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«UNREPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1668 September Term, 2015 CORNELL HARVEY v. STATE OF MARYLAND Graeff, Nazarian, Leahy, ...»

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UNREPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 1668

September Term, 2015

______________________________________

CORNELL HARVEY

v.

STATE OF MARYLAND

______________________________________

Graeff, Nazarian, Leahy, JJ.

______________________________________

Opinion by Graeff, J.

______________________________________

Filed: October 26, 2016 *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.

‒Unreported Opinion‒ A jury sitting in the Circuit Court for Baltimore City convicted appellant, Cornell Harvey, of first degree murder of 15-month-old Carter Scott (“Carter”), and conspiracy and attempted first degree murder of Carter’s father, Rashaw Scott.1 The court sentenced appellant to life imprisonment on the murder conviction, life imprisonment with all but 50 years suspended on the attempted murder conviction, and life imprisonment on the conviction for conspiracy to commit murder, all to run consecutively.

On appeal, appellant presents six questions for our review, which we have rephrased

slightly, as follows:

Did the trial court abuse its discretion in denying appellant’s motion 1.

for mistrial after Mr. Scott testified that he knew appellant because they had been in jail, “locked up for murder,” together?

2. If preserved, did the trial court abuse its discretion in admitting the lay testimony of Detective Kevin Allen that he retrieved data from three cell phones, and in admitting a copy of that data into evidence?

Did the trial court abuse its discretion in admitting Mr. Scott’s prior 3.

statement?

Was the evidence insufficient to support appellant’s convictions?

4.

5. Did the trial court err in instructing the jury on transferred intent?

6. Did the trial court abuse its discretion in failing to grant a mistrial after the prosecutor mischaracterized the evidence in closing argument?

For the reasons set forth below, we shall reverse the judgment of the circuit court.

Appellant was tried together with four co-defendants: Eddie Tarver, Dequan Shields, Rashid Mayo, and Reginald Love. After a five-defendant trial with twelve full days of witness testimony that lasted nearly six weeks, the jury determined that it could not reach a verdict regarding these defendants. Accordingly, the judge granted a mistrial on the charges against these four defendants.

‒Unreported Opinion‒

–  –  –

The underlying facts are not in dispute. Accordingly, we shall set forth the facts only to the extent necessary for purposes of background.

On May 24, 2013, Mr. Scott and his son, Carter, were shot as they waited for appellant in Mr. Scott’s car in the parking lot of the Cherrydale Apartments. Carter died from his injuries. The State’s theory of the case was that appellant lured Mr. Scott to the shooting, and appellant’s four co-defendants were the shooters. There was no dispute at trial that appellant was with Mr. Scott prior to the shooting. Appellant, however, told the police that he was not involved in the shooting.

Baltimore City Police Officer John Zohios2 testified that, at approximately 7:05 p.m., he was in an unmarked patrol vehicle a few blocks from the Cherrydale Apartments when he heard eight to ten gunshots. He drove to the apartments and observed a male running toward Giles Street. Officer Zohios ordered the man to stop, but the man did not comply, running instead to an unoccupied Toyota Solara with its engine running. The man got into the vehicle and fled the scene. After having a description of the vehicle and partial tag number announced over the police radio, Officer Zohios returned to the Cherrydale Apartments to check on the victims. Five days after the incident, Officer Zohios identified the man he saw fleeing the scene in a photo array, and he identified him in court as Rashid Mayo.

–  –  –

Officer James Brooks and Sergeant Troy Blackwell were driving near Giles Road at approximately 7:00 p.m. when Officer Brooks heard gunshots. As he looked to the left, he saw three males standing around a red car and appearing to fire guns into the car. One of the males was standing toward the front of the car wearing a brown hoodie, one was standing toward the rear of the car wearing a white T-shirt, and another was on the opposite side of the car. Officer Brooks drove into the apartment complex, and two of the men ran toward a bus lot.

