No. 13-1220 ================================================================ In The Supreme Court of the United States --------------------------------- --------------------------------- ANDREW HOWARD BRANNAN, Petitioner, v. CARL HUMPHREY, Warden, Respondent. --------------------------------- --------------------------------- On Petition For Writ Of Certiorari To The United States Court of Appeals For The Eleventh Circuit --------------------------------- --------------------------------- BRIEF IN OPPOSITION ON BEHALF OF RESPONDENT --------------------------------- --------------------------------- SAMUEL S. OLENS Attorney General BETH A. BURTON Deputy Attorney General (Counsel of Record) 40 Capitol Square, S.W. Atlanta, Georgia 30334-1300 Telephone: (404) 656-3499 [email protected]================================================================ COCKLE LEGAL BRIEFS (800) 225-6964 WWW.COCKLELEGALBRIEFS.COM
SHOULD THIS COURT GRANT CERTIORARI TO REVIEW A DECISION BY THE ELEVENTH CIR-CUIT COURT OF APPEALS THAT WAS A PROPER FACT-SPECIFIC APPLICATION OF THIS COURT’S PRECEDENT?
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TABLE OF CONTENTS
Page
QUESTION PRESENTED................................... i
TABLE OF AUTHORITIES ................................. iv
I. STATEMENT OF THE CASE ................... 1
II. STATEMENT OF THE FACTS .................. 2
III. DENIAL OF SPECIFIC “FACTS” SET OUT IN PETITION ................................... 5
IV. REASONS FOR NOT GRANTING THE WRIT .......................................................... 6
A. CERTIORARI REVIEW SHOULD BE DENIED AS THE ELEVENTH CIRCUIT COURT OF APPEALS’ DECISION WAS A PROPER FACT-SPECIFIC APPLICATION OF THIS COURT’S APPLICABLE PRECE-DENT ................................................... 6
1. Other Veterans – Double Edged Sword .............................................. 15
2. Boyer and Failure to Take Medica-tion .................................................. 18
B. CERTIORARI REVIEW SHOULD BE DENIED AS PETITIONER’S CLAIM IS MERELY A DISAGREEMENT WITH THE RESOLUTION OF THE FACTS ................................................. 22
Porter v. McCollum, 558 U.S. 30 (2009) ............ passim
Strickland v. Washington, 466 U.S. 668 (1984) ... passim
Texas v. Mead, 465 U.S. 1041 (1984) ......................... 22
United States v. Johnson, 268 U.S. 220 (1925) ......... 22
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BRIEF IN OPPOSITION ON BEHALF OF RESPONDENT
I. STATEMENT OF THE CASE
On January 28, 2000, despite the presentation of extensive mental health evidence, evidence of Petitioner’s heroic service in Vietnam and the experts connecting Petitioner’s mental health issues to his Vietnam War service, a jury convicted Petitioner of malice murder. Further, rejecting Petitioner’s potentially mitigating character and mental health evidence, the jury made a mandatory sentence rec-ommendation of death for the conviction of murder. The Georgia Supreme Court affirmed Petitioner’s conviction and sentence on March 25, 2002. Brannan v. State, 275 Ga. 70, 561 S.E.2d 414 (2002), cert. denied, Brannan v. Georgia, 537 U.S. 1021 (2002).
Petitioner filed a state habeas corpus petition on May 2, 2003. An evidentiary hearing was held on August 21-23, 2006. On March 13, 2008, the state habeas corpus court granted relief as to Petitioner’s conviction and sentence. Respondent appealed, and, following briefing and oral arguments, the Georgia Supreme Court unanimously reinstated Petitioner’s death sentence. Hall v. Brannan, 284 Ga. 716, 670 S.E.2d 87 (2008).
Petitioner filed his federal petition for writ of habeas corpus on or about May 15, 2009. On March 9, 2012, the federal habeas court denied relief. The Eleventh Circuit Court of Appeals denied relief on
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August 8, 2013. Brannan v. GDCP Warden, 541 Fed. Appx. 901 (11th Cir. 2013).
II. STATEMENT OF THE FACTS
On direct appeal, the Georgia Supreme Court summarized the facts as follows:
The evidence presented at trial showed the following: Andrew Brannan left his mother’s house in Stockbridge, Georgia, to drive to his house in Laurens County in the afternoon of January 12, 1998. He was driving his white pickup truck 98 miles per hour on Interstate 16 when Laurens County Deputy Sheriff Kyle Dinkheller clocked his speed with a ra-dar gun. Brannan exited the highway and stopped on a rural stretch of Whipple Cross-ing Road after the deputy caught up to him. During the pursuit, Deputy Dinkheller acti-vated a video camera which is aimed through his windshield. The camera captured almost all of Brannan’s actions during the ensuing traffic stop. Deputy Dinkheller also wore a microphone. The deputy stopped his patrol car about 20 feet behind Brannan’s truck. Brannan exited his truck and stood near the driver’s side door with his hands in his pock-ets. The right side of Deputy Dinkheller is visible on the tape as he stood next to his driver’s side door.
Deputy Dinkheller said, “Driver, step back here to me. Come on back here to me.” Bran-nan said, “Okay,” but did not move. The deputy
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said, “Come on back. How are you doing to-day?” Brannan said that he was okay and asked how the deputy was doing, but still did not move. Deputy Dinkheller said he was good and repeated, “Come on back here and keep your hands out of your pockets.” Bran-nan asked why and the deputy again said, “Keep your hands out of your pockets, sir.” Brannan responded, “Fuck you, Godamit [sic], here I am. Shoot my fucking ass.” He then began dancing in the street, saying, “Here I am, here I am.” The deputy ordered, “Come here. Sir, come here,” but Brannan responded, “Shoot me,” and kept dancing.
Deputy Dinkheller radioed for assistance on his belt-mounted radio, and the defendant stopped dancing and approached him. The deputy said, “Sir, get back.” Brannan replied, “Who are you calling, motherfucker?” and then rushed the deputy and a confrontation ensued to the left of the patrol car and off camera. The deputy ordered Brannan to get back nine more times. Brannan replied with “Fuck you” four times and at one point shouted, “I am a goddam Vietnam combat veteran.”
Brannan then ran back to his truck and be-gan rummaging around behind the driver’s seat. Deputy Dinkheller remained beside his patrol car and ordered, “Sir, get out of the car.” The right side of the deputy is briefly visible during this time. The deputy had drawn his baton, but not his firearm. Bran-nan replied that he was in fear of his life.
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The deputy shouted, “I’m in fear of my life! Get back here now!” Brannan said, “No,” and then pulled a .30 caliber M-1 carbine from his truck. The deputy radioed for help and shouted for him to put the gun down. In-stead, Brannan crouched by his open driver’s side door. The deputy shouted for Brannan to put the gun down three more times. Brannan opened fire and the deputy returned fire.
Deputy Dinkheller was hit and shouted, “Shoot, shoot, stop now!” Brannan continued firing and advanced to the front of the patrol car. The deputy apparently tried to take cov-er behind the patrol car. Brannan exhausted one magazine, reloaded, and continued fir-ing. The microphone recorded the sounds of the deputy being shot. At trial, the medical examiner testified that by this time Deputy Dinkheller had been struck by at least nine bullets, in the arms, legs, buttocks, chest, and head. The medical examiner opined that the deputy, although still breathing into the microphone, had lost consciousness because he was no longer returning fire or crying out when shot. The video shows Brannan cease crouching, take careful aim with his carbine, say “Die, Fucker,” and fire one last shot. Brannan then fled the scene in his truck.
Brannan was found hiding in the woods about 100 yards from his house, and he made incriminating statements after his arrest. He had a gunshot wound to his abdomen. The police found the murder weapon in his house. Brannan claimed that he was not guilty by
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reason of insanity, and presented experts who testified that he had been unable to dis-tinguish right from wrong because post-traumatic stress disorder had triggered a flashback to Vietnam. However, the court-appointed psychiatrist concluded that Bran-nan was sane, and the jury could have inferred from comments made by Brannan during the crime and after his arrest that he shot the victim because he believed the 22-year-old deputy was not showing him a sufficient amount of respect. Regarding his dancing during the altercation, Brannan ex-plained to the police that he once defused a tense situation with an angry man by danc-ing and saying “shoot me.” He also later told a psychiatrist that he had seen Mel Gibson act that way in the movie “Lethal Weapon.”
Brannan, 275 Ga. at 70-72, 561 S.E.2d at 418-420.
III. DENIAL OF SPECIFIC “FACTS” SET OUT
IN PETITION
As Petitioner’s claim is fact-specific and very fact intensive, Respondent has addressed the mischarac-terizations of the record in his argument below.
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IV. REASONS FOR NOT GRANTING THE WRIT
A. CERTIORARI REVIEW SHOULD BE DENIED AS THE ELEVENTH CIRCUIT COURT OF APPEALS’ DECISION WAS A PROPER FACT-SPECIFIC APPLI-CATION OF THIS COURT’S APPLICA-BLE PRECEDENT.
Petitioner alleges that this Court should grant certiorari review of this case as the Eleventh Circuit Court of Appeals’ decision denying his ineffective assistance of counsel claim conflicted with Porter v. McCollum, 558 U.S. 30 (2009) and misapplied Strick-land v. Washington, 466 U.S. 668 (1984). The facts of Petitioner’s case, however, are diametrically opposite of those in Porter and the Eleventh Circuit properly applied Strickland in denying the ineffectiveness claim.
In reviewing Petitioner’s claim that trial counsel were ineffective in investigating and presenting mitigation at trial, the Eleventh Circuit properly identified Strickland as the applicable precedent and the mandates that control that analysis holding as follows:
Under Strickland, Brannan must show that “counsel’s performance was deficient” and that “the deficient performance prejudiced the defense.” 466 U.S. at 687, 104 S. Ct. at 2064. To show prejudice, Brannan must show there is “reasonable probability that, but for counsel’s unprofessional errors, the result of
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the proceeding would have been different.” Id. at 694, 104 S. Ct. 2068.
Brannan v. GDCP Warden, 541 Fed. Appx. at 905-906. It is unquestionable that this is the proper standard to be applied.
Thereafter, the Court conducted a de novo re-view1 and found:
[T]here is no “reasonable probability that, but for counsel’s unprofessional errors, the result of the [guilt phase] proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2068. With respect to Bran-nan’s death sentence, we have carefully con-sidered “ ‘the totality of the available mitigation evidence both that adduced at tri-al, and the evidence adduced in the habeas proceeding’ – and ‘reweig[hed] it against the evidence in aggravation.’ ” Porter v. McCollum, 558 U.S. 30, 41, 130 S. Ct. 447, 453-54, 175 L. Ed. 2d 398 (2009) (quoting Williams, 529 U.S. at 397-98, 120 S.Ct. at 1515). Based upon the evidence from the state court record and in light of Strickland, we conclude there is no “reasonable probabil-ity that, but for counsel’s unprofessional
1 This claim fell squarely under the AEDPA and the Elev-enth Circuit should have reviewed the claim through that lens; however, as noted by the Eleventh Circuit, as Petitioner’s claim failed under a de novo review, it would clearly fail under a standard less favorable to Petitioner. See Brannan, 541 Fed. Appx. 906, fn 2.
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errors, the result of the [sentencing] proceed-ing would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2068.
The evidence presented during the post-conviction hearing “would barely have al-tered the sentencing profile presented to the sentencing judge.” Id. at 700, 104 S. Ct. at 2071. To be sure, Brannan’s postconviction case for mitigation is decidedly better than that presented at his trial. However, the dif-ferences between his postconviction and trial mitigation are not meaningful enough to es-tablish a reasonable probability of a different outcome, as in Porter and other cases in which the Supreme Court has found deficient performance and prejudice, such as Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L. Ed. 2d 360 (2005); Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L. Ed. 2d 471 (2003), and Williams, 529 U.S. 362, 120 S.Ct. 1495, 146 L. Ed. 2d 389.
Brannan, 2013 U.S. App. at 15-17. These findings are fully supported by the record and the analysis is in direct accordance with Strickland and its progeny.
Throughout his petition, Petitioner attempts to mislead this Court by repeatedly arguing that only a few lay witnesses were called by trial counsel for mitigation purposes and that they gave very brief and unremarkable presentations. The record establishes, however, that trial counsel’s mitigation presentation began in the guilt phase of trial, as allowed under Georgia law. See Heidler v. State, 273 Ga. 54, 65, 537
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S.E.2d 44, 56 (2000) (jury may consider evidence presented in both phases of the trial when determin-ing sentence). At the guilt phase, trial counsel pre-sented the testimony of three psychologists to testify about Petitioner’s background, his military career, his past mental health history and the fact that his PTSD, which allegedly led to the murder in this case, was the result of his Vietnam service. See Hall v. Brannan, 284 Ga. at 718-719, 670 S.E.2d at 92-93.2
Through these experts and extensive documen-tary evidence, the jury was informed that Petitioner had a longstanding diagnosis of PTSD and that he received 100 percent disability for this diagnosis. Id. The jury was further informed that Petitioner had a lifelong history of depression that was present prior to his service in Vietnam and this was Petitioner’s first criminal arrest. (App. 12-13).
Moreover, Dr. Robert Storms, who was employed as the Director of the Forensic Evaluation Depart-ment at Georgia Regional Hospital, specifically testified about Petitioner’s service in Vietnam as the commanding officer of an artillery division. He testi-fied that Petitioner’s job in Vietnam was reconnais-sance, which involved going out on scouting missions for six months at a time and setting booby traps and
2 Respondent has included as an appendix the testimony of one of the three expert’s at trial to establish the contrast in this case and Porter v. McCollum, 558 U.S. 30 (2009), which is extensively relied upon by Petitioner.
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ambushes for the Viet Cong. (See Petitioner’s App-53). The jury heard testimony of how Petitioner began to have psychological problems after Vietnam. Dr. Storms discussed how Petitioner was unable to attend college, maintain a job or sustain his marriage because of his PTSD. (App. 11-12).
