Harriston v. State

Larry Harriston v. State of Maryland, No. 739, September Term, 2019. Opinion by Wells, J. CRIMINAL LAW — STATE’S CLOSING ARGUMENT — BURDEN SHIFTING In closing argument, while the State may not comment on a defendant’s failure to testify or provide evidence, the State may fairly comment on the evidence. CRIMINAL LAW — STATE’S CLOSING ARGUMENT — “OPENING THE DOOR” DOCTRINE Analysis of State’s comments under the “opening the door” doctrine show that the comments were specifically in response to defense counsel’s closing remarks, rather than commentary on the defense’s failure to supply evidence. CRIMINAL LAW — JURY INSTRUCTIONS — CROSS-RACIAL IDENTIFICATION A court does not abuse its discretion in declining to give a cross-racial identification instruction where, as here, the defense argues that an eyewitness’ identification of the defendant “[was] not corroborated by other evidence giving it independent reliability.” CRIMINAL LAW — JURY INSTRUCTIONS — CROSS-RACIAL IDENTIFICATION The precedent established in Janey v. State, 166 Md. App. 645, 664-65 (2006) and Kazadi v. State, 240 Md. App. 156, 194 (2019), rev’d on other grounds, Kazadi v. State, 467 Md. 1 (2020), instruct trial courts to resolve discretionary matters, such as the propriety of a cross-racial identification instruction, based on the unique facts in a given case.

CRIMINAL LAW — JURY INSTRUCTIONS — CROSS-RACIAL IDENTIFICATION The court did not abuse its discretion in declining to give a cross-racial identification instruction where the eye-witness, though of a different race from appellant, had known appellant and interacted with him at different times for over a decade. Circuit Court for Baltimore City Case No. 118144001 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 739 September Term, 2019 ______________________________________ LARRY HARRISTON v. STATE OF MARYALND ______________________________________ Berger, Wells, Salmon, James P. (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Wells, J. ______________________________________ Filed: June 1, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson 2020-10-23 15:15-04:00 Suzanne C. Johnson, Clerk A jury sitting in the Circuit Court for Baltimore City convicted appellant, Larry Harriston of first-degree murder, use of a firearm in the commission of a crime of violence, and possession of a regulated firearm by a prohibited person.

The court sentenced him to life imprisonment. Harriston appeals and presents two questions for our review: 1. Did the trial court abuse its discretion by permitting improper prosecutorial closing argument? 2. Did the trial court abuse its discretion by refusing to propound a jury instruction on cross-racial identification?

We answer both questions in the negative and affirm. BACKGROUND On March 16, 2018, Baltimore Police Department (“BPD”) responded to a homicide on the 2800 block of Hillen Road. There were no witnesses, and the victim had already been transported to the hospital when BPD arrived on scene. Detective Curtis McMillion and his partner, Detective Storie, and Sergeant Lloyd,1 recovered shell casings from the scene and obtained video footage from security cameras at four nearby buildings.

Det. McMillion testified the footage showed the victim sitting on the steps of a church and a man coming out of an alley and shooting him multiple times. Det. McMillion circulated stills from the video footage through BPD email and on the BPD Twitter account.

On March 17, Sergeant Anthony Maggio contacted Homicide 1 The record does not mention Det. Storie’s or Sgt. Lloyd’s first names. saying he recognized the person in the stills. Sgt.

Maggio then met with Det. McMillion and identified the suspect as Harriston. Sgt. Maggio testified he knew Harriston from his time working in the Eastern District between 2004 and 2007 when Harriston was young and went by the nickname “Little Larry.” In fact, when Sgt.

Maggio first contacted BPD after seeing the still from the surveillance footage, he said he believed the suspect was Little Larry, and called back later to provide the full name of Larry Harriston. Sgt. Maggio testified that he would chat with Harriston as a kid and say “‘hey, what’s up, Larry,’ things like that.” Sgt. Maggio testified that he saw Harriston less frequently—approximately ten to 15 times—and did not interact with him between 2007 and 2017 because Sgt.

Maggio was working in different districts. Sgt. Maggio testified that other than Harriston’s height, his appearance did “[n]ot really” change much. Det.

