Breeden v. State

HARRELL, Judge. This case involves the admission of prior testimony of an allegedly unavailable witness. At his first trial, facing a charge of first degree murder, Larry Allen Breeden, appellant, admitted guilt to second degree murder but pleaded that he was not criminally responsible by reason of insanity. The Circuit Court for Washington County found that Breeden was criminally responsible and sentenced him to twenty-five years imprisonment.

We vacated that judgment of criminal responsibility and remanded the case for a retrial of the issue because the trial judge failed to advise Breeden of his right to a jury determination of his criminal responsibility. Breeden v. State, 87 Md.App. 508, 590 A.2d 560 (1991). At the beginning of the second trial, the State orally moved to introduce the transcribed testimony of a psychologist who had testified for the State at the first trial. The circuit court granted the motion over Breeden’s objection.

Accordingly, at trial, the State read the missing witness’s testimony to the jury. Subsequently, the jury found Breeden to be criminally responsible for the murder. Breeden now appeals, claiming that the trial court erred when it declared the witness to be unavailable and allowed the State to use the witness’s prior recorded testimony. He also contends that, notwithstanding that testimony, the evidence was sufficient to establish that he was not criminally responsible.

We conclude that the State did not make an adequate showing of unavailability because it did not make a reasonable, timely attempt to secure the presence of the witness, whose location was known, by using the procedures of the Uniform Act to Secure Attendance of Witnesses from With ⁴⁸⁵ out a State in Criminal Proceedings (the Uniform Act or the Act) when it became apparent that the witness would not voluntarily appear at trial. Because the testimony was important to the State’s case in rebutting Breeden’s claim that he was not criminally responsible, the error was not harmless. Therefore, we reverse the judgment as to criminal responsibility. FACTS Appellant pleaded guilty to strangling to death his friend, Shirley Baker, on 11 February 1989.

He also pleaded that he was not criminally responsible for that act, but the trial judge determined otherwise at the first trial. As we have stated, we vacated the judgment of criminal responsibility because the trial court failed to inform appellant of his right to a jury trial on that issue. Subsequently, having been properly advised of that right, appellant elected to have a jury hear his second trial on the issue of his criminal responsibility. He then had the burden of convincing the jury that he was not criminally responsible for the murder. 1 At the second trial, both sides presented extensive testimony.

A review of the events surrounding appellant’s arrest and of the days immediately thereafter will help put the expert testimony regarding the issue of appellant’s criminal responsibility into perspective. Officer Brenton Saur of the Hagerstown Police Department testified that on 12 February 1989 he observed appellant attempting to enter the police department building through a locked employees’ ⁴⁸⁶ entrance. When Saur asked appellant if he needed help, appellant replied, “There’s a dead woman in my apartment.” After following appellant to his apartment, Saur found the body of Shirley Baker in appellant’s bed. Saur further testified: I asked if Mr. Breeden had hurt the lady and he replied, “I put a rag over her face.” I asked him what happened.

He stated, “She had trouble breathing. I tried pushing on her chest. I gave her mouth to mouth. She was unconscious and I left.” I asked, “You left?” And he responded, “I ran.” Saur further stated that during the time appellant was transported to the police station and “booked,” appellant was “quiet,” “sullen,” and “subdued.” Jean Marie Cline was employed as a licensed practical nurse at the Washington County Detention Center when she first encountered appellant at the facility on 14 February 1989.

She testified that he appeared to be nervous and depressed, and was reluctant to communicate with her. She also testified that when she attempted to give appellant his prescribed medication the next evening, “he backed away and I tried to show him the medicine and encourage him to take it and he exhibited very strange behavior. He told me that it was not his medicine and that I was trying to kill him.” Cline also stated that appellant’s fear seemed sincere and that his behavior was “mentally abnormal.” She added that on occasion she observed and heard appellant speaking while he was alone in his cell. Corporal Jerry Landsman, Jr., of the Hagerstown Police testified that he went to see appellant at the detention center on 15 February 1989 with a court order to obtain blood and saliva samples.