Dr. Storms told the jury that, as part of his evaluation, he had reviewed the Veterans Admin-istration records from both the Augusta and Decatur hospitals, where Petitioner had been treated for PTSD since 1989. (App. 13-14). He testified that, upon re-viewing those records, he had noted that Petitioner had a well documented history of combat related PTSD through the past ten to fifteen years. (App. 14). He also informed the jury that Petitioner’s combat related PTSD resulted from Petitioner’s service in Vietnam. (App. 14-16).
Dr. Storms further testified that Petitioner had been hospitalized at the V.A. Hospital in Augusta and had been involved in various forms of veteran coun-seling. (App. 14-16). He testified that Petitioner had a history of flashbacks, recurrent and intense anxiety, intrusive dreams about Vietnam, chronic guilt re-garding various incidents that occurred in Vietnam and paranoia of feeling in danger when there was no reason to feel in danger. (Id.).
Dr. Storms testified that the records showed that Petitioner had discussed his Vietnam experiences in the past with psychiatrists with whom he had developed a relationship, and Petitioner assumed responsibility
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for the death of one of his commanding officers. (App. 16).
Dr. Storms also testified that he had reviewed the videotape of the murder, and he characterized the incident as bizarre. (App. 20-24). Based upon Petitioner’s history and his terminology used in describing the incident, Dr. Storms testified that he concluded that Petitioner was having a flashback at the time of the crime. (Id.). Further, in an attempt to explain Petitioner’s claims that he could not remem-ber what happened during the crime, trial counsel had Dr. Storms testify that Petitioner’s memory was fragmented due to Petitioner being in a dissociative state, a flashback, at the time of the murder. (Id.). Dr. Storms testified that he was unable to “pinpoint a definite starting time or ending time” for Petitioner’s flashback; however, he opined that Petitioner was having a flashback when he reached into his truck for the gun. (App. 23-24). When Petitioner came out of the flashback, he was in a “complete state of fear” and panic. (App. 24).
During his testimony, Dr. Storms also explained to the jury that manic depression, a diagnosis he also gave Petitioner, was now commonly referred to as Bi-Polar Disorder. (App. 72). He further explained that hypomanic meant almost manic, that Petitioner had a long history of hypomanic episodes, (App. 72-74), and that Petitioner was manic at the time of the murder. (App. 47). He further concluded that Petitioner was unable to distinguish right from wrong at the time of the crime. (App. 49).
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At the conclusion of his testimony on direct examination, Dr. Storms again noted his initial skep-ticism about using PTSD as a defense as the signs are easily malingered. (App. 24-25). In Petitioner’s case, however, he opined that Petitioner was not malinger-ing based upon the fact that his emotional tone and affect was flat and subdued and because he had to pull information out of Petitioner. (Id.). Additionally, Petitioner had a long history of treatment for PTSD from reputable programs. (Id.). Dr. Storms also testified that the results from the MMPI indicated that Peti-tioner was paranoid, not a psychopath. (App. 25-27).
Trial counsel also presented the testimony of Dr. Avrum Weiss. Dr. Weiss had treated Petitioner in 1991 at the Atlanta Veteran’s Center. Dr. Weiss provided the jury with a detailed explanation of PTSD and its prevalence in Vietnam War Veterans. Also, as noted by the district court, “He further explained that [Petitioner] must have had extensive combat exposure to have been admitted to the Augus-ta VA’s inpatient PTSD unit for treatment.” (See Petitioner’s App-25). Based upon a review of the documents provided to him by trial counsel, Dr. Weiss concluded, in agreement with Dr. Storms, that Peti-tioner was in a dissociative state at the time of the crime. (See id.).
After the jury had rejected Petitioner’s mental health defense during the guilt phase of trial, trial counsel tried to “soft pedal” the insanity defense in the sentencing phase. (See Petitioner’s App-42). Coun-sel explained that they did not pursue Petitioner’s
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mental health defense during the sentencing phase as they feared that they would lose credibility with the jury. (Id.). Instead, they shifted their focus to the fact that Petitioner was a disabled person, with good character, who came from a good family. To support this strategy, trial counsel presented six lay witnesses to testify to Petitioner’s good character3 and “built on the expert mental health testimony from the guilt/ innocence phase with lay testimony regarding Bran-nan’s abnormal behaviors, his strange and isolated living conditions, and his odd ‘nervous laughter.’ Counsel’s closing in the sentencing phase emphasized Brannan’s alleged mental illness and the fact that the jury could decline to impose a death sentence based on mental illness despite the fact that it had rejected the insanity defense and a guilty but mentally ill ver-dict.” Hall v. Brannan, 284 Ga. 716, 720-721 (2008).
Clearly, these facts are a far cry from the facts in Porter, with which Petitioner repeatedly attempts to equate his case. As noted by the federal district court in denying relief:
[I]n Porter v. McCollum, ___ U.S. ___, 130 S.Ct. 447 (2009), the Supreme Court re-versed the Eleventh Circuit’s decision to de-ny habeas relief where trial counsel failed to
3 Trial counsel also presented family mementos regarding Petitioner’s military service, which included a commendation medal and the Bronze Star for his service in Vietnam. Addition-ally, as noted by the district court, “this jury was not devoid of military experience.” (Petitioner’s App-49-50, fn 20).
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investigate and present evidence of Porter’s military service in two Korean war battles, of his troubled childhood, and of his brain dys-function. Porter‘s counsel made no attempt to uncover this information even though it was obtainable.
(Petitioner’s App-43). In contrast, Petitioner’s trial counsel thoroughly investigated and presented Peti-tioner’s militarily career and his mental health issue resulting from his service.
Petitioner argues that the opinion of the Elev-enth Circuit, as well as the district court and the Georgia Supreme Court, was contrary to Porter because it “discounted the mitigation adduced in the habeas proceedings.” (Petition, p. 17). Specifically, Petitioner alleges the courts discounted the fellow soldiers’ testimony, Dr. William Boyer’s testimony and Petitioner’s failure to take his medication on the day of the murder. The Eleventh Circuit expressly stated that it had reviewed all this evidence and found that it would not have, in reasonable probability, changed the outcome of Petitioner’s trial. Brannan, 541 Fed. Appx. at 906-907. This was a proper application of Strickland. Contrary to what appears to be the ar-guments of Petitioner, Porter did not set forth a new standard for determining deficiency or prejudice in analyzing ineffectiveness claims.4
4 Although the Eleventh Circuit’s decision is based solely on the prejudice prong of Strickland, it is also clear that Porter did
(Continued on following page)
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In contrast to Porter, Petitioner’s Vietnam War experience, his accolades and his resulting mental health problems (including all his medical records) were thoroughly investigated and presented to the jury. Although trial counsel did not present the testi-mony of other Vietnam War Veterans and strategical-ly chose not to call Dr. Boyer or submit evidence that Petitioner failed to take his medication on the day of the murder, the Eleventh Circuit properly applied Strickland in concluding Petitioner failed to establish prejudice as to trial counsel not presenting this additional evidence.
1. Other Veterans – Double Edged Sword
At the state habeas hearing, Petitioner called four Vietnam War Veterans to attempt to further show his combat experience. One veteran was actual-ly injured in the same land mine incident that killed Petitioner’s superior officer. This Veteran testified that, unlike himself, Petitioner, although “in the area,” was with another group of men at that time. This testimony undermined Petitioner’s repeated statements that he was with Captain Shaw when the captain was killed as he had previously claimed. (See Petitioner’s App-70).
Additionally, three of the four Veteran witnesses that testified in the state habeas proceedings, were
not eradicate the interplay of the deficiency prong and the strategy of counsel nor make a per se exception to the death penalty for combat veterans.
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actually physically injured in Vietnam, two in the same land mine incident as Captain Shaw and another was hit by a grenade. Of those four, at least one served a longer term in Vietnam than Petitioner, three were married and had children, and all were successfully employed and had not committed mur-der.
Further, as to Petitioner’s claims that these men served “alongside” him in Vietnam; one could not say how long he had served with Petitioner, but that it was more than one month, but no more than six months. Another only met Petitioner on one occasion and did not recall serving with him. Another never stated how long he knew Petitioner. Clearly trial counsel were not ineffective in not relying on people from the Army who had met Petitioner on one occa-sion, (or indeterminate short time periods), to testify to Petitioner’s character or Petitioner’s experiences in Vietnam. As held by the district court:
[T]he presentation of live testimony from servicemen who had experienced the same trauma as Petitioner, yet appeared unaffect-ed (having jobs and families), could have ad-versely impacted Petitioner’s claim of PTSD so severe that he did not know shooting a po-lice officer was wrong on the day in question. (See, e.g., Resp. Ex. 127, Hawley Aff. ¶ 1 (For the past twenty five years, I have worked on the railroad for Canadian National. After many years in management, I currently serve as a Conductor.”); Hardy Aff. ¶ 1 (Upon returning from Vietnam, I resumed working
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for General Motors Corporation. I retired from General Motors in 2001. I currently re-side in Hemlock, Michigan with my wife and stepson.”); Underwood Aff. ¶ 1 (“I currently reside in Boyne City, Michigan with my wife. I am employed at DCL of Charlevoix, a fabri-cations company.”) Suffice it to say that de-fense counsel’s decision not to present the corroborative evidence suggested by habeas counsel was not objectively unreasonable.
(Petitioner’s App-57, fn 23). Instead, trial counsel reasonably chose to rely on Petitioner’s family and lifelong friends to testify about his character and introduced the records and testimony through experts as to Petitioner’s service in Vietnam.
Further, contrary to Petitioner’s assertion of undergoing traumas in Vietnam, the military records, which trial counsel gathered, do not note the expo-sure to combat seen by Petitioner. Additionally, the records show that the only “trauma” references in Petitioner’s extensive mental health and medical records is the one incident regarding Captain Shaw. Even a letter sent to Petitioner’s habeas counsel from the military states that only three men died in Peti-tioner’s squadron during the months Petitioner was on active duty in Vietnam, and one of those three was Captain Shaw. (HT, Vol. 4, pp. 812-814). The Eleventh Circuit properly weighed this evidence against the extensive testimony submitted at trial and properly found that Petitioner had failed to establish the prejudice prong of Strickland.
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2. Boyer and Failure to Take Medica-tion
With regard to trial counsel’s strategic decision not to call Dr. Boyer or present evidence that Peti-tioner had not taken his medication on the day of the murder, the Eleventh Circuit properly concluded this evidence would not have, in reasonable probability, changed the outcome of trial. As noted by the Georgia Supreme Court in finding that counsel were not deficient and Petitioner was not prejudiced:
The habeas court faulted trial counsel for failing to present evidence that Brannan had not taken his medications for several weeks prior to the murder. Trial counsel testified in the habeas court that he and co-counsel had discussed Brannan’s medications but that Brannan’s failure to obtain his medications on one occasion was due to his having an ar-gument with a man in line at the pharmacy that required the police to come and that Brannan had a history of failing to take his medications. Under the circumstances, we find that trial counsel did not perform defi-ciently by declining to open up the matter of why Brannan had not had his medications; instead, counsel reasonably opted simply to note the fact that Brannan had not taken his medications by referring to Brannan’s evalu-ation by Dr. Carter. Furthermore, Brannan was not prejudiced by counsel’s failure to call Dr. William Boyer, who had been Brannan’s psychiatrist before the murder, to testify regarding the effects of Brannan’s lack of
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medication: as Dr. Boyer’s pretrial testimony shows, he believed that the lack of medica-tion would have simply made Brannan de-pressed. In that same vein, we note that Dr. Carter, the trial court’s expert, testified in the habeas proceedings that Brannan’s al-leged lack of medication would have simply made him more irritable.
Hall v. Brannan, 284 Ga. at 721-722 (citation omitted). This holding further established that the Eleventh Circuit’s finding that Petitioner failed to establish prejudice was in direct accordance with Strickland.
The district court noted Petitioner’s various versions of why he was not on his medication, (Peti-tioner’s App-62-63), and credited trial counsel’s testimony as to why they made the strategic decision not to present Dr. Boyer to testify that Petitioner had failed to take his medication.
“[N]either of us [was] feeling very good about the idea that [Petitioner was] making a con-scious decision to not medicate himself or running out or whatever it was would be very sympathetic.” (Resp. Ex. 145, Duttweiler Dep. at 118-19.) Mr. Duttweiler further elaborated: [W]e thought that [the jury] would feel like if [Petitioner] was aware of it and medicated for it, then coming off of medications is taking a risk that something like this would happen.” (Id. at 120.) Given Petitioner’s documented failure to medicate, counsel were understandably unenthusiastic about not emphasizing the medication issue
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with the jury, which might be reactive to Pe-titioner voluntarily placing himself in a harmful position.
(Petitioner’s App-64). These legal findings and the facts fully support the Eleventh Circuit’s holding that Petitioner failed to establish the requisite Strickland prejudice.
As to trial counsel mentioning that Dr. Boyer might testify and then determining not to call him at trial, the Eleventh Circuit’s finding that there was no prejudice is fully supported by the record. As held by the Georgia Supreme Court:
The habeas court found fault in counsel’s de-cision not to call Dr. Boyer as a witness on matters other than Brannan’s lack of medi-cation. However, counsel testified as follows: I was uncomfortable as to what he might tes-tify to on the issues directly relating to in-sanity, I don’t know that he would have supported us on that. I also had the sense that perhaps Dr. Boyer was being a little protective of the VA and himself, and I thought I wouldn’t use him. It was sort of evolving thought about whether to use him or not. In light of counsel’s reasonable stra-tegic concerns, we conclude as a matter of law that counsel did not perform deficiently by failing to call Dr. Boyer as a witness. The habeas court further found that counsel ren-dered ineffective assistance by stating during his opening statement in the guilt/innocence phase that he “believe[d]” that Dr. Boyer
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would testify but then not calling him as a witness. [ ] Pretermitting whether counsel performed deficiently by announcing the likelihood that he would call Dr. Boyer as a witness while his decision on whether to do so was, in his own words, “evolving,” we con-clude as a matter of law that trial counsel’s actions did not prejudice Brannan’s defense to a significant degree, particularly in light of the fact that Dr. Boyer’s evaluation and treatment of Brannan was discussed by other expert witnesses.
