Harrison v. State
| Citation | 276 Md. 122,345 A.2d 830 |
| Decision Date | 07 October 1975 |
| Docket Number | No. 202,202 |
| Parties | Charles Edward HARRISON, Jr. v. STATE of Maryland. |
| Court | Court of Appeals of Maryland |
Lee Gordon, Baltimore, for appellant.
David B. Allen, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., Milton B. Allen, State's Atty., Baltimore City and Mark Kolman, Asst. State's Atty., Baltimore City, Baltimore, on the brief), for appellee.
Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE AND O'DONNELL, JJ.
Following a three-day jury trial in the Criminal Court of Baltimore (before Harris, J.) the appellant, Charles Edward Harrison, Jr., was convicted on October 24, 1973, of the murder, in the first degree (murder committed in perpetration of a robbery), see Maryland Code (1957, 1971 Repl.Vol.), Art. 27, § 410, of one William James Morgan, 1 who died of a single gunshot wound of the chest in the early morning hours of July 18, 1970. Following denial of a motion for a new trial and from the imposition of life imprisonment Harrison appealed to the Court of Special Appeals. That court, in an unreported per curiam opinion, Harrison v. State (No. 904, September Term, 1973), affirmed his conviction on September 3, 1974. We granted a writ of certiorari limited solely to the questions:
(1) whether the trial judge erred in allowing the State to call appellant's former attorney as a rebuttal witness to testify as to the disclosure or non-disclosure of a vitally important, controverted issue; and
(2) whether the trial judge's admission of prejudicial, incriminating evidence against the appellant, namely by showing unrelated misconduct of appellant with drugs, denied appellant a fair trial.
We shall reverse upon both grounds.
Officer Charles Shorman, of the Baltimore City Police Department, at about 3:30 a. m. on July 18, 1970, heard a gunshot and immediately drove to the scene in front of a small store at 1326 Pennsylvania Avenue. He found the victim in a sitting position with the 'whole right side' of his pants and his right pants pocket 'ripped out.' The officer testified that he could not determine whether or not at that time the victim 'had any money on him.'
Counsel stipulated that if Morgan's girlfriend, Mary L. Hogan, were called as a witness she would testify that on Friday, July 17th at about 8:15 p. m. she had loaned Morgan $213 which he placed in his wallet and that when she last saw him that evening, his clothing was undamaged.
The autopsy performed by the Assistant Medical Examiner was admitted into evidence by stipulation. 2
The only other witness in the State's case-in-chief was William Strait, a former resident of Baltimore, then a member of the United States Air Force, stationed in Colorado but residing in San Antonio, Texas. He testified that he, Harrison, and one Tony Wilson had left Cicero's, a club on Forrest Street, about 2:45 a. m. on that date in an automobile driven by Harrison. After leaving Tony Wilson in the 900 block of Pennsylvania Avenue, he and Harrison drove to the 1300 block of that avenue. Upon arrival Strait became engaged in conversation with a group of people on the east side of the street; Harrison remained on the west side where he was conversing with a man; Strait saw the man pressing Harrison's arms against his sides, but concluded that there was 'no fight.' Strait's conversation was interrupted when he heard a gun discharge, saw a flash, and then 'everyone started running.' From across the street, he stated he saw Harrison standing about four or five feet from the victim, with his right arm outstretched, holding what 'seemed to be a pistol in his hand.' He also testified that he had seen the appellant with a pistol stuck down in the belt of his pants earlier that evening at Cicero's. 3 It was Strait's testimony that he saw the appellant 'ransacking the man's pockets'-on 'the lower part of the man's body.' Thereafter, according to Strait, Harrison ran through an open space, Strait joined him in the automobile and they drove to the 900 block of Pennsylvania Avenue where they picked up Tony Wilson. All then drove to a night club on Harford Road, with none of them discussing the incident in any fashion during the entire ride. Strait, who did not contact the police until some 10 days later, explained the delay by stating that his life had been threatended by Gary Wilson 4 and that the life of his girlfriend had been threatened,-the person threatening her going unidentified.
