State v. Musgrove, 470

• Court: Court of Appeals of Maryland
• Citation: 217 A.2d 247,241 Md. 521
• Docket Number: No. 470,470
• Parties: STATE of Maryland v. Frank Harrison MUSGROVE.
• Decision Date: 03 March 1966

Page 521

241 Md. 521 217 A.2d 247 STATE of Maryland
v.
Frank Harrison MUSGROVE. No. 470. Court of Appeals of Maryland. March 3, 1966.

Page 524

[217 A.2d 248] John W. Sause, Jr., Asst. Atty. Gen., Baltimore (Thomas B. Finan, Atty. Gen., and Robert C. Murphy, Deputy Atty. Gen., Baltimore, on the brief), for appellant.

John S. McInerney, Rockville, for appellee.

Before HAMMOND, HORNEY, OPPENHEIMER and McWILLIAMS, JJ., and JOHN E. RAINE, Jr., Special Judge.

HORNEY, Judge.

The question presented by this appeal is whether the order of court granting habeas corpus and releasing a patient from Patuxent Institution was appealable under the circumstances of this case.

When Frank Harrison Musgrove entered a plea of guilty to a charge of storehouse breaking with intent to steal, the Circuit Court for Montgomery County sentenced him to the Correctional Institution for an indeterminate period of time not to exceed eighteen months from June 12, 1964, and two days later, on its own initiative, ordered him transferred to Patuxent to be examined for possible defective delinquency pursuant to the provisions of Article 31B. ¹ At Patuxent, although the patient persistently refused to permit members of the staff to examine him as directed by the order of court, he did not commit any other infractions of the rules. As a result of his intransigence, however, the institution was unable to state its findings in a written report to the court within the period of six months fixed by the statute.

In his petition for a writ of habeas corpus, the patient, besides alleging that he had not been determined to be a defective

Page 525

delinquent and was therefore 'illegally confined and restrained' by Patuxent, claimed that his sentence, allowing credit for good behavior, had expired. At the hearing, the petitioner contended that because his sentence had expired and Patuxent had failed to file a report as to his condition or bring him to trial on the question of defective delinquency, he was entitled to a release. On the other hand, the State's Attorney, although conceding that the prison term of the petitioner had expired, contended that the patient should not be released because he had made it impossible for Patuxent to conduct the examination on which the report would have been based.

During the course of the proceedings before Judge James H. Pugh, the Court suggested that if an examination by the Patuxent staff was desired, the deposition of the patient for discovery purposes could have been taken. The Court further suggested that based on the prior record of the patient the staff could have reached a conclusion as to whether he was a defective delinquent, and if they concluded that he was, then the proceeding, involving a determination of his defective delinquency, could have been set down for trial, whereat the patient could have been called as a witness. The judge, although aware that he was hearing a civil proceeding, also declared that if he were the patient he would not 'cooperate with' the staff by submitting to an examination because that would 'be giving evidence against yourself.' Later on he expressed a similar opinion by saying that regardless of 'what the law says [that] would be incriminating yourself, because you would run the risk of staying in jail the rest of your life.' In a written opinion filed two days later, the judge, besides saying that the time within which the institution must report the result of its findings had long since expired and that the sentence imposed on the petitioner in the criminal case had likewise expired, stated that an alleged defective delinquent was not required to talk to the staff or discuss any matters concerning his possible defective delinquency and that, since the character of the required examination was not specified, nor limited to oral discussion, it could 'take any form that the * * * [staff] desire[d] to use.' The order attached to the opinion granted the writ [217 A.2d 249] sought and released the patient from Patuxent, and the State appealed.

Page 526

The first question raised by the State on appeal involves an interpretation of the meaning and purpose of the statutory requirement that the staff shall make a determination (as set forth in § 7(a) of Art. 31B) '[o]n the basis of all the assembled information, plus their own personal examination and study' as to whether or not the patient is a defective delinquent. The third question, a corollary to the first, is an inquiry as to whether alternative procedures, not sanctioned by statute or rule of court, may be employed in a defective delinquent proceeding. The second question is whether an order of court transferring a person to Patuxent for an examination (pursuant to § 6(e) of Art. 31B) 'until such time as the procedures * * * for the determination of whether or not said person is a defective delinquent have been completed' may be defeated by the refusal of a patient to submit to such examination. The fourth and final question, which is corollarial to the second, is whether the patient should have been released on habeas corpus before it was shown that the criminal sentence had in fact expired.

The appellee promptly moved to dismiss the appeal on the ground that he had been confined as a result of a proceeding under Article 31B, and that the appeal was barred by the provisions of § 645A(e) of Article 27. In answering the motion to dismiss, the appellant, in addition to maintaining that the appeal was authorized because the petition neither involved the legality of a conviction, sentence or imprisonment nor confinement as the result of a proceeding under Article 31B, contended that the order releasing the appellee from confinement was unconstitutional (and therefore appealable pursuant to Maryland Rule Z56) in that it was violative of the provisions of Article 31B authorizing the confinement of a person in Patuxent until an evaluation of defective delinquency can be made. This Court, in advancing the case for argument, ordered that arguments on the motion to dismiss and on the merits be heard together.

We think the motion to...