Hall v. Brannan, 284 Ga. at 721-722 (citation omit-ted). Also, as noted by the district court, Dr. Storms, the expert trial counsel chose to call, was “ ‘strong and unwavering’ [in his opinion] that Petitioner was insane at the time of the offense. Dr. Boyer, on the other hand, ‘resisted’ this opinion.” (Petitioner’s App-89).
The record is clear that the Eleventh Circuit’s holding, after reweighing all the evidence, was a proper application of Strickland and did not improp-erly fail to consider any evidence. Thus, the Eleventh Circuit’s analysis is in direct accordance with the precedent of this Court and certiorari review is un-warranted.
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B. CERTIORARI REVIEW SHOULD BE DENIED AS PETITIONER’S CLAIM IS MERELY A DISAGREEMENT WITH THE RESOLUTION OF THE FACTS.
Additionally, as established by the argument above, the argument Petitioner presents to this Court is merely his disagreement with the factual resolu-tion of his claims by the Eleventh Circuit. That disagreement does not present a question worthy of this Court’s exercise of its certiorari jurisdiction. This Court has stressed that it does not “grant certiorari to review evidence and discuss specific facts.” United States v. Johnson, 268 U.S. 220, 227 (1925) and Texas v. Mead, 465 U.S. 1041 (1984). As this Court does not sit to review facts or conduct fact-specific analyses, this case does not warrant certiorari review. Accord-ingly, this Court should deny the petition.
For all the foregoing reasons, Respondent prays that this Court decline to exercise its certiorari juris-diction and deny the instant petition for writ of certiorari seeking review of the judgment of the Eleventh Circuit Court of Appeals.
Respectfully submitted,
SAMUEL S. OLENS Attorney General
BETH A. BURTON Deputy Attorney General (Counsel of Record) 40 Capitol Square, S.W. Atlanta, Georgia 30334-1300 Telephone: (404) 656-3499 [email protected]
App. 1
STATE OF GEORGIA
VS.
ANDREW HOWARD BRANNAN,
Defendant
: : : : : : : : : : :
LAURENS SUPERIOR COURT
CASE NO. 98-FE-438-T
VENUE CHANGED TO
GLYNN SUPERIOR COURT
JURY TRIAL BEFORE HON.
WM. M. TOWSON, JUDGE
ON JANUARY 25, 26, 27, 28,
29, AND 30, 2000
APPEARANCES OF COUNSEL:
For the State : RALPH M. WALKE District Attorney P.O. Box 2029, CSS Dublin, GA 31040
: PETER FRED LARSEN Chief Asst. District Atty.
: CRAIG FRASER Asst. District Attorney
For the Defendant : RICHARD TAYLOR Taylor & Viers 3025 Piedmont Road, NE Atlanta, GA 30305-2635
: LARRY DUTTWEILER Attorney at Law P.O. Box 631 Lawrenceville, GA 30046
App. 2
TRANSCRIPT OF JURY TRIAL, DOCUMENTARY EVIDENCE,
CHARGE OF THE COURT, SENTENCING TRIAL AND SENTENCE
VOLUME 2 OF 11 VOLUMES
WEDNESDAY, JANUARY 26, 2000
SUSAN S. HOREN Official Court Reporter of the Dublin Judicial CircuitDublin, Georgia 31021
[567] DR. ROBERT STORMS
Witness called by the Defense having been sworn
testified on
DIRECT EXAMINATION BY MR. RICHARD TAYLOR:
Q Need some water before we begin, Dr. Storms?
A Yeah, I would, please. Thanks.
Q Would you state your full name for me, please, sir?
A Robert – Robert J. Storms, S-T-O-R-M-S.
Q And what is your profession, please, sir?
A I’m a licensed clinical psychologist. I’m an attorney, and I’m a forensic psychologist.
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Q And what is a forensic psychologist?
A Well, basically it’s psychology applied to the law.
Q In your current capacity as a forensic psy-chologist, how are you employed, sir?
A Well, at the current time, I’m employed by Georgia Regional Hospital as director of their Foren-sic Evaluation Department.
Q Where is Georgia Regional Hospital located?
A In Atlanta.
Q And how long have you been at Georgia Regional Hospital?
A Well, it – it’s complicated because it [568] involves a merger of two hospitals, but I – basically from July of 1998 through the present.
Q And are you familiar with GMHI?
A Yes.
Q What is meant by GMHI?
A GMHI was Georgia Mental Health Institute. It was the second – it was the other state hospital in Atlanta. It was closed down in, I think June of ‘98.
Q And from GMHI in June of ‘98 you went over to Georgia Regional Hospital?
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A Well, yeah. I mean there were a lot of proce-dural and administrator problems involved with that, but eventually it turned into a lateral transfer.
Q Are you familiar with Central State Hospital?
A Yes, I am.
Q Have you ever been employed at Central State Hospital?
A Yes. I was the chief psychologist at the foren-sic services division at Central State better known as the Binion Building from I guess 1988 through 1983.
Q Nineteen eighty-eight through –
A 1993. I’m sorry.
Q – 1993. Do you remember Dr. Donald Harris?
A Sure.
Q Did you happen to see Dr. Harris in the hall-way [569] here today?
A Sure.
Q Do you know Dr. Gary Carter?
A Yeah. Sure do.
Q And how do you know Dr. Donald Harris?
A Well, frankly, Don Harris was involved in the hiring committee when I was originally hired at Cen-tral State. He and I were neighbors in Milledgville for two or three years and served on the same committees
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at Central State. He was in the adults services unit and the adolescent unit at that time. So we really didn’t professionally cross paths that much, but we lived across the street from each other and we’d see each other occasionally.
Q And how do you know Dr. Gary Carter?
A He was employed as a psychiatrist at Georgia Mental Health – I mean GMHI. I’m not sure the dates of his service, but he left to go to Central State in – sometime in the spring of 1998.
Q Dr. Storms, would you give this jury some idea of your educational background within the field of psychology and your training within the field of psychology?
A Sure. I have a Ph D. in psychology from the University of Wisconsin at Madison, an MA in psy-chology from West Georgia College in Carollton, a BA in psychology from [570] the University of Northern Colorado at Greely.
I have approximately 250 hours of advanced training in criminal and civil forensic psychology. I’m on the training program with the Emory Forensic Psychiatry Institute or certification program who train, who board certifies Emory psychiatrists for fo-rensic psychologists. That’s about it at the moment.
Q In your capacity as a – you’re the chief foren-sic psychologist at Georgia Regional Hospital. Is that correct?
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A Well, the director – yeah, I’m director of fo-rensic evaluation services. I direct the outpatient pro-gram.
Q As the director of the evaluation services, are you or your division ever contacted by courts to con-duct forensic evaluations of individuals awaiting trial?
A Yes. I mean the basic – the basic job of foren-sic services, forensic evaluation services is to respond to court orders to determine whether or not somebody is either A) competent to stand trial or what their mental status is at the time of the incident leading to their arrest. Now, we work – There are basically 2.5 of us for a twenty-three county area which takes in the entire Metro Atlanta area, plus the northeast Georgia mountains, and, you know, we’re routinely called to court either by their – [571] either by the defense or the prosecution depending on the outcome of our evaluation.
Q Do you recall when I first contacted you?
A I sure did.
Q Doctor, are you – in addition to your employ-ment with Georgia Regional currently, do you also do consulting work?
A Yes, I do.
Q And that is private contracting – contracted work with –
A Yes. Yes.
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Q – individuals who desire to hire your ser-vices?
A Yes.
Q Do you recall when – do you recall when I first contacted you, sir?
A Yes, I think it was April of 1998, I think.
Q And I asked you to meet Mr. Brannan?
A Yes, you did.
Q Give me an assessment of his mental condi-tion. Is that correct?
A Yes.
Q And what did you do?
A I met with Mr. Brannan and conducted a psychological evaluation and gave an assessment of his [572] mental condition.
Q Where did you meet with Hr. Brannan?
A At the Baldwin County Jail.
Q And how many times did you meet with him at the Baldwin County Jail?
A Three separate times.
Q Did you – in your profession, do you use the terminology data sources?
A Yes.
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Q Did you examine or consider any other data sources other than the three evaluations of Mr. Brannan in connection –
A Yes.
Q – with what you’ve done?
A Yes, I administered a psychological test called the HMPI. I reviewed approximately between, I guess, twelve or fifteen years of medical history com-prised of maybe four or five hundred documented pages of past psychiatric disorders, specifically post traumatic stress disorder. I watched the video tape of the event, and those were – those were applied with how I made my opinion.
Q Have you read an interview between Dr. Gary Carter and Mr. Brannan?
A Yes. I sure have.
Q Have you read an interview between Mr. Brannan [573] and G.B.I. agents?
A Yes.
Q And those are the data sources that you’ve considered in connection?
A Well, I – yeah. I mean those were subsequent to my report but they were certainly nothing in them to change my mind.
Q Okay. In your interviews with Mr. Brannan, did you take a history from him?
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A Yes, I did.
Q And when a psychologist such as yourself uses the term history, what precisely do you mean?
A Well, it’s – like if any – If you go into say an internist and you’re complaining of chest pains or you go into a cardiologist and you were complaining of chest pains, they often take a history. They often want to know if you have like a history of heart di-sease in your family or, you know, breast cancer in your family or something because they in part base a diagnosis – the diagnosis of your current symptoms on your family history, and it’s the same thing in my field. I want to know if somebody’s had any past psychiatric treatment, if they’ve had any past – you know, if they’ve had any past history of mental illness or any past psychiatric hospitalizations because that’s part of the way I would diagnose somebody.
[574] Q Does history also include background information?
A Sure.
Q And what sort of background information is useful to a psychologist –
A Where somebody –
Q – such as yourself ?
A Where somebody grew up, what they did, you know, where they went to college, what they’ve done for a living, what – you know, what they’ve been doing for the last – you know, what they’re kind of
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hobbies are, you know, just basic general background stuff that helps us round out a picture of somebody.
Q Can you tell this jury the history you took from Mr. Brannan?
A Yes, I can.
Q Please do so.
A Can I just refer to this? I’m gonna –
Q Certainly.
A Basically he was – when I saw him, he was forty-nine years old. He had – was born in Montgomery, Alabama, and I think his father was in the military, so he had moved around quite a bit. He’d lived in places like Japan and San Antonio and Virginia. He had lived in Stockbridge, Georgia, then like, oh, I guess Hawaii for a [575] number of years, for twelve years or so.
He went to Gordon Military College in Barnes-ville in 1967 or ‘68. Then he went to West Georgia College in Carrollton, and then he went in the Army in August of 1968. He then basically – He was initially stationed at Fort Banning I guess in late 1968, and then he placed high enough on test scores that they put him in officer training school – officer candidate school, specifically the artillery, and he was stationed at Fort Sills, Oklahoma.
Then he went to the 52nd Airborne Division at Fort Bragg, and was in Fort Bragg for approximately a year, and then was sent to Vietnam with the 23rd
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Infantry Division which was an artillery division. I guess he went into Chu Li which was his point of entry. He was the commanding officer of D battery.
He told me basically that his job was reconnais-sance, and as reconnaissance in what was known as the demilitarized zone. Basically what he had to do was go out on basically scouting missions for six months at a time. He – his job there was to set booby traps and ambushes for the Viet Cong. He got out. He got out of the Army in 1971.
He went to Clayton. He then went to Clayton Junior College, but at some point he had some type of nervous breakdown. Shortly thereafter he would do things like sit in a corner for hours at a time not moving.
[576] Then, you know, he kind of had a nomadic life for the next several years, he worked on construc-tion. He was in the summer camp military reserves. He did not – he was in the – basically he left the Army. He wasn’t very clear about this, but he said it was for psychological reasons which I’ve never been really clear about.
He was married from 1975 to 1981. His marriage broke up as a result of a lot of basically post trau-matic stress disorder symptoms. He worked in Cov-ington, Georgia. He worked for this plant for a while, but he could not – basically he could not work on an established routine.
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He then basically just kind of turned into a re-cluse, and for the next – oh, man – well seven or eight years he did nothing basically but hike, and then he hiked up the Appalachian Trail, in the Pacific North-west and the Pacific Northwest and the Appalachian Trail and hiking trails in California.
He was given, he was given a one hundred per-cent service connected disability due to PTSD in 1989 or ‘90. Some time – is it on?
Q Well, continue, sir.
A Okay. Some time prior to this, and this was important in my evaluation, he bought some land in rural Laurens County in which he could have a re-treat because he was never – you know, he obviously was somebody that was [577] not very comfortable with either a routine or living around anybody else, and he at this retreat was building a jumping plat-form so he could jump out of it like they did in para-trooper training which basically told me that he had not really – his head had never really gotten out of the service.
He stated that that was you know, basically the only place – that was one of the places he felt peace-ful, and that he was always sort of anxious on the drive out there. He – basically he’s undergone treat-ment for post traumatic stress disorder at Augusta and Decatur in inpatient units since 1989.
He has a lifelong history of depression which I think predated – which I think is before Vietnam,
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though I’m not sure about that. When I first started to see him – evaluate him, he was on several antide-pressants medications. He was taking a drug called Effexor which is an antidepressant and another drug called Depakote which is a mood stabilizer, and ba-sically he was arrested on January 12th, 1998, and he state that was his first criminal arrest.
Q Doctor, you indicated that you reviewed sev-eral hundred pages of past psychiatric records –
A That’s right.
Q – relating to Mr. Brannan, and these are from both the Veterans Administration Hospitals in August and [578] Decatur? Is that correct?
A That’s correct.
Q What did you find upon review of those hun-dreds of pages of psychiatric records?
A Well, Hr. Brannan has a well documented history of combat related post traumatic stress disor-der. He is – he had – I mean basically his would have – is one sort of delayed onset because he wasn’t initially able to talk about it when he first got out of the service, but gradually over the years he began to open up to various counselors and various psychia-trists.
