Larry Harriston v. State of Maryland, No. 739, September Term, 2019. Opinion by Wells,

J.

CRIMINAL LAW — STATE’S CLOSING ARGUMENT — BURDEN SHIFTING

In closing argument, while the State may not comment on a defendant’s failure to testify 

or provide evidence, the State may fairly comment on the evidence.

CRIMINAL LAW — STATE’S CLOSING ARGUMENT — “OPENING THE

DOOR” DOCTRINE

Analysis of State’s comments under the “opening the door” doctrine show that the 

comments were specifically in response to defense counsel’s closing remarks, rather than 

commentary on the defense’s failure to supply evidence.

CRIMINAL LAW — JURY INSTRUCTIONS — CROSS-RACIAL 

IDENTIFICATION

A court does not abuse its discretion in declining to give a cross-racial identification 

instruction where, as here, the defense argues that an eyewitness’ identification of the 

defendant “[was] not corroborated by other evidence giving it independent reliability.”

CRIMINAL LAW — JURY INSTRUCTIONS — CROSS-RACIAL 

IDENTIFICATION

The precedent established in Janey v. State, 166 Md. App. 645, 664-65 (2006) and Kazadi 

v. State, 240 Md. App. 156, 194 (2019), rev’d on other grounds, Kazadi v. State, 467 Md. 

1 (2020), instruct trial courts to resolve discretionary matters, such as the propriety of a 

cross-racial identification instruction, based on the unique facts in a given case.

CRIMINAL LAW — JURY INSTRUCTIONS — CROSS-RACIAL 

IDENTIFICATION

The court did not abuse its discretion in declining to give a cross-racial identification 

instruction where the eye-witness, though of a different race from appellant, had known 

appellant and interacted with him at different times for over a decade.
Circuit Court for Baltimore City

Case No. 118144001

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 739

September Term, 2019

______________________________________

LARRY HARRISTON

v.

STATE OF MARYALND

______________________________________

Berger,

Wells,

Salmon, James P.

(Senior Judge, Specially Assigned),

JJ.

______________________________________

Opinion by Wells, J.

______________________________________

Filed: June 1, 2020
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,1recovered 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 

1

 The record does not mention Det. Storie’s or Sgt. Lloyd’s first names.
2

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. 
3

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 firstdegree 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 firstdegree 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 
4

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 

(2019) (citing Savage v. State, 455 Md. 138, 157 (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. 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 (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 
5

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 (internal citations omitted). 

Smith v. State, 367 Md. 348 (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. 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. 
6

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. 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. In contrast to Smith, we found these comments permissible, distinguishing 

them “as highlighting the lack of any evidence explaining the defendant’s possession of 

recently stolen goods,” rather than amounting to comment on the defendant’s own failure 

to testify. Id. at 176.

In Pietruszewski v. State, 245 Md. App. 292, No. 209 September Term, 2018 (filed 

April 7, 2020), 2020 WL1685811, the defendant claimed the State improperly shifted the 

burden of proof to the defense when the prosecutor pointed out in closing that the 

defendant’s alibi witnesses never went to the police to explain where the defendant was on 

the day of the robbery, as well as comments about the quality of the defense’s evidence. 

Slip op. at 10-11. But this Court nonetheless rejected his claim, explaining that,

We agree with the State that the challenged argument in this case 

merely pointed out the weakness in the credibility of Pietruszewski's alibi 

witnesses, including the lack of corroborating evidence that their testimony 

suggested would have been reasonably available. The prosecutor's 

references—both to the lack of any documentation and to the witnesses’

delay in coming forward with exculpatory information before trial—were 

directed at the credibility of the testimony that was given by the witnesses.
7

Id. at 322. 

Pietruszewski was consistent with a much earlier decision by our Court in 

Funkhouser v. State, 51 Md. App. 16 (1982). There, the defendant claimed the prosecutor 

made an “improper comment on his failure to testify,” pointing to two statements made in 

closing:

We have presented all the evidence to you. What about the defendant's 

case? Interesting. Not one bit of evidence is offered as far as the rape itself 

or the kidnapping. . . .

* * *

Five witnesses are called. None speak of the rape or the kidnapping. 

All they talk about is a fight that night, a fight at the house. . . .

Id. at 29. Noting the circuit court provided instructions to the jury explaining the defendant 

had a right not to testify and that his exercise of that right could not be used against him, 

this Court held the prosecutor’s statements were permissible: they did not refer to the 

defendant’s failure to testify, but rather the general lack of evidence. Id. at 30. We 

concluded, “A prosecutor should not be precluded from making fair comment on the entire 

evidence; not every neutral or indirect reference that the State makes which implicitly 

refers to a defendant's silence is improper comment.” Id.

In Burks v. State, 96 Md. App. 173 (1993), in support of a self-defense argument, 

defense counsel attempted to characterize one of the murder victims as a person known to 

be violent. Id. at 204. In closing arguments, the prosecutor, according to this Court, aptly 

pointed out the defendant’s self-defense argument consisted more of defense counsel’s own 

“speculative rhetoric than it did of hard evidence.” Id. at 204–05. The defendant claimed 

the prosecutor’s comment in rebuttal was improper:
8

What I want to know is, how do you know that the defendant is not 

capable of violence? Whose word do you have for that? The defense 

counsel’s word for it ultimately because nobody came here to tell you he is 

not capable of violence. It is the defendant only who testified, and now I want 

to remind you, how do you know that Marvin Willis had been a violent 

person before this week? Because a defendant who claims self-defense is 

entitled to bring witnesses in here. . .

