Harmon v. State

SKYLOR HARMON v. STATE OF MARYLAND

No. 580

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2018

August 20, 2019

Circuit Court for Worcester County

Criminal Case No. 23-K-11-000012

UNREPORTED

Arthur, Beachley, Zarnoch, Robert A. (Senior Judge, Specially Assigned), JJ.

Opinion by Arthur, 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.

In 2010 a Worcester County grand jury indicted Skylor Dupree Harmon on one count of first-degree murder, one count of attempted first-degree murder, and two counts of reckless endangerment. His initial trial ended in a mistrial.

On October 20, 2011, after a second trial, the jury convicted Harmon of all charges. The court sentenced him to life imprisonment.

Harmon filed an untimely notice of appeal, and his appeal was dismissed. He petitioned for post-conviction relief, including the right to pursue a belated appeal; and the State agreed that he could pursue a belated appeal before the consideration of any other issues. See Garrison v. State, 350 Md. 128, 139 (1998) (holding that a defendant in a criminal case who is denied the right to a desired appeal through no fault of his or her own is entitled to a belated appeal, without the necessity of presenting any other evidence of prejudice). We affirmed the convictions in an unreported opinion, Harmon v. State, No. 0823, SEPT. TERM 2015, 2016 WL 706677 (Md. Ct. Spec. App., Feb. 23, 2016).

After the failure of his direct appeal, Harmon amended his petition for post-conviction relief. Following a two-day hearing, the Circuit Court for Worcester County denied the petition on July 17, 2017.

We granted Harmon's application for leave to appeal. For the reasons that follow, we reverse the judgment of the circuit court and remand the case for further proceedings consistent with this opinion.

BACKGROUND

I. THE EVIDENCE AT TRIAL

On the evening of May 26, 2010, Reginald Handy Jr., Torrance "Gator" Davis,and Norman Crawley were standing together outside Crawley's home on Laurel Street in Pocomoke City when shots rang out. Handy was killed. Davis and Crawley were unharmed. Footage captured by a street camera showed Alexander Crippen firing a handgun at Handy, but ballistics evidence revealed that the fatal wound was not caused by the .380 caliber bullets that Crippen was firing.

The next day, acting on a tip, Officer Zina Means of the Pocomoke City Police Department observed a Bushmaster AR-15 assault rifle wrapped in a blanket in the corner of a fenced area next to a driveway approximately 65 yards from where Handy fell. She also observed a single shell casing of .223 caliber ammunition. The driveway, near where the rifle and shell casing were found, presented an unobstructed view of the crime scene.

Alexander Crippen's girlfriend, Shana Harmon,¹ lived on the property where the driveway was located, in the next block over from Laurel Street. Gator Davis and Crippen did not like one another and had gotten into a fight in the preceding week, apparently over Shana. Skylor Harmon, Crippen's 17-year-old nephew, attempted to assist Crippen during the fight.

At trial, the State called Gator Davis, who, it disclosed, was testifying under a grant of use immunity.² After giving an overview of the layout of the neighborhood, therelationships among the residents, and Crippen's animosity toward him, Davis testified about his recollection of the shooting and narrated a video of it. At the end of his testimony, the State marked for identification a number of text-messages between Davis and a neighbor, Rasheema Schoolfield, but did not move them into evidence. In response to questions posed by the State, Davis denied that he was getting any consideration from the State in return for his testimony. Davis agreed that he had been told to expect nothing in return for his testimony.

After Gator Davis, the State called Lorenzo Davis, who came onto the scene just before the shooting began.³ He testified that he heard three or four pops and one loud bang. The pops came from the direction of a pole on Laurel Street, but the bang seemed to come from another area.

Next, the State called Rasheema Schoolfield, who testified that she and Shana had been hanging out with Crippen on the day of the shooting. Just before the shooting, Schoolfield had gone to get a cigarette from Crippen, who, she said, "was on the pole." As she began walking back to Shana's house, Schoolfield heard "probably" four shots. She ran to her van, which was parked in Shana's driveway. As she was getting in, she saw Harmon squatting behind the van, near the driver's side door, wearing a black hoodie. She could not see anything in his hands, and she said nothing to him. She denied telling Gator Davis that she had seen Harmon with a big gun, that Harmon had used heras cover, or that Harmon had shot in the direction of the victim's house on Laurel Street.

