State v. Breeden

CHARLES E. ORTH, Jr., Judge (retired, specially assigned). I Larry Allen Breeden pled guilty in the Circuit Court for Washington County to murder in the second degree and in addition he entered a plea of not criminally responsible by reason of insanity. Md. Rule 4-242(a) and (b)(3). The trial court accepted the guilty plea and a court trial was had on the issue of Breeden’s criminal responsibility.

Md. Rule 4-314(a)(4). The judge found Breeden to be criminally responsible and sentenced him to be imprisoned for a term of 25 years. Breeden appealed from the judgment on the issue of criminal responsibility as dictated by Md. Rule 4-314(a)(4). The Court of Special Appeals vacated the “judgment as to criminal responsibility” and remanded the case for retrial on that issue.

Breeden v. State, 87 Md.App. 508, 512 , 590 A.2d 560 (1991). The court explained that the reason for setting aside the judgment was that Breeden had not validly waived his right to a trial by jury. Id. at 511-512 . On retrial, Breeden put the issue to a jury.

The jury found that he was criminally responsible. Breeden appealed from that judgment. The Court of Special Appeals reversed. Breeden v. State, 95 Md.App. 481 , 622 A.2d 160 (1993).

The State filed a petition for certiorari, which we granted, and Breeden filed a conditional cross-petition, which we denied. 1 The State’s petition for certiorari, Breeden’s answer, the State’s brief, and Breeden’s brief each present the question to be resolved in this case in different phrasing. The bottom ²¹⁶ line, however, is whether the trial court abused its discretion by receiving in evidence at the second trial the transcribed testimony of a first-trial witness who was absent at the retrial. The witness missing was Dr. Mario Torres. He was a staff psychologist at the Clifton T. Perkins Hospital Center and testified for the State as an expert in psychology.

On his examination of Breeden, Torres concluded that Breeden has “an organic mental disorder,” not otherwise specified, with evidence of alcohol dependence and marijuana abuse, that he has a “personality disorder ... with passive aggressive and dependent features,” and that he was malingering. Torres acknowledged that Breeden has “a clear history of mental illness” and that “most of the diagnoses that [Breeden] has •received have included a psychotic component which means that [he] loses touch with reality.... ” Still, Torres opined that Breeden was criminally responsible; in part, he said, “there was not enough evidence supporting a link or a connection between the mental illness and the time of the offense and the behavior of [Breeden] committing the offense.” Torres was, of course, cross-examined by the defense but remained steadfast in his conclusions. When the case came on for retrial on 6 January 1992, the State informed the court of the absence of Torres and made an oral motion to introduce into evidence the transcript of Torres’s testimony. The State’s Attorney for Washington County recited to the court the efforts of the State to obtain Torres’s appearance.

The prosecutor became aware in early November 1991 that Torres no longer worked at the hospital. We recount what the State then did as set out by the Court of Special Appeals in 95 Md. at 493-494, 622 A.2d 160 : 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 [Breeden’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 ²¹⁷ the State’s Attorney’s 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 assistance 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.... After hearing argument of counsel, the circuit court ruled: ²¹⁸ The Court would find that Dr. Torres is unavailable as a witness as he is absent from this trial and the State has been unable to secure his attendance by process or other reasonable means and would therefore grant the Motion to Introduce the Testimony of Dr. Torres Given at the Prior Proceedings where Dr. Torres appeared, testified, and was examined by the parties to this case.

The prosecution placed a transcript of Torres’s testimony into evidence. The court explained to the jury: The next witness that is being called is a witness who testified on a prior occasion and is unavailable to testify today for you. So his testimony will be presented by way of counsel reading prior questions and there will be somebody who will be standing in the stead of the witness and will be answering the questions. The questions in direct will be offered by .[the Deputy State’s Attorney] and the questions in cross examination will be offered by [counsel] for the defense.

The court directed the jury to “take this testimony as if it were coming from the witness and weigh it together with all of the other evidence that you have heard and will hear.” The defense made clear its strong objection to receipt in evidence of Torres’s prior testimony. The procedure followed was that the Assistant State’s Attorney was seated in the witness box, playing the part of Torres. The Deputy State’s Attorney read the questions asked Torres on direct examination as reflected in the transcript and the Assistant State’s Attorney read the answers. Defense counsel read the questions asked on cross-examination and the Assistant- State’s Attorney read the answers.

