Harris v. State

• Decision Date: 17 January 2017
• Docket Number: No. 484,484
• Parties: JERRY HARRIS v. STATE OF MARYLAND
• Court: Court of Special Appeals of Maryland

JERRY HARRIS v. STATE OF MARYLAND

No. 484

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2015

January 17, 2017

UNREPORTED

Berger, Nazarian, Alves, Krystal Q. (Specially Assigned), JJ.

Opinion by Alves, J.

Dissenting Opinion by Nazarian, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

Following a jury trial in the Circuit Court for Baltimore City, Jerry Harris ("Appellant" or "Harris") was convicted of robbery, two counts of second-degree assault, theft less than $1000 and conspiracy to commit the following crimes: robbery with a dangerous weapon, robbery, first degree assault, second degree assault and theft less than $1000.¹ The court sentenced Appellant to an aggregate term of 10 years.² On appeal, he presents four issues which we rephrase and consolidate below:³

I. Whether the trial court erred by allowing testimony that Appellant had invoked his Fifth Amendment right to counsel.

II. Whether the trial court erred by giving a missing witness instruction.

III. Whether the trial court erred in sentencing Appellant.

We conclude, as the State concedes, that the trial court erred in its sentencing of Mr. Harris to multiple sentences for conspiracy instead of one sentence for the flagship count of conspiracy to commit robbery with a deadly weapon. Otherwise, for the reasons stated herein, we shall affirm.

BACKGROUND

Appellant does not challenge the sufficiency of the evidence. Accordingly, we will limit our discussion of the facts to those necessary to provide context for the issues raised in this appeal. See, e.g., Joyner v. State, 208 Md. App. 500, 503 n.1 (2012).

Appellant's criminal convictions arise out of a home invasion armed robbery that occurred on January 16, 2014 in Baltimore City, Maryland. Two masked men entered the home of Gale Binko and stole U.S. currency. One of the suspects also took a pill bottle containing "oxycodone"⁴ from Ms. Binko's blouse and subsequently handled two other pill bottles in the home. The other assailant held a gun to the head of Ms. Binko's friend, Lester Allen.⁵

The State theorized that Appellant was one of the assailants who committed the offense because three left-handed latent fingerprints belonging to Appellant were found on the pill bottles that remained in the home. Appellant argued that he could not have committed the offense because he was at home with his mother during the time of the incident and because a serious injury that he suffered to his left hand in 2004, left his handin a "claw-like" state which he argued physically prohibited him from leaving the latent prints.

DISCUSSION

I. The Trial Court Did Not Err by Allowing Testimony that Appellant Had Invoked His Fifth Amendment Right to Counsel.

On appeal, Appellant first alleges that the trial court erred in admitting evidence of Appellant's post-arrest silence when it allowed Detective Gaskins, the lead investigator in the case, to testify that he "believed" Appellant "requested an attorney." Appellant argues Gaskins's testimony violated his Fifth Amendment right to remain silent as the testimony is an indirect comment on his right to remain silent because such testimony implicates the fact that Appellant is requesting to remain silent until he has counsel present.

We hold that the trial court erred in admitting Detective Gaskins's testimony concerning his "belief" that Harris requested an attorney. Nevertheless, based on the record in this case, we hold that the error is harmless. We explain.

It is well settled that the admissibility of evidence is left to the sound discretion of the trial judge. We will not disturb a trial court's evidentiary ruling unless "the evidence is plainly inadmissible under a specific rule or principle of law or there is a clear showing of an abuse of discretion." Mines v. State, 208 Md. App. 280, 291-92 (2012) (internal quotations) (citations omitted).

The United States Constitution and the Maryland Declaration of Rights guarantees an accused the right to remain silent.⁶ As such, where an accused invokes their right to remain silent, the accused is entitled to have that silence remain free from the barnacle of an adverse presumption that his or her silence be equated with guilt. See Newman v. State, 384 Md. 285, 315 (2004). During custodial interrogation, the rights provided under the seminal case of Miranda v. Arizona, 384 U.S. 436 (1966), protect one's privilege against self-incrimination.

We note, preliminarily, that Appellant specifically objected to Detective Gaskins's testimony on the grounds that the testimony constituted a violation of his Fifth Amendment right to remain silent. The record reflects that the objection was not based upon Appellant's failure to knowingly and intelligently waive his Miranda rights, although it appears from the record that Appellant did not waive his Miranda rights.⁷ As such, an argumentpremised upon non-waiver is not preserved for our review. Md. Rule 8-131. Instead, Appellant argues that that the trial court erred when it allowed Detective Gaskins to testify that Appellant had invoked his right to counsel because such testimony runs afoul of Maryland's "well-settled" prohibition of the use of a defendant's post-arrest silence as substantive evidence of guilt. Appellant also alleges that the testimony of Detective Gaskins is unduly prejudicial.

