EDDIE LEE SAVAGE, JR.
STATE OF MARYLAND
Argued: April 4, 2017
Court for Wicomico County Case No. 22-K-13-000535
Barbera, C.J. Greene, Adkins, McDonald, Watts, Hotten, Getty,
in the Circuit Court for Wicomico County convicted Eddie Lee
Savage, Jr. ("Petitioner") of second degree murder,
attempted second degree murder and associated offenses
stemming from an assault on Kenneth and Joshua Sparks. The
Circuit Court sentenced Mr. Savage to 30 years for second
degree murder conviction, 30 years for attempted second
degree murder, and one year for reckless endangerment, to be
served consecutively. For sentencing purposes, the
convictions for attempted second degree murder and reckless
endangerment were merged with his conviction for second
degree murder. The Court of Special Appeals upheld all but
one of Petitioner's convictions in an unreported opinion,
and he sought further review in this Court. We granted
certiorari in this case to examine the proper scope
for the threshold evaluation of expert scientific evidence,
as set forth in Frye v. United States, 54 App. D.C.
46, 293 F. 1013 (1923), and adopted by this Court in Reed
v. State, 283 Md. 374, 391 A.2d 364 (1978), the
"Frye-Reed" test. As we explain below, we
and Procedural Background
underlying facts as recited by the Court of Special Appeals
in its unreported opinion are essentially undisputed:
On July 7, 2013, at approximately 6:30 p.m., Tynise Sparks
arrived at the home of [Mr. Savage], along with Joshua
Sparks, her husband, and Kenneth and Belinda Sparks, Joshua
Sparks's parents. . . . Tynise intended to pick up her
three children, two of whom were fathered by [Mr. Savage].
Tynise and [Mr. Savage] did not have a formal custody
arrangement, but, prior to the events of July 7, 2013, Tynise
allowed [Mr. Savage] access to the children at his
convenience. On July 7, Tynise had arranged to pick up the
children with Heather Morton, [Mr. Savage's]
Upon arriving at the residence, Tynise parked at the end of
the driveway, and remained in the vehicle, along with Joshua,
Kenneth, and Belinda. [Mr. Savage] was standing in the
driveway repairing Heather's vehicle with Joel Hills. The
[Sparks's] sat in the car for several minutes before the
children exited the house. [Mr. Savage] then approached the
passenger side of the Sparks's vehicle, where Joshua was
sitting, and initiated the altercation that culminated in
[Mr. Savage] began by shouting at Joshua, informing him that
he was not welcome on his property, and eventually reached
into the vehicle and struck him. Joshua proceeded to exit the
vehicle, followed closely by Belinda, who was seated in the
rear passenger seat. [Mr. Savage] and Joshua proceeded to
argue, and Belinda threw beer on [Mr. Savage]. By this time,
Heather had come to the front yard, and, with Joel Hills, was
attempting to restrain [Mr. Savage]. Simultaneously, Tynise
and Kenneth exited the vehicle, and attempted to get Joshua
and Belinda to return to the car. As Heather and Hills pulled
him back towards the garage, [Mr. Savage] brandished a knife.
As [Mr. Savage] briefly disappeared into the house, he
emerged from his house, carrying a gun. [Mr. Savage] walked
down the steps of his home and began to run across the yard
while firing shots at Joshua. As [Mr. Savage] was firing,
Joshua ran to take cover behind his vehicle.
In total, [Mr. Savage] fired three shots, one of which struck
Kenneth in the head, inflicting mortal injuries.
[Mr. Savage] then fled the scene, and surrendered himself to
police on the following day. Before fleeing, he gave the
handgun to Hills.
shall recite additional facts below as they pertain to our
discussion of the issues before us.
August 5, 2013, a grand jury sitting in Wicomico County
returned an indictment in 19 counts charging Petitioner with
first degree murder, attempted first degree murder, and a
number of related offenses arising out of the incident that
took place at his home in Delmar. Petitioner pled not guilty
and elected a trial by jury. Prior to trial, the court
conducted a Frye-Reed hearing.