He has, you know, associated symptoms of de-pression, some of manic depression, another psychi-atric diagnosis that we call hypomania which is close to or which is just below mania. He had a history of
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flashbacks. He had a history of recurrent intense anxiety, a history of intrusive dreams about Vietnam, a history chronic guilt over various incidents that oc-curred in Vietnam, and basically just a general para-noia of feeling in danger a lot when there was no objective reason to feel in danger.
Q Did you discover in connection with your in-terviews with Mr. Brannan and your evaluation of the medical records that he had been hospitalized –
A Yes.
Q – for any of these disorders?
[579] A Yes, he had been hospitalized at the VA Hospital in Augusta in their inpatient unit – well first was he had the one in Decatur from 6/9/89 to 6/28/89. Let’s see. And then he went into – he was in the Augusta VA Center. He went in in the PTSD unit of Augusta in 1991. I wasn’t sure how long he was there, but he was there quite a while. He was there through their whole program, and he was involved with that program both on an inpatient/outpatient basis for years, and then after he was discharged from Augusta, he went back to Decatur and was followed by a psy-chiatrist oh, from I guess 1994 on, and then he for – placed him on medication, and he was involved in various forms of veteran counseling.
Q Doctor, did you see references to flashbacks in the medical records?
A Correct.
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Q And what is meant by flashbacks?
A Well, a flashback is basically where somebody for a very brief periods of time or maybe very long periods of time, and it depends on the circumstances and the individual, but they re-live an event or they what we call dissociate from reality, and basically are kind of re-living events from their past without being aware of where they are in the present.
Q Doctor, are you familiar with post traumatic [580] stress disorder?
A Sure.
Q And what, for the jury, is post traumatic stress disorder?
A Well, basically – I’ll tell you. Basically post traumatic stress disorder is basically an intense – is an anxiety disorder. It’s recognized as an anxiety dis-order, and it comes – you know, it can happen in a variety of ways. It usually occurs and has to be ex-posed to a life threatening event or they have to see somebody, you know, get killed in front of them, or one of the examples, you know, that I commonly use is two or three years ago in Dunwoody we had – there were massive tornadoes that happened – that oc-curred in the middle of the night and basically devas-tated Dunwoody. And at that point after some people’s houses got – got rebuilt, they were still afraid to sleep with the lights – with the lights off. They were afraid – Some people were afraid to watch TV because they were afraid they’d hear a weather forecast. Some
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couldn’t turn the TV off. I mean – some people would – insisted on sleeping in the basement. I mean those were common – those were fairly common examples of chronic anxiety.
Well, Mr. Brannan has what’s known as com- bat related post traumatic stress disorder from his days as a – of being in combat in Vietnam and it has been well documented [581] throughout – you know, throughout the last ten or eleven, fifteen years by a variety of – you know, variety of inpatient units. He has been able to talk about his experiences in Vietnam with certain select people. He did not go into detail with me – with me, but he did in some of the psychiatrists that he had developed a relationship.
He had seen – he takes responsibility for one of his commanding officers for being killed because he feels he made a wrong decision and went the wrong way once in Vietnam. And he has been guilty about that every since. I’m suspecting that there are a lot of things that he basically did not what to delve into with me, but that it was through his psychiatric history he had gone into them.
Q Did you make an independent assessment or diagnosis that Mr. Brannan was suffering from post traumatic stress disorder?
A Yes. I mean I could have – from just what he told me, I could very easily, you know, have made that diagnosis, but I did have, you know, a complete med-ical history that helped me do that, and confirmed
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that he certainly wasn’t trying to malinger, and that he wasn’t trying to, you know, put one over on me.
Q Well, you mentioned flashbacks.
A Yes.
Q And you mentioned dissociative states. What [582] precisely do you mean by a dissociative state, Doctor?
A Well, a dissociative state is basically – It’s an – It’s based in anxiety also. It’s when we kind of tune out reality, and like a common example is some people have an intense fear of dentists, and one of the things that happens when you go to a dentist, they try to, you know, imagine that they’re somewhere else or try not to deal with being – you know, try to think about something else and try to put themselves in another surrounding mentally.
This happened and you know, when people dis-sociate, basically that’s what happens. They kind of go off and they’re not really in contact with their everyday reality.
Q Are you familiar with the term psychosis?
A Oh, yes.
Q And what does psychosis mean?
A Well, psychosis is basically the extreme of extreme of mental illness, and people are absolutely not in contact with reality and the first thing that we check on when we do a mental status examination to
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determine whether they’re oriented to time, place, person, and situation, and if they’re disoriented to any of those, we generally think that they’re having a psychotic episode.
Q Doctor, can psychotic episodes be transient, that is temporary –
A Yes.
[583] Q – and permanent?
A They can be – yeah, psychotic episodes are by definition transient, and what happens with some – somebody can’t be in an acute psychotic episode for-ever because they would be completely burnt out, and I guess that, you know, any of the state hospitals in this country have their back wards, and you can see the result of those people that have, you know, had these tremendous states of psychosis and have not been able to come out of them, and now they’re basi-cally – basically not really – Well, they’re basically a mess is what they are and can’t really talk. They’re not really oriented. They don’t know where they are, and they’re in a psychotic state.
Now, with – more commonly people have what we call transient psychotic experiences which means of these – they have psychosis that come and go, and they don’t necessarily have a definite ending or a def-inite beginning, but at times they can be out of con-tact with reality, and sometimes we’re talking about, you know, nanoseconds. Sometimes we’re talking about minutes. Sometimes we’re talking about hours,
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you know, or days. So the length of time varies with each case.
Q And when you use the term psychotic state, are you using it synonymously with dissociative ep-isodes?
A No, not – I mean not necessarily because [584] sometimes dissociation is a very healthy re-sponse to things. You know, people that for instance have just lost their loved one or maybe somebody who’s just been in like a bad car wreck often dissoci-ate, and that’s because they’d go into shock and they don’t want to – they can’t – they’re not able to think about the entire event all at one time, and usually it’d have to come back to them in chunks and bits and pieces, and we see this in a lot of car accident victims.
Q Doctor, did you conduct a mental status evaluation of Hr. Brannan?
A Yes.
Q And what is meant by mental status evalua-tion?
A Well, that’s where I determine his current state – basically his current state of mind and whether he’s in a psychotic state at that time.
Q What did you find?
A Well, he – at the time that he was talking to me, he was consistently oriented to all the four things that I mentioned, time, place, person, and situation. He knew where he was. He knew who he was. He
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knew what time of day it was. He knew the situation that he was in. When he – There was nothing partic-ularly unusual about it. His thoughts were fairly coherent and logical. He’s a pretty articulate guy, and basically he’s understandable.
[585] I think he’s probably above – you know, average or above average intelligence. The unusual thing about it was that while he was telling me about this – about the shooting, that he would describe it in military terms, and he did this during our third interview. It took him maybe two to three times for me to basically get him to talk about it, and he – you know, he used terms like I was engaged with a target. I had to suppress enemy fire. I had to follow standard infantry doctrine. I had to put out a volume of fire.
You know, I have evaluated a lot of people who killed’ people, I’ve never had anybody describe – describe it in these terms, and I think I told you at the outset that I was very, very skeptical about post traumatic stress disorder and about mental health defenses in general because, you know, I’ve run into a lot of bogus cases that really don’t have the mental health defense but that that here was very compel-ling, and his mental – it was extremely compelling, and his mental state, but you know, it kind of con-firmed that while taking his mental status exam when he would describe it in these terms.
Q Doctor, did you view the video tape?
A Yes, I did.
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Q And what conclusions did you arrive at upon review of the video tape?
[586] A Well, I mean when I first saw that – I mean I don’t know any conclusions – real conclusions I initially reached except it was bizarre, and I don’t know any other way to characterize it except bizarre, and I’ve seen a lot of video tape like convenience store shootings where you know it’s very perfunctory and it’s very – you know, people come in and pop, pop, and they leave, and you know it’s – you hardly know what you’re seeing. This was, to say the least, this was strange – well, bizarre. It was beyond strange. It was bizarre, and his actions would be considered clinically bizarre.
And one of the things that I thought – you know, one of the – and really he was not able to tell me what was going on in his head at that time because he was having a hard time remembering it. I think he had seen the tape maybe once, twice. I’m not sure how many times he’d seen it. He could – he was surprised – he was surprised, and, well, he said he was sur-prised. And he basically had repressed a lot of stuff. This subsequent material that I reviewed basically confirmed my opinion that he was having flashback, and my opinion was based on his history and his language in describing that.
Q Dr. Storms, an individual who experiences a dissociative state, what is the condition of his mem-ory after the dissociative state as to the actual events and the [587] actual facts?
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A Well, the clinical term we have for that is called fragmented. They can base it – people a lot of times can remember, when they come out of that kind of state they can usually remember things in bits and pieces and chunks, and usually not right away. It usually – I mean their memory may come back. It may not. It’s – and it really depends on, you know, basically situations and circumstances, but for the first, you know, after a very major traumatic event, maybe for the first twenty-four to forty-eight hours their memory is certainly going to be fragmented.
Q When you read the G.B.I. report – or excuse me – the G.B.I. interview with Hr. Brannan, did you detect any indicators in that statements as to the state of Mr. Brannan’s memory on the morning after the incident?
A Well, it was fragmented. I mean he just – there were spots that he couldn’t remember. I – you know, I mean I’ve read a lot of G.B.I. reports. There’s nothing outstanding about it. You know, I mean it was standard – looked like standard interrogation techniques. And he was as I’d expected, you know, have a fragmented memory. He would have gaps in his memory or some things he couldn’t describe, and some things he could describe. I don’t have it in front of me, so I’m not, you know – can’t be – I’m [588] not totally accurate without a copy, but, yeah, I mean basically there was nothing in it that particularly surprised me.
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Q Is a recognition that he was involved in this incident with a police officer inconsistent with your conclusion that he was in a dissociative state at the time?
A No.
Q Why is that, Doctor?
A Well, I mean when we’re talking about disso-ciation, we’re not talking about something that in this case lasted all that long. I think that, you know, he began – I mean I – there was one – one of the things I want to get clear at the outset, there is no – I cannot possibly pinpoint a definite starting time or ending time for a flashback episode. And this goes for Mr. Brannan’s flashback episodes or any other episodes, you know, any other person that has a flashback. You just can’t do it. We’re not looking at organs on a – you know, we’re not looking at a liver or a heart or some-thing, and an x-ray. We’re basically dealing with a human – with human minds, and like a lot, but it’s – frankly it’s a lot less precise than, you know, dealing with a bodily organ.
So I can’t make a, you know, clear line, well, it started here and ended there. From everything I read, you know, it’s basically my opinion that when he was in the – [589] when he was reaching in the car for – when he was reaching in the car – this is from everything that I reviewed – for his gun that he was having a flashback, and that when he got out and he kind of came out of it, that he sometimes when he was driving down the road and realized how much
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trouble he was into, but I think he was in a complete state of fear, you know, panic at that point. So some-thing – I mean it’s there – short answer is no they’re not inconsistent.
Q Doctor, when psychologists such as yourself conduct these evaluations that you’re describing, do you look for signs of malingering?
A Yeah. I mean basically that’s a full time job is to determine malingering and inception, and as I re-call telling you at the outset when I agreed to consult on this job that I told you that I was very, very skepti-cal about post traumatic stress disorder because the signs are easily feigned. They’re easily malingered. I’ve run into them a lot of times mainly in civil cases where people are kind of trying to scam insurance companies, but you know, in criminal cases too, the thing that – the reason that I have determined this, that I decided that he was not malingering is, one, he – malingerers usually try to convince you too hard that they’re sick. They have exaggerated symptoms, and they try very hard to, we call it flowered. Some of the kids call it flowered but they try to put on a very vivid [590] and flowered description of whatever’s go-ing on. Usually they’ve basically have overplayed the part.
Mr. Brannan had none of those behaviors. In fact I had to pretty much pull things out of him. His emotional tone and his affect was basically very kind of flat and subdued most of the time that I was talk-ing – that I was interviewing him, and he was also
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reluctant to talk about a lot of, you know, just about the shooting in general. He was reluctant to talk about his state of mind, and I think he was fairly honest with me when he told me I just wasn’t sure. So that was one definite sign to me that he wasn’t ma-lingering. He wasn’t try to convince me.
The second sign is that he has such a long history of psychiatric treatment for post traumatic stress disorders from very reputable programs, from people who have, you know, who have seen it all and seen it all twice and aren’t easily fooled either, and these are not, you know, TV doctors that, you know, that every-body can laugh at. These are, you know, basically seasoned professionals that take their job seriously. The Augusta VA program has an excellent reputation. The Decatur VA program has a great reputation.
So I have, you know, with fifteen – Well, yeah, fifteen years or so background in psychiatric data that just certainly confirmed he wasn’t malingering anything.
[591] Q Doctor, you administered an MMPI test?
A Yes, I did.
Q. And that is a test looking for certain person-ality types – personality types. Is that correct?
A Yeah, it’s a personality test.
Q Personality test? Does that teat help one identify sociopathic personalities –
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A Yes.
Q. – and psychopathic personalities?
A Yes.
Q What is meant by a sociopathic personality and psychopathic personality?
A Well, the – I mean I guess the short and best answer is that a sociopath or a psychopath is some-body who is – who has no conscience, who doesn’t care about anything about either their life or somebody else’s life, who does not feel guilt, and so isn’t inhib-ited from doing basic antisocial acts. And frankly there had been a number of large studies in federal prisons and in some state prisons, and most of the ninety percent of prison inmates have an antisocial personality disorder because they keep getting in trouble all the time, but basically this would show up on the test, on this particular test, and, you know, it would show up – basically these are people who have no feelings for other people whatsoever.
[592] Q Did you see any indication when you examined the results of the HMPI test that Mr. Brannan was either a sociopathic or a psychopathic personality type?
A No, you’d have – well, the HMPI is divided into scales, and they have numbers, and each scale means certain things, but you would have to have what’s called a spike at scale four and his scale four was in the normal range. He had two other spikes. His depression spike and his paranoia spike were
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pretty high which I expected, but when you I really tested him to see how he was – how he was doing at the present time because there isn’t a test that will really tell me how he had been three or four months before, but there is like the Four scale and the Six scale are generally long lasting, and even after treat-ment, it takes a long time for those spikes to go down, and so he’s basically paranoid, but he’s not psycho-path.
