Harriston v. State

• Decision Date: 01 June 2020
• Docket Number: No. 739, Sept. Term, 2019,739, Sept. Term, 2019
• Citation: 246 Md.App. 367,228 A.3d 1181
• Parties: Larry HARRISTON v. STATE of Maryland
• Court: Court of Special Appeals of Maryland

246 Md.App. 367

228 A.3d 1181

Larry HARRISTON

v.STATE of Maryland

No. 739, Sept. Term, 2019

Court of Special Appeals of Maryland.

June 1, 2020

Submitted by: Claire Caplan (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant

Submitted by: Benjamin A. Harris (Brian E. Frosh, Attorney General, on the brief), Baltimore, MD. for Appellee

Panel: Berger, Wells, Salmon, James P. (Senior Judge, Specially Assigned), JJ.

Wells, J.

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 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.

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 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, 222 A.3d 222 (2019) (citing Savage v. State , 455 Md. 138, 157, 166 A.3d 183 (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, 222 A.3d 222. 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, 166 A.3d 183 (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 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, 166 A.3d 183 (internal citations omitted).

Smith v. State , 367 Md. 348, 787 A.2d 152 (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, 787 A.2d 152. 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, 787 A.2d 152.

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, 222 A.3d 222. 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, 222 A.3d 222. In contrast to Smith , we found...