State v. Harrison

• Decision Date: 14 January 1991
• Docket Number: No. 890617-CA,890617-CA
• Citation: State v. Harrison, 805 P.2d 769 (Utah App. 1991)
• Parties: The STATE of Utah, Plaintiff and Appellee, v. Mark Deron HARRISON, Defendant and Appellant. Case
• Court: Utah Court of Appeals

Page 769

805 P.2d 769

The STATE of Utah, Plaintiff and Appellee, v.Mark Deron HARRISON, Defendant and Appellant.

Case No. 890617-CA.

Court of Appeals of Utah.

Jan. 14, 1991.

Rehearing Denied Feb. 7, 1991.

Vernice S. Ah Ching, Elizabeth Holbrook(argued), Salt Lake Legal Defender Ass'n, Salt Lake City, for defendant and appellant.

R. Paul Van Dam, State Atty. Gen., Sandra L. Sjogren(argued), Asst. Atty. Gen., Salt Lake City, for plaintiff and appellee.

Before BENCH, BILLINGS and GREENWOOD, JJ.

OPINION

GREENWOOD, Judge:

Mark Deron Harrison appeals his jury conviction of manslaughter, a second degree felony, in violation of Utah Code Ann. § 76-5-205(1990).We affirm.

FACTS

At about 2:00 a.m. on April 9, 1989, Harrison shot and killed Grant Glover outside the Persepolis Club in downtown Salt Lake City.The shooting took place during a confrontation between two groups of people who had been posturing as if they were members of rival street gangs.Apparently, Harrison's group perceived Glover's group as "Crips," while Glover's group believed Harrison and company were "Bloods."

The confrontation had begun earlier in the evening.Harrison, his wife, and several friends were at the crowded club to celebrate the birth, one or two days earlier, of Harrison's second child.Harrison and his wife had been dancing.Returning to their table, they found their way blocked by Rodney Thomas, a professional football player and member of Glover's group.Harrison tried to walk past Thomas, saying, "Excuse me, blood."Thomas, apparently drunk, and apparently insulted by being addressed as "blood," leaped from his chair and began to berate Harrison and his wife.Although Harrison, a non-drinker, denied responding in kind, he and Thomas had to be physically separated.Glover, also a football player and also drunk, apparently tried to join the quarrel, "woofing" at or shoving one of Harrison's companions.Bouncers then asked Glover and Thomas to leave the Persepolis; as they left, they were joined by Glover's brother, Dino, and another companion.

Although not expelled from the club, Harrison and three male companions also exited, leaving Harrison's wife and the wife of another group member inside.Seeing Thomas across the street, the four men got into their car and drove away.At this point, a factual dispute related to this appeal arises.One of Harrison's companions, John Bray, testified that the four planned to get guns: Harrison was to get his pistol, while another companion got a shotgun.Harrison, however, testified that he already had a pistol with him, which he carried because of violent threats made against him in the past.Harrison was dropped off at his apartment, a few blocks from the Persepolis, and the others drove on for the shotgun.Harrison claimed that his plan was to simply change from dress shoes into tennis shoes, then run back to the Persepolis and escort the women out, avoiding Glover's group.As he left the apartment, however, Harrison was hailed by his companions in the car.Their return was quicker than anticipated because they had realized, shortly after dropping Harrison off, that they would not be able to get the shotgun, because they did not have the key to the house where it was kept.The foursome drove back to the Persepolis.

Glover's group was still outside the Persepolis when Harrison's group returned.Glover and his friends taunted Harrison's group.Someone exclaimed that Harrison had a gun, and Glover reportedly boasted, "I can beat a gun."A beer bottle was smashed on the sidewalk.Harrison and his friends went inside.Harrison had just returned to the wives' table when someone--either Harrison or one of his friends--signalled that they should return outside.The foursome did so, and the deadly, final confrontation ensued.

Facing off outside the Persepolis, the opposing groups exchanged street slang indicating gang membership, although Harrison himself apparently made no such utterances.¹Bray prepared to fight one of Glover's companions.Glover challenged Harrison to fight.²He advanced on Harrison; Dino Glover reported that his brother was alternately snapping his fingers and hitting one hand into the other as he advanced.Another witness described Glover's movements as "street bluffing," an attempt to give the impression of having a gun.Although no gun was recovered from Glover, Harrison claimed at trial that he saw Glover pulling a nickel-plated revolver from his waistband.Terron Horton, another member of Harrison's group, testified at trial that he saw Glover reaching for a "chrome object" in his waistband.Stepping back and shouting "Stop!" or "Stop, blood!," Harrison drew his pistol and fired the fatal shot.

