, holding that the reporting provisions of Code, Art. 31B, § 7(a) were directory and not mandatory, reversed the order of 4 October 1972. Director v. Cash, Md., 305 A.2d 833, 1972, filed 14 June 1973.

On 6 November 1972, while the appeal of Judge Shearin's disposition of the habeas corpus petitions was pending, the State filed a motion in the Circuit Court for Caroline County, alleging that Savage 'has consistently and repeatedly refused to engage in the personal examination ordered by this Court.' It prayed for an order requiring Savage to show cause why he should not be held in contempt. On 6 November the court issued the order for Savage to show cause on or before 21 November. A hearing on the order was held on 29 November, and on 14 December, upon the hearing, the court found Savage in contempt for failing to obey its order of 3 October requiring him to submit to the examinations at Patuxent. It ordered that he 'be detained by the Division of Correction until such time as he is willing to comply' with the order of 3 October, and further ordered that when he agreed to comply, 'The Commissioner of Corrections shall forthwith transfer Defendant to Patuxent Institution for a period of twenty-four hours to be examined by the staff of Patuxent Institution and shall then return him to whatever place he is to be confined by the Commissioner of Corrections, subject to the further Order of this Court.' Savage noted a timely appeal. He contends:

I. The court below did not have jurisdiction to order him to submit to an examination at Patuxent Institution or to punish him for his refusal to obey such order because:

(a) the sentence for...