January 15, 2014, Petitioner filed a pre-trial notice of
intent to offer the testimony of Dr. William Garmoe
("Dr. Garmoe"), a board-certified
neuropsychologist, who would "testify regarding the
psychological and cognitive effects of [Petitioner's]
past brain injury and trauma" due to the effects of
gunshot wounds he suffered in 2003. The State responded by
requesting a Frye-Reed hearing to address the
prosecution's "significant concerns regarding the
reliability and general acceptance of Garmoe's methods,
and likely his opinion[.]"
pre-trial Frye-Reed hearing, the defense offered
that Dr. Garmoe would specifically testify on the basis of a
report that he had prepared following his interview of
Petitioner and the administration of various tests. Dr.
Garmoe explained in detail his method for assessing and
In my examination I did a number of things. I reviewed his
records because there was a concern about the injury he had
had and what affects that injury may have had, I reviewed the
medical records. And in reviewing his medical records
that's where it was clear to me in the medical records
that at the time he had sustained the gunshot wound to the
face that there also had been an injury to his brain. And
that basis came from in the records the indication that he
had suffered a subarachnoid hemorrhage, a subdural hematoma,
and also swelling in the brain, which are hallmark signs that
there had been an injury to the brain.
the review of Petitioner's medical records, Dr. Garmoe
then decided to conduct:
A neurophysiological battery [which is] a comprehensive
assessment that looks at . . . intellect, thinking and
memory, attention, processing speed, what we call executive
abilities, meaning the capacity to think through complex
problems or novel problems, mental flexibility and
psychological well-being. And it's designed to use
standardized validated measures so that it's not just my
opinion that's generating these scores, but they are
actually formal scores that are generated and very often, in
many cases there's computer programs that translate the
scores into their kind of the what we call the standard
scores that help us to judge the outcome of the assessment.
respect to the specific tests he administered, Dr. Garmoe
referred the court to the list of tests set forth in his
Tests Administered: Test of Premorbid Functioning
(TOPF); Wechsler Adult Intelligence Scale - 4th
Edition (WAIS-IV); Trails A&B; Controlled Oral Word
Association Test (COWALT); Wisconsin Card Sorting Test
(WCST); Rey Auditory-Verbal Learning Test (RAVLT); Wechsler
Memory Scale - 4th Edition (WMS-IV) - partial;
Rey-Osterrieth Complex Figure; Test of Memory Malingering
(TOMM); Advanced Clinical Solutions effort measures;
Personality Assessment Inventory (PAI).
on his testing and evaluation of Petitioner, Dr. Garmoe's
conclusions set forth the view that:
Given the residual cognitive and psychological effects of his
T[raumatic] B[rain] I[n]ury] [("TBI")], under such
conditions of chaos and stress Mr. Savage would be more
likely to perceive himself to be facing an imminent threat
and have greater difficulty controlling his reactions.
Garmoe's report continued that:
Mr. Savage views the world through an untrusting and
suspicious perspective, and often is hyper-vigilant to
the Circuit Court inquired about the purpose for which Dr.
Garmoe's opinion would be admitted, defense counsel
indicated Petitioner's theory of self-defense:
[DEFENSE COUNSEL]: The testimony at the time of trial is from
a board certified clinical neuropsychologist, Dr. William
Garmoe. He conducted a battery of tests on the Defendant, Mr.
Savage, and has reached an opinion related to Mr.
Savage's psychological profile but also a brain injury
and the effect that that had on Mr. Savage. It is in
preparation of a potential self-defense and imperfect
self-defense argument in this case. And the consistency of
his findings and his assessment of the Defendant with what I
believe will be the Defendant's testimony as to his
perception the day of the event, if that makes sense.
THE COURT: So you're saying it's relevant-if it
passes the Frye-Reed test you're saying it's relevant
and material with respect to imperfect self-defense.
Circuit Court inquired, for clarification, whether Dr.
Garmoe's conclusions were intended to establish a
"Not Criminally Responsible" defense. "It's
not an NCR defense, " defense counsel replied. Instead,
It is what I expect based on his report his opinion to be is
that the cognitive effects of the brain injury have affected
his ability to process complex situations, I guess[.] . . .
