Smith v. Director, Patuxent Inst.

• Decision Date: 25 July 1975
• Docket Number: No. 983,983
• Citation: 27 Md.App. 618,342 A.2d 334
• Parties: Ronnie SMITH v. DIRECTOR, PATUXENT INSTITUTION.
• Court: Court of Special Appeals of Maryland

Page 618

27 Md.App. 618

342 A.2d 334

Ronnie SMITH v. DIRECTOR, PATUXENT INSTITUTION.

No. 983.

Court of Special Appeals of Maryland.

July 25, 1975.

Certiorari Denied Oct. 6, 1975.

Murray L. Deutchman, Assigned Public Defender, for appellant

Alexander L. Cummings, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Robert S. Rothenhoefer, State's Atty. for Frederick County, and Cleopatra Campbell, Asst. State's Atty. for Frederick County, on the brief, for appellee.

Argued before ORTH, C. J., MELVIN, J., and EDWARD F. BORGERDING, Special Judge.

ORTH, Chief Judge.

On 22 March 1971 at a bench trial in the Circuit Court for Frederick County, Ronnie Smith was convicted of robbery and sentenced to 6 years. ¹ The judgment was affirmed on appeal. Smith, et al. v. State, No. 242, September Term, 1971, filed 22 November 1971, unreported, cert. denied, 264 Md. 751.

On 23 March 1971 the trial court ordered the Commissioner of Correction to deliver Ronnie into the custody of the Director of Patuxent Institution for examination and evaluation as a possible defective delinquent. Code, Art. 31B, § 6(b). Ronnie arrived at Patuxent on 25 May 1971. He refused to submit to examination or to participate in testing procedures. Because of his failure to cooperate, the Patuxent staff indicated about 30 June 1972 that they were unable to evaluate him. In July 1972 Ronnie was one of a number of Patuxent patients who petitioned the Circuit Court for Montgomery County for the issuance of a writ of habeas corpus, seeking release from the Institution because no evaluation of them had been made within six months of their arrival pursuant to Code, Art. 31B, § 7(a). On 14 August Patuxent filed a report in the Circuit Court for Frederick County giving the opinion that Ronnie met the definition of a defective delinquent. On 24 August the Circuit Court for Frederick County summoned Ronnie before it and advised him of the substance of the report. It informed him that there would be a hearing to determine whether he was a defective delinquent and that counsel would be appointed to represent him. Art. 31B, § 8(a).

On 4 October 1972, the Circuit Court for Montgomery County, Shearin, J., acting in the habeas corpus proceeding, concluded that the reporting provisions of Art. 31B, § 7(a) ² were mandatory and hence Ronnie was entitled to be released from Patuxent and transferred to the Division of Correction for the service of his original sentence. ³ It issued an order to that effect. The Director took a timely appeal

                from the order to the Court of Special Appeals.  The Court of Appeals granted certiorari before decision by us.  It reversed the order.  Director v. Cash, 269 Md. 331, 305 A.2d 833, decided June 14, 1973.  Ronnie was returned to Patuxent.  On 8 October 1973 Patuxent resubmitted the evaluation of him made under date of 14 August 1972.  On 23 October 1973 Ronnie was again summoned before the Circuit Court for Frederick County and advised pursuant to Art. 31B, § 8(a).  Hearing for determination of defective delinquency was scheduled for 20 November.  On 31 October Ronnie filed a motion to dismiss and on 5 November moved for permission to employ a private psychiatrist to examine him pursuant to Art. 31B, § 7(b), and for a postponement of the hearing pending the examination.  The motions were heard on 8 November.  On 4 February 1974 the court denied the motion to dismiss, and granted the motion to employ a private psychiatrist and postpone the hearing.  In September 1974 Ronnie was informed that the hearing was set for 18 October.  He again moved to dismiss the action.  The motion was denied on 18 October and the hearing proceeded before a jury.  The jury determined that he was a defective delinquent and by order issued the same date Ronnie was committed to Patuxent for an indeterminate period.  Application for leave to appeal was timely filed on 18 November.  Art. 31B, § 11; Maryland Rule 1094, § a.1.  4  We granted the application on 21 January 1975 and ordered the case transferred to our regular appeal docket.  Art. 31B, § 11; Rule 1094, § c.  Briefs were filed.  Oral argument was made on 23 June 1975
                

QUESTIONS PRESENTED

Ronnie presents three questions for determination:

I. 'Whether the delay between (his) commitment to Patuxent and his trial was so great that it denied (him) due process of law.'

