Harris v. State

• Decision Date: 06 December 2004
• Docket Number: No. 1268,1268
• Citation: 160 Md. App. 78,862 A.2d 516
• Parties: Percy Stanley HARRIS v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

862 A.2d 516

160 Md. App. 78

Percy Stanley HARRIS v.STATE of Maryland.

No. 1268, September Term, 2003.

Court of Special Appeals of Maryland.

December 6, 2004.

Mark Gitomer, Owings Mills, for appellant.

Celia Anderson Davis(J. Joseph Curran, Jr., Atty. Gen. on the brief), Baltimore, for appellee.

Panel: KENNEY, DEBORAH S. EYLER, JOHN C. ELDRIDGE(Ret'd, Specially Assigned), JJ.

DEBORAH S. EYLER, Judge.

The Circuit Court for Prince George's County denied a motion by Percy Stanley Harris to reopen a closed postconviction proceeding, under Maryland Code(2001), section 7-104 of the Criminal Procedure Article("CP").¹The issues on appeal are:

I.Did the circuit court abuse its discretion in denying Harris's motion to reopen his closed postconviction proceeding based on an allegation of ineffective assistance of trial counsel?

II.Did the circuit court abuse its discretion in denying Harris's motion to reopen his closed postconviction proceeding based on allegations of ineffective assistance of postconviction counsel?

For the following reasons, we shall affirm the order of the circuit court.

FACTS AND PROCEEDINGS

Background

On January 22, 1988, in Sussex County, Virginia, Harris, then 43 years old, was charged with the abduction and attempted murder of Lyndetta Mickles, his 17-year-old girlfriend.²Three days later, Federal Bureau of Investigation ("FBI") agents arrested Harris in Baltimore for unlawful flight to avoid prosecution of the Sussex County charges.Upon his arrest, Harris was advised of the charges against him as well as the factual allegations relating to the charges.He then was released on bail.

On February 13, 1988, Harris abducted Lyndetta from a bus stop in Baltimore, took her to a house in the District of Columbia, and beat her to try to force her to write a recantation letter.The police rescued Lyndetta on February 29, 1988.The next day, a Washington, D.C., court issued a warrant for Harris's arrest on kidnapping charges.

Sometime on the night of Sunday, April 10, or in the early morning hours of Monday, April 11, 1988, Lyndetta was murdered.She was last seen leaving her grandmother's home in Baltimore around 6:00 p.m., on April 10.A passerby discovered her body around 1:00 a.m. on April 11, in a secluded area near Watkins Park, in Prince George's County, Maryland.Her wounds were fresh and she was still bleeding.An autopsy revealed that she had been shot in the head and the left shoulder with a.44 caliber pistol.Additionally, a DNA test on semen found inside Lyndetta's body and in her panties revealed the presence of Harris's sperm.

On April 14, 1988, Harris was charged, in the Circuit Court for Prince George's County, with first-degree murder, second-degree murder, and the use of a handgun in the commission of a crime of violence in connection with Lyndetta's killing.A warrant was issued for his arrest.

On May 30, 1988, Harris was apprehended in Uncasville, Connecticut.

The charges against Harris went to trial on May 7, 1990.The trial ended in a hung jury on May 16, 1990.Harris's second trial began on November 1, 1990.

November 1990 Trial

One of the State's witnesses was Viola Mickles, Lyndetta's grandmother.Mickles had testified as a rebuttal witness for the State at Harris's first trial.Her testimony then consisted of explaining that she had received several telephone calls from an unidentified person between February 13 and 29, 1988 — the dates during which Harris held Lyndetta in Washington, D.C.At the retrial, however, Mickles was called in the State's case-in-chief and testified that Lyndetta had come to her house for a visit on April 10, the day before her body was found.When the prosecutor asked Mickles what Lyndetta had said during her visit, defense counsel objected because the testimony had not been introduced at the previous trial.A bench conference ensued.The trial court decided to hear Mickles's testimony out of the presence of the jury and then rule on its admissibility.

Mickles testified that she had seen Lyndetta late in the afternoon on April 10, and that Lyndetta had said she was going to a movie with "Percy"; Harris then picked Lyndetta up in an automobile to go to the movies.Defense counsel objected to all of this testimony, and the trial judge ultimately ruled that Mickles would not be permitted to identify Harris before the jury by pointing to him or using the name "Percy."Mickles would be permitted to give a physical description of the person she had seen in the car, however, and to relate what Lyndetta had said her intentions were that night — to go to the movies with Percy.