Strait testified that he had known the appellant 'for about two weeks' being employed with him by Gary Wilson, the manager of the Black Orchid club on Gay Street. He explained that Harrison at times drove Wilson, 'danced' at the club and occasionally tended bar. His employment was serving customers. Upon direct examination Strait stated that Gary Wilson was 'pushing narcotics' (marijuana); on cross-examination he acknowledged, however, that he had never seen marijuana sold at the Black Orchid but had seen him sell it at Cicero's.
This was the sum and substance of the State's case against the appellant, 5 at the conclusion of which the trial court denied his motion for judgment of acquittal as to murder in the second degree and as to manslaughter, but 'reserved ruling' as to murder in the first degree. 6
The first witness for the appellant was his friend Jeffrey Taylor. He testified that he had seen Harrison in the Baltimore City Jail while there serving a sentence for disorderly conduct and that he told Harrison, when he learned the charge upon which Harrison was confined that he had been a witness to the crime, that while walking from a nearby bar, had observed the incident from a distance of about 20 feet, and had seen the assailant run across the street, carrying a gun. He told Harrison that although he did not know the identify of the murderer, he knew that it was not Harrison. 7
In his own defense, the appellant testified that he had worked from 8 p. m., July 17th, until 2 a. m., July 18, 1970, at the Black Orchid, when he and his employer drove 'to East Baltimore' to pay wages to 'a band leader;' they then drove to Cicero's, arriving about 2:45 a. m., where he saw Tony Wilson, Gary's brother, Gary's wife, and there for the first time met Strait. 8 He denied that he was at or near the scene of the crime and had remained at Cicero's until approximately 6 a. m., when, going outside, he again saw Strait, whom he had not seen in the interval, and that at about 6:15 a. m., at Strait's request, he drove him to the 1300 block Pennsylvania Avenue, leaving him off near the York Lounge.
Harrison was arrested at about 8:30 a. m. on August. 2, 1970 (20 days after the homicide) at the Black Orchid. At the time of his arrest, several packets of marijuana were found in one of his boots which he stated had been left overnight behind the bar. He was separately indicted for possession marijuana.
Following his appearance before the District Court on August 3rd, Harrison rode in the same 'paddy wagon' with Strait (who had been committed as a State's witness) to the City Jail, and was there with him in the 'bull-pen.' After several attempts to relate a conversation with Strait, to which objections were sustained, he ultimately testified, following a reversal by the trial court of its ruling, when re-called as a witness, that in the jail 'bull-pen,' Strait had told him that he was a State's witness, that he knew that Harrison had been accused of the murder but that Harrison was not the assailant; that although Strait stated he knew 'who did it,' he was not going to disclose that fact to anyone and that the man killed 'carried large sums of money.' Harrison further testified that when he asked Strait why he was a witness against him Strait 'walked away;' that thereafter he never saw Strait, nor had the opportunity to further talk with him since they were not put 'on the same section' in the jail.
On cross-examination, the prosecutor was permitted to elicit over strenuous objection, that Harrison had been in possession of marijuana at the time of his arrest at the Black Orchid. He was further asked on cross-examination, without objection, whether or not he had ever told his former attorney (Mr. Daneman) about this conversation with Strait at the jail, to which the appellant answered in the affirmative.
Strait, re-called as a rebuttal witness, acknowledged that he had been in the City Jail 'bull-pen' with Harrison, but denied that he was ever alone with him, denied making such a statement and denied that he had ever been questioned concerning any such incident when deposed.
Although both sides had rested their cases, the prosecution, following a luncheon recess in camera moved to reopen its case to permit as additional rebuttal evidence the testimony of Donald Daneman, Esquire, who had been Harrison's counsel in December, 1970, 9 but who on December 20, 1971 had stricken his appearance. 10 Judge Harris granted the State's motion to reopen and over strenuous objection by counsel for the appellant (in the chambers conference) permitted Deneman to testify that during the period of time during which he represented him Harrison had never told him of such a conversation with Strait; that if he had, he surely would have questioned Strait about it upon the deposition.
(1)
Following a brief cross-examination about his conversation with Strait, the trial court addressed several questions to Harrison as follows:
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