Waltermeyer v. State

WILNER, Judge. On the afternoon of March 29, 1982, appellant beat, mutilated, and strangled to death April Lynn Price, a twenty-year old paraplegic. There was evidence that he had sexually assaulted her as well, although it could not be clearly determined whether the sexual assault occurred before or after she was dead. For those acts, appellant was charged with, and tried in the Circuit Court for Baltimore County for, first degree murder, rape, sexual offense, and robbery.

The State sought the death penalty. At the conclusion of trial, appellant was convicted of premeditated first degree murder, and, after a subsequent sentencing proceeding, was sentenced to life imprisonment. In this appeal, he raises nine issues, none of which have merit and only two of which require more than cursory comment. The events of March 29 leading to the tragic killing of Ms. Price can be briefly summarized, for there was really no dispute about them.

At about 10:00 that morning, while driving along Dulaney Valley Road in Towson, appellant saw a hitchhiker, one Fred Everhart. He stopped, offered Everhart a lift, and ended up spending the morning with him. First they drove to a liquor store in Edgewood. On the way, they consumed a half-pint of Seagram’s Seven whiskey that Everhart had with him, each drinking about half of it, and smoked “a couple of grams, just a little pinch” of marijuana.

According to Everhart, appellant drove “in a pretty reasonable manner”; his speech was not slurred. At the liquor store, they each had one mixed drink — a “Jack Daniels and Coke”; they also bought and took with them for subsequent con ⁷³ sumption “a couple little tiny miniatures of Amaretto” and a pint of rum. Upon leaving the liquor store, appellant expressed a desire for some “acid” (LSD), which Everhart thought he might be able to obtain from Ms. Price. They proceeded then to Ms. Price’s apartment, consuming the rum and “a couple sips of the Amaretto” on the way.

When they arrived, they found Ms. Price and a friend of hers, one James McCarron. Ms. Price did not have any “acid,” nor did she have any marijuana, which appellant also requested. She did, however, arrange to procure a half ounce of marijuana from one Sam Gatto, and so, some time between 2:30 and 3:00 o’clock, she and appellant drove to Gatto’s apartment to make the purchase. According to McCarron, no drugs were consumed at the Price apartment, although there was evidence that appellant had “maybe one drink.” To Everhart, appellant “seemed pretty normal” — he “wasn’t slurring his words around or anything.” Everhart waited at the Price apartment with McCarron.

He had left his coat in appellant’s car, and was expecting appellant and Ms. Price to return shortly. When they got to Gatto’s apartment building, appellant put Ms. Price in her wheelchair, and then waited in his car while she wheeled herself into the building and up to Gatto’s apartment. She purchased the half ounce of marijuana and returned with it to the car. That was the last time that anyone other than appellant saw her alive.

The rest of the story comes primarily from appellant’s taped and written confessions, about which no complaint is made in this appeal. In these confessions, appellant essentially corroborated the testimony of Everhart and McCarron, except that he claimed to have had “a couple of drinks,” instead of “one mixed drink” at the liquor store, and to have “smoked a few bowls of something” at Ms. ⁷⁴ Price’s apartment. 1 He did not claim to be inebriated when he left the Price apartment. According to appellant, when Ms. Price returned from Gatto’s apartment, “she gave me the smoke and a little piece of paper to eat.” They drove around for a while until appellant developed a headache and a nosebleed, upon which he “started drinking some more.” He did not say what he drank or where he obtained it. Ms. Price began to complain about his erratic driving, so he pulled over.

He tried to remove her wheelchair from his car, but was having trouble doing so. Ms. Price laughed at him. So he beat her until his hands were bloody. After killing her in a coppice near the fishing center at Loch Raven Reservoir, he drove around to the other side of the reservoir, threw her purse and her shoes into the water, and, successfully negotiating the narrow and winding roads in the area, eventually drove home.