He testified that appellant “was extremely high strung, nervous. He was wringing his hands. He was very reluctant to allow us to complete the court order. He was afraid of the needles.

He was afraid of basically everyone.” Landsman stated that the appellant needed constant reassurance that Landsman, the nurse, and ⁴⁸⁷ the detective who accompanied the officer were not going to hurt him. Appellant’s Case Appellant presented evidence of his mental health before and after the crime through both lay and expert testimony. Carol Ann Breeden is appellant’s daughter. She saw her father several times a week between Thanksgiving of 1988 and February 1989.

She testified that during this period, appellant became very paranoid and thought that “somebody was out to get him.” She further testified that appellant said that the buildings surrounding his apartment were emitting poison and that appellant unplugged televisions, microwaves, and other appliances to prevent electricity from getting into the house. Margie Griffith, a close friend of appellant’s for twenty years, also testified about appellant’s behavior in the weeks leading up to his crime. She recalled that appellant was acting strangely and that he “wasn’t Larry.” Also, appellant told Griffith that someone was out to kill him. Griffith testified about appellant’s physical appearance.

She stated that appellant was “disoriented,” and progressively likely to be uncharacteristically unshaven, with his shirt untucked and hair uncombed. Another friend, Ralph Gossard, related that appellant said that he felt and heard “waves” coming from the ceiling of Gossard’s house and insisted on unplugging appliances. Appellant told Gossard that someone was out to get him. Gossard also testified that appellant’s personal appearance was no longer as neat as it used to be.

Linda Murray, who lived with Gossard, was also a friend of appellant. She, too, testified that appellant felt and heard waves emanating from the walls and ceiling, and that he often unplugged appliances in Gossard’s house. She recalled that appellant stated that someone wanted to kill him, and that he was very nervous and paranoid in the weeks leading up to the crime. Like Griffith and Gossard, ⁴⁸⁸ Murray noticed that, during this period, appellant’s personal appearance became increasingly disheveled.

Elaine Nahai first met appellant in 1987 when she worked at the Frederick County Mental Health facility. Appellant had voluntarily contacted the facility. Nahai testified that a psychiatrist at the facility diagnosed appellant as having “schizophrenia, paranoid type.” Nahai conducted individual therapy sessions with appellant on an outpatient basis. These sessions were discontinued in May 1988 because appellant was no longer having “paranoid ideas,” was taking his medication regularly, and was interacting better with people.

Nahai met with appellant again on 12 January 1989 and testified that [h]e was quite fearful. He talked about things disappearing from his apartment which he was worried about. He talked about smelling like ammonia or burning flesh and about taking three or four showers daily. He talked about how his stomach would contract so much that his pants fall off.

He talked about how he felt that he was' going to die soon. In addition to the above lay testimony, appellant presented three expert witnesses to testify on his behalf. First, Dr. Christiane Tellefsen testified as an expert in psychiatry. Her first contact with appellant came two months after the murder, when he was admitted to the Clifton T. Perkins Hospital Center (Perkins Hospital), where she was Acting Superintendent.

She observed appellant from April to June 1989, and again when he was readmitted to the hospital in August 1989. In her opinion, appellant was not criminally responsible for the murder of Shirley Baker because he suffered from schizo-affective disorder. Dr. Tellefsen testified that this disorder consists of schizophrenia and manic-depressive illness. She testified that manic-depressive illness is a mood disorder in which a person’s mood ranges from extreme depression to extreme elation.

Schizophrenia, she explained, is a brain disorder that affects how a person thinks and expresses emotion. An exacerbated form of schizophrenia is psychosis, which generally has three ⁴⁸⁹ symptoms: hallucinations, delusions, and marked changes in behavior. Dr. Tellefsen testified that delusions are “fixed false belief[s] not supported by reality.” She believed that the lack of a rational motivation for killing Shirley Baker was significant evidence of a connection between appellant’s disorder and his incapacity to appreciate the criminality of his conduct. She explained: We have quite a bit of evidence from family members and from Mr. Breeden’s friends and from his prior psychiatric records that Mr. Breeden had developed a paranoid delusion.