At the end of Schoolfield's direct examination, the State read Gator Davis's text-messages to her and asked her to read her responses. In one of the messages, Davis had written: "So I'm the only one you told you seen Skylor by the house with a gun[?]" Although Schoolfield insisted to the jury that she had not seen a gun and that she did not see the reference to a gun in Davis's message, the State established that she had responded to Davis by saying, "yes, who else am I gonna tell?" Harmon's counsel neither objected to these questions nor requested a limiting instruction. In its instructions to the jury at the end of the case, however, the court did say that "[t]estimony concerning" Schoolfield's pretrial "statement" was permitted only to help the jury decide whether to believe her testimony.

After Schoolfield, the State called Gator Davis's cousin, Preston Townsend. Townsend testified that at the time of the shooting he saw "a bright flash" between Shana's house and the house next to it. He looked toward Shana's house and saw Harmon, with "something long" "pressed up against his leg." Townsend also testified that about a week before the shooting he had seen Crippen, in Harmon's presence, pick up a large item that was wrapped in a blanket or quilt and carry it into Shana's house.⁴

Apparently for the purpose of impeaching Schoolfield, the State re-called Gator Davis. Davis testified that Schoolfield had told him Harmon "had a big gun" on the night of the shooting; that he was "hiding behind her" during the shooting; and that he aimedtoward where Davis and the victim were standing. Again, Harmon's counsel neither objected to these questions nor requested a limiting instruction. Again, however, in its instructions to the jury at the end of the case, the court said that "[t]estimony concerning" Schoolfield's pretrial "statement" was permitted only to help the jury decide whether to believe her testimony.

Detective Dale Trotter of the Worcester County Sheriff's Office testified that he retrieved the AR-15 during the execution of a search warrant at Shana's house. The rifle had a bullet chambered, and the 10-round magazine had eight rounds remaining, suggesting that the rifle had been fired once. No usable DNA evidence was recovered from the rifle.

Detective Trotter testified that the DNA results for the shell casings were "not conclusive," which, he said, meant that the examiners "could not make a determination." "Any number of people," he testified, "could have touched the shell casings." On cross-examination, Detective Trotter reiterated that the DNA found on the casings was "not enough for a conclusive determination as to who the DNA belonged to." "That's why the test became no, no conclusion," he said.

Because the bullet that killed the victim had fragmented upon impact, the State's ballistics expert, Jaime Smith, could not testify that it had come from any particular weapon. He did, however, opine that the bullet shared "class characteristics" with the ammunition that is used in a Bushmaster AR-15 assault rifle and that it did not come from a .45 caliber automatic handgun or a .380 caliber handgun.

Trooper Kyle Clark of the Maryland State Police testified that after Harmon wasarrested he received Miranda warnings⁵ and was interviewed at the State Police barracks. When asked who had guns on the night of the shooting, Harmon had responded that "everyone had guns." Harmon later explained that his comment "was just a joke."

During the cross-examination of Trooper Clark, defense counsel established that at some point in the interview Harmon "didn't want to speak anymore." The State took the position that Harmon had thereby opened the door to evidence that he had asserted his right against self-incrimination, and defense counsel agreed. On redirect, the State established that once Harmon requested the services of an attorney, the interview ended, and Harmon departed. In closing argument, the State mentioned that, when he was questioned by the authorities, Harmon had asked for a lawyer.

On the basis of this and other evidence, the jury found Harmon guilty of first-degree murder.

II. POST-TRIAL DISCOVERIES

1. The DNA Evidence

During the post-conviction proceedings, Harmon subpoenaed the case file from the State Police DNA laboratory. The file contained an email, dated November 9, 2010, from Julie Kempton, a DNA analyst, to another employee of the Maryland State Police, concerning the analysis of the DNA sample that was taken from the shell casings. In the email, Kempton reported that the DNA profile matched that of Jaime Smith, the State's ballistic expert, who had apparently handled (or mishandled) the casings. Kemptonstated that she would "call this sample inconclusive in [her] report." Although the State's Attorney's Office would ordinarily receive copies of documents such as Kempton's email, the State did not disclose the document in discovery.

The formal DNA...