Q Dr. Storms, do you have an opinion, within a reasonable degree – Dr. Storms, do you have an opinion, sir, within a reasonable degree of scientific certainty, and when I say scientific certainty, I’m referring to the profession of psychology.
A Right. Obviously.
Q As to whether Mr. Brannan at the time of these events on January 12, 1998 had the mental ca-pacity to distinguish between right and wrong in relation to the act?
[593] A No, I don’t think he did.
Q You answer is, yes, you have an opinion?
A Yes, I have an opinion.
Q And what is your opinion, sir?
A My opinion is he did not have that mental capacity to distinguish right from wrong at that time.
Q Excuse me one moment, Doctor.
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BY MR. RICHARD TAYLOR: Mark these, Madam Court Reporter please?
Q Dr. Storms, I’m handing you two packages of material, and let me just state in my place that these are the medical records of the VA hospital in – Let’s see. This is – this is Augusta and the VA hospital in Decatur, and is it your testimony, sir, these are certi-fied copies from the two hospitals.
Is it your testimony, sir, that in connection with your evaluation in this matter that you consulted and examined the medical records from the hospitals in Decatur and Augusta?
A Yes, I did.
Q And you have copies of those same two docu-ments in your file and accessible to you. Is that correct?
A Yes, I did.
Q And there’s some tabs on them, but that’s for my purpose and everybody understands that.
[594] BY MR. RICHARD TAYLOR: Your Honor, I have no further questions of this witness at this time.
BY ASST. D. A. PETER FRED LARSEN: Judge, may we approach the bench a moment?
(SIDEBAR CONFERENCE OUT OF THE HEARING OF THE JURY AS FOLLOWS:)
App. 29
BY THE COURT: Come over this way.
BY ASST. D. A. PETER FRED LARSEN: Judge, we’re going to ask the Court to recess for the day at this time. Let me tell you why. Number one, we’ve covered a good bit of ground. Number two, it’s almost five o’clock.
Our examination is going to be lengthy, cross is going to – because the examination’s lengthy. Maybe I could shorten my cross if I have time to organize my notes and not ramble around as long as Mr. Taylor understands that approximately two and a half inches not – we’ve stipulated to, but of course we haven’t had a chance to look at them.
BY MR. RICHARD TAYLOR: Well, I just – I want to be precise, Fred.
[595] When you deal with this – you have those records. I’ve given you copies of those in the past so you do have those. I understand, but the ones you just handed here I don’t exactly – I may have gotten them some time in the past, but I haven’t looked at these that you have just handed to me.
BY MR. RICHARD TAYLOR: Well, you had ‘em –
BY ASST. D. A. PETER FRED LARSEN: I am saying I have looked at them at some point in time –
BY MR. RICHARD TAYLOR: You haven’t looked at them recently, but you have –
App. 30
BY ASST. D. A. PETER FRED LARSEN: I don’t know what to do but get it on record.
BY MR. RICHARD TAYLOR: Okay.
BY ASST. D. A. PETER FRED LARSEN: If we can do it and let him ride, I’d love to, but my examination – my cross examination’s going to be lengthy and it’s going to be more rambling if I can’t get organized. I’ve got numerous [596] pages, the man’s been up there for how long now?
BY MR. RICHARD TAYLOR: Forty minutes total.
BY ASST. D. A. PETER FRED LARSEN: And might I add, we anticipate – we have more witnesses at the moment that we anticipate calling for the State other than your witness Dr. Carter, and I think that wraps the trial up.
BY THE COURT: Is he still out –
BY ASST. D. A. PETER FRED LARSEN: Richard has one more witness and –
BY MR. RICHARD TAYLOR: It’s not, two tomorrow.
BY THE COURT: Two tomorrow?
BY MR. RICHARD TAYLOR: Yes.
BY ASST. D. A. PETER FRED LARSEN: I wasn’t aware of but one.
App. 31
BY MR. RICHARD TAYLOR: Yes, Dr. Boyer and Dr. Weiss will be here.
BY ASST. D. A. PETER FRED LARSEN: Okay. Yeah, Boyer and Weiss, and we have a coroner that we have to follow.
BY MR. RICHARD TAYLOR: I hate to – [597] it’s so inefficient.
BY THE COURTS: Are we gonna be able to finish the evidence tomorrow?
BY ASST. D. A. PETER FRED LARSEN: Judge, I don’t see why not. I understand Mr. Taylor’s, Dr. Weiss is simply a PTSD expert and will be speak-ing in general terms on PTSD and not specific for Mr. Brannan. Dr. Boyer, the position that you heard from before, he treated him for some time, and it was Dr. Carter who’s the court’s witness, and I don’t see why the evidence wouldn’t finish up.
I don’t think that any of those gentlemen are anything like this fellow that’s right here right now. This is their primary witness as to right and wrong.
BY MR. RICHARD TAYLOR’ Well, Judge, it’s our preference that cross examination begin now. The witness is here from Atlanta. There’s some inconven-ience to him if he has to stay another night. Of course, it’s cost to [598] me, but the State has had his report for probably over a year now. I don’t recall the date of it. The State has had the medical records relating to Hr. Brannan’s various hospitalizations and
App. 32
treatment for – since the outset of the case essential-ly.
BY ASST. D. A. PETER FRED LARSEN: And, Judge, this is, I’m sure the Court what he just handed to me. You’ve had them there in the record too, but I assume you’re no more familiar with them than I. I’ve got to look and see what they are.
BY THE COURT: Okay. Why can’t we maybe go through some cross examination that doesn’t involve this maybe ‘til about 5:30, and then I’ll give you –
BY D. A. RALPH WALKE: Judge, I want to add one more fact to it that I was trying not to put in the record, but I spoke with Mr. Larsen, and both of us have an emergency that is a physiological emer-gency that we need a recess to attend to before we cross [599] examine or do anything.
BY THE COURT, Well, I need to know more of what you’re talking about.
BY D. A. RALPH WALKER: Need to go to the restroom desperately.
BY MR. RICHARD TAYLOR: I, of course, have no objection to that.
BY ASST. D.A. PETER FRED LARESN: Judge, whatever the Court rules is what the Court rules. We’ve expressed our feelings, and Mr. Taylor expressed his.
App. 33
BY THE COURT: All right. Well, I’d like to run to 5:30 at least, but if you need a moment now, why to go to the restroom, you may do so.
(END OF SIDEBAR CONFERENCE)
BY MR. RICHARD TAYLOR: Judge, before it leaves my mind, I do tender Defendant’s Exhibits 11 and 12. Eleven is the records from the Department of Veterans Affairs Medical Center in Augusta Geor-gia, and 12 are the records from the Department of Veterans Affairs, Decatur, Georgia. They’re properly certified by the custodians of the medical records, and so I do make that tender at this point.
And I remind the Court that Dr. Storms [600] indicated that this was data consulted by him in connection with his evaluation.
BY ASST. D. A. PETER FRED LARSEN: Judge, at this point in time the State objects to those. There is an agreement that certain medical records and such and we just need time to look at this. This is approximately two and a half to three inches of documents. May be very well that we have no objec-tion, but I just need time to look before we say so. I don’t want to hold the Court up, hold the jury up and ask for the time to do that. If we can move on and –
BY THE COURT: All right.
BY ASST. D.A. PETER FRED LARSEN: – let me respond again in the morning, let the Ccourt delay it’s ruling until in the morning on these docu-ments until we can peruse them.
App. 34
BY THE COURT: All right. I’ll do that, Mr. Larsen, I’ll –
BY ASST. D. A. PETER FRED LARSEN: Okay.
BY THE COURT: – hold the tender in abeyance and to give you time to look at them.
BY ASST. D. A. PETER FRED LARSEN: Okay. Mr. Taylor, do you have a copy of these that you supplied to us?
[601] BY MR. RICHARD TAYLOR: I do. I have an extra copy and you’re welcome to it.
BY ASST. D. A. PETER FRED LARSEN: Okay, sir. Thank you.
BY MR. RICHARD TAYLOR: Leave the original with the Court Reporter, I suggest.
BY ASST. D. A. PETER FRED LARSEN: She has a copy.
- - - - - - -
CROSS EXAMINATION BY
ASST. D. A. PETER FRED LARSEN:
Q Dr. Storms, how you doing?
A I’m fine, Mr. Larsen. How are you doing?
Q Very well. Dr. Storms, let me tell you, remind you. If I speak too fast, I do have a tendency to do that, you stop me and say you’re talking too fast, and
App. 35
particularly if I cut you off at an answer, I’ve done that to people. I don’t intend to do that. You stop me and say I have not finished.
A Well, I have a tendency to think slow, so it will be interesting.
Q Well, I’ll help you deal with your problem if you help me deal with mine.
A Sure. Sounds like a good exchange.
Q Now, you told us earlier at times you are contacted by the court in their court orders asking you to [602] evaluate people as to their mental ability to distinguish right from wrong or such as this? Mental responsibility basically is what you’re looking for there, isn’t it?
A That’s correct. Yes.
Q And this particular case you were not con-tacted by the court? This is a private arrangement that you’ve examined Mr. Brannan?
A That’s correct, too.
Q All right. This one – this particular examina-tion had nothing to do with your state position?
A No, I – Frankly, to be honest, at the outset, I had no idea what I would find or – you know, and I had a – basically no agenda except that I would give a general psychological evaluation.
Q I understand, I was just asking –
App. 36
A Yeah.
Q – this examination was not in line with your state work, this is something you did on the side privately –
A Yeah.
Q – that you do sometimes?
A Yes, sir.
Q Approximately how many hours did you spend with Mr. Brannan before you took –
A Well, I think it was roughly an hour and a half [[603] to two hours each time. I in fact – maybe the last session was longer. So maybe I would say between eight and nine hours.
Q All right. Now, you related to the jury a substantial history of Mr. Brannan as far as what happened to him in the military, his hiking experi-ences and such as this, his life prior to that, being raised in a military family. I think he used the words military brat, going to a military school and such as this. Is it not a fact all this information comes to you directly from Mr. Brannan? You don’t have any other knowledge of that other than what he told you in regards to those phases of his history?
A That – That’s correct.
Q As distinguished from the medical history that you relied upon that was produced by other psychologists and/or psychiatrists and such?
App. 37
A Well, the medical history confirmed basic aspects of what he said such as his hiking.
Q And when you say confirmed –
A His –
Q – a fair statement would say that he had told somebody else the same thing that he then told you? That’s the confirmation?
A Yeah, that’s it.
Q There was no indication anybody went out and [604] actually investigated to see if he had in fact done all these various things that he told them and you that he might have done?
A Not to my knowledge.
Q So is it fair to say in reaching your conclu-sions and through your evaluation that you relied upon the statements made to you by Mr. Brannan as to his prior life and activities?
A Insofar as his social life and his hiking go, yes.
Q That’s what I mean. Again, I’m trying to distinguish that from any medical records that you might have had?
A Yes.
Q You relied upon those medical records in that case?
App. 38
A Yes.
Q So is it fair to say you relied upon three things in reaching your evaluation, the medical records that were available to you, what Mr. Brannan told you about his personal history, and the third thing, the time that you spent with him that – seven, eight hours or whatever you said, in performing – him performing the test and you discussing things with him and evaluating him?
A Yeah, those are the three basic things.
[605] Q That’s the three factors.
A Let me go – Well, clinical interview –
Q Clinical interview –
A – psychological testing, and taking of a social history as well – four things – and his medical rec-ords.
Q Okay. His medical records –
BY THE COURT: And let me ask you both to wait till the other one completes their sentence or question or statement before you start talking.
BY ASST. D. A. PETER FRED LARSEN: Okay.
Q Here again, Doctor, I don’t mean to interrupt you. I talk too fast. I’m sorry. Maybe after court you can diagnose me. You said medical records, the personal
App. 39
history given by Mr. Brannan, your clinical – how did you word that?
A It’s a clinical interview.
Q Clinical interview and then the test. Was that the fourth thing?
A The psychological testing, and then I thought of one other thing.
Q All right.
A The video tape.
Q Okay, and you mean the video tape of the incident?
[606] A Yes, sir.
Q Okay. Now, you told us earlier that one of the factors that you used in drawing your conclusion that Mr. Brannan was not in touch with reality and was having a flashback or – is it fair to say that flashback is a type of a delusion that you’re out of touch with reality and think something’s going on that’s not really going on, or such?
A Well, they’re really different things. A flash-back is more re-living of something or, you know, kind of – yeah, basically a re-living of something at least re-living various sensations. A delusion is a false belief such as, you know, some people believe they’re being pursued for instance by the Mafia or some people believe that they’re Jesus or some people believe that they’re God, and some people believe, you
App. 40
know, they’re members of a secret, you know, political cult and they’re hassled by the CIA all the time, and you know, those are typical delusions. A flashback is basically when you’re kind of re-living an experience.
Q Okay, sir, then let me ask you this so I can understand better. If I were having a flashback now, I would actually know I was in the courtroom and know what was going on around me. I’d be oriented to those four things you’re talking about, but I’d be re-living something else. [607] Is that right?
A Well, you wouldn’t necessarily be oriented. If you were re-living it, you wouldn’t be oriented to your place or your situation or, you know, you may be oriented to your person, but place and situation and maybe time wouldn’t be oriented.
Q So then if I was having a flashback and it being a flashback of combat, I would actually think I was in combat in here during that flashback? I would not be oriented as to time and place and situation and person or maybe person but not time, place, and situation? I would know who I was, but I would not understand the time, place and situation in here? I would think I was in combat. Is that right? If I was having flashbacks from combat?
A Yes. Generally people who have had – that’s true. People who have had flashbacks to combat situations are not oriented to one of those four things –
Q And –
App. 41
A – at least.
Q – if I thought – Excuse me, sir. Did I step on what you were saying?
A I just said at least one of those four.
Q All right. If I were having a flashback and was not oriented as to time and place and situation here, would I not be during that time in a delusion?