Id. at 203–04. This Court did not find the comments improper, explaining it did “not 

remotely read” the prosecutor’s comments as shifting the burden of persuasion to the 

defense. Id. at 204. Instead, we opined that pointing out such a shortcoming was the 

“purpose of jury argument.” Id. at 205.

The State argues that Mitchell v. State, 408 Md. 368 (2009) is dispositive. There,

our Court of Appeals used the “opening the door” doctrine2to analyze a prosecutor’s 

comments on the defense’s failure to subpoena witnesses. In closing, defense counsel 

listed persons who had been discussed at trial but were not called to testify. Id. at 376. He 

said the absence of those witnesses created “a situation where a misidentification could 

take place,” and suggested

Let’s bring Wal[i] Henderson here so we can see if he’s a heavyset, darkskinned man. Let’s bring Antonio Corprew here so we can gauge his stature. 

Let’s look at Man–Man, what does he look like? Get that hat out of the car. 

Does that hat fit his head?

Id. at 377. The prosecutor responded in his closing by saying:

2 Our Court of Appeals recently explained “[t]he open door doctrine authorizes 

admitting evidence which otherwise would have been irrelevant in order to respond to . . . 

admissible evidence which generates an issue. In short, the doctrine makes relevant what 

was irrelevant. Given the doctrine’s ability to enlarge the universe of relevant evidence at 

trial, ‘the opening the door doctrine’ is a rule of expanded relevancy.” State v. Robertson, 

463 Md. 342, 352 (2019) (internal quotations and citations omitted).
9

The defense made mention a couple times about what the State didn't present 

to you all. We never saw Cochran, never saw Corprew, never saw Turner, 

never saw Wal[i] Henderson....

 * * *

If [defense counsel] thought that them being here would have shown that 

something we presented was so contradictory to something about them, he 

could have brought them in as well. The defense has subpoena power just 

like the State does. You can’t say why didn’t the State present a witness, 

when they had an equal opportunity to present it to you, and then try to say, 

well, it wasn’t presented. They had an equal right to present it if they thought 

it would contradict something we presented.

Id. at 377, 379. The Court of Appeals held the prosecutor’s statements amounted to “fair 

comment” on the ground that defense counsel’s statement “opened the door” for the 

prosecution to draw attention to the defense’s subpoena power. Id. at 387–88. The Court 

highlighted that the defense, by suggesting it would have been helpful for additional named 

persons to testify, “argued the relevancy of their absences and the weakness in the State’s 

case.” Id. at 388–89.

Here, in closing argument, Harriston’s attorney said the following:

[DEFENSE COUNSEL]: [T]here was one thing that the sister did was 

she gave them my client’s phone number that he then verified through 

another source. So he then put that in a search and seizure warrant and said, 

hey, we know – Judge, under perjury, that’s his phone. They get the records. 

It has hundreds of pages that have coordinates, GPS tracking, everything, but 

because the name doesn’t say Larry Harriston, the detective goes oh, well, 

that’s useless.

I’m on a family phone plan. My mother, my father, my sister, my son 

. . . You pull any of their phone records it will have my name on it. I assure 

you I don’t have six different phones. To not even bother going down a 

couple floors within your own department to have the IT person run all that 

information to be able to tell you where that phone was. Don’t you think 

you’d like to have that information instead of just doing the officer’s 

approach? Let me just stick my head in the sand and guess what I’m showing 

you instead because that’s what this detective did.

And later, counsel revisited the point, saying:
10

I think the most offensive one is the cell phone records. They can tell 

you exactly where that phone was. And if – so think about it. If someone is 

at a store that’s not at the scene, that’s not in that direct neighborhood, goes 

from there and comes back and you had cell phone records that would show 

the phone pinging in the one area and then in the next area and then back in 

that area, that, ladies and gentlemen is what I would call evidence.

And during the State’s rebuttal closing, the prosecutor said the following:

[PROSECUTOR]: So, ladies and gentlemen, I’m going to read you 

something from the jury instructions. I want to make sure its abundantly 

clear that the Defense does not have any burden. It is the State’s burden to 

prove this case. He is presumed – the defendant is presumed to be innocent 

of the charges. This presumption remains throughout every stage of the trial. 

It is not overcome unless you are convinced beyond a reasonable doubt that 

the defendant is guilty. The State bears the burden of proving guilt of the 

defendant beyond a reasonable doubt. This means that the State has the 

burden of proven [sic] beyond a reasonable doubt each and every element of 

the charges – the crimes charged. The elements of the crime are the 

component parts of the crime of which I will instruct you shortly. This 

burden remains with the State throughout the trial. The defendant is not 

required to prove his innocence; however, the State is not required to prove 

guilt beyond all possible doubt or to a mathematical certainty. Nor is the 

State required to negate every conceivable circumstance of innocence. A 

reasonable doubt is a doubt founded upon reason. Proof beyond a reasonable 

doubt requires such proof as would convince you of the truth of the fact to 

the extent that you would be willing to act upon such belief without 

reservation in an important matter in your own business or personal affairs. 

If you are not satisfied of the defendant’s guilt to that extent for each and 

every element of the crime charged, then reasonable doubt exists and the 

defendant must be found not guilty of that crime.

I read that because I am in no way, shape or form trying to shift the 

burden onto the defendant, but when the Defense tells me he is most offended 

by the phone records not being checked, who submitted those for 

identification to have the detective look at them? The Defense. They had 

the same phone records. He has no obligation to put on a case whatsoever. 

They chose to put on a case. Why didn’t they talk about the phone records? 

He had them the entire time. The coordinates that he talked about, was so 

outraged –

[DEFENSE COUNSEL]: Your Honor, I’m going to object.
11

[THE COURT]: Overruled.

[PROSECUTOR]: -- that was not followