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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1670 September Term, 2003

STATE OF MARYLAND v. BARBARA ANN PETERSON

Eyler, Deborah S., Alpert (Ret'd, Specially Assigned), * Sonner, Andrew L. (Ret'd, Specially Assigned), JJ.

Opinion by Eyler, Deborah S., J.

Filed: September 13, 2004

* Sonner, J. participated in the hearing and conference of this case while an active member of this Court; he participated in the adoption of this opinion as a retired, specially assigned member of this Court.

On November 23, 1992, a jury in the Circuit Court for Caroline County found Barbara Ann Peterson, the appellee, guilty of first degree murder, second degree murder, battery, and the use of a handgun in the commission of a felony. The court sentenced the

appellee to life imprisonment for first degree murder and a consecutive 20 year term for the handgun conviction. convictions were merged for sentencing. affirmed on direct appeal by this Court. The other

The convictions were Peterson v. State, 101

Md. App. 153, cert. denied, 336 Md. 559 (1994). On January 27, 2003, the appellee filed a petition for postconviction relief. The circuit court held an evidentiary hearing,

and thereafter, on August 14, 2003, issued a memorandum opinion and order granting the petition and ordering a new trial. The State

applied for leave to appeal that decision, which we granted. The State presents two questions for review, which we have rephrased: I. Did the post-conviction court err in finding that trial counsel's performance was constitutionally deficient because he either failed to investigate battered spouse syndrome or abandoned evidence of the syndrome in putting on a defense? Did the post-conviction court err in finding that trial counsel's performance was constitutionally deficient because he failed to call the appellee to testify at trial?

II.

For the following reasons, we answer the first question "No," and on that basis shall affirm the order of the post-conviction court. Because of our disposition of Question I, it is not

necessary to address the issue raised in Question II.

FACTS AND PROCEEDINGS
The appellee and Loren Peterson ("Loren") became romantically involved in 1964. They married on September 10, 1965. The

appellee had one child, Anne Marie, from a prior relationship. The appellee and Loren went on to have three children together: Lauren, Charles, and Helen. Loren was in the military for 22 years of the parties' marriage. He was a Navy SEAL, assigned to the special services.

In 1967 and 1968, he was overseas, serving in Vietnam. The couple moved frequently and lived in many states,

including Ohio, New York, Virginia, Delaware, and California. Loren retired from the military sometime in the late 1980's. In

1989, the couple moved to Maryland and settled in Marydel, in Caroline County. They lived on a rural property, and kept animals

such as chickens, geese, and rabbits in their yard. On Sunday, November 17, 1991, at about 2:00 p.m., the appellee shot and killed Loren, as he was sitting in a chair in their living room, watching television. Afterward, she went to her daughter She

Anne Marie's house, which was nearby, and called the police.

was arrested and charged with first degree murder and other related offenses. A lawyer with the Office of the Public Defender was

assigned to represent her ("trial counsel"). The appellee and trial counsel met three times before trial. Trial counsel filed on the appellee's behalf a plea of "Not 2

Criminally Responsible" ("NCR") due to insanity, under Md. Code (1990 Repl. Vol.), sections 12-108 and 12-109 of the Health-General Article ("HG").1 Trial commenced on November 13, 1992. The appellee did not

contest the issue of criminal agency, that is, that she was the person who shot and killed Loren. She pursued the affirmative defense of NCR. Carole Kleinman, M.D., a psychiatrist, testified as a defense expert witness at trial. Before trial, she had performed a

psychiatric evaluation of the appellee that included interviewing her and her children. At trial, Dr. Kleinman opined that, at the

time of the shooting, the appellee was suffering from "bi-polar mixed disorder with psychotic features and dissociative disorder not otherwise specified." Dr. Kleinman testified that, during

their interviews, the appellee and her children had revealed that the appellee had been physically and psychologically abused by Loren during their marriage. In Dr. Kleinman's opinion, the

appellee's mental disorder led her to think, delusionally, that she had to take action against Loren; and the mental disorder seized control of her, so she was not able to conform her conduct to the requirements of the law. Dr. Kleinman opined that, when the

appellee shot Loren, the appellee thought in her own mind that she

HG sections 12-108 and 12-109 have been recodified at Md. Code (2001), sections 3-109 and 3-110 of the Criminal Procedure Article, respectively. 3

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was in imminent danger of being killed. Dr. Kleinman was not asked any questions by trial counsel (or the prosecutor) about "battered spouse syndrome." that syndrome was made during the trial. The defense also called as an expert witness Dr. David Shapiro, a clinical psychologist. He testified that the appellee's psychological test patterns were similar to those of people with dissociative disorder, who experience events by depersonalization, that is, as if the events were happening to someone else. The appellee did not testify in her own defense. At the close of the evidence, defense counsel sought an instruction on imperfect self-defense, which would permit the jury to convict the appellee of voluntary manslaughter. The court No reference to

declined to give the instruction, on the ground that it was not generated by the evidence. The jurors deliberated and rejected the NCR defense. They

found that the appellee had been suffering from a mental disorder at the time of the shooting. They did not find, however, that the

disorder had rendered her unable to conform her conduct to the requirements of the law. As stated above, the jury found the

appellee guilty of first degree murder, second degree murder, battery, and the use of a handgun in the commission of a felony. On direct appeal, the appellee challenged the trial court's decision to deny an imperfect self-defense instruction. This Court

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rejected her argument and affirmed her convictions. supra, 101 Md. App. at 159.

Peterson,

As stated above, on January 27, 2003, the appellee filed a petition for post-conviction relief. assistance by trial counsel. She alleged ineffective

Her primary argument was that trial

counsel had performed deficiently by not introducing factual and expert witness evidence to show that she was suffering from battered spouse syndrome at the time of the shooting.2 filed an opposition to the petition. The post-conviction court held an evidentiary hearing on July 15, 2003. a witness. The appellee testified and also called Dr. Kleinman as Trial counsel testified as a witness for the State. The State

The entire trial transcript from the November 1992 trial was moved into evidence. The appellee testified that, in their pre-trial meetings, she told trial counsel that Loren had abused her for almost the entire period of their relationship, from before they were married. This

is the history the appellee said she recounted to trial counsel in advance of the trial: When the appellee met Loren, he was an alcoholic who was drunk much of the time. She fell in love with him, and thought she could

The appellee also argued that trial counsel had failed, deficiently, to advise her of her right to testify; to call her as a witness on her own behalf; to object to the introduction of evidence of post-Miranda warnings silence on her part; and to object to the admission of prejudicial hearsay evidence. 5

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"be a Florence Nightingale," and get him to change.

Before they

were married, there was an incident in which he threw her on the hood of a car and beat her up, in front of her sister. She was

"holding [her] skirt or dress down and holding him off with [her] one hand while he was beating [her] on the hood of the car." After the appellee and Loren were married, he became very possessive and jealous. When she was pregnant with their first

child, he kicked her in the stomach, "as hard as a football," and she was afraid she was going to lose the baby. Another time, he

told her he wanted to "mess [her] face up . . . [so] nobody would look at [her]." After that, she would cover her face when he beat He would kick her, pull her hair,

her up, to try to protect it. and smack her.

Also, he would "play with her head," using tactics

he had been taught in the military to "pick on her" and on their children. He would beat her or pick on her for no reason -- "if

the moon was full," "[i]f it rained and he was going someplace," "[i]f his job wasn't going good." During their 26

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