[608] A Well, I mean we can hassle – This is all a matter of semantics, and it’s like – but a delusion is clinically – is considered something clinically differ-ent than a flashback.
Q Okay, sir. You were a lawyer, are you not?
A Yeah.
Q You’ve been to law school. You have a doctor-ate degree, and jurisprudence?
A And what?
Q Jurisprudence?
A Yes.
Q All right. So I’m gonna ask you about legal terms. You gave an opinion a while ago that Mr. Brannan didn’t know right and wrong, and you understand that’s the legal term, one of the legal terms of insanity in Georgia, the inability to distin-guish between right and wrong at the time of the act that’s in questions.
App. 42
A Yes. Yes, I understand.
Q All right, now, I’m speaking, and I’m using the word delusion here, not semantics or bantering back and forth. I’m not trying to do that. I’m referring to the delusion in the Georgia Criminal Code. Would a flashback there be a delusion so that I would not know where I was in time or place?
A Well, now, that’s an interesting question. The [609] thing is – the thing is – that when you’re talk-ing about a delusional compulsion legally, they have that language also follows clinical psychology and psychiatry in that delusion is a false belief – is a false chronic belief about reality.
Q Uh-huh.
A And so we’re splitting hairs. Common sensikly you could say, you know, you could say, well, they sort of seem to be the same thing, but clinically when we – when I’m talking about clinically, I’m talking about looking at it from the aspect of my profession, not as an attorney but as a psychologist. A flashback is the re-living of the experience and being out of contact with your current reality.
A delusion is something different. It’s when I guess one of the more famous cases is the Perimeter Mall Case when the man was let out of the hospital and walked into Perimeter Mall in Atlanta and shot – who basically shot the place up at high noon and had the delusion that his mind was being controlled by a machine in California that operated twenty-four
App. 43
hours a day, seven days a week. That was a delusion. He was in basic contact with his ordinary reality, but he had a false belief about reality.
Q Okay, sir. I am looking at page eight of your report. Do you have a copy of it, Doctor?
[610] A Yes I do.
Q Okay. Let me refer you to page eight, that last paragraph. And I’m gonna read that. Mr. Bran-nan was hesitant to state that he was experiencing flashback, and of course we’re referring here to the incident that he’s on trial for, are we not?
A Yes, we are.
Q And you go on to say a flashback is a phe-nomenon in which one re-lives a prior traumatic situation in vivid detail. Now, do you have an opinion as to whether or not at the time of the incident we’re talking about here, the shooting of Kyle Dinkheller, that Mr. Brannan was having a delusion or a flash-back?
A My opinion is he was having flashbacks.
Q All right. But now he didn’t tell you that, did he?
A No, as I stated somewhere earlier in my report in the reasoning section I had to infer a lot of this.
Q All right. I’m following your paragraph along a little bit more. However, an analysis of the video
App. 44
tape shows bizarre dissociated behavior. Several comparisons are useful here in that this is your analysis of the video tape and why you say that Mr. Brannan was not oriented as to time, place, and situation and such. Is that correct?
A Yeah. I basically –
[611] Q All right, Number one, you said he is – this is not the type of shooting one sees at a conven-ience store robbery.
A Generally my experience it’s not.
Q Okay, and neither is it the type of shooting one sees in a hostage situation.
A In my experience that’s true, too.
Q You’ve got, Mr. Brannan was unable to state what the jumping jacks signified.
A That’s true.
Q Let me ask you this: Do they have to signify anything or could it just been jumping? Must they signify something?
A Well, people just don’t jump for no reason. I mean they just don’t get stopped by a state – by a sheriff ’s deputy and – for speeding and get out of the car and just start doing jumping jacks. I mean that – there has to be some reason there. He just couldn’t state it.
App. 45
Q But all conduct doesn’t have to signify some-thing, does it?
A No.
Q It may not be understandable to you by simply watching it, but it doesn’t have to signify something? Is that correct?
A No, and I’m not trying to overanalyze any-thing, [612] but I am saying that in conjunction with all the other information that I had this seemed to be a fair – this seemed to be a logical conclusion.
Q Okay, and let me be sure I understand. The things I’m reading to you now, that is the reasons that you based your conclusion on that he did not know right from wrong. This is the video tape rea-sons. Is that correct? This is the reasons stated in your report for your conclusion –
A Yes.
Q – that he didn’t know right from wrong? Okay, and –
A I guess. I’m getting a little confused myself. So –
Q Okay.
A Let me just state this The way that we – at least the way that I do evaluations and the way that I was taught is that we have to get as much infor-mation as possible and we have to see what – and we call all the information we get data. Where we get the
App. 46
information from, we call data sources, and we try to see – we try to look at consistencies or inconsistencies across all those different types of information about all those different types of data sources.
All the information at my disposal was consistent in [613] pointing to the fact that this man probably had a flashback. He had a prior history of flashbacks, and because of what I considered to be bizarre behav-ior. I mean that – I have no other way to explain it.
Q I’m sorry, Doctor. Are you answering a ques-tions that I asked you?
A What did you ask me?
Q I don’t know.
A Okay, well –
Q I know what I asked you, but don’t know what your answering. Well, let me ask you this: I’m going along through these reasons that you have given in your report as – that you – the reasons that you base your opinion or formed your opinion that Mr. Brannan did not know right from wrong at the time of incident. I’m going to follow along with those reasons if I can.
You stated further in page eight and bottom paragraph, Mr. Brannan appeared to act as if he were in a combat situation. Is that another reason that you took into consideration after watching the tape to base your opinion or draw your conclusion that he did not know right from wrong at the time?
App. 47
A That’s correct.
Q All right. And I’m turning to page nine of your report, and I’m going to come down to the bot-tom of [614] paragraph three, the last sentence. It says there is also some indication of manic – hypo-manic state as evidenced by driving more than one hundred miles and hour and by his bizarre behavior during the shooting. We’re not going to talk about the bizarre behavior during the shooting right now, but at the time you formed your opinion, you gave as anoth-er reason for your opinion that he didn’t know right from wrong because driving a hundred miles an hour was evidence of manic or hypomanic state. Is that correct?
A Yes. What I meant – Basically what I meant is that in and of itself, speeding or driving in excess of a hundred miles an hour is not an indicator of mental illness, however, with somebody like Mr. Brannan who has a history of bipolar evidence or manic depression or hypomanic behavior, it is an indicator of mental illness because that’s what people in manic or hypomanic states do when they have a history of it.
Q If I’ve told you he had no such history of driving around a hundred miles an hour, –
A Um –
Q – would that change your opinion?
A No.
App. 48
Q It would not?
A No.
Q If I told you that Mr. Brannan explained why he [615] was driving fast, he was checking out his engine because engine work had just been done under warranty, and he had so long to see whether the engine was going to work or not for them to repair it again under warranty, would that change your opin-ion if he had a reason for driving as fast?
A Not – No, not necessarily.
Q You would still say that because he was driving a hundred miles an hour, it’s indicative manic or hypomanic state? Would that be one of your opin-ion – one of the reasons or one of the facts upon which you base your opinion that he did not know right from wrong. Is that correct?
A That’s correct, because there are a variety of ways to check out your engine rather than speeding at a hundred – in excess of a hundred miles an hour.
Q Okay, sir, and then you go on to say it is likely – in the next paragraph down about three lines down beginning on – it is likely that he was experi-encing some type of combat related flashback al-though this can only be inferred from Mr. Brannan’s behavior. Now, do you mean by that it is behavior that – you’ve observed the tape I assume more than once?
A Yes, I did.
App. 49
Q And based on what you saw in that tape, based on the statement that he was driving over a hundred miles an hour, based on the fact he was doing these jumping jacks and [616] could not say what they signified, based on the fact that he used military tactics in what he was doing and military terms to describe them, the language used in describ-ing this incident, that you then concluded, therefore it’s my clinical opinion that Mr. Brannan was experi-encing a disorder of mood that prevented him from distinguishing right from wrong. Is that correct?
A Yes, plus –
Q Okay.
A – as I stated earlier, under the mental status examination section, he appeared to be dissociating and kind of having a little mini-flashback, – while he was describing it
Q I see. But those are the things – the facts upon which you based – or the inferences upon which you – the facts when you inferred and drew a conclusion that he did not know right from wrong at the time of the act. Is that correct, Doctor?
A Yeah, all of those factors, plus his medical history.
Q Okay.
BY MR. RICHARD TAYLOR: And let me just state an objection at this point. Mr. Larsen took three sentences out of a nine page report, Your Honor.
App. 50
So the entirety of the report hasn’t been presented to [617] Mr. – to Dr. Storms in connection with these questions, so to that extent it’s a misleading question by Mr. Larsen. And we do object.
BY ASST. D. A. PETER FRED LARSEN: Let me respond. Let me respond. The doctor has his report in his hand. I’ve simply asked him questions as to what facts he inferred a certain situation that concluded the man didn’t know right from wrong.
Q Doctor, are there any more facts that you used to –
BY THE COURT: Wait. Let me – All right. I’ll overrule the objection, and, Doctor, if you – if you don’t understand anything or if you disagree with of course what Mr. Larsen says, why you answer it appropriately.
Q Dr. Storms, have I mislead you?
A Have you mislead me?
Q Have I mislead you somewhere? Have I denied you your report or twisted your words or such?
A No.
Q Okay, sir.
A Again, if I do that, I don’t intend to, and I want you to explain your answers. I don’t want to cut you off. If you got something to say, let me know. You can certainly explain it.
App. 51
[618] BY ASST. D. A. PETER FRED LARSEN: Judge, I’m going to tender State’s Exhibit 88 – 87, 88. This is pages eight and nine of Dr. Storms’ report that I’ve just gone over with him in cross examination.
BY THE COURT: Okay. Let’s see. State’s Exhibit 88 is what now, Mr. Larsen?
BY ASST. D. A. PETER FRED LARSEN: 88 – It’s 87 and 88.
BY THE COURT: Okay.
BY ASST. D. A. PETER FRED LARSEN: It’s page eight and nine of Dr. Storms report that includes the section of his report that says Discus-sions and Opinions, and that’s what I’ve cross exam-ined him on is Discussions and Opinions.
BY MR. RICHARD TAYLOR: Your Honor, we have no objection to the entire report of Dr. Storms being made a part of the evidence in this case. We do object to two out of nine pages being made a part of the evidence in this case.
BY ASST. D. A. PETER FRED LARSEN: Judge, that’s fine. I don’t object to the entire report. I don’t have a copy of the entire report, but we’ll get one up here and get it in. I won’t object to that either, it’s just I hadn’t cross examined him on the prior seven pages. Mr. Taylor did. He didn’t tender [619] it, but I don’t object to the whole thing. We’ll get one together and tender it. We’ll get it.
App. 52
BY THE COURT: All right. Then 89 is pages – You know 87 is page eight and 89 is page nine?
BY ASST. D. A. PETER FRED LARSEN: Judge, what I’d like to do since I’ve now –
BY THE COURT: Do you want to withdraw that?
BY ASST. D. A. PETER FRED LARSEN: I want to withdraw those, and we’ll submit the entire document to the Court Reporter for marking the late way.
BY THE COURT: That will be –
BY ASST. D. A. PETER FRED LARSEN: That’ll be his entire report.
BY THE COURT: I guess. Do we need to use the number 90 for –
BY THE COURT REPORTER: It’s 89.
BY THE COURT: Would be 89? All right. We’ll allow you to withdraw 87 and tender the entire report of Dr. Storms as 89.
BY MR. RICHARD TAYLOR: Defendant has no objection to the entire report.
BY THE COURT: All right. Well, I’ll admit it soon as it’s verified. I guess there’s a copy in the record. If you don’t have one, why we can – you can request Mr. Thomas to make a copy of it.
App. 53
[620] BY ASST. D. A. PETER FRED LARSEN: Judge, we have a copy. Now, the Report-er’s going to have to pull off one of the little stickers there –
BY THE COURT: All right.
BY ASST. D. A. PETER FRED LARSEN: – and we’ll stick another –
BY THE COURT: Have you – Are you in agreement with the one he’s using, Mr. Taylor?
BY MR. RICHARD TAYLOR: Let’s see. I provided it to Mr. Larsen, and so I’m sure it’s the entire –
BY THE COURT: Well, maybe – if you provided it, why –
BY MR. RICHARD TAYLOR: This is the entire report, Your Honor.
BY THE COURT: All right. I’ll admit it as State’s Exhibit 89.
BY ASST. D.A. PETER FRED LARSEN:
Q Doctor, going back to the facts that you used to infer certain things and draw your conclusions for your opinion; you testified on direct examination that you’d never heard a killing described in the terms that Mr. Brannan described this one to you, and I think you were referring to the military terms. You used the word laying down a volume of fire, and various military terms. Is that correct?
App. 54
[621] A That’s correct.
Q And you told us you’d seen many other kill-ings, but none of the killers have described what they had done in such military terms?
A That’s correct.
Q And that was one of the facts that you used to base your opinion or infer it didn’t know right from wrong or might have been having a flashback and such because of the military terminology?
A That’s true.
Q All right, sir. Now, have you ever before interviewed a killer who grew up in, quote, “a mili-tary family whose father was a career military officer – you mentioned several things here – who went to a military college, and then who was an officer in combat, and then followed it up with four or five years in the national guard or reserve.
A Have I ever –
Q Ever interviewed a killer like that before?
A With the exact identical background?
Q With a background of growing up in a mili-tary family whose father was a career officer, going to a military college, being in combat as an officer on active duty and following it up with several years in the guard or reserve? Have you ever interviewed a killer for that – [622] Strike that question – Here’s my question: Have you ever interviewed a killer that
App. 55
had such a military experience and background in his history?
A Well, I’ve interviewed a wide variety of people in prison for murder who – and some of them have had – were Vietnam veterans. Specifically in Wash-ington State when I was a chief psychologist for the prison out west – for Washington State Reformatory, we had a great many people that were in prison for – a great many veterans that were in prison for one reason or another, and none of them really ever described their crimes in military terms. They weren’t necessary murder – but described their terms in military terms.