McMillion testified that he and Det. Storie spoke with Harriston’s sister, Shatia Manigo, at her place of work on April 12. Det. McMillion testified that the detectives presented the stills to Manigo, who said that a person depicted in one still (not holding a gun), at trial, marked as State’s Exhibit 2A, “look[ed] like” Harriston.

While Manigo affirmed this in her own testimony, she also testified that she only positively identified Harriston in a different photo that she viewed on one of the detective’s cell phones. That photo was marked at trial as State’s Exhibit 1. Manigo further testified that as to the two other stills she was shown, State’s Exhibits 2B and 2C, she had said she could not be sure that the person was Harriston, in Exhibit 2B and that the person shown was not Harriston in Exhibit 2C. 2 Tyrika Hill, Harriston’s girlfriend, testified that BPD showed her the stills and footage on April 15. She testified that she was not able to identify the person in State’s Exhibit 2A, but that she identified Harriston in State’s Exhibits 2B and 2C.

She testified that she could not identify the person depicted in the video footage. Manigo also provided the detectives with Harriston’s phone number. Det. McMillion testified that he obtained a search and seizure warrant for the cell phone and cell phone number, in hopes of obtaining the location data of the user at the time of the homicide.

Det. McMillion received the data but testified that he did not attempt to obtain an analysis because he determined based on the subscriber information the phone did not belong to Harriston. Harriston was indicted in the Circuit Court for Baltimore City on charges of first- degree murder, second-degree murder, use of a firearm in the commission of a crime of violence, and possession of a regulated firearm by a prohibited person. After a trial that spanned from January 28 through January 30, 2019, a jury convicted Harriston of first- degree murder, use of a firearm in the commission of a crime of violence, and possession of a regulated firearm by a prohibited person.

On May 14, 2019 the court sentenced Harrison to life imprisonment. This timely appeal followed. Additional facts will be supplied as necessary. DISCUSSION I. State’s Closing Argument—Burden-Shifting Harriston contends that comments made during the prosecutor’s closing argument impermissibly shifted the burden of proof to the defense in that they misled the jury into 3 believing the defense was obligated to refute the State’s evidence or to provide countervailing evidence before it could challenge the State’s failure to pursue a lead.

The State asserts the prosecutor’s comments did not amount to burden-shifting, and instead were permissible as a narrowly tailored response to the defense’s comments on the State’s failure to investigate the cell phone data. The State adds that the prosecutor’s full recitation of the jury instructions on the defense’s lack of burden were more than sufficient to ensure the jury was aware the defense had no obligation to provide evidence. We agree with the State. Since a burden-shifting claim is an allegation of a violated constitutional right, our review is without deference to the circuit court.

Molina v. State, 244 Md. App. 67, 174 (2019) (citing Savage v. State, 455 Md. 138, 157 (2017)). This Court’s recent analysis in Molina illustrated that burden-shifting claims, made in response to prosecutorial comments on a lack of evidence supporting the defense, are borne out of the defendant’s constitutional right to refrain from testifying. 244 Md. App. at 174 . There, we explained that the Fifth Amendment to the United States Constitution and Article 22 of the Maryland Declaration of Rights provide a defendant with the right not to have the prosecutor comment on his decision not to testify. Id.

(citing Savage v. State, 455 Md. 138, 157 (2017)). We also explained how this constitutional right may be implicated by a prosecutor’s attacks on a lack of evidence provided by the defense: Maryland decisional law has interpreted this prohibition to protect defendants from indirect comments as well as direct ones. Indeed, the Court of Appeals has observed that a prosecutor's comment on a “defendant’s failure to produce evidence to refute the State’s evidence . . . might well amount to an impermissible reference to the defendant’s failure to take the 4 stand.” But even if the comment was not “tantamount to one that the defendant failed to take the stand,” the Court continued, “it might in some cases be held to constitute an improper shifting of the burden of proof to the defendant.” The State’s comment on the defense’s failure to produce evidence, however, will not always amount to impermissible burden-shifting. For instance . . . the State may “argue or comment that the unexplained possession of recently stolen goods permits the inference that the possessor was the thief.” In fact, the State can even request that the court instruct the jury that such an inference is permissible.

