Savage v. State

455 Md. 138

166 A.3d 183

Eddie Lee SAVAGE, Jr.

v.STATE of Maryland

No. 82, Sept. Term, 2016

Court of Appeals of Maryland.

August 4, 2017

Argued by Matthew M. Bryant, Assigned Public Defender (Joseph, Greenwald & Laake, P.A. of Greenbelt, MD; Paul B. DeWolfe, Public Defender of Maryland of Baltimore, MD) on brief, for Petitioner.

Argued by Robert K. Taylor, Jr., Assistant Attorney General (Brian E. Frosh, Attorney General of Maryland of Baltimore, MD) on brief, for Respondent

Argued before: 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—4^th 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—4^th 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[njury] [ ("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 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

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