That is a delusion people are out to get him. Just prior to the offense and we had some evidence that pointed to Mr. Breeden’s delusion incorporating the victim. That is he believed that Shirley Baker was somehow involved in the Mafia or maybe she was involved in doing things with his apartment or changing his possessions] around in his apartment. But she was in some way involved in this conspiracy of people who were out to get him.

And we had that information pointing to that motive for the offense and we had no information pointing to any other kind of motive for the offense. [H]e felt like he was going to be killed. He felt like people were after him, out to get him, trying to poison him, trying to bombard him with some type of radioactive waves. People were persuing [sic] him, watching him. He was under surveillance and when he suffocated Miss Baker at that moment he felt that she was part of this conspiracy.

When asked if she thought that appellant was “malingering” 2 when she observed him at Perkins Hospital, Dr. Tellefsen opined that he was not. In her view, appellant’s ⁴⁹⁰ extensive history of mental illness was entirely consistent with the behavior he exhibited after the crime. Next, Dr. Laurence J. Raifman testified as an expert in psychology. He was Director of Psychology and Co-Director of Forensic Services at Perkins Hospital.

Like Dr. Tellefsen, Dr. Raifman believed that appellant suffered from schizo-affective disorder and, therefore, lacked the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. He stated that appellant’s increasingly erratic behavior in the weeks before the killing was consistent with schizo-affective disorder and demonstrated a steady progression of the disorder into a more acute, prominent phase. He believed that appellant became “out of touch with reality,” explaining that [appellant’s] mental disorder was such that it put him in a position that he was extremely ambivalent and confused with regard to his relationship to the victim at that moment. On the one hand he cared for her and he knew that she cared for him.

On the other hand he feared from her that his life was in jeopardy____ He seemed to care for her in death but he was so fearful of her in life. Prior to and up to the time of the killing there was fear predominating. Immediately following the killing the ambivalence showed itself in that he immediately moved over to a more caring perspective____ [H]is actions appeared to indicate that he was not quite clear whether she was alive or not. He put her back in the bed.

He pulled the covers up to her ... put her hands____ He took her dentures out and almost created an atmosphere as though she were sleeping in his bed. Leaving and then coming back to determine in fact if she was alive or dead. ⁴⁹¹ Dr. Raifman also rejected the notion that appellant was malingering, noting that his history and prior conduct were consistent with the diagnosis of schizo-affective disorder. Dr. Neil Blumberg testified as an expert in psychiatry. He also was of the opinion that appellant was not criminally responsible for the murder of Shirley Baker, though his diagnosis of appellant’s illness was slightly different from the previous two experts.

He concluded that at the time of the murder appellant was suffering from “schizophrenia, paranoid type which was chronic but in acute exacerbation.” According to Dr. Blumberg, this disorder differs from schizo-affective disorder only in that it makes the patient’s mood a secondary consideration. 3 Like Drs. Tellefsen and Raifman, Dr. Blumberg emphasized appellant’s paranoid delusions as the primary characteristic of his illness: I think here there’s a very clear link between his delusional beliefs, his confused thinking at that time, his hallucinations, the involvement of Shirley Baker in the delusional theme and his actions, his basically killing her thinking that she is part of a plot to harm him. And what ... I’ve come to the opinion of is that he knew that he was strangling or suffocating Shirley Baker, he knew he was ending her life but he didn’t know and didn’t appreciate that what he was doing was wrong.

He was acting as if Shirley Baker was part of a conspiracy to harm him. And in his own mind was doing something that was justifiable, that was right and it was not wrong. State’s Case In addition to offering the testimony of the police officers involved in appellant’s arrest, the State presented the testimony of two experts. First, over appellant’s objection, the State read to the jury the transcript of the testimony given ⁴⁹² by Dr. Mario Torres at the first trial.

Dr. Torres had testified as an expert in psychology. He was a staff psychologist at the Perkins Hospital and first met appellant in May 1989. Dr. Torres concluded that appellant: (1) had “an organic mental disorder n.o.s. which means not otherwise specified,” with evidence of alcohol dependence and marijuana abuse; (2) had “a personality disorder, n.o.s., ... with passive aggressive and dependent features”; and (3) was malingering. Based on these diagnoses, he believed that appellant was criminally responsible for the murder.

