State v. Weeder
| Citation | 22 Md.App. 249,322 A.2d 253 |
| Decision Date | 22 July 1974 |
| Docket Number | No. 101,101 |
| Parties | STATE of Maryland v. Jefferson Winston WEEDER. |
| Court | Court of Special Appeals of Maryland |
Donald R. Stutman, Asst. Atty. Gen., with
whom were Francis B. Burch, Atty. Gen., and Arthur A. Marshall, Jr., State's Atty., for Prince George's County, on the brief, for appellant.
Dennis M. Henderson, Baltimore, with whom was Geraldine Kenney Sweeney, Baltimore, on the brief, for appellee.
Argued before ORTH, C. J., and MORTON and GILBERT, JJ.
Jefferson Winston Weeder was indicted by the Grand Jury of Prince George's County for robbery, larceny, a perverted sex act and assault and battery. A plea of not guilty by reason of insanity under Md.Ann.Code Ann.Code art. 59, § 25(b), Md.Rule 720, was entered on behalf of Weeder, and he was referred to the Clifton T. Perkins State Hospital. The Medical Staff at Perkins 1 concluded that Weeder was The Perkins report, nevertheless, stated that, '. . . it was the unanimous opinion of the medical staff that (Weeder) was able to understand the nature and object of the proceeding against him and to assist in his defense.' The Staff further said that Weeder 'did not suffer from a mental disorder at the time of the alleged offenses of such severity as to cause him to lack substantial capacity to appreciate the criminality of his conduct or to confrom his conduct to the requirements of the law.' When the indictment was called for trial, Weeder changed his plea to 'Guilty' as to counts 1 and 3. Following a presentence report, Weeder was sentenced to imprisonment for a total of eight years and was, on April 12, 1973, referred to Patuxent Institution for evaluation. It is the referral to Patuxent Institution that sets the stage for the instant case.
Patuxent filed its report with the Circuit Court for Prince George's County, Md.Ann.Code art. 31B, § 7, on October 30, 1973. Weeder had been admitted to Patuxent on May 16, 1973, and when he was seen by a psychiatrist exclaimed: Later the same day Weeder was again seen by the psychiatrist. At that time Weeder stated: Weeder's actions from that point on degenerated from resistance to outright refusal to even see a psychiatrist. Notwithstanding Weeder's uncooperative attitude, the Patuxent Institution 'Diagnostic Staff Report', grounded upon 'all the available accumulated records and recent past examinations' (including the Clifton T. Perkins State Hospital report) stated that Weeder suffered from 'borderline mental retardation with schizoid features', was a 'danger to society' and met the definition of a Defective Delinquent as set out in Md.Ann.Code art. 31B, § 5.
On February 14, 1974, the case was called for hearing. At that time the State asked the judge to return Weeder to Patuxent and to order him The State's request was denied, and the matter proceeded before the judge, sitting without a jury.
The State produced the testimony of Mr. Paul Edwards, a Patuxent Staff psychologist. Mr. Edwards candidly admitted that he did not personally examine Weeder because of Weeder's steadfast refusal to submit to examination. Mr. Edwards read into the record, over objection, the complete Diagnostic Staff Record of the Patuxent Institution, but the hearing judge subsequently granted Weeder's motion to strike Edward's testimony. The judge then dismissed the petition. Thereafter, the court signed an order directing that Weeder be transferred from Patuxent to the Division of Correction. The same date the State made application to this Court for leave to appeal. We granted the application and transferred the case to the regular appeal docket.
The hearing judge relied upon State v. Musgrove, 241 Md. 521, at 531, 217 A.2d 247, at 251 (1966), wherein the Court of Appeals said:
'. . . (W)e are of the opinion that the legislature in using the term 'personal examination and study' must have intended that the examiner, be he a medical physician, a psychiatrist or psychologist, would use such methods and tests to ascertain the physical, psychiatric and psychological characteristics and deficiencies of the patient as were necessary to enable the examiner to reach a valid opinion. Conceivably, this would not always require the patient to talk to the examiner although it would seem that usually it would, as the record indicates was true in the case before us. Significantly, the requirement is not only that the examination be 'personal' but that it also be the '(examiner's) own.' This, we think, unequivocally implies that the examiners were to apply their expert knowledge in reaching a determination as to the defective delinquency of the patient. . . .
Certainly the statute does not imply, as the judge below indicated, that the staff could have based its conclusion as to the presence or absence of defective delinquency on the prior record of the patient. . . .'
In Marsh v. State, Md.App., 322 A.2d 247 (1974), decided July 19, 1974, this Court, speaking through Judge Menchine, said:
'This Court, interpreting Musgrove, said in Wise v. Director, 1 Md.App. 418, 422, 230 A.2d 692, 694:
'. . . (T)he effect of a prisoner's refusal to cooperate with the examining staff members is not that he is automatically classified as a defective delinquent, but rather that the order of court referring a person to Patuxent for an examination as to defective delinquency cannot be defeated by the prisoner's refusal to submit to examination.' (Italics supplied).'
Judge Menchine pointed out that the holdings that were implicit in Musgrove and Wise became clearer in subsequent cases. In McNeil v. Director, 407 U.S. 245, at 251-252, 92 S.Ct. 2083, at 2088, 32 L.Ed.2d 719 (1972), the Supreme Court stated:
(Emphasis supplied).
Appellee argues that a 'personal examination' by Patuxent Staff is a mandatory condition precedent of any finding of defective delinquency. Article 31B, § 7(a) in pertinent part states:
The Court of Appeals in Musgrove, supra, seemed to reject the notion that a 'personal examination' by Patuxent Staff was absolutely necessary. The Court stated that 'usually' a patient must be personally examined, but that such was not 'always' required. Furthermore, as we read Musgrove, the Court of Appeals, in using the language,
'Certainly the statute does not imply, . . . that the staff could have based its conclusion as to the presence or absence of defective delinquency on the prior record of the patient . . ..' (Emphasis supplied)
was not speaking of the patient's prior medical records, but was addressing itself to the proposition that Patuxent could not base a determination of defective delinquency soley upon the prior criminal record of the patient.
Recently, in Director v. Cash, 269 Md. 331, 305 A.2d 833 (1973) ...
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