Sergeant Blackwell also testified that he heard gunshots, he turned to his left, and he saw men shooting into a car. Sergeant Blackwell and Officer Brooks exited their vehicle and saw three men running toward the woods. They then got back into their vehicle, and after hearing a police dispatch description of the Toyota Solara, Sergeant Blackwell saw the vehicle, with a driver and a passenger, drive past at a high rate of speed. He and Officer Brooks followed the vehicle, along with a police helicopter and several other police vehicles, until the vehicle crashed into a row of parked cars.





Detective Timothy Copeland was following the Toyota Solara, and he saw someone, later identified as Eddie Tarver, running from the vehicle after it crashed. When he was apprehended, Mr. Tarver was wearing a light gray Old Navy hooded sweatshirt and had a rubber glove on one of his hands. After he was taken into custody, police recovered a cell phone from him.

Officer Daniel Gillgannon was in the police helicopter when he received a call regarding the shooting. He followed the vehicle for at least twenty minutes and recorded

–  –  –

video. When the vehicle crashed, two people got out. The passenger was apprehended, but the driver was not.

Detective Melissa Warczynski responded to a call for a shooting in Cherry Hill.

When she arrived, she saw a red car with bullet holes in the windshield. As she walked up to the driver’s side of the car, she saw Mr. Scott, who was trying to drive away. Mr. Scott had gunshot wounds and stated: “Cornell Harvey set me up.” Detective Warczynski found Carter in the back seat, “purple and shaking,” with bullet holes in each of his legs. She tried to stop the bleeding and called for a medic, who arrived approximately five to ten minutes later.

Joyce Martin, who lived in the Cherrydale Apartment complex, testified that she looked out of her window that evening and saw three or four men shooting into a red vehicle. One of the shooters was wearing a brown hoodie and was shooting into the windshield. The two other men, also wearing brown hoodies, were shooting into the driver’s side of the vehicle. The three men turned and started running toward the apartment rental office, and the red car started to pull slowly out of the parking lot.

Ms. Martin had observed the red vehicle pull into the apartment complex approximately five or ten minutes prior to the shooting. She observed a short, thin man, wearing a green hoodie, get out of the passenger side of the vehicle and “mingl[e] around in the complex,” “talking to people, sitting on the step.” The man was talking to a lady in the next building and sitting on the step. The man returned to the vehicle once and got in for “about a second.” The man remained on the scene after the shooting, but he had

–  –  –

Tessa Simmons, who also lived in the Cherrydale Apartments, testified that, at approximately 7:00 p.m., she saw four men wearing gloves jump over a fence and run between the apartment buildings. She then saw three of the men begin shooting at a red car; she did not know where the fourth man went. After the shooting, the three men ran back in the direction from which they came.

At the time of trial, Mr. Scott was in custody because he did not want to testify. He stated that he had planned to meet appellant on the day of the shooting. He talked to appellant on the phone, but he could not remember who had called whom. When Mr. Scott went to meet appellant, he had Carter in the car with him. Immediately after Mr. Scott picked up appellant, appellant asked him to drive “around the corner” to the parking lot at the Cherrydale Apartments. When they arrived, appellant got out and went to meet a girl.

Mr. Scott saw appellant go into one of the apartment buildings, and he did not see him again. At that point, somebody ran up to Mr. Scott’s car and began shooting. Mr. Scott tried to cover Carter and ducked down. After the shooting, Mr. Scott tried to drive away, but he was cut off by the police.

The State showed Mr. Scott a photo array at trial. He initially stated that he did not remember seeing it before, that the police had shown him a lot of photos and told him who to pick out, that the signature on the array was not his, and that he had never gone by the name “Shawn.” He said that the handwriting on the back of the array was his, but that did not refresh his recollection that he previously had seen the array. He stated that the police never told him to pick appellant’s picture out of an array, and he picked appellant’s photo

–  –  –

recalled seeing the array, and he agreed that he had written the following on the back of the array: “Cornell Harvey, which I know as Lowhead, lured me into the apartment complex where I was shot and my son was killed after I picked him up and drove him there.” He stated that he wrote those words after police told him how to “word it.” After further questioning, and after having been shown his prior statement to the police, Mr. Scott testified that he contacted appellant about meeting a few days before the shooting, but he was unable to meet appellant. A day or two later, appellant called Mr.