Dr. Torres thought that appellant’s case was a difficult one, but concluded that there was not enough evidence of a connection between appellant’s mental illness and his behavior at the time of the murder. Dr. Torres attached little weight to the descriptions of appellant’s behavior in the three months before the crime because, in his view, appellant was not “reliable” or consistent in exhibiting or reporting the symptoms he claimed to have experienced. He also found significant the lack of an increased hostility by appellant in the time immediately before he strangled Ms. Baker. Because appellant’s actions, especially after the crime, were “bizarre” but not characteristic of a “true psychotic,” Dr. Torres thought that appellant was malingering.

He testified that malingerers can fake bizarre behavior, but not psychotic behavior. On cross-examination, Dr. Torres admitted that there were numerous documented reports and other historical evidence of appellant’s mental illness that were inconsistent with a diagnosis of malingering. This evidence, however, did not change his opinion. Dr. Faramarz Mokhtari also testified for the State, as an expert in psychiatry.

Unlike Dr. Torres, Dr. Mokhtari delivered his testimony in person. He was the Acting Clinical Director at Perkins Hospital. His expert opinion was that appellant was criminally responsible. He believed that appellant suffered from alcohol abuse and dysthymia, a disorder that is a type of continuous depression.

Dr. Mokhtari testified that a dysthymic person does not experience ⁴⁹³ psychosis or exhibit psychotic behavior. He also believed that appellant was malingering. Like Dr. Torres, however, Dr. Mokhtari admitted that there were records and diagnoses dating back to 1987 that were inconsistent with his conclusion that appellant was malingering. Appellant attempted to impeach Dr. Mokhtari’s testimony on rebuttal.

He recalled to the stand Dr. Tellefsen, who read Dr. Mokhtari’s treatment notes for appellant for 24 September 1989. Those notes indicated that Dr. Mokhtari believed that there was “a possibility of paranoid psychosis,” and that he prescribed Haldol to deal with that possibility. Dr. Tellefsen testified that Haldol is an anti-psychotic medication. And when asked about the disorder of dysthymia, she explained that “[b]y definition^ dysthymic patients] cannot have psychotic symptoms such as delusions and hallucinations.

If they do have those symptoms, they do not have dysthymia.” The Absence of Dr. Torres As indicated, Dr. Torres testified for the State at the first trial on criminal responsibility in January 1990. On the morning of the second trial, 6 January 1992, the State orally moved to allow the introduction of the prior testimony of Dr. Torres on the basis that he was unavailable as a witness. In support of the State’s motion, the State’s Attorney for Washington County recited to the court the prosecution’s efforts to locate and secure Dr. Torres’s attendance at trial. He related that in early November 1991 he learned that Dr. Torres no longer worked at the hospital.

The hospital staff provided the prosecutor with the address of Dr. Torres’s parents in Puerto Rico. On 6 November 1991, the State mailed a letter to Dr. Torres, in care of his parents, asking him to contact the Washington County State’s Attorney’s Office to discuss the possibility of testifying at appellant’s second trial. There was no response. On 26 November, the State sent another letter to the same address; again, there was no response.

Then, a member of the State’s Attorney’s ⁴⁹⁴ Office composed a letter in Spanish, asking Dr. Torres to contact the office. The State mailed this letter on 16 December, again in care of Dr. Torres’s parents at their address. Dr. Torres called the State’s Attorney’s Office on 27 December, which was a Friday. He informed an assistant state’s attorney that he was residing in a monastery in Puerto Rico and in the process of becoming a Jesuit priest.

He further advised that, after a discussion with the head priest, he learned that he would not be available until August 1993. On the following Monday morning, 30 December, the State informed the trial court of its efforts to secure Dr. Torres’s presence at trial. The prosecutor was asked if he had attempted to use the Uniform Act. When he answered in the negative, the court advised him to do so.

