State v. Breeden

• Decision Date: 01 September 1993
• Docket Number: No. 75,75
• Citation: 333 Md. 212,634 A.2d 464
• Parties: STATE of Maryland v. Larry Allen BREEDEN. ,
• Court: Maryland Court of Appeals

Page 212

333 Md. 212

634 A.2d 464

STATE of Maryland v. Larry Allen BREEDEN.

No. 75, Sept. Term, 1993.

Court of Appeals of Maryland.

Dec. 22, 1993.

Kreg Paul Greer, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for petitioner.

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

Argued before MURPHY, C.J., RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ., and CHARLES E. ORTH, Jr., Judge (Retired), Specially Assigned.

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 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 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:

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 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....