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Savage v. State

Court of Appeals of Maryland

August 4, 2017


          Argued: April 4, 2017

         Circuit Court for Wicomico County Case No. 22-K-13-000535

          Barbera, C.J. Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.


          Greene, J.

         A jury 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 shall affirm.

         Factual and Procedural Background

         The 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] fiancé.
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 Kenneth's death.
[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.

         We shall recite additional facts below as they pertain to our discussion of the issues before us.

         On 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.[1] Petitioner pled not guilty and elected a trial by jury. Prior to trial, the court conducted a Frye-Reed hearing.

         Frye-Reed Hearing

         On 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[.]"

         At the 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 examining Petitioner:

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.

         Following 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.

         With respect to the specific tests he administered, Dr. Garmoe referred the court to the list of tests set forth in his report:

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).

         Based 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.

         Dr. Garmoe's report continued that:

Mr. Savage views the world through an untrusting and suspicious perspective, and often is hyper-vigilant to possible threats.

         When 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.

         The Circuit Court inquired, for clarification, whether Dr. Garmoe's conclusions were intended to establish a "Not Criminally Responsible" defense.[2] "It's not an NCR defense, " defense counsel replied. Instead, she explained:

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.

         Defense 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.

         With 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 field.

         When 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.

         Dr. 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 themselves.

         The 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. Garmoe's conclusions:

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 reaction.
* * *
Mr. Savage views the world through an untrusting and suspicious perspective, is often hyper-vigilant to possible threats.

         Following 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 disagreement:

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 doing this?
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.[3]
THE COURT: Has it even been debated at your psychological conferences?
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.

         Asked 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.

         Frye-Reed Ruling and Trial Testimony

         On 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 Order:

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 stress."
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.

         The Circuit Court's Order specified that Dr. Garmoe would not be excluded from testifying at trial but the court cabined his testimony:

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 crime.

         The 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 testimony:

[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-
[PROSECUTOR]: Objection.
THE COURT: Well, the basis for the objection is what?
[PROSECUTOR]: Is that the opinion that was excluded by Your Honor's order ...

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