The State’s Attorney’s Office contacted the United States Department of Justice in Puerto Rico on 31 December and was advised of the appropriate court in Puerto Rico to which the subpoena for Dr. Torres should be sent. The State mailed the appropriate paperwork via Federal Express, which was to have delivered the paperwork on 2 January 1992. The State’s Attorney’s Office, as of the morning of trial on 6 January, had not received a response to its Uniform Act request. The record does not disclose that the State’s Attorney’s Office made any effort to inquire what the authorities in Puerto Rico did with its request.

In the meantime, an assistant state’s attorney attempted to contact Dr. Torres by telephone on Monday, 30 December 1991. First, he called the monastery where the doctor was living. Someone at the monastery told the assistant state’s attorney that Dr. Torres had gone to spend the weekend with his family, and gave the attorney the family’s phone number. When the attorney called the number, he spoke with someone who said that he was Dr. Torres’s father.

That person stated that he would ask Dr. Torres to call the assistant state’s attorney. That call never came, and the State decided to rely on Dr. Torres’s prior transcribed testimony. ⁴⁹⁵ DISCUSSION I Appellant asserts that the circuit court committed reversible error when it permitted the State to read into evidence the transcript of the testimony given by Dr. Torres at the first trial on criminal responsibility. The heart of this alleged error is the court’s finding that the State had established Dr. Torres’s unavailability. A Introduction in evidence of prior recorded sworn testimony involves the right of confrontation under the Sixth Amendment to the United States Constitution 4 and Article 21 of the Declaration of Rights of the Maryland Constitution. 5 Two significant purposes lie at the core of the right of confrontation.

One is to provide the defendant with an adequate opportunity for cross-examination. 6 Douglas v. Alabama, 380 U.S. 415, 418 , 85 S.Ct. 1074, 1076 , 13 L.Ed.2d 934 (1965); Crawford v. State, 282 Md. 210, 214 , 383 A.2d 1097 (1978). The other purpose is to give the judge and jury opportunities to observe the testifying wit ⁴⁹⁶ ness’s demeanor. In Ohio v. Roberts, 448 U.S. 56 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980), the Supreme Court, recognizing the importance of demeanor evidence, stated: The Court has emphasized that the Confrontation Clause reflects a preference for face-to-face confrontation at trial, and that “a primary interest secured by [the provision] is the right of cross-examination.” Douglas v. Alabama, 380 U.S. 415, 418 , 85 S.Ct. 1074, 1076 , 13 L.Ed.2d 934 (1965). In short, the Clause envisions “a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” Mattox v. United States, [ 156 U.S. 237, 242-43 , 15 S.Ct. 337, 339-40 , 39 L.Ed. 409 (1895)]. 448 U.S. at 63-64 , 100 S.Ct. at 2537-38 (first alteration in original) (footnotes omitted).

The Court of Appeals has also recognized the importance of ensuring that the fact-finder has an opportunity to evaluate a witness’s credibility. See Crawford, 282 Md. at 214 , 383 A.2d 1097 (primary purpose of requiring confrontation is to prevent depositions and other non-live testimony from being used against an accused in lieu of a personal examination and cross-examination of the witness). Despite the importance of these considerations, a defendant’s right of confrontation is not absolute: [T]here has traditionally been an exception to the confrontation requirement where a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant which was subject to cross-examination by that defendant. This exception has been explained as arising from necessity and has been justified on the ground that the right of cross-examination initially ⁴⁹⁷ afforded provides substantial compliance with the purposes behind the confrontation requirement.

Barber v. Page, 390 U.S. 719, 722 , 88 S.Ct. 1318, 1320 , 20 L.Ed.2d 255 (1968) (citations omitted). Prior to Barber , in cases in which the witness was outside the state, the mere absence of the witness from the court’s jurisdiction was a sufficient predicate for a finding of unavailability. The traditional rule required no evidence of an attempt to bring the witness back to the state to testify. See id. at 723 , 88 S.Ct. at 1321 ; 5 John H. Wigmore, Evidence § 1404 (James H. Chadbourn rev. 1974).

