Breeden v. State

• Decision Date: 01 September 1992
• Docket Number: No. 740,740
• Citation: 622 A.2d 160,95 Md.App. 481
• Parties: Larry Allen BREEDEN v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 481

95 Md.App. 481

622 A.2d 160

Larry Allen BREEDEN v. STATE of Maryland.

No. 740, Sept. Term, 1992.

Court of Special Appeals of Maryland.

April 1, 1993.

George E. Burns, Jr., Asst. Public Defender (Stephen E. Harris, Public Defender on the brief), Baltimore, for appellant.

Cathleen C. Brockmeyer, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Kreg Paul Greer, Asst. Atty. Gen Baltimore, and M. Kenneth Long, Jr., State's Atty. for Washington County, Hagerstown, on the brief), for appellee.

Argued before MOYLAN, BLOOM and HARRELL, JJ.

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 Without 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' 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 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 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 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...