II A In all criminal prosecutions in the State of Maryland, the Sixth Amendment to the Constitution of the United States, applicable to the states through the Fourteenth Amendment, ²¹⁹ and Article 21 of the Maryland Declaration of Rights command that the accused shall enjoy the right to be confronted with the witnesses against the accused. See Pointer v. Texas, 380 U.S. 400 , 85 S.Ct. 1065 , 13 L.Ed.2d 923 (1965); Douglas v. Alabama, 380 U.S. 415 , 85 S.Ct. 1074 , 13 L.Ed.2d 934 (1965); Franklin v. State, 239 Md. 645 , 212 A.2d 279 (1965). The prerogative of the defendant to have his accusers confront him is a keystone to our concept of criminal justice — grounded on the unwavering belief that an individual should be afforded the opportunity to challenge the witnesses against him through cross-examination. State v. Collins, 265 Md. 70, 76 , 288 A.2d 163 (1972).

See Chapman v. State, 331 Md. 448, 455-456 , 628 A.2d 676 (1993). How a witness appears when answering questions can often be as important in assessing credibility as are the words the witness utters. For that reason, the confrontation clause encompasses more than a mere opportunity for effective cross-examination. It compels a witness 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), quoted in Ohio v. Roberts, 448 U.S. 56, 63-64 , 100 S.Ct. 2531, 2537-2538 , 65 L.Ed.2d 597 (1980). The question before us brings into play the confrontation requirements. B There are few subjects, perhaps, upon which this Court and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal. ²²⁰ Barber v. Page, 390 U.S. 719, 721 , 88 S.Ct. 1318, 1320 , 20 L.Ed.2d 255 (1968), quoting Pointer, 380 U.S. at 405 , 85 S.Ct. at 1068 . It is true, Barber recognized at 390 U.S. at 722 , 88 S.Ct. at 1320 , that there 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,” Barber continued, has been explained as arising from necessity and has been justified on the ground that the right of cross-examination initially afforded provides substantial compliance with the purposes behind the confrontation requirement.

Barber said, at 723: It must be acknowledged that various courts and commentators have heretofore assumed that the mere absence of a witness from the jurisdiction was sufficient ground for dispensing with confrontation on the theory that “it is impossible to compel his attendance, because the process of the trial Court is of no force without the jurisdiction, and the party desiring his testimony is therefore helpless.” (footnotes omitted). Barber squelshed that notion. “[Ijncreased cooperation between the States themselves and between the States and the Federal Government has largely deprived it of any continuing validity in the criminal law.” Id. (footnote omitted). The Court assigned a more reaching meaning of “unavailable” within the context of the confrontation requirement.

It declared: In short, a witness is not “unavailable” for purposes of the foregoing exception to the confrontation requirement unless the prosecutional authorities have made a good-faith effort to obtain his presence at trial. Id. at 724-725 , 88 S.Ct. at 1318 . The Supreme Court further explored the exception to the confrontation requirement in Ohio v. Roberts, 448 U.S. 56 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 . ²²¹ It observed that “[t]he basic litmus of Sixth Amendment unavailability is established.... ” The litmus test, the Court stated, was the “good-faith effort” to obtain the presence of the witness at trial as announced in Barber . The Court acknowledged: Although it might be said that the Court’s prior cases provide no further refinement of this statement of the rule, certain general propositions safely emerge.

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. Roberts, 448 U.S. at 74 , 100 S.Ct. at 2543 . The Court emphasized, however, that if there is a possibility, albeit remote, that affirmative measures might produce the declarant, the obligation of good faith may demand their effectuation. “The lengths to which the prosecution must go to produce a witness ... is a question of reasonableness.” Id.

(emphasis in the original), quoting California v. Green, 399 U.S. 149, 189, n. 22 , 90 S.Ct. 1930, 1951, n. 22 , 26 L.Ed.2d 489 (1970) (concurring opinion, citing Barber v. Page, supra), 90 S.Ct. 1930, 1951, n. 22 , 26 L.Ed.2d 489 (1970). The Court concluded that “[t]he ultimate question is whether the witness is unavailable despite good-faith efforts undertaken prior to trial to locate and present that witness.” 448 U.S. at 74 , 100 S.Ct. at 2543 . “As with other evidentiary proponents,” the Court reminded, “the prosecution bears the burden of establishing this predicate.” Id. at 74-75 , 100 S.Ct. at 2543-2544 . 2 ²²² In a nutshell, the “unavailability” of a material witness includes one who is absent from a trial and the proponent of the statement of the witness has been unable to procure the witness’s attendance by process or other reasonable means. “Other reasonable means” require efforts in good faith and due diligence to procure attendance. If the declarant is so unavailable as a witness, former testimony bearing the indicia of reliability, given as a witness at another hearing of the same or a different proceeding, may be admissible if the party against whom the testimony is now offered had an opportunity to cross-examine the witness. In such circumstances, the receipt in evidence of the prior testimony does not offend either the confrontation requirement or the hearsay rule. 3 See Fed.R.Evid. 804(a)(5) and (b)(1).

The law with respect to the impact of the confrontation requirement on the unavailability of a witness has been thus clearly and firmly established. Ill A The increased cooperation between jurisdictions as to the procurement of a witness,