(1) The Expert Opinions (Issues I and II) Appellant did not deny that he had, in fact, killed Ms. Price, and, indeed, the evidence of his criminal agency was overwhelming. Nor did he deny the brutality surrounding the killing. He attempted to show, as his defense, that, at the time of the criminal acts, through the ingestion of various types and quantities of alcohol and drugs, he was “so inebriated that he possessed no reason or understanding,” and that as a result of that degree of inebriation, he was “incapable of forming the requisite mens rea which is a necessary element of all specific intent crimes.” See State v. Gover, 267 Md. 602 , 298 A.2d 378 (1973), as explicated in Johnson v. State, 292 Md. 405, at 425 , 439 A.2d 542 (n. 10) (1982); also Myers v. State, 58 Md.App. 211, 219 , 472 A.2d 1027 (1984). ⁷⁵ Appellant’s first two issues, which are the ones requiring some analysis, arise from his attempt to pursue that line of defense. He complains that the trial court (1) “impermissibly restricted the data upon which the defense experts could rely in rendering their opinions with respect to the defense of voluntary intoxication,” and (2) “erred in refusing to permit the defense experts to render opinions upon ‘ultimate issues’ in the case.” What, in fact, occurred was this.

Appellant proferred the testimony of two experts — a psychologist (Dr. Donner) and a psychiatrist (Dr. McDaniel) — on the ultimate question before the jury. These two witnesses were apparently prepared to opine that, based upon their understanding of what appellant had ingested on the morning and afternoon of March 29, he did not, as a matter of fact, have the specific intent necessary for premeditated murder, robbery, or the sexual offense charged to him. It became clear, as part of counsel’s proffer, that these opinions would be based upon the premise that appellant had “consumed a great deal more alcohol, marijuana, hashish and PCP than is in evidence already.” Specifically, based solely upon what appellant and his wife and sister (none of whom were to testify) had told the doctors, they were prepared to assume, and to base their opinions on the assumption that “The police statements do not detail all of the alcohol that he had; he had more. And not all of the marijuana that he had; he had more.

And that he additionally had hashish and PCP. They would also say that he has indicated to them in their conversations with him what is known as spotty or partial amnesia for the events, which is very typical of those who are under the influence of alcohol and drugs.” The court placed two limitations on the proffered testimony. First, it ruled that any opinion by Drs. Donner or McDaniel would have to be based on what the evidence showed appellant had ingested, and not upon what appel ⁷⁶ lant, or his wife, or his sister, or anyone else said he had taken.

Second, the court agreed to permit an opinion as to whether the ingestion of those substances revealed by the evidence would render appellant so intoxicated as to prevent his performance of a criminal act, but it would not allow an opinion that appellant “did not have the specific requisite intent.” Dr. Donner seemed to have no difficulty in testifying subject to these limitations. Asked to assume that appellant ingested the substances and quantities thereof shown by the evidence — “a half pint of Seagram’s, 2 a bowl of marijuana, a mixed drink of Jack Daniels and Coke, part of a bottle of rum, part of a fifth of Jack Daniels, and part of at least six miniatures of Amaretto, assuming further that he took a hit of acid and then he drank some more” — Donner opined, within a reasonable degree of medical certainty, that appellant “would be so inebriated that he would possess no reason or understanding.” Dr. McDaniel was not so flexible; she informed counsel that if she were restricted only to the evidence of what appellant had ingested and were unable to consider the other substances and quantities revealed in her conversations with appellant, his wife, and his sister, she could not give the opinion desired by him. As a result, she was not called as a witness. Relying on Beahm v. Shortall, 279 Md. 321 , 368 A.2d 1005 (1977), which he confidently tells us is “dispositive,” appellant argues that a non-treating medical expert is entitled to rely on hearsay information communicated to him by his “patient” in forming an opinion, and to relate that information to the trier of fact in explaining the basis of his opinion.