II. 'Whether the lower Court erred in refusing to instruct the jury that the experts' finding of defective delinquency requires a 'diagnosis and prognosis using acceptable and recognized medical and psychiatric procedure'.'

III. 'Whether the Court erred in failing to grant (his) timely motion for a mistrial during the testimony of Dr. Harold Boslow.'

I

The first question concerns the propriety of the denial of the motions made to dismiss the defective delinquency action with prejudice. Ronnie alleges that the delay between the time he arrived at Patuxent and the time he was evaluated to be a defective delinquent, and between the time he was so evaluated and the time of the defective delinquency hearing, denied him due process of law.

The Lapse of Time between the Arrival at Patuxent and the Evaluation

We note first that the six months designation for the filing of the written report of the examination of a possible defective delinquent is directory and not mandatory. Director v. Cash, supra, at 341-345, 305 A.2d 833. Therefore, Ronnie was not entitled to have the report of the examination of him filed within six months of his arrival at Patuxent as a matter of statutory right.

Ronnie's argument goes this way. State v. Musgrove, 241 Md. 521, 217 A.2d 247, held, at 532, 217 A.2d at 252, that despite the provisions as to time for reporting in § 7(a), 'the order of a court referring a person to Patuxent for an examination until such time as the procedures for determining whether or not such person is a defective delinquent have been completed could not be defeated by the refusal of such person to submit to the examination required by § 7(a) if the Patuxent staff cannot make its determination without it.' The Court found it 'clear that a person cannot complain of the action, or inaction, of others when he is the cause of the delay that ensues.' Pointing to the phrase 'if the Patuxent staff cannot make its determination without it' as a proviso to the rule that a person may not defeat the purpose of the statute by refusing to submit to examination, Ronnie cites the express approval of the Court in Roberts v. Director, 226 Md. 643, 650, 172 A.2d 880 to the assertion that a person is entitled to have the issue of defective delinquency tried within a reasonable time after the Institution has had reasonable time to make its findings. He refers to the statement in McNeil v. Director, 407 U.S. 245, 251-252, 92 S.Ct. 2083, 2088, 32 L.Ed.2d 719, after holding, at 250, 92 S.Ct. at 2088, that it is a denial of due process to hold a person on the basis of an ex parte order committing him for observation, that 'if the Patuxent staff members (was) prepared to conclude, on the basis of petitioner's silence and their observations of him over the years, that petitioner is a defective delinquent, then it is not true that he has prevented them from evaluating him. On that theory, they have long been ready to make their report to the court, and the hearing on defective delinquency could have gone forward.' (emphasis added by Ronnie). Due process, the Court continued, requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed. It is Ronnie's view that Patuxent has answered the question whether the lapse of time between his arrival at the Institution and the evaluation report was reasonable by filing a report despite the refusal of him to cooperate. He asserts: 'Patuxent has taken itself out from under the protective umbrella of Musgrove, for Patuxent has admitted that, as to (him), the Patuxent staff could make its determination without a personal examination. Therefore the 'non-cooperation' was irrelevant to their ability to make such an evaluation.' Thus, the failure to evaluate him for some 15 months, he concludes, was unreasonable and a denial of due process.

We find the answer to this argument in Cash. As we have noted, Ronnie was the petitioner in one of the cases before the Court in Cash. The Court found McNeil clearly distinguishable from the cases before it and saw indication in McNeil that the decision was to be narrowly applied. 269 Md. at 345, 305 A.2d 833. 'We do not consider any of the petitions filed in Cash to be within the holding of the Supreme Court in McNeil and, further, we do not perceive any holding in McNeil that our opinion in Musgrove is impaired. Indeed, in McNeil, the Supreme Court in Note 2 of its opinion cites Musgrove and Mullen v. Director, 6 Md.App. 120, 250 A.2d 281 (1969), applying Musgrove for the proposition that the Maryland Courts have construed § 7(a) 'to permit extension of the allowable time . . . in the case of a noncooperative defendant who resists examination.' There was no suggestion that this was unconstitutional or otherwise improper.' Id. at 349, 305 A.2d at 843. The Court specifically approved the procedure followed with regard to Ronnie, id. at 347, 305 A.2d at 842:

'After the decision by the Supreme Court in McNeil on June 19, 1972, the staff was faced with the problem that an undiagnosed person would be released when his sentence expired. After consultation with the Patuxent Board and with counsel, the staff attempted, where possible, to diagnose individuals referred for examination who had declined to cooperate in the examination process on the bases of historical data in the file of each individual. Dr. Boslow further testified, in effect, that he and the staff prefer not to make a diagnosis without a personal interview, but that such a diagnosis would be 'valid' in the absence of a showing of an intentional...