This is because a factual inference in the State’s favor, left unrebutted by the defense, does not shift to the defendant a burden either of persuasion or of going forward with evidence. But the State may not exceed the bounds of permissibly commenting on the absence of evidence by commenting, instead, directly on the defendant’s failure to testify. Id. at 174–75 (internal citations omitted). Smith v. State, 367 Md. 348 (2001), is instructive for distinguishing between permissible and impermissible comments.

There, the defendant was found in possession of stolen leather goods and did not testify. Id. at 351–52. The prosecutor instructed jurors to ask themselves, “What evidence has been given to us by the defendant for having the leather goods? Zero, none.” Id.

(emphasis in original). The Court of Appeals held those comments violated the defendant’s constitutional right to remain silent, explaining: The prosecutor did not suggest that his comments were directed toward[ ] the defense’s failure to present witnesses or evidence; rather, the prosecutor referred to the failure of the defendant alone to provide an explanation. The prosecutor’s comments were therefore susceptible of the inference by the jury that it was to consider the silence of the defendant as an indication of his guilt, and, as such, the comments clearly constituted error. Id. at 358 . 5 We compared Smith’s facts to the facts before us in Molina, where the defendants claimed the prosecutor impermissibly shifted the burden of proof to them and effectively commented on their failure to testify.

Molina, 244 Md. App. at 172–73. At issue were the prosecutor’s comments in closing: We listened to about two hours of Ana Molina’s attorney talk to us about facts that are simply not correct. . . But where in those two hours did you hear anything about where that money went and why that money was spent in [Gustave's] best interests or according to his wishes? When did you hear that?

For two hours we listened. When did you hear it? When did you hear that? Id. at 171–72.

In contrast to Smith, we found these comments permissible, distinguishing them “as highlighting the lack of any evidence explaining the defendant’s possession of recently stolen goods,” rather than amounting to comment on the defendant’s own failure to testify. Id. at 176. In Pietruszewski v. State, 245 Md. App. 292 , No. 209 September Term, 2018 (filed April 7, 2020), 2020 WL1685811, the defendant claimed the State improperly shifted the burden of proof to the defense when the prosecutor pointed out in closing that the defendant’s alibi witnesses never went to the police to explain where the defendant was on the day of the robbery, as well as comments about the quality of the defense’s evidence. Slip op. at 10-11.

But this Court nonetheless rejected his claim, explaining that, We agree with the State that the challenged argument in this case merely pointed out the weakness in the credibility of Pietruszewski's alibi witnesses, including the lack of corroborating evidence that their testimony suggested would have been reasonably available. The prosecutor's references—both to the lack of any documentation and to the witnesses’ delay in coming forward with exculpatory information before trial—were directed at the credibility of the testimony that was given by the witnesses. 6 Id. at 322 . Pietruszewski was consistent with a much earlier decision by our Court in Funkhouser v. State, 51 Md. App. 16 (1982). There, the defendant claimed the prosecutor made an “improper comment on his failure to testify,” pointing to two statements made in closing: We have presented all the evidence to you.

What about the defendant's case? Interesting. Not one bit of evidence is offered as far as the rape itself or the kidnapping. . . . * * * Five witnesses are called. None speak of the rape or the kidnapping.

All they talk about is a fight that night, a fight at the house. . . . Id. at 29 . Noting the circuit court provided instructions to the jury explaining the defendant had a right not to testify and that his exercise of that right could not be used against him, this Court held the prosecutor’s statements were permissible: they did not refer to the defendant’s failure to testify, but rather the general lack of evidence. Id. at 30 .

We concluded, “A prosecutor should not be precluded from making fair comment on the entire evidence; not every neutral or indirect reference that the State makes which implicitly refers to a defendant's silence is improper comment.” Id. In Burks v. State, 96 Md. App. 173 (1993), in support of a self-defense argument, defense counsel attempted to characterize one of the murder victims as a person known to be violent. Id. at 204 . In closing arguments, the prosecutor, according to this Court, aptly pointed out the defendant’s self-defense argument consisted more of defense counsel’s own “speculative rhetoric than it did of hard evidence.” Id. at 204–05.

The defendant claimed the prosecutor’s comment in rebuttal was improper: 7 What I want to know is, how do you know that the defendant is not capable of violence? Whose word do you have for that? The defense counsel’s word for it ultimately because nobody came here to tell you he is not capable of violence. It is the defendant only who testified, and now I want to remind you, how do you know that Marvin Willis had been a violent person before this week?

Because a defendant who claims self-defense is entitled to bring witnesses in here. . . Id. at 203–04. This Court did not find the comments improper, explaining it did “not remotely read” the prosecutor’s comments as shifting the burden of persuasion to the defense. Id. at 204 .

Instead, we opined that pointing out such a shortcoming was the “purpose of jury argument.” Id. at 205 . The State argues that Mitchell v. State, 408 Md. 368 (2009) is dispositive. There, our Court of Appeals used the “opening the door” doctrine2 to analyze a prosecutor’s comments on the defense’s failure to subpoena witnesses. In closing, defense counsel listed persons who had been discussed at trial but were not called to testify.

Id. at 376 . He said the absence of those witnesses created “a situation where a misidentification could take place,” and suggested Let’s bring Wal[i] Henderson here so we can see if he’s a heavyset, dark- skinned man. Let’s bring Antonio Corprew here so we can gauge his stature. Let’s look at Man–Man, what does he look like?

Get that hat out of the car. Does that hat fit his head? Id. at 377 . The prosecutor responded in his closing by saying: 2 Our Court of Appeals recently explained “[t]he open door doctrine authorizes admitting evidence which otherwise would have been irrelevant in order to respond to . . . admissible evidence which generates an issue.

In short, the doctrine makes relevant what was irrelevant. Given the doctrine’s ability to enlarge the universe of relevant evidence at trial, ‘the opening the door doctrine’ is a rule of expanded relevancy.” State v. Robertson, 463 Md. 342, 352 (2019) (internal quotations and citations omitted). 8 The defense made mention a couple times about what the State didn't present to you all. We never saw Cochran, never saw Corprew, never saw Turner, never saw Wal[i] Henderson.... * * * If [defense counsel] thought that them being here would have shown that something we presented was so contradictory to something about them, he could have brought them in as well. The defense has subpoena power just like the State does.

You can’t say why didn’t the State present a witness, when they had an equal opportunity to present it to you, and then try to say, well, it wasn’t presented. They had an equal right to present it if they thought it would contradict something we presented. Id. at 377, 379 . The Court of Appeals held the prosecutor’s statements amounted to “fair comment” on the ground that defense counsel’s statement “opened the door” for the prosecution to draw attention to the defense’s subpoena power.

Id. at 387–88. The Court highlighted that the defense, by suggesting it would have been helpful for additional named persons to testify, “argued the relevancy of their absences and the weakness in the State’s case.” Id. at 388–89. Here, in closing argument, Harriston’s attorney said the following: [DEFENSE COUNSEL]: [T]here was one thing that the sister did was she gave them my client’s phone number that he then verified through another source. So he then put that in a search and seizure warrant and said, hey, we know – Judge, under perjury, that’s his phone.

They get the records. It has hundreds of pages that have coordinates, GPS tracking, everything, but because the name doesn’t say Larry Harriston, the detective goes oh, well, that’s useless. I’m on a family phone plan. My mother, my father, my sister, my son . . .

You pull any of their phone records it will have my name on it. I assure you I don’t have six different phones. To not even bother going down a couple floors within your own department to have the IT person run all that information to be able to tell you where that phone was. Don’t you think you’d like to have that information instead of just doing the officer’s approach?

Let me just stick my head in the sand and guess what I’m showing you instead because that’s what this detective did. And later, counsel revisited the point, saying: 9 I think the most offensive one is the cell phone records. They can tell you exactly where that phone was. And if – so think about it.

If someone is at a store that’s not at the scene, that’s not in that direct neighborhood, goes from there and comes back and you had