Q All right. Do you find it odd that a child who grows up in a military family with a father who is a career officer who then himself goes to a military college, who then himself is in combat, goes to air-borne school as a forward observer as an officer, and comes out and spends several more years in the reserves; would describe something in the terms that he’s heard and been schooled in all of his life?
A Well, what I – some of it’s odd. What I – some of it specifically is odd is when he said he had to suppress enemy fire. I don’t if there’s any – from the video I couldn’t tell if there was any fire or not to [623] suppress. He had to put up a volume of fire –
Q May I stop you there and handle one part at the time?
A Sure.
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Q You said from the video you could not tell if there was any return fire for him to suppress. Is that correct?
A Yeah. I had a difficult time –
Q I understand.
A – figuring that out.
Q All right.
BY THE COURT: Do you want him to continue now?
BY ASST. D. A. PETER FRED LARSEN: Yes, sir. No, sir.
Q Now, you – I interrupted you there. Go ahead with what you were saying, after you could not tell if there was any return fire, other military terms that he used that you found bizarre or strange.
A Well, I – you know, when he said I was en-gaged with a target. I mean, no, I haven’t found anybody that even hard – some hardcore military, Army Rangers and Marine Green Berets who were, you know, save me for a variety of reasons that ever describe things in military terms exactly like that. So, yeah, that was unique in a way –
Q All right. Can we stop with that one, Doctor?
[624] A – clinical experience.
Q All right. Dr. Storms, you haven’t been in the military, have you?
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A No, I wasn’t.
Q Do you know whether or not in the military even basic training, you’re taught to use the words engage the target?
A Probably. You probably are.
Q If one had heard that all their lives, all the way through college, all the way through the Army and reserves, that would not be strange for him to use the terminology that they had used for fifteen, twenty, or thirty years of their life, would it?
A Well, I’m not quite – I’m not quite sure what you’re asking –
Q I’m asking this –
A – exactly.
Q I’m asking this. If a man grows up in a mili-tary family, and he’s heard the term engaging the target, the man goes to a military college, military training. The man is in basic training, officer’s candi-date school, and advanced infantry such as airborne, and if he’s heard this term all that time for decades referring to engaging the enemy target as engaging the target, it would not be strange for him to hear the words that he’s used all [625] of his life in describing what he was doing, would it?
A No, especially since he was probably having a military flashback.
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Q It would be just like a mechanic. You use cer-tain terms that you weren’t familiar with. He could be just as bizarre by using a mechanical term, couldn’t he?
A Well, I didn’t – are you asking me did I say he was bizarre or –
Q Asked the question –
A – I’m not quite sure what you’re asking me –
Q Let me ask you this, –
A – exactly.
Q Did you not tell me that you inferred from these facts a conclusion that he didn’t know right from wrong, and one of the facts you used to draw your inference was he used the military term engaged the target?
A Sure, that’s –
Q Isn’t that what you told me?
A – one of the factors I considered. Sure.
Q Right? And correct me if I’m wrong, but did you testify earlier that this – the fragmented memory that you referred to that sometimes will occur after an incident such as this or such, that fragmented – that fragmented memory would normally last, did you say twenty-four to forty-eight hours?
[626] A Well, no. I mean yes. To answer your question, fragmented – we divide memory into short
App. 59
term memory and long term memory, and sometimes intermediate term memory, and short term memory covers like twenty-four to forty-eight hours. And it’s like sometimes people that have been through major and traumatic events, like this like don’t remember what happened the day before or don’t remember what they had for breakfast that night or breakfast that morning or supper last night.
So the fragmentation could last for a while, and depending on the severity of the whole thing, it can, you know, come back in bits and chunks over months or years.
Q But going back to my question, Doctor, that fragmented memory, did you not tell us earlier on in direct examination that it normally would last twenty-four to forty-eight hours?
A Fragmented –
Q Excuse me. I may have asked the wrong question. Before those fragments started coming back together in a logical pattern, did you tell us that would normally be twenty-four to forty-eight hours? It could be that long afterwards?
A No, I didn’t say that. What I said was that memory fragmentation – memory’s generally the most fragmented twenty-four to forty-eight hours, and then it [627] gradually begins to come back.
Q Okay. I understand now. You’re telling us it’s the most fragmented. It’s most disjointed and starts
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reassembling itself twenty-four to forty-eight hours later?
A Yes, sir. It’s going to reassemble itself.
Q It’s gonna reassemble. I understand.
A If it’s going to do that, then it begins to after – you know, after the shock has worn off. It begins to come back if it’s going to come back.
Q Like if your memory was a jigsaw puzzle and it scattered, after twenty-four to forty-eight hours the pieces start coming back together and forming the picture again. Is that what you’re telling us?
A Yes, but we don’t know how fast –
Q I understand.
A – it would come back.
Q But they would start coming back – if they’re ever gonna come back, within twenty-four to forty-eight hours or such?
A Pretty much.
Q But not normally any sooner than that? It’ll remain fragmented –
A Not normally, no.
Q Okay.
BY THE COURT: Mr. Larsen, it’s almost 5:30, so
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[628] BY ASST. D. A. PETER FRED LARSEN: Judge, if –
BY THE COURT: – is this a good place to break or you want to finish that question?
BY ASST. D. A. PETER FRED LARSEN: If the Court’ll bear with me a few more minutes.
BY THE COURT: All right.
BY ASST. D. A. PETER FRED LARSEN: Judge, if the Court’ll bear with me a little while longer, I might be able to conclude.
BY THE COURT: All right. Go ahead. Of course, we may have redirect.
BY ASST. D. A. PETER FRED LARSEN: If he has redirect, we’ll just take the court’s suggestion and cease examination for the day.
BY MR. RICHARD TAYLOR: My redirect, Judge, I anticipated would be about seven or eight minutes long.
BY ASST. D. A. PETER FRED LARSEN: Well, then, Judge, if I can, let me go ahead and do his redirect, and I’ll do my recross if necessary, and may-be –
BY THE COURT: All right.
BY ASST. D. A. PETER FRED LARSEN: – we can finish this witness today.
BY THE COURT: All right.
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BY ASST. D.A. PETER FRED LARSEN:
Q I understood you, doctor, to say that Mr. Brannan was not a psychopath because you described a psychopath as a gentleman who does not feel guilt about his actions?
A It’s not –
Q Or a person rather than a gentleman.
A He’s not a psychopath.
Q And that’s the reason you gave, because a psychopath will do things and have no guilt feelings?
A Plus there was no indication on the psycho-logical testing or in his entire psychiatric history of any psychopathy.
Q On the MMPI test that you administered, do you have that with you?
A No, I didn’t.
Q You don’t? Do you have your scores in all areas with you?
A Yes.
Q May I see that?
A They’re in the report I think on the test re-sults. I didn’t – No.
Q You didn’t –
A I guess I didn’t. I didn’t write it out.
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Q You didn’t delineate those in your report, did [630] you?
A The only thing that I know of is the high 6, 8 or a high 8 – I mean a high 2,8 – 2, 6.
Q Do you recall –
A 2, 6.
Q Do you recall what the L-scale was?
A It was somewhere probably in the – you mean raw score or scale score? There’s two L-scores. So you want the raw score or the scale score?
A Let me have both.
Q His raw score was somewhere below four or five which is a good indicator because that means he wasn’t – That means that he was basically telling the truth on the test, so with a raw score of four, it would be somewhere in the normal range between – I’m trying to envision the thing in my mind, but it was – his validity scales were in the normal range.
Q Okay, and a high L-scale score, that indicates what?
A Lying.
Q Lying?
A That’s what it means, lying.
Q And the L-scale is normally when you’re trying to put yourself in a better light. Is that correct?
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A Well, it’s not that – everything – [631] psy-chologist over complicate everything. It’s not that simple. What the L-scale basically shows is that they were – whether they were being basically honest or, you know, dishonest when they’re approaching the test. You have another scale called the F minus K scale which shows whether they were faking good or faking bad.
Q Okay, sir, and if one were being deceptive – I won’t use the word lying, but if they were being deceptive on the test, would that give us a unreliable result on some of the other scales because they were being deceptive on the test?
A Well, it depends on how high those scales are. I mean you can have – It, of course, varies between – you know, between different theorists and stuff, but usually when we get an F minus K of plus or minus fifteen, I think – well, twelve to fifteen, we look that this may not be a valid test. His F minus K score as far as I can recall it was somewhere below either a positive or negative eight. So I mean it was in – it was invalid – it was valid.
Q That is on your test?
A Yes.
Q What does an L-scale of 70 indicate?
A It – Well, it depends. Are you using the HMPI or the MHPI2?
Q MMPI – what did you use?
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[632] A The MMPI2.
Q MMPI2. What’s an L-scale of 70 indicate with a K-scale of 62?
A T-scale of 62?
Q With a K scale of 62. Well, let me – Let me strike that question. I want one question at the time if you can answer it. What’s an L-scale of 70 indicate?
A That’s a fairly high L-scale, I think.
Q Now, if one had a fairly high L-scale – If one has an L-scale of 70, that means he’s being dishonest on the test to some degree, doesn’t it?
A Well, that’s why I’m asking was it the raw score because we go by the raw score in deciding whether or not you’re lying.
Q Well, in a report, do you normally report the raw score?
A Not necessarily. I mean I just – in these types of reports I summarize what I found.
Q This is a hypothetical question, but if one had an L-scale of 70, that would indicate they were not real honest on the test, wouldn’t it?
A I mean that’s a possibility. I have to –
Q All right.
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A – look at all the other scores, but I don’t know what the raw score is, and that’s how we measure [633] honesty and dishonesty.
Q Okay. Dr. Storms, now, this is not your test that I’m talking about. We’re talking hypotheticals.
A Okay.
Q Either I’ll reach over and where you can slide forward or whatever –
A I can’t slide.
Q I’ll slide toward you. And we have a – this is an MMPI2.
A MMPI2.
Q MMPI2. L-scale of 70, K-scale of 62 are ele-vated and an T-score of at least 60.
A Okay. Now I understand what you’re saying.
Q All right. Now, tell me what that indicates?
A Well, a T-score – the one that elevated to the 62 was just, you know, a slight elevation. Actually those are fairly slight elevations, but they are ele-vated.
Q Now, an F-scale of 72 – of 42, excuse me. What is that?
A That’s basically a scale of – it tests – I’m try-ing to put in how – psychological rigidity. I mean it’s – it’s basically somebody’s either a really black and
App. 67
white person or they’re somebody that thinks in terms of abstractions.
Q Okay, sir.
[633] A Sometimes we call in the fascist scale.
Q I’m sorry. Can ya’ll hear him now?
A Sometimes we – in the old days they used to call it the fascist scale, but that’s a misnomer.
Q Let me ask you a hypothetical again. If the test was administered in which the L-scale was 70, the K-scale 62 and T-score of at least 60, and the F-scale 42, –
A Right.
Q – and is below a T-score of 50 – All right. Now, if the conclusion is drawn from that, a client with this validity scale configuration is attempting to avoid or deny unacceptable feelings, impulses and problems, and to present himself in the best possible light? Would you agree or disagree with the conclu-sion drawn by someone based on those scores?
A I would agree with that statement.
Q You would agree with that statement?
BY ASST. D. A. PETER FRED LARSEN: Judge, may I have one second?
BY THE COURT: Yes.
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BY ASST. D. A. PETER FRED LARSEN: Your witness, Mr. Taylor.
[634] REDIRECT EXAMINATION BY MR. RICHARD TAYLOR:
Q Dr. Storms, just a couple of very, very brief questions, sir. After – the jury will see your report because it’s in evidence now. They’ll read it during the deliberation –
BY ASST. D. A. PETER FRED LARSEN: Judge – Judge, I don’t know – I’m not arguing with Mr. Taylor about that, but I have some concern. I don’t know if the jury’s going to see that report.
BY THE COURT: You want the jury –
BY MR. RICHARD TAYLOR: It’s been ad-mitted into evidence.
BY ASST. D. A. PETER FRED LARSEN: Might very well be a continuing witness. I don’t know if they’re going to see that.
BY MR. RICHARD TAYLOR: It was ten-dered by the District Attorney’s office, and admitted into evidence.
BY ASST. D. A. PETER FRED LARSEN: Judge, admitted or not, there’s a rule called continu-ing witness. I cannot say the jury’s going to see that. Now, if the Court’s going to let them see it, that’s up to the Court. Now, I want them to see it, but that’s up to the Court.
App. 69
BY MR. RICHARD TAYLOR: Well, if you want them [636] to see it and I want them to see it, it’s been tendered, it’s been offered by the District Attorney’s office, Your Honor.
BY THE COURT: All right. It’s in evidence and as a rule the exhibit admitted into evidence – there are some exceptions, but I don’t know if we’re talking about one here.
BY ASST. D. A. PETER FRED LARSEN: Judge, my concern and I know the court’s aware of something called the continuing witness rule if this is to be, quote, “seen by the jury”. Now, I don’t mean examination and talked about and such as that.
BY THE COURT: All right. Well, I – we can determine that out of the presence of the jury. Go ahead. I don’t –
BY MR. RICHARD TAYLOR: Where is the exhibit, please? All right.
BY MR. RICHARD TAYLOR:
Q Dr. Storms, you listed in your report data sources. Is that correct?
A Yes, it is.
Q And your report was prepared – when was it prepared?
A October – somewhere in late October. It was around Columbus Day as I recall.
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[637] Q Of ‘98?
A ‘98.
Q ‘98, and I just wanted to just make something clear. In addition to the data sources referred here, you subsequently looked at other pieces of infor-mation. Is that correct?
A Yes, I have.
Q And specifically the transcript of the G.B.I. interview?
A Yes.
Q And the transcript of the interview between Dr. Carter and Mr. Brannan. Is that correct?
A Yes, I did.
Q Let me direct your attention specifically to the transcript of the interview between Dr. Carter and Mr. Brannan. Did you see any references in that transcript or any content –
BY ASST. D. A. PETER FRED LARSEN: I object to that unless that goes into evidence. I guess a moment ago I was going to tender it, but Mr. Taylor was going to object, and it is not in evidence. It’s got to go into evidence before we go into contents of it.