Harrison and his friends ran from the scene.Terron Horton then went back to the Persepolis and picked up the women.At trial, Horton testified that, while on his way back to the Persepolis, he encountered one of Glover's companions brandishing a "chrome gun."The encounter was apparently brief, Glover's friend demanding to know if Horton had shot Glover, Horton replying that he had not.The "chrome gun" was never recovered; nor was the person who allegedly confronted Horton ever identified.

Harrison's gun was recovered when he was arrested on suspicion of shooting Glover the following afternoon.The arrest took place as Harrison and his wife were walking their newborn and eleven month-old babies near Harrison's apartment.The arresting officers ordered the couple down on the sidewalk and searched them.At a suppression hearing, Mrs. Harrison testified that one of the officers then, without consent, searched the diaper bag that had been carried on the babies' stroller and found the gun.The officer testified that she had merely looked inside the open bag and patted it down, felt a gun-shaped object in an inside zippered pocket of the bag, and reported this to officers taking Mrs. Harrison to the Salt Lake City Public Safety Building.A detective at the public safety building then asked Mrs. Harrison if he could search the bag, and she consented.Mrs. Harrison claimed that she only consented to the detective's search because she believed the gun had already been discovered and, therefore, refusing consent would be futile.The trial court, finding that Mrs. Harrison's consent to search the bag at the public safety building was voluntarily given, denied Harrison's motion to suppress the gun.

Harrison was charged with second degree murder and tried before a jury in August 1989.Harrison, who is black, objected to the State's use of peremptory challenges to strike two Hispanic-surnamed women from the jury.The objection was raised immediately after the jury was sworn.Harrison asserted that the two women were the only apparent minorities on the panel, and that the State's striking them amounted to the systematic exclusion of minorities from the jury.

The trial court asked the prosecutor to explain the challenges.The prosecutor denied racial motivation, explaining that the women had instead been challenged on the basis of gender, in an effort to attain a gender-balanced jury.Each woman had been, when stricken, the woman the prosecutor had least preferred, "for whatever reason."The court noted that one of the stricken jurors had been the only member of the original panel who had "appeared assured of a minority race;" a non-Hispanic-named juror remaining on the jury appeared as likely to be a minority member as did the other stricken Hispanic-named juror.Accepting the prosecutor's explanation of the peremptory challenges, the court denied Harrison's objection.The jury, consisting of five women and three men, was then seated, and the excused panel members were dismissed.

At trial, Harrison admitted shooting Glover, but claimed he had done so in self-defense.To impeach John Bray's trial testimony that Harrison had left the Persepolis to get a gun following the first encounter with Glover's group, Harrison attempted to introduce Bray's testimony at a preliminary hearing.The trial court, however, found the prior testimony to be "likely consistent" with Bray's trial testimony, and disallowed reading the prior testimony to the jury.

To buttress his assertion that he had carried the gun all evening, and had not gone back to his apartment to get it after the initial confrontation with Glover's group, Harrison sought to testify about a specific incident that had prompted his decision to carry the gun.Some two months before the Glover shooting, Harrison claimed that his car had been firebombed, and that he had been threatened by some Tongan Crips.Harrison was not allowed to testify about this incident, because the trial court found it too remote from the Glover confrontation; Glover and his companions were black, not Tongan, and there was no showing that there were Tongans at the Persepolis on the night Glover was shot.Harrison was allowed to testify that he carried the gun because of prior threats against him, but was not allowed to provide the details of the threats.

The State attacked Harrison's testimony that Glover was pulling a gun when shot.This attack centered on the fact that nothing in the investigation of the shooting suggested that Glover had been armed until Harrison's and Horton's trial testimony.Horton claimed that he had not revealed his having seen the "chrome object" or the "chrome gun" to investigators earlier because he had not wanted to get involved in the case.

Harrison testified that, in the aftermath of the shooting, he had told his wife and the wife of one of his companions that Glover had had a gun.The friend's wife could not be located to corroborate Harrison's testimony at trial.Harrison's wife did not testify because of the marital privilege.³In closing argument, the prosecutor commented on Mrs. Harrison's unavailability, as a result of the privilege, to testify that Harrison had told her that Glover had been armed.Harrison's...