Relying on a number of Federal cases, he also urges that other hearsay information obtained by the expert may be similarly used and related to the extent that it is of ⁷⁷ a type “customarily relied upon in the profession.” Accordingly, he insists that the court erred in denying Drs. Donner and McDaniel the opportunity to use and relate to the jury the information supplied to them by appellant, his wife, and his sister regarding the substances ingested by appellant. The State responds with the curious argument that Beahm v. Shortall is not applicable in a criminal case and that, even if it were, it would not permit an opinion based on statements made by appellant’s wife or sister. The Federal cases cited on the latter point, it argues, are not controlling in Maryland.

Both sides, we think, have missed the relevant point. The issue addressed by Beahm was the hearsay rule: To what extent could an expert medical witness rely upon and relate to a jury statements made to him by his “patient” regarding the patient’s “history,” i.e., statements made “not only with respect to the ‘history’ of the case in the sense of the relating of past events concerning the injury or illness, but also with respect to what such person said in giving his symptoms, in describing his feelings or in complaining about the pain he experienced.” 279 Md. at 324 , 368 A.2d 1005 (n. 1). For the preceding thirty years, commencing with Parker v. State, 189 Md. 244 , 55 A.2d 784 (1947), Maryland recognized a distinction between “treating” and “examining” physicians with respect to this matter. As explained in Candella v. Subsequent Injury Fund, 277 Md. 120 , 353 A.2d 263 (1976), an “attending” or “treating” physician could testify “as to the medical history related to him by his patient and may also state his conclusions reached on the strength of that history.” Id. at 123 , 353 A.2d 263 .

Such testimony, the Court noted, “is admitted under an exception to the hearsay rule, the underlying rationale being that the patient’s statements to his doctor are apt to be sincere when made with an awareness that the quality and success of the treatment ⁷⁸ may largely depend on the accuracy of the information provided the physician.” Id. 123-24 , 353 A.2d 263 . However, in the case of a non-treating physician, “the trustworthiness which characterizes the declaration is no longer assured, since the patient is aware that the statements are being received primarily to enable the physician to prepare testimony on his behalf rather than for purposes of diagnosis and treatment.” In Beahm , the Court abrogated that distinction. At p. 327 of 279 Md., 368 A.2d 1005 the Court stated: “We hold that a physician, who examines a patient, not for the purpose of treatment, but in order to qualify as an expert witness, may present his medical conclusions and the information, including the history and subjective symptoms, received from the patient which provide the basis for the conclusions. The conclusions are admissible as substantive evidence.

The statements made by the patient, as narrated by the physician, are admissible, with a qualifying charge to the jury, only as an explanation of the basis of the physician’s conclusions and not as proof of the truth of those statements.” The effect of this holding was merely to extend the limited hearsay exception, long recognized with respect to “treating” physicians, to “examining” physicians as well. There is nothing in the language used by the Court to suggest that this extension is not applicable to criminal cases, and we can discern no reason why it should not be so applicable. See State v. Orsini, 155 Conn. 367 , 232 A.2d 907 (1967); State v. Girard, 34 Or.App. 85 , 578 P.2d 415 (1978); State v. Holt, 222 Tenn. 721 , 440 S.W.2d 591 (1969). The argument made by the State — that it cannot compel the testimony of the defendant in a criminal case to test the veracity of the statements allegedly made to the physician — is a completely irrelevant one.

For one thing, it would be equally applicable to treating physicians, and the State does not suggest that they would be, or ever have been, precluded from relating and relying upon patient ⁷⁹ history in a criminal case. More important, the pertinent inquiry is not into the accuracy of the information given to the doctor, for, as Beahrn makes clear, that information is not admissible as substantive evidence. The inquiry, rather, concerns the reliability of the expert’s opinion to the extent that it is based upon that information, and that, of course, can be examined by the State through cross-examination of the expert witness. That same principle can also be used to justify reliance upon relevant history information supplied by other persons.

Maryland law has long permitted an expert witness to base his opinion on facts not in