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Purks v. State

Decided: June 27, 1961.

PURKS
v.
STATE



Appeal from the Criminal Court of Baltimore; Foster, J.

Brune, C. J., and Hammond, Prescott, Horney and Sybert, JJ. Horney, J., delivered the opinion of the Court.

Horney

This is an appeal from the order of the Criminal Court of Baltimore under which Francis Aubrey Purks (the appellant) was committed to the Patuxent Institution, pursuant to the provisions of Code (1957), Art. 31B, § 9 (b), for an indeterminate period without either maximum or minimum limits.

The appellant was convicted of robbery and sentenced to the Maryland Penitentiary for a term of eight years. At the same time, the trial court directed that he be examined at Patuxent. In due course he was examined, and, it having been determined that he was a defective delinquent, that finding was reported to the court. Thereafter, at a hearing on the issue of whether or not the appellant was in fact a defective delinquent, a jury found that he was and the court ordered that he be returned to the institution for confinement as a defective delinquent.

At the hearing in the trial court, after he had been qualified as an expert witness and had testified as to his interview with the appellant and to the range of testings that had been made at the time, a psychologist, Kenneth J. Hallam (the psychologist), was permitted to read the whole of a copy of his original report -- which had been made in the regular course of his duties at the institution and had become a part of the permanent records of the institution -- in reply to a question as to the results of such tests. The appellant objected

on the ground that the report was hearsay. The witness, in turn, was meticulously cross-examined as to the testings that had been made.

Essentially the same procedure was followed when Dr. Harold M. Boslow, a psychiatrist and the director of Patuxent (the director), was called to testify. After he had been qualified, he testified generally as to the information that had been collected about the appellant, including his previous and present offenses and his medical, military and marital history, before he was asked to state the result of the staff interview with the appellant. Over an objection that the report was hearsay in that it was based in part on the statements of persons who would not be available for cross-examination and on records which could not be presently examined, the court permitted the director to read from the report the impressions and conclusions the staff psychiatrists and psychologists (including the director) had reached as a result of their examination of the appellant at a conference held for that purpose. The director further testified as to the work and behavior of the appellant at the institution and concluded his testimony by stating, as did the signed report, that the examination of the appellant demonstrated persistent aggravated anti-social behavior and evidenced a propensity toward criminal activity; and that, although he was not intellectually deficient, the appellant was found to have such emotional unbalance as to make him an actual danger to society so as to require confinement and treatment. A subsequent report of a staff medical physician, made under the supervision of the director, was not admitted as evidence because it had not been signed by the physician. The director, as was the psychologist, was extensively cross-examined.

From the order of commitment, the appellant filed a petition for leave to appeal pursuant to the provisions of § 11A.*fn1 This Court, in Purks v. Warden, 224 Md. 643, 166 A.2d 917 (1961), granted the application for leave to appeal but limited the scope thereof to "the question of the admissibility of the reports objected to."

On this appeal it is contended that the trial court committed reversible error in allowing the director of the institution and the psychologist to read into the evidence over objection the reports that had been prepared as a result of the examinations of and interviews with the appellant. And, contrary to the limitation imposed on what we would consider on the appeal, it is further contended that the court erred in certain of its rulings with respect to the cross-examination of the director.

The admission of the reports as evidence was not improper. It is true, of course, that this proceeding began with the filing of the report prepared by the director of the institution, in which report the appellant was charged with being a defective delinquent, but it is now settled -- even though the report is comparable to an indictment or information -- that a proceeding under Article 31B of the Code of 1957 is civil in nature both as to its substantive and procedural aspects. Blizzard v. State, 218 Md. 384, 147 A.2d 227 (1958). Thus, while the burden of persuasion is on the State, a fair preponderance of evidence -- and not proof beyond a reasonable doubt -- is all that is required to sustain a finding of defective delinquency.

Section 7 (a), in addition to requiring that a medical physician, a psychiatrist and a psychologist shall examine a defendant for possible defective delinquency after having assembled all "pertinent information about the person to be examined," specifically provides that the examiners "[o]n the basis of all the assembled information, plus their own personal examination and study" of the person being examined, shall determine whether in their opinion such person is or is not a defective delinquent and report their findings in writing to the court. Section 8 (a) provides that if the consensus of the examiners is that the person examined is a defective ...


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