In Barber , however, the Supreme Court held that “a witness is not ‘unavailable’ for purposes of the [traditional] exception to the confrontation requirement unless the prosecutorial authorities have made a good-faith effort to obtain his presence at trial.” Barber, 390 U.S. at 724-25 , 88 S.Ct. at 1321-22 . Thus, a witness’s mere absence from a state, without more, was no longer sufficient to establish the witness’s unavailability. Both state and federal courts recognized the effect of Barber v. Page on the analysis of whether an out-of-state witness is unavailable. For example, the Supreme Court of Hawaii, in State v. Kim, 55 Haw. 346 , 519 P.2d 1241 (1974), stated, “the traditional rule — that the showing of the mere absence of the witness from the jurisdiction satisfied the constitutional requirement that the witness is ‘unavailable’ — was emphatically rejected in Barber v. Page.” 519 P.2d at 1244 .

And in Eastham v. Johnson, 338 F.Supp. 1278 (E.D.Mich.1972), the United States District Court for the Eastern District of Michigan observed: Barber v. Page discredited the old concept that a mere showing by the prosecution that a witness was in another state would constitute “unavailability” so as to justify the use of a transcript at a defendant’s trial. Since Barber v. Page, the prosecution must do more than just show the witness is out of the jurisdiction of the state where the defendant is being tried. 338 F.Supp. at 1281 . ⁴⁹⁸ Drawing on the principles enunciated in Barber and subsequent cases, 7 the Supreme Court in Ohio v. Roberts, 448 U.S. 56 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980), created a two-prong test for the admissibility of prior testimony. The prosecution must show that the witness is unavailable and that the testimony bears sufficient indicia of reliability. 448 U.S. at 65-66 , 100 S.Ct. at 2538-39 . See also Moon v. State, 300 Md. 354, 368-69 , 478 A.2d 695 (1984) (discussing Roberts), cert, denied, 469 U.S. 1207 ; 105 S.Ct. 1170 , 84 L.Ed.2d 321 (1985); Cordovi v. State, 63 Md.App. 455, 462 , 492 A.2d 1328 (same), cert, denied, 304 Md. 297 , 498 A.2d 1184 (1985).

In Roberts , the Supreme Court further explained Barber’s good faith requirement with regard to the “unavailability” prong of the test for admissibility of prior testimony: The law does not require the doing of a futile act. Thus, if no possibility of procuring the witness exists (as, for example, the witness’ intervening death), “good faith” demands nothing of the prosecution. But if there is a possibility, albeit remote, that affirmative measures might produce the declarant, the obligation of good faith may demand their effectuation. 448 U.S. at 74 , 100 S.Ct.. at 2543 (emphasis in original). In this case, appellant does not question the reliability of Dr. Torres’s previous testimony; his challenge goes to the court’s finding that Dr. Torres was unavailable as a witness.

Specifically, he argues that the State’s untimely attempt to use the provisions of the Uniform Act precluded a finding that Dr. Torres was unavailable to testify. He stresses that initiating the Act’s machinery seven days before the start of trial is insufficient to allow the Act’s procedures to run their normal course. Our inquiry then is whether the use of the Uniform Act is a necessary element of any good-faith effort by the State in securing an out-of-state witness’s presence at trial. Our ⁴⁹⁹ research has revealed that this Court, by way of dictum, has already answered this inquiry.

Before discussing the relevant Maryland authorities, however, some preliminary comments about the Uniform Act are in order. The Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings is in force in all fifty states, the District of Columbia, Puerto Rico, and the Virgin Islands. 8 Each jurisdiction’s statute is modelled substantially after the act promulgated by the National Conference of Commissioners on Uniform State Laws. See 11 U.L.A. 1 (1936). Several courts have commented that the Act was intended as a matter of comity between states to facilitate the securing of material witnesses for criminal prosecutions, and that it does not provide for the delivery of a witness located in another state as a matter of course.

Kg., State v. Lesco, 194 Kan. 555 , 400 P.2d 695, 699 (1965), cert, denied, 382 U.S. 1015 , 86 S.Ct. 628 , 15 L.Ed.2d 529 (1966). It has been more recently observed, however, that the essence of the Act is “to create a community of jurisdictions which will honor the request of fellow members for