BY MR. RICHARD TAYLOR: I’m referring –
BY ASST. D. A. PETER FRED LARSEN: Now, I do not object to it going in.
App. 71
[638] BY MR. RICHARD TAYLOR: I’m re-ferring, Your Honor, to the transcript of the interview between Dr. Carter and Dr. – excuse me – Dr. Carter and Mr. Brannan. I’m referring to the transcript, Fred.
BY ASST. D. A. PETER FRED LARSEN: All I’m saying is that that transcript is not in evi-dence. You cannot go into contents of it.
BY MR. RICHARD TAYLOR: I’ll tender it right now, Your Honor, the transcript.
BY THE COURT: All right, if Mr. Larsen doesn’t object to it, we can admit it.
BY MR. RICHARD TAYLOR: Judge, I’ll – Let me just take care of that housekeeping matter shortly after this witness, and I will tender it, and it will be admitted, I understand.
BY MR. RICHARD TAYLOR:
Q Did you – do you recall any references or any contents of the transcript of the interview between Dr. Carter and Andrew Brannan which supported your conclusion regarding the flashback?
A Yes.
Q What references or what contents of that interview were of interest to you professionally, sir?
A Well, there was specifically a reference to bamboo clicking that when he reached down inside the car to [639] get his gun he remembered bamboo
App. 72
clicking, but more importantly there was a reference – he said that he remembered thinking I couldn’t leave my men, that, you know, I don’t want – I need to take care of my men or something like that, and as far as, you know, there was no – that was a pretty clear indicator that there was a lot of Vietnam mate-rial going on right there.
Q And one other question, sir. You used the term hypomania previously in your testimony. Would you help us understand what you mean by hypoma-nia?
A Well, let me explain it this way. We have – there’s a psychiatric disorder called – It’s now called bi-polar illness, but now – It used to be called manic depression, and it’s where people have extreme mood swings from extreme high, not able to sleep for days and weeks at a time, and doing all sorts of irrational giddy behaviors, and just being in an extremely – you know, extremely high mood to a point where then they crashed, and then we go into what we call vege-tative state or suicidal depression.
Hypomanic basically means almost manic. It’s not quite as severe as manic, but it’s on the verge of it, and sometimes like when people get spring fever, for instance, they get a little bit hypomanic or, you know, sometimes people like they really love Christmas around the holidays, they can get a little hypomanic.
[640] Well, the problem – it can – the problem with Mr. Brannan is he was more – he could be like
App. 73
this for extended periods of time. So he – he had a history, a long history, of getting into hypomanic episodes.
Q All right.
BY MR. RICHARD TAYLOR: Those are all the questions I have of this witness, Your Honor.
BY ASST. D. A. PETER FRED LARSEN: Just another question or so, Judge.
RECROSS EXAMINATION BY ASST. D. A. PETER FRED LARSEN:
Q This hypomania or hypomanic person, and I’m struggling for the words, Doctor. Help me if you will. Could a person with that hypomanic be de-scribed as just a very – as sometimes they say in layman’s words, just hyper or very energetic? Is that what we’re referring to?
A Well, it goes beyond energetic. It’s like in an extremely high mood. The difference is that they’re still more or less in contact with their everyday reality. Sometimes when people are in a manic state, they do other – they do other fairly strange things like I – they – some manias have made – run up thousands of dollars in phone bills in two or three days times or –
Q Calling friends and talking to them and such?
A Long distance or, for instance, my first manic [641] patient that I had in Wisconsin called me up one day and said, okay, we’re going to Europe, and,
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you know, he was in the middle of a manic episode, and, you know, they do kind of – you know, they’re outgoing and then they invariably crash and a lot of times become suicidal. In this case he, Mr. Brannan, would be considered just below that. Like I said, unfortunately there’s not a clear line on all of these things, and I’m not trying to pretend there’s a clear line, but it’s just not quite as – hypomanic behavior isn’t quite as – isn’t as severe as full-fledged manic behavior.
Q Okay, and I understood that Mr. Brannan could be described as moving toward, but not hypo-manic?
A His – all of his diagnosis says he can range from either hypomanic to manic, and there were both in there, but I think most of the doctors agreed that he was more or less continually hypomanic unless he was depressed, and then he was just the opposite.
Q Okay, and let’s say – take an individual that was hypomanic. Could that be described as we leave here and I say come on, go with me, let’s have some supper, and I spend a bunch of money on the supper and take you here and take you there and just as you say energetic and spending money on spending sprees and what have you? Would that be hypomania?
A It could be. The difference between that and [642] manic behavior is I could probably talk you out of it or talk you down, but with manic behavior we generally have to administer medication because their mood swings are so severe.
App. 75
Q But you did say he had not reached that stage?
A To my knowledge he hadn’t. He was – He probably still had some of his medication in his system.
Q Okay.
A I know that he was taking Depakote, and he had been tried on Lithium. So those are – Depakote is the newest drug to treat manic depression.
Q Fine, and going back to my question. You did tell us earlier he was below that level and had not reached that stage?
A To my knowledge he hadn’t reached a full fledged manic state.
Q Well, again, I’m asking for your opinion like you’ve been giving your opinion on all these other matters.
A He – In my opinion he was probably in a hypomanic state, and not reached a full fledged manic state.
Q All right.
BY ASST. D. A. PETER FRED LARSEN: No further questions for Dr. Storm.
BY MR. RICHARD TAYLOR: Your Honor, I have no further questions of Dr. Storm, so I’d ask that
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the [643] Court qualify him as an expert witness in the fields of psychology and forensic psychology.
BY THE COURT: All right.
BY ASST. D. A. PETER FRED LARSEN: We have no objection to that.
BY THE COURT: All right. I’ll so qualify the doctor, but I want to ask him a question before we go.
BY ASST. D. A. PETER FRED LARSEN: Is this the report we discussed, Mr. Taylor?
BY MR. RICHARD TAYLOR: That’s Dr. Storms report. This is the transcript I’ll have the Court Reporter mark as –
BY ASST. D. A. PETER FRED LARSEN: Oh, okay. I’m sorry. I thought she did already. That’s fine.
EXAMINATION BY THE COURT:
Q Dr. Storm, I want to be sure I understand. You say therefore it is my clinical opinion that Mr. Brannan was experiencing a disorder of mood that prevented him from distinguishing right from wrong at the time of the incident leading to his arrest. You – You’ve done numerous mental evaluations when it was ordered by the court, and as a rule, we – and I’m reading for the request for one in this particular case which I think’s been mentioned that Dr. Carter –
App. 77
[644] A Right. I was involved in this case way prior to anybody else.
Q All right, but you – What we – What we usually ask in our order and request for a mental evaluation is degree of criminal responsibility, of men-tal competency at the time of the act, and whether or not the accused had the mental capacity to distin-guish from right from wrong in relation to the alleged act, and whether or not the presence of a delusional compulsion over mastered his will to resist commit-ting the alleged act.
And I thought I heard you say that you were not saying he was acting under a delusional compulsion or can you straighten me out?
A Right. I don’t think there was a delusional compulsion.
Q He was not acting under the –
A Unh-unh.
BY THE COURT: All right. That’s all. You may step down.
A Am I excused?
BY THE COURT: Well, that’ll depend on Mr. Taylor and Mr. Larsen. He wanted to know if he was excused?
BY ASST. D. A. PETER FRED LARSEN: Yes, sir. The State has finished with him.
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[645] BY MR. RICHARD TAYLOR: We’re through with him, Judge. Thank you.
BY THE COURT: All right, then. You’re excused.
(WITNESS LEFT THE COURTROOM)
BY THE COURT: All right, ladies and gen-tlemen of the jury, we are about to recess. I do have your requests for movies, and I’m going to – as soon as you go outside, I’m going to tender that if one of the bailiff ’s will wait, we’ll – we’ll give you an answer on that, and, again, Ms. Guest, everything’s arranged to – for you, and also Mr. – and we’ll – I’ll take this up in just a minute out of your presence, and we’ll clear everything with the bailiff for you on the movies. All right, remember – I think I said, but if I didn’t, re-member don’t discuss anything about the case while you’re in recess and don’t allow anyone to communi-cate about it. All right. You can retire.
BY MAJOR TASCIOTTI: All rise for the jury, please?
(JURY LEFT THE COURTROOM AND RECESSED FOR THE NIGHT)
BY THE COURT: Mr. Taylor and Mr. Duttweiler and Mr. Walke and whoever, I’d like for ya’ll to review this list of movies right quick, and –
BY MR. RICHARD TAYLOR: Your Honor, could I [646] tender before the night is over Defen-dant’s Exhibit Number 12 which is the transcript of
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the interview between Dr. Carter and Mr. Brannan that Mr. Larsen –
BY THE COURT: Defendant’s 12 as I un-derstood it?
BY MAJOR TASCIOTTI: Be seated, please.
BY THE COURT: I understood he had no objection to it.
BY D. A. RALPH WALKS: Mr. Larsen had to go to the restroom.
BY THE COURT: Well, you can handle the review of these movies, can’t you, Mr. –
BY D. A. RALPH WALKS: Yes, I believe I can. I was referring to this exhibit over here that I knew nothing about. I believe I can judge movies about good as he can.
BY MR. RICHARD TAYLOR: Judge, could I address one other matter?
BY THE COURT: Well, if they don’t – if it won’t interrupt their review of the movie list.
BY MR. RICHARD TAYLOR: Oh, well, let them look at the movies then.
(ATTORNEYS REVIEW MOVIE LIST OF THE JURY)
BY THE COURT: Well, whatever ya’ll agree on to scratch, scratch it out. Ya’ll don’t be too strict on [647] the jury now.
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BY D. A. RALPH WALKE: I wasn’t plan-ning on being, Judge, but he was so tough on the books.
BY THE COURT: You got the list now clear? All right. All right. Mr. Taylor has something.
BY MR. RICHARD TAYLOR: Your Honor, the Court posed a question to Dr. Storms, and you referred to the order that you usually enter when you ask for a mental evaluation, and the Court asked, and I’m paraphrasing it, but the substance is correct. The Court asked – the Court informed Dr. Storms that when a mental evaluation is usually ordered by the Court, the inquiry is whether the defendant because of mental illness or incapacity was able to distinguish between right and wrong and whether because of delusional compulsion his will was overmastered.
The – Under Georgia law, it’s not an and between those two concepts, but an or between those two concepts, and I don’t know what the Court normally orders when you order evaluations and I can’t quarrel with you about what your typical order would be, but I am concerned that if – if that is the typical order of the Court, then that suggests essentially an improper standard to psychiatrists and psychologists because it’s not an and Mr. Brannan doesn’t have to [648] satisfy both tests.
BY THE COURT: I understand.
BY MR. RICHARD TAYLOR: He has to satisfy either test.
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BY THE COURT: I understand that. I wasn’t sure – He alluded to that, and I wasn’t clear, Mr. Taylor. I think it’d really what – it goes to what the Court would charge.
BY MR. RICHARD TAYLOR: Yes, sir. He did – He did state his opinion regarding the right and wrong test.
BY THE COURT: Yea, he did.
BY MR. RICHARD TAYLOR: And he con-cluded that Mr. Brannan couldn’t distinguish be-tween right and wrong.
BY THE COURT: Right.
BY MR. RICHARD TAYLOR: He did also say that this was not a delusional compulsion in this case.
BY THE COURT: Well, I just wanted to be clear that I understood that that’s what he said, so, you know, in your – in your special plea you say that, and I wanted to be sure of whether or not –
BY MR. RICHARD TAYLOR: Yes, sir. We – What I’m concerned about is I don’t want the jury to have heard Your Honor’s question saying we ask whether it [649] (A) and (B) and be left with the conclusion that Mr. Brannan has to satisfy both (A) and (B), both the right and wrong test and the delu-sional compulsion teat. So I think at an appropriate time the Court should charge –
BY THE COURT: All right.
App. 82
BY MR. RICHARD TAYLOR: – the jury that it’s either.
BY THE COURT: All right. I’ll certainly do that. I –
BY D. A. RALPH WALKE: We don’t object to the Court’s question.
BY THE COURT REPORTER: I didn’t understand what you said, Mr. Welke. I didn’t under-stand – Mr. Welke?
BY D. A. RALPH WALKE: Yes?
BY THE COURT REPORTER: I didn’t un-derstand what you said.
BY D. A. RALPH WALKE: Just stating not objecting to the Court’s question?
BY THE COURT: To?
BY D. A. RALPH WALKE: The question that you asked the witness.
BY THE COURT: You say you objected to it?
BY D. A. RALPH WALKE: No, sir.
[650] BY THE COURT: All right.
BY D. A. RALPH WALKS: I said we did not object.
App. 83
BY THE COURT: All right. We – I’m ready to recess, gentlemen. Is there anything else we need to take up today?
BY MR. RICHARD TAYLOR: Not tonight, YourHonor.
BY THE COURT: All right. Mr. Welke, do you have anything else?
BY D. A. RALPH WALKS: No, Your Honor.
BY THE COURT: All right. We’ll be in re-cess until 8.30 in the morning. The jury’ll be back at 9100.
(COURT RECESSED FOR THE NIGHT: 5:50 P.M.)
(Court Reporter’s Certificate Omitted)
App. 84
[SEAL] National Archives and Record Administration
8601 Adelphi RoadCollege Park, Maryland 20740-6001
June 15, 2005
Kimberly Sharkey Georgia Resource Center 303 Elizabeth Street, NE Atlanta, GA 30307
Dear Mr. Sharkey:
If you will provide us the particulars of some of the events Mr. Andrew Howard Brannan would like to document, we will gladly search the records on your behalf. We cannot do so now because we do not know what types of attacks took place, what the results of them were, or approximately when they occurred. We did note that three men in Company B died during these months. Enclosed is a list of all men from that company who died in Vietnam.
Sincerely,
/s/ Richard L. Boylan RICHARD L. BOYLAN
Modern Military Records Textual Archives Services Division