The testimony relevant to this issue is brief. We set forth the relevant testimony below:

[STATE]: Upon identifying the individual whose prints were lifted, did you make contact with Mr. Harris?

[DETECTIVE GASKINS]: Not immediately, no. After I got the confirmation from Ms. Harris that she didn't know—I'm sorry Ms. Binko—that she didn't know Mr. Harris, I prepared an arrest warrant, went down to the court commissioner, and I issued an arrest warrant for Mr. Jerry Harris. And then members of our warrant apprehension task force picked him up, February 9 or 10—on or about February 9^th or 10^th—and that was my first contact with Mr. Harris.

[STATE]: Okay. Did you attempt to interview Mr. Harris?

[DETECTIVE GASKINS]: Yes.

[STATE]: What, if anything occurred during that interview?

[APPELLANT'S COUNSEL]: Objection.

Thereafter, a bench conference ensued where the following colloquy occurred:

[COURT]: There's nothing wrong with the question. I don't know what the answer is going to be. Meaning, if his answer is, he said, then we could get into this. It could be, I observed him crying. And then that's fine. Do you know what I mean? So I don't know where this is going.

[APPELLANT'S COUNSEL]: Well, what actually occurred was that he started to sign a waiver of rights form, and then asked if he was being charged with armed robbery. And they said yes. And he says, well, I'm not talking, you know, I want to talk to my lawyer. And he refused to sign the rest of the statement. So I think he has a [F]ifth [A]mendment privilege not to incriminate himself and that, you know, his refusal to talk to police shouldn't be admissible as proof of his guilt.

Ultimately, the court overruled Appellant's objection and the following testimony ensued from Detective Gaskins:

[DETECTIVE GASKINS]: Mr. Harris provided us with a false address, denied any involvement with the robbery, and then I believe he requested an attorney.

(Emphasis added.) The record reflects no further testimony or discussion about Detective Gaskins interview with the Appellant. Additionally, neither counsel mentioned the brief exchange during closing arguments.

It is well established in Maryland that the prosecution, generally, may not use an accused post-arrest silence as substantive evidence of guilt or as impeachment evidencewhether or not Miranda warnings are given. Kosh v. State, 382 Md. 218, 220 (2004).⁸ Maryland courts have held, as such, because "in general, silence is evidence of dubious value that is usually inadmissible under either Md. Rule 5-402 or 5-403. Id. at 226 (quoting Grier, 351 Md. at 252 ("Evidence of a person's silence is generally inadmissible because in most circumstances silence is so ambiguous that it is of little probative force.") (citation omitted)).

As noted above, Maryland Courts have traditionally analyzed these issues in the context of Maryland's evidentiary rules as opposed to deciding the issues on a constitutional basis. See Kosh, supra, 382 Md. at 228; Grier v. State, 351 Md. at 258; Dupree v. State, 352 Md. 314, 323 (1988) (citing State v. Raithel where the court stated "[N]othing is better settled than the principle that courts should not decide constitutional issues unnecessarily.") (quoting State v. Raithel, 285 Md. 478, 484 (1979) (internal citation omitted)).

Accordingly, the State argues that because Appellant was not silent after his arrest (i.e. Harris gave a false address and denied involvement in the robbery), Detective Gaskins's statement about his belief that Appellant requested an attorney is relevant, under Md. Rule 5-402, to give context to Harris's denial of his involvement in the robbery and explains why the police ceased questioning. The State further argues that the disputed testimony is not prejudicial, under Md. Rule 5-403, because Appellant's denial of hisinvolvement in the robbery preceded his request for an attorney. Therefore, the State contends, his request for counsel is consistent with and a logical extension of Appellant's prior claim of innocence and thus a jury would not view the testimony as a "badge of guilt." See Grier, supra, 351 Md. at 263.

We find no merit in the State's arguments. Id. Grier v. State, 351 Md. 241, 263 (1998) (citing Walker v. United States, 404 F.2d 900, 903 (5^th Cir. 1968) ("we would be naïve if we failed to recognize that most laymen view an assertion of the Fifth Amendment privilege as a badge of guilt") (quoting Walker v. United States, 404 F.2d 900, 903 (5^th Cir. 1968)). Rather, we...