Opinion
[App. No. 148, September Term, 1963.]
Decided July 28, 1964.
DEFECTIVE DELINQUENTS — Expert May Express Opinion Based On Records And Staff Reports Of Institution — Prior Criminal Record Is A Relevant Factor — Contention That Persons Preparing Reports Of Institution Were Not Present In Court And Not Subject To Cross-Examination Was Rejected By Court. pp. 669, 670
DEFECTIVE DELINQUENTS — Contentions That Applicant Was Unable To Take Stand On Own Behalf Because Of Physical Ailments And That He Had Not Seen Medical Reports Were Rejected By Court Because They Were Not Stated With Specificity Required By Rule 894a 2(a) — Similar Holding On Applicant's Allegation Of Inadequacy Of Counsel. pp. 669, 670
DEFECTIVE DELINQUENTS — Where Applicant Elected To Be Tried Before Judge Who Presided At Prior Trial, In Which Applicant Was Convicted Of Manslaughter, He Waived Any Objection To A Hearing Before Same Judge. pp. 669, 670
DEFECTIVE DELINQUENTS — Evidence Was Sufficient To Support Judge's Finding — Since Proceeding Was Civil In Nature Burden Of Proof Was Not "Beyond A Reasonable Doubt." p. 670
DEFECTIVE DELINQUENTS — Claim That Applicant Has Not Received Psychiatric Treatment Or Therapy Since His Incarceration Is Irrelevant In Redetermination Hearing. pp. 670-671
S.K.S.
Decided July 29, 1964.
From a finding that he was a defective delinquent, Darnell Dickerson applied for leave to appeal.
Application denied.
Before BRUNE, C.J., and HENDERSON, HAMMOND, HORNEY, MARBURY and SYBERT, JJ.
Applicant had been found to be a defective delinquent by a jury in January 1961 and was committed to Patuxent Institution. He subsequently filed a request for redetermination, and after a hearing held on December 20, 1963 before Judge Byrnes without a jury, at which applicant was represented by counsel, he was found still to be a defective delinquent. From the order recommitting him to Patuxent Institution he has requested leave to appeal.
Through his court appointed counsel he raises the following contentions:
1. The State's only witness, Dr. Boslow, testified from reports made by others of the institution's staff and gave no specific grounds for reaching his conclusions except the applicant's past criminal record.
2. The persons preparing the reports on which Dr. Boslow based his conclusions were not present in court and therefore not subject to cross-examination by the applicant or his counsel.
3. He was unable to take the stand in his own behalf because of physical ailments.
4. He has not seen nor read the medical reports.
5. He should not have been tried before Judge Byrnes who presided at a prior trial in which applicant was convicted of manslaughter.
6. The evidence was insufficient to support the finding.
(1) Dr. Boslow was competent to express an expert opinion based on a review of the records and staff reports of the institution. Also antecedent behavior is a relevant factor. Queen v. Director, 226 Md. 664.
(2) The second contention has been rejected by this Court. Pierson v. Director, 235 Md. 654.
(3) and (4) These contentions are not stated with the specificity required by Maryland Rule 894 a 2 (a). That rule as construed in Faulkner v. Director, 230 Md. 632, requires brief statements of fact setting forth the reasons why the order should be reversed and a list of alleged errors committed by the court. For example, contention 3 should have stated why no postponement was requested or, if so, why denied. Contention 4 should have stated, if it were so, that the reports were not made available to the applicant or his counsel, for if they were available then he can not now complain of not having seen them.
(5) The applicant himself elected to be tried before Judge Byrnes without a jury and therefore waived any objection to a hearing before him.
(6) Judge Byrnes was justified in basing his decision on the reports of the staff at Patuxent Institution. Also, since the proceeding was civil in nature the burden of proof was not "beyond a reasonable doubt" which is imposed in criminal cases. Purks v. State, 226 Md. 43.
In addition to these contentions raised by counsel on behalf of the applicant, he in his own handwritten application raised two others. They were (a) an allegation of inadequacy of counsel at the hearing, and (b) a claim that he had not received psychiatric treatment or therapy since his incarceration. With respect to (a), ineptitude of counsel is not ground for relief, even in a criminal prosecution, unless the incompetence of counsel was so great as to have made a farce of the proceedings. Bullock v. Director, 231 Md. 629. Moreover, since the contention contained no supporting facts it did not comply with Rule 894 a 2 (a) and therefore will not be considered. With respect to (b), even if raised in the court below (which does not appear from the record before us) it is irrelevant to any cogent issue involved in a redetermination hearing. Barnes v. Director, 227 Md. 641, 643.
Application denied.