But coupled with the psychological effects of that particular
injury and the circumstances of that injury, which is a
different part of the testing, I believe, that he is very
untrusting, suspicious and has a tendency to be
hyper-vigilant to threats.
counsel then elaborated on how the expected testimony would
factor in establishing imperfect self-defense:
Because imperfect self-defense relies solely on his honest
and subjective belief of the situation, then it is important
for the jury to perhaps understand why that might be his
belief, that there is actually a physical component to the
idea that he may have that honest subjective belief. If there
is an actual diagnosis that explains why someone would
believe that, I think it is necessary for the jury to hear
that, it is important for them to understand that that is a
possible honest belief on the part of the Defendant.
* * *
What he would say is that Mr. Savage perceived threats as
imminent based on the cognitive and psychological effects of
his traumatic brain injury, I believe is what he just said
his opinion was.
respect to Dr. Garmoe's qualifications as an expert, Dr.
Garmoe, the sole witness at the pre-trial hearing, testified
that he had been qualified as an expert in the field of
neuropsychology in a number of Maryland civil and criminal
cases. Although the prosecutor argued that Dr. Garmoe was not
qualified to render any relevant diagnoses, such as a
traumatic brain injury, his qualifications as a
board-certified neuropsychologist were not in dispute, and
the Circuit Court indeed qualified him as an expert in that
defense counsel inquired of Dr. Garmoe whether "all of
the tests [he was] going to talk about . . . [were] novel
tests or . . . new[, ]" Dr. Garmoe emphasized that none
of the tests or measures that he employed "are novel new
tests or are used outside of the way in which they would be
typically used in the neuropsychological assessment."
Dr. Garmoe also explained that his examination and testing
approach of Petitioner "is very consistent with what
[he] would typically use as well as what [his] colleagues,
[his] colleague neuropsychologists would use in doing this
type of assessment." When asked whether his conclusions
were "accurate to any degree of scientific certainty[,
]" Dr. Garmoe was confident in his assessment:
Yes. I'm confident in that, and what would elaborate with
that is one of the first things I look at when I do this kind
of assessment is can I trust the data, are these data
valid[?] . . . So we look at the tests that I'm calling
the performance validity measures to see. . . . So what the
testing results showed is that he is having difficulties with
his processing speed, he's slower at processing
information. There are ways in which he has decreased
flexibility of his thinking and he has some deficits in new
learning and recent memory. Very consistent with the things
he reported to me in terms of the cognitive symptoms that he
experiences on a day to day basis.
Garmoe explained what he considered in formulating his
assessment in this case:
What I considered for that were the things that he told me,
the descriptions he gave me about his own functioning, my
assessment of his current presentation as he was right in
front of me, and then also what he looked like on instruments
such as the PAI, so what that shows about his psychological
state. Because sometimes a person will tell you one thing or
they'll say they're feeling one thing but if you
examine it in a less direct way you may get information that
is different from what they tell you directly. Sometimes
different from what they even consciously recognize of
court again inquired of counsel what the defense sought to
establish with Dr. Garmoe's testimony. Defense counsel
elaborated in more detail, tracking the language in Dr.
I believe it would be the statement that he gave regarding
the cognitive and psychological effects of the traumatic
brain injury that under conditions of chaos and stress Mr.
Savage is more likely to perceive himself to be facing an
imminent threat and have greater difficulty controlling his
* * *
Mr. Savage views the world through an untrusting and
suspicious perspective, is often hyper-vigilant to possible
cross-examination of Dr. Garmoe by the prosecution, the
Circuit Court inquired about the foundations of Dr.
Garmoe's conclusions, and whether the doctor's method
and its application were the subject of any professional
THE COURT: Now I guess I'm going to go back to the same
thing. How long has this technique been around, look at the
medical data, then do the neuropsychological testing, then
arrive at a conclusion? How long have psychologists been
THE WITNESS: Probably the strongest burst of neuropsychology
came after World War II when there were lots of wounded
soldiers coming back.