Scott and told him to “come holler at me or whatever.” When he went to pick up appellant, appellant was on the phone and stated: “I’m coming right back, don’t lock the door” and then hung up.

Mr. Scott testified that appellant saw Carter in the back seat and interacted with him.

They were supposed to go to Mr. Scott’s neighborhood, but after appellant got into the car, he said that he needed to “holler at” a girl and see someone leave for prom. Appellant told Mr. Scott to pull “real quick” into the parking lot in the Cherrydale Apartment complex and told him where to go. Mr. Scott testified that he did not see appellant again after he got out of the car, and “the riding part did suggested that he lured me, so, but I believe he lured me.” Shortly after appellant got out of the car, somebody ran up to Mr. Scott’s car and began shooting.

Mr. Scott believed appellant lured him to the parking lot “[j]ust by his actions and his way,” because “he’s a cruddy dude,” but he did not have any proof that appellant set him up “besides me going there and getting shot.” He claimed that, before the police

–  –  –

telling police that appellant set him up and repeatedly told them that he came to meet appellant, “[a]nd I guess they assumed that he set me up.” He subsequently stated, however, that he did not remember his statement to police; he only remembered police telling him what to say. He testified that he was high on medication at the time and did not “really remember.” Nancy Morse, a crime scene technician, collected evidence at the scene of the shooting. She collected 16 shell casings from the area around the car. Two shell casings were found in the vehicle. Ms. Morse also collected from a grassy area between two apartment buildings, a blue sweatshirt, a brown sweatshirt, a knit cap, two yellow gloves, a piece of a yellow glove, two purple gloves, a Hi-Point handgun, and a Kimber handgun.

She did not recover any fingerprints.

Another crime scene technician, April Taylor, processed the Toyota Solara. She collected fingerprints, a sweatshirt, gloves, a cell phone, and another five pairs of gloves wrapped in a scarf. A Latent Fingerprint Examiner, Roy Jones, testified that fingerprints lifted from the car matched Mr. Love, Mr. Tarver, and Dequan Shields. None of the prints matched appellant or Mr. Mayo. William Young, a forensic serologist,3 examined eight pieces of evidence, including yellow gloves, purple gloves, a brown sweatshirt, a blue sweatshirt, and a black knit hat. DNA samples from two gloves, the black-knit hat, and blue sweatshirt were consistent with Mr. Love, and samples from a glove piece and brown

–  –  –

sweatshirt were consistent with Mr. Shields. None of the DNA samples matched Mr. Tarver, Mr. Mayo, or Breyon Cason, the registered owner of the Toyota Solara.

Karen Sullivan, a Firearms Examiner, test fired the Hi-Point and Kimber handguns and examined the cartridge casings, bullets, and bullet fragments found at the scene. Two casings matched the Hi-Point.45 caliber gun, none matched the Kimber.45 caliber gun, seven were fired from a.380 caliber gun, and nine were fired from a.40 caliber gun. The Kimber was at “maximum capacity” when she received it. Based on the evidence, she opined that at least three weapons were used on the day of the shooting.

Detective Jonathan Jones, the primary detective in the case, responded to the scene on the night of the shooting and executed a search and seizure warrant on the Toyota Solara.

On May 26, 2013, he interviewed Mr. Scott in the hospital and audio-recorded the interview. Detective Jones also interviewed appellant and obtained an audio-statement from him.

The recording of appellant’s statement was played for the jury. In the statement, appellant said that Mr. Scott called his home at approximately 3:00 p.m. and picked him up an hour or two later. Appellant’s girlfriend, Amanda, called and asked him to come see her cousin leave for prom, so appellant asked Mr. Scott to drive him to the Cherrydale Apartments. After Mr. Scott parked, appellant met Amanda and they walked to some steps.



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