JENKINS v. DIRECTOR, 235 Md. 678 (1964)

202 A.2d 724

JENKINS v. DIRECTOR OF PATUXENT INSTITUTION

[App. No. 4, September Term, 1964 (Adv.).]Court of Appeals of Maryland.
Decided July 29, 1964.

DEFECTIVE DELINQUENTS — Questions Regarding Prior Offenses Of Applicant Were Clearly Relevant And Within The Realm Of Propriety — No Prejudice Shown Where Objections To Questions Sustained And Jury Instructed To Disregard Or Where Objections Were Overruled But Applicant Denied The Acts Alleged. The application in the instant case was based solely upon certain questions with regard to prior offenses asked the applicant on cross-examination by the State’s Attorney. The Court stated that the record indicated that the State’s Attorney had some basis for asking the questions and that these matters as to his past allegedly violent behavior were clearly relevant to the question of applicant’s defective delinquency. The applicant, however, contended that when the questions were asked, objections thereto were sustained and the jury was instructed to disregard them. His counsel, on the other hand says the objections should have been sustained (which the Court took to mean that they were overruled) and that the applicant “denied these acts.” It was held that the questions asked were within the realm of propriety but even if they were not and applicant’s version of what occurred was correct, he showed no such prejudice as to warrant a reversal. The instructions of the judge (in the applicant’s words) “to strike from their minds what they had heard” would have met the situation. And, if counsel’s version was correct (and again assuming the question was improper) the applicant’s denial rendered any error harmless. pp. 679-681

H.C.

Page 679

Decided July 29, 1964.

From a finding that he was a defective delinquent, James Robert Jenkins applied for leave to appeal.

Application denied.

The cause was argued before BRUNE, C.J., and HENDERSON, HAMMOND, PRESCOTT, HORNEY, MARBURY and SYBERT, JJ.

BRUNE, C.J., delivered the opinion of the Court.

The applicant, James Robert Jenkins, was determined to be a defective delinquent after a hearing in the Circuit Court for Prince George’s County before Judge Bowie and a jury. As a result of the jury’s finding he was committed to Patuxent Institution, and he now seeks leave to appeal.

Jenkins had been convicted of assault with intent to kill a police officer and was sent to Patuxent for examination on the basis of that conviction and his past record, and in accordance with suggestions of the Superintendent of the Clifton T. Perkins State Hospital and of the Director of Forensic Psychiatry of the Department of Mental Hygiene. (These suggestions were made in connection with the examination of Jenkins at Perkins in 1962 resulting from his plea of insanity and were, of course, contingent upon his being convicted of the offense charged.) He had previously had a psychiatric examination at Spring Grove in 1959 in connection with an earlier case, when he was also found mentally responsible. Other hospitalizations are noted at two Veterans’ Hospitals — one at Perry Point in 1955 and others at Martinsburg, West Virginia in 1947 and 1956, but their records were not available.

Jenkins’ past record included several other convictions for assault on police officers, and several other convictions for disorderly conduct, intoxication, or both. The events leading to his last conviction occurred about two months after his release from prison at the expiration of his last previous sentence for assaulting an officer, when the officer assaulted had come to the home of Jenkins’ family as a result of a call for police help.

The reports of Patuxent and of the independent psychiatrist appointed at Jenkins’ request agreed that Jenkins was a defective

Page 680

delinquent, and the jury so found after what is described by his counsel as a full hearing. This application is based solely upon certain questions with regard to prior offenses asked him on cross-examination by the State’s Attorney. He was asked (a) whether he had chased a woman around a basement with a knife attempting to inflict injury on her and (b) whether on other occasions he had attempted to inflict harm on his parents.

The record before us (including the applicant’s statement of his grounds for seeking an appeal) indicates that the State’s Attorney had some basis in the reports in the case for asking the questions. That these matters as to his past allegedly violent behavior were relevant to the question of his defective delinquency seems clear. Queen v. Director, 226 Md. 664, 174 A.2d 351; Schultz v. Director, 227 Md. 666, 177 A.2d 848 Simmons v. Director, 231 Md. 618, 623, 189 A.2d 644; Crisp v. Director, 233 Md. 588, 590, 195 A.2d 613; Creswell v. Director, 234 Md. 620, 198 A.2d 300.

There is some difference between the applicant and his counsel as to what happened when these questions were asked. The applicant says that objections thereto were sustained and the jury was instructed to disregard them. His counsel says the objections should have been sustained (meaning, we take it, that they were overruled) and that the applicant “denied these acts.” Inquiry of the court reporter indicates that counsel’s version is correct. Both the applicant and his counsel urge that the questions were improper and highly prejudicial.

We think the questions asked were within the realm of propriety. Even if we did not, we think that if the applicant’s version of what occurred was correct, he shows no such prejudice as would be cause for reversal of the judgment and for granting a new trial, for the instructions of the judge (in the applicant’s words) “to strike from their minds what they had heard” would have met the situation. See Cook v. State, 225 Md. 603, 609-10, 171 A.2d 460, cert. den. 368 U.S. 970, where a clearly improper question was asked and the trial court gave a strong instruction to disregard it.

If we assume (as we believe) that counsel’s version is correct, and if we again assume that the question was improper, the applicant’s denial, we think, rendered any error harmless.

Page 681

See the general rule stated in Duffy v. State, 151 Md. 456, 469, 135 A. 189; People v. Malkin, 250 N.Y. 185, 164 N.E. 900. There is no suggestion that the inquiries were pressed. Se Niemoth v. State, 160 Md. 544, at 557, 154 A. 66.

The cases above cited are criminal cases. The tests as to prejudice there stated are certainly no less applicable in this civil proceeding.

Application denied.