The next day, Mickles testified before the jury that Lyndetta had said, on April 10, that "her and Percy was going to the movie."Mickles further testified that, from her bedroom window, she saw Lyndetta get into a "middle-sized car ... dark [in] color" with a "[m]iddle-aged black" man driving.

On cross-examination, defense counsel established that the first time Mickles had seen Harris was when he picked up Lyndetta to take her to the movies that night, and that she had seen Harris since then during the ensuing court proceedings.

FBI Agent Thomas Montgomery testified for the State.He recounted that, on April 13, 1988, acting as part of a fugitive investigation, he went to the home of Flora Holt, Harris's aunt, in Washington, D.C.He told Holt he had a warrant for Harris's arrest for the kidnapping of Lyndetta, and that Prince George's County"police officers [ ] were interested in talking to him about homicide."Agent Montgomery explained that he disclosed Lyndetta's name to Holt as the victim of the kidnapping because the name was written on the arrest warrant.He did not disclose Lyndetta's name as the homicide victim, however, because the murder had occurred in Prince George's County and was being handled by authorities there.

Agent Montgomery further testified that, upon determining that Harris was not at Holt's house, he started to leave.Holt summoned him back inside, saying that Harris was on the telephone and wanted to speak to him.Agent Montgomery spoke to Harris on the telephone, saying: "Mr. Harris, we have an arrest warrant for you, we'd like to work out some arrangements to take care of this warrant."Harris responded, "What was this about, some homicide," to which Agent Montgomery said, "Well, that's not what I have a warrant for.I have a warrant charging you with kidnapping."To this, Harris replied: "I didn't kill that girl.She was my baby.I wouldn't have hurt her."Harris then agreed to turn himself in to Metropolitan Police Department headquarters in Washington, D.C. the next day.He did not do so, however.

Witnesses for the defense testified that Agent Montgomery indeed had related Lyndetta's name to the homicide.According to one such witness, Agent Montgomery pulled out a picture of Lyndetta and showed it to Holt, identifying the person in it as being the victim of the homicide.Another witness testified that, during Agent Montgomery's telephone conversation with Harris, the agent told Harris he was wanted "because of Lyndetta...."

The trial court gave the jury a flight instruction.Defense counsel objected, arguing:

[I]t's my understanding [that a flight instruction] is normally given if there's some evidence of fugitive flight.

In this casewe're dealing with the warrant for murder that was issued by Prince George's County.We're not talking about evidence of flight from any other warrants.The Court will recall the record indicates there was a kidnapping warrant issued out of the District of Columbia on or about March 1st... at the time FBI Agent Montgomery went to [Holt's house].While he was at [Holt's house]he received a telephone call from ... Harris.

There's no evidence whatsoever where ... Harris was at the time that telephone call originated.All we have, at the time he was arrested, he was with his brother in Connecticut.There's no indication that he went from a place to a place as the result of anybody being advised, anything being told to him, concerning possible charges.As a fact, I believe at the time they went to [Holt's house] there wasn't even a warrant for murder issued yet.Prince George's County Police had not issued it yet.They were there to execute a kidnapping warrant and to quote investigate an alleged kidnapping and that was the testimony in the record and I don't think that [a] flight instruction would be appropriate unless the defendant is aware of the fact that there is a warrant for his arrest for a charge and that fact was never communicated to him.

The court explained its reason for giving the flight instruction, stating:

[T]he State adduced evidence that [Agent Montgomery did not] mention [ ] who it was that was deceased [when he went to Holt's house].If it had laid there, then I would not give an instruction but there were witnesses who took the stand for the defense and put before this jury that indeed [Agent Montgomery] did say it was for Lyndetta and that's why they were looking for him and based upon that I'm going to give the instruction.

The case was sent to the jury for deliberation on November 9, 1990.After a few hours, the jurors sent a note saying that they had reached a verdict on the second-degree murder and handgun charges but were deadlocked on the first-degree murder charge.The court asked defense counsel if he had advised Harris about the situation, to which defense counsel responded:

I have advised my client the jury has reached a verdict on two of the three counts.I have advised him let's go ahead and bring it in so we'll know probably what the verdict is so bring it in.I know we have a right to insist on a verdict on all three counts but I think we'll just take it.

The jury was brought into the courtroom and returned guilty verdicts on the charges of second-degree murder and use of a handgun in the commission of a crime of violence.The judge asked defense ...