* * *
And traumatic brain injuries. All the brain injuries from the
war, that's where the clinical discipline-the academic
discipline has been around but that's when the clinical
discipline most strongly developed.
If you look in terms of the judicial kind of the forensic
realm, the growth of neurosurgery testifying within criminal
cases over the last 15 years has been exponential.
THE COURT: And one of the tests, of the things the Judge has
to do is - the thing the Judge has to do is see that this
approach has been accepted by the scientific community at
large, in your scientific community. Usually that's
proven by peer reviews, studies, literature, but your
attorney is not proffering any articles that have been
written on this topic. I mean is there literature?
THE WITNESS: I would be happy, I actually have a text with me
I'd be happy for us to copy the chapter for that and
leave it for you that really lays that out.
THE COURT: Has it even been debated at your psychological
THE WITNESS: It's debated endlessly.
* * *
But it's my opinion that the scientific evidence supports
the use of neuropsychological methods within this realm. And
in the particular expertise we bring, in addition to our
training as psychologists, our standardized measures and
measures that are there to detect whether somebody is trying
to appear other than they really are.
by the court whether Dr. Garmoe was rendering an opinion with
respect to Petitioner's state of mind on the day of the
events of this case, defense counsel clarified the
defense's theory regarding his anticipated testimony:
[T]he doctor is not . . . giving the jury the impression that
he can predict what [Mr. Savage] was thinking at that time.
The Defendant would have already testified as to what his
state of mind was. All the doctor is doing is giving an
opinion as to his psychological state of mind, generally, not
on that particular day but in this case I think it's
particularly important because the brain injury occurred
prior to this event, the testing occurred after this event.
The brain injury existed at the time of the event. The
effects of the brain injury most likely existed at the time
of the event since they existed a few months later and they
occurred several years ago.
Ruling and Trial Testimony
February 3, 2014, the Circuit Court filed its opinion, ruling
that the Frye-Reed test had not been met, and
precluded Dr. Garmoe from offering the disputed opinion as to
how someone reacts in a situation of "chaos and
stress" at trial. The hearing judge explained in his
Dr. Garmoe has reviewed Defendant's medical records; he
has interviewed Defendant; he has submitted Defendant to a
battery of psychological tests from which he has derived
extensive data. All of this, plus his underlying assumption
that Defendant suffered a TBI in 2003, leads him to conclude
how Defendant will react in a time of "chaos and
Neither Dr. Garmoe nor Defendant, through counsel, offers any
peer review studies or other literature from the
neuropsychological community to substantiate the validity of
this bipodal approach. Neither Dr. Garmoe nor defense counsel
has identified any circuit court in Maryland or, for that
matter, any state court in the country which has accepted
such a methodology to show how someone reacts in a situation
of "chaos and stress." The Frye-Reed test
has not been met.
Circuit Court's Order specified that Dr. Garmoe would not
be excluded from testifying at trial but the court cabined
The fact that the above-mentioned opinions of Dr. Garmoe will
be excluded at trial does not mean that he cannot testify.
Counsel will keep in mind that Dr. Garmoe is not competent to
reconstruct [Mr. Savage's] emotions at a specific time
and therefore he may not express an opinion as to what belief
or intent [Mr. Savage] harbored at the time of his alleged
case went to trial, and while Dr. Garmoe was permitted to
testify, his testimony was constrained by the trial
court's Frye-Reed ruling. At trial, the
following exchange took place during the doctor's
[DR. GARMOE]: Sure. What the personality assessment inventory
showed is that-well, one thing it showed is that Mr. Savage
is an individual who has a higher than-he has a higher level
of concern for physical functioning, higher level of focus on
physical symptoms than most people would. It's not
unusual to see that in an individual who has had some type of
a major medical condition or a major neurological insult.
There's a greater focus on the way his body is working,
the physical symptoms that he's reporting than most
people would have.
* * *
What it also showed when you look at the other scales is that
he is somebody who has experienced a lot of anxiety and
tension on a regular basis, and that he tends to view the
world in untrusting-
THE COURT: Well, the basis for the objection is what?
[PROSECUTOR]: Is that the opinion that was excluded by Your
Honor's order ...