Weeder v. State, 184

• Decision Date: 07 May 1975
• Docket Number: No. 184,184
• Citation: 274 Md. 626,337 A.2d 67
• Parties: Jefferson Winston WEEDER v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 626

274 Md. 626

337 A.2d 67

Jefferson Winston WEEDER v. STATE of Maryland.

No. 184.

Court of Appeals of Maryland.

May 7, 1975.

Dennis M. Henderson, Asst. Public Defender, and Alfred J. O'Ferrall, III, Deputy Public Defender (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

Donald R. Stutman, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief, for appellee.

Argued before SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

SINGLEY, Judge.

When Jefferson Winston Weeder came on for hearing before the Circuit Court for Prince George's County for a determination of the question of his commitment to Patuxent Institution (Patuxent) as a defective delinquent, that court (McCullough, J.) granted Weeder's motion to strike the testimony of psychologist Paul Edwards, the State's only witness; dismissed the defective delinquency proceeding, and remanded Weeder to the custody of the Division of Correction.

The State appealed to the Court of Special Appeals which reversed the trial court and remanded the case for a determination of defective delinquency, State v. Weeder, 22 Md.App. 249, 322 A.2d 253 (1974). We granted certiorari in order that we might review the action taken by the Court of Special Appeals.

What happened here was that Weeder entered guilty pleas to charges of robbery and of the commission of a perverted sexual act, and in April, 1973, received concurrent eight-year sentences on each of the two counts. He was transferred to Patuxent for evaluation as to defective delinquency in May of 1973, and remanded there until his defective delinquency hearing in February of 1974.

At this hearing, Paul Edwards, a psychologist at Patuxent, was qualified as an expert witness without objection. He testified that his duties included psychological testing; individual psychotherapy; group therapy, and tier counseling. Mr. Edwards produced the Patuxent staff report on Weeder, which we have held to be ordinarily admissible at a defective delinquency hearing, Schlatter v. Director, 238 Md. 132, 134, 207 A.2d 653, 654 (1965). Weeder sought, without success, to exclude the report, for reasons to be considered.

Edwards testified that Weeder had repeatedly refused to submit to psychological testing and to psychiatric examination, ¹ and that the diagnostic staff conference, held in September, 1973, based its finding of defective delinquency solely on a psychological and psychiatric evaluation of Weeder made at Clifton T. Perkins State Hospital in January, 1973 during a pretrial mental examination under court order. ²

The following exchange then took place between Edwards and the State's Attorney:

'Q Have you on any occasion observed Mr. Weeder in the institution?

'A I was present at the staff meeting and I have seen him.

'Q Was Mr. Weeder there?

'A No. He refused to appear.

'Q Other than that, have you had occasion to see Mr. Weeder at any time while in the institution?

'A I have had no occasion to. He is not on my unit. I would have-I would not be brought in contact with him except as examining psychologist.'

At the conclusion of Mr. Edwards' testimony, Weeder's counsel's motion to strike the evidence was granted and the case was dismissed.

In the Court of Special Appeals and before us, Weeder relied on the statutory scheme under which Patuxent was created, Maryland Code (1957, 1971 Repl.Vol.) Art. 31B, and particularly on section 7(a) of that article (1974 Cum.Supp.):

'(a) By whom made; report of findings to court; time spent in institution, etc., credited on sentence.-Any such examination shall be made by at least three persons on behalf of the institution for defective delinquents, one of whom shall be a medical physician, one a psychiatrist, and one a psychologist. They shall assemble all pertinent information about the person to be examined, before proceeding therewith, including a complete statement of the crime for which he has been sentenced, the circumstances of such crime, the court in which he was sentenced, the nature of the sentence, copies of any probation or other reports which may have been made about him, and reports as to his social, physical, mental and psychiatric condition and history. On the basis of all the assembled information, plus their own personal examination and study of the said person, they shall determine whether in their opinion, or in the opinion of a majority of them, the said person is or is not a defective delinquent. They shall state their findings in a written report addressed to the court, not later than six months from the date said person was received in the Institution for examination, or three months before expiration of his sentence, whichever first occurs. ³

If the substance of the report is that the said person is not a defective delinquent, he shall be retained in the custody of the Department of Correction under his original sentence as if he had not been examined for possible defective delinquency. Provided, however, that the said person shall be returned to the custody of the Department of Correction with full credit for such time as he has already spent in the institution for defective delinquents or within the custody of the Department of Correction including such allowances (or disallowances) relating to good behavior and/or work performed as the Board of Correction may determine under the provisions of § 688 of Article 27 of the Code.' (Emphasis supplied.)

While Weeder conceded, at argument before us, that a recalcitrant inmate cannot be permitted to frustrate the examination mandated by statute by refusing to be interviewed, because such an interview may not always be necessary, he argues that the findings of the medical physician, psychiatrist and psychologist called for by section 7(a) must be bottomed on something more recent and germane than was the case here.

The Court of Special Appeals seems to have discerned a signal in a line of cases beginning with State v. Musgrove, 241 Md. 521, 217 A.2d 247 (1966), followed by McNeil v. Director, 407 U.S. 245, 92 S.Ct. 2083, 32 L.Ed.2d 719 (1972), and by Director v. Cash, 269 Md. 331, 305 A.2d 833 (1973), cert. denied, 414 U.S. 1136, 94 S.Ct. 881, 38 L.Ed.2d 762 (1974) that an uncooperative inmate who refuses to be interviewed may no longer frustrate the examination mandated by statute, because the diagnosis could be based on historical data. ⁴

We regard the Court of Special Appeals' reading of these cases as overly broad. What we observed in Musgrove, supra, 241 Md. at 530-31, 217 A.2d at 251-52, was this:

'Inasmuch as a determination of whether or not a person is a defective delinquent depends on diagnosis and prognosis, which turns only partly on the assembled information as to his prior anti-social and criminal behavior, cf. Simmons v. Director, 231 Md. 618, 189 A.2d 644 (1963), we 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. The cases indicate the contrary. See Palmer v. State, 215 Md. 142, 137 A.2d 119 (1957); Cowman v. State, 220 Md. 207, 151 A.2d 903 (1959). Nor could the 'personal examination' specifically required by the statute 'take any form' the examiners chose to use in the absence of other statutory or regulatory authority to do so. . . .'

While the Court of Special Appeals, in Weeder, supra, 22

Md.App. at 253-54, 322 A.2d 253, correctly interpreted our language in Musgrove, in concluding that the 'prior record' to which allusion was made above referred to the prior criminal record of the alleged defective delinquent, the court was incorrect in its necessarily implied conclusion that a commitment could be based solely on a patient's prior medical record. Had the Patuxent diagnostic staff made an independent evaluation of the findings developed in the prior examination, we might reach a...