Opinion
[App. No. 134, September Term, 1964.]
Decided May 28, 1965.
DEFECTIVE DELINQUENTS — Right To Jury Trial — Bare Allegation That Counsel Did Not Advise Of — Nothing To Show That Applicant Would Have Asked For Jury Trial, Or That Result Would Have Been Different — No Actual Unfairness In Trial By Court Claimed, And This Is Customary And Normal Practice In Maryland. p. 143
DEFECTIVE DELINQUENTS — Counsel, Claim Of Failure To Adequately Prepare Case — Length Of Time Counsel Talked To Applicant Before Trial (Twenty-Five Minutes) Did Not Show Inadequate Representation — Background And Relevant Facts Of Case Were Revealed By Records And Reports Available To, And Apparently Utilized By, Counsel — Little Available To Counter State's Case. p. 143
DEFECTIVE DELINQUENTS — Opinion Of Director Of Patuxent Institution, Based In Part Upon Examinations And Reports Of Others, Did Not Unconstitutionally Deprive Applicant Of Right Of Confrontation And Cross-Examination — Applicant Could Summon Any Person Whose Report Was Relied Upon — Evidence Held Sufficient To Support Redetermination Of Defective Delinquency Here. p. 144
Decided May 28, 1965.
From a redetermination by the court that he was still a defective delinquent, Frank M. Perkerson applied for leave to appeal.
Application denied.
Before PRESCOTT, C.J., and HAMMOND, HORNEY, MARBURY and BARNES, JJ.
Perkerson, the applicant for leave to appeal from a redetermination of his status as a defective delinquent by Judge Manley in January 1965, was convicted of burglary in 1957 and has been in Patuxent since 1958 when he was first found to be a defective delinquent by Judge Cullen.
The applicant makes two contentions of error. First, that he was inadequately represented below, in that his lawyer failed to advise him of his right to a jury trial and failed to adequately prepare his case, conferring with him for only twenty-five minutes at Patuxent; and, second, that there was no evidence sufficient to support the trial court's finding.
Perkerson cannot prevail on either contention. He makes only the bare allegation that he was not advised of his right to a jury trial but does not allege or attempt to show that he would have asked for a jury trial had he known he could have, or suggest why a jury's verdict would have differed from that of Judge Manley. No actual unfairness in the trial by the court is claimed, and a trial by the court is a customary and normal practice in Maryland in criminal as well as civil cases. Grammer v. State, 203 Md. 200, 213, quoting Rose v. State, 177 Md. 577, 581.
The fact that Perkerson's lawyer talked to him for only twenty-five minutes before the trial does not show inadequate representation. The background and relevant facts of the case were almost completely, if not completely, revealed by the records and reports which were available to and, it would appear, were utilized by the applicant's lawyer. Cf. Washington v. Director, 237 Md. 311. Indeed, there was little available to Perkerson to counter the State's contention that the applicant continued to be a defective delinquent. Dr. Lerner, the psychiatrist who had examined Perkerson before the first hearing was again engaged by the State at the request of Perkerson to examine him. His professional opinion was that Perkerson was a defective delinquent who was not presently ready for release.
The contention that the evidence was insufficient because the State's only witness, Dr. Boslow, based his opinion that the applicant was a defective delinquent in part on the examinations and reports of others and this method of producing testimony unconstitutionally deprived him of the right of confrontation and cross-examination, has been rejected repeatedly by this Court. Oppel v. Director, 237 Md. 611; Ash v. Director, 237 Md. 443, 444. The applicant had a right to summon any person whose report on examination was relied on. Code, (1964 Cum. Supp.), Art. 31B, Sec. 10 (a) and see Brunson v. Director, 239 Md. 128. Dr. Boslow's opinion was sufficient to support a finding of defective delinquency if the trier of fact accepted it, as he did.
Application denied.