Harris v. State

• Decision Date: 30 November 2009
• Docket Number: No. 581 September Term, 2008.,581 September Term, 2008.
• Citation: 984 A.2d 314,189 Md. App. 230
• Parties: Thomas B. HARRIS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

984 A.2d 314

189 Md. App. 230

Thomas B. HARRIS v. STATE of Maryland.

No. 581 September Term, 2008.

Court of Special Appeals of Maryland.

November 30, 2009.

Brian T. Edmunds (Arnold & Porter, LLP, Washington, DC, Nancy S. Forster, Baltimore, MD, on the brief), for Appellant.

Ryan R. Dietrich (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for Appellee.

Panel: DEBORAH S. EYLER, ZARNOCH and MATRICCIANI, JJ.

ZARNOCH, Judge.

On March 5, 2008, Thomas B. Harris, appellant, was convicted by a jury in the Circuit Court for Baltimore County of second-degree depraved heart murder of Karim Cross. On May 5, 2008, the court sentenced Harris to fifteen years' incarceration. On May 15, 2008, he timely appealed. For the reasons set forth in this opinion, we reverse and remand.

FACTS AND LEGAL PROCEEDINGS

On the evening of August 12, 2006, Eric Sneed, Karim Cross, and some of their friends visited the Rush Hour Bar in Randallstown, Maryland. Before entering the bar, Sneed stayed outside to make a phone call. While standing in the parking lot "[r]ight outside the front door," Sneed observed an "upset" man leave the bar. Sneed saw the man pace back and forth, and then walk to a "champagne or gold"¹ vehicle, either a "Trailblazer or a GMC Envoy," and open the door of the vehicle. The man then "walked over to another group of guys" who "came out of the bar," and then attempted to reenter the bar. When the upset man came to the bar's entrance, he had an "exchange ... [o]f words" with the bar's bouncer. Sneed also observed a "light purplish" Cadillac "with rims on it" pull into the parking lot, and caught a "glimpse" of the driver. Sneed walked into the bar. Later that night, he saw the driver of the Cadillac talking with the upset man inside the bar.

Sneed stayed at the bar for several hours and consumed three or four alcoholic drinks. He also consumed some beer earlier that afternoon. Sneed left the bar when it closed, at approximately 1:40 a.m. on August 13, 2006. While walking towards his truck, he "heard arguing and a commotion going on that's still at the front of the bar." In his vehicle, Sneed turned to look at the disturbance because it had grown "louder and louder," and saw Karim Cross "running to the middle of the parking lot like he was being chased" out of a "crowd of people." Two men separated themselves from the crowd along with Cross. Sneed identified one of the men as the "upset man" he had seen earlier pacing in the parking lot, and identified the other man as Bland Gatewood.

Sneed jumped out of his truck and "proceeded to go over there to see what was going on." Sneed testified that Bland Gatewood "swung a punch" at Cross, but was uncertain whether the punch connected. Sneed turned to look at the crowd, which included "people we [came] to the bar with," and the onlookers were "basically standing around watching." Sneed tried to "intervene in the middle," but everybody was "just looking at [Sneed], like, you know, leave it alone." Sneed saw Cross take two steps backward and fall, and saw that the victim had been stabbed in the stomach. Sneed saw the attacker "move something fast on [his] side." The object was "shiny," and Sneed believed it was a three-inch knife. Cross died from an approximately three-and-a-half inch deep stab wound to the abdomen. Sneed witnessed these events from about twenty feet away, and admitted that there "wasn't much light" and the events happened "really fast."

Sneed testified that he was "100 percent" certain that the man wielding the knife was the same upset man he witnessed earlier pacing in the parking lot. The man was "dark-skinned," "about 5'5" with a "medium, stocky build," and had "no facial hair" and a "bald head." Sneed testified that Bland Gatewood swung the punch at Cross, and did not have a knife. He saw the man with the knife run to the same vehicle to which he had walked earlier that evening. Sneed described to the police a portion of the vehicle's tag number.

Detective Phillip Marll investigated the partial tag number provided by Sneed, and discovered that it was similar to the license plate of a "beige colored" Chevrolet Trailblazer rented by Harris's girlfriend and driven by him during the week of the murder. The vehicle was returned to the rental agency on August 14, 2006, the day after the murder. Detective Marll also discovered that Harris's cousin, Benjamin Scott, drove a blue Cadillac Concourse and met Harris at the bar that night. Sneed testified that photographs of those two vehicles produced by the State were "representative" of the cars he had observed in the parking lot.

Benjamin Scott testified that when he first arrived at the bar, he was not allowed in because he did not have any identification. Harris came out to "talk to the bouncer so [Scott] can get in." Scott had asked Harris to get him a bottle of liquor, and Scott observed Harris go to his car and come back with a bottle. Scott told police detectives that Harris was stopped by the bouncer when he tried to re-enter, and the bouncer told him to "take it back to the car." Scott testified that Harris put the bottle of liquor back in the car.

Detective Marll interviewed Reginald White, the Rush Hour Bar's bouncer, and asked him "whether [he] recalled an incident in which [he] told a customer that [the customer] couldn't come back in the bar unless he put whatever he got from his vehicle back." White indicated in a written statement to police that on the night of the murder he thought he saw an upset man leave the bar and try to re-enter the bar with something in his pocket. White "didn't let him back in." During cross-examination, defense counsel asked White, "So under no circumstances did that person come back in the bar?" White answered, "I don't think so. Not to my knowledge."² White picked Harris's photo as the one that most closely resembled the man who left the bar and tried to re-enter. At trial, White said that he did not recall having any "problems, arguments, or anything" with Harris.

At the close of the State's case, Harris moved for a judgment of acquittal, arguing that the evidence was insufficient to convict him. The court denied the motion. The defense presented no evidence, and the court denied Harris's renewed motion for judgment of acquittal. The jury acquitted Harris of second-degree specific intent murder, but convicted him of second-degree depraved heart murder. Harris appeals that conviction.

QUESTIONS PRESENTED

This appeal presents two questions:

1. Did the trial court abuse its discretion when it refused to declare a mistrial after it failed to promptly disclose to the defendant a communication between a juror and the trial judge's secretary?

2. Did the trial court err when it failed to enter a judgment of acquittal for appellant based on insufficiency of the evidence?³

DISCUSSION

I. Communication With the Juror

At trial, after voir dire was completed and the jury was empaneled and sworn, a juror indicated to the court that he had a question. The following discussion took place:

THE COURT: Sir.

THE JUROR: Now can I ask my question? My grandmother went in the hospital. She's 89 years old and it was last Wednesday. They don't expect her to live. I think they don't expect—she fell and punctured her lung and then they're finding stomach fluids from where they were draining so they think she had a puncture in the stomach. She was going in today for an operation, and they don't expect her to live. I just don't know if there will be a funeral.

THE COURT: Okay.

THE JUROR: She's 89. That was the only thing. If there's no funeral, then I'm fine being her [sic].

THE COURT: Right. Do you recall my asking you a question about your ability to serve?

THE JUROR: I thought it was something else to it, like, because then you continued that thought.

THE COURT: All right.

THE JUROR: Because I asked people around me should I go up there.

THE COURT: Okay. What hospital is she in?

THE JUROR: Anne Arundel County.

THE COURT: When was she admitted?

THE JUROR: Last Wednesday.

THE COURT: Thank you, sir. Any questions?

[PROSECUTOR]: No, sir.

[DEFENSE COUNSEL]: Just, sir, that being concerned about your grandmother, would you have to leave, or would your energies and focus be on what's going on with your grandmother or your family?

THE JUROR: When they took my cell phone today, I was concerned because I lost contact. You know, I was waiting to hear, and, like I said, if something happens, I would want to go to the funeral. If I had a chance that they said it looked like it was the end coming, I would be like to be able to go before that [sic].

THE COURT: We can certainly provide you with a contact number to give your family so even though you don't have a cell phone they could contact my chambers, and they'll get a message to you immediately.

THE JUROR: That works, if I can still go in the evening. If they call, they will come get me?

THE COURT: Yes.

THE JUROR: Okay.

THE COURT: Thank you so much.

THE JUROR: I didn't mean to—

THE COURT: That's okay. You can take a seat.

The evidentiary portion of the trial concluded two days later. At about 1:45 p.m. on March 5, 2008, shortly after the jury began deliberating, that juror sent a note to the court, at which time the following exchange occurred:

THE COURT: I have received another communication. This time from Juror No. 7 seated in Seat 6. It says, Judge, may I be excused from jury duty for family preparations? His grandmother passed away earlier today, but let me read to you what's his message.

Judge, may I be excused from jury duty for family preparations? If you can exchange me for an alternate jury member without disrupting anything, that will be great. If it is a big deal, please discuss with me. Thank you. He signs it.

One of my staff was contacted by one of his family members to tell him about the death of his grandmother, and we inquired whether he would be able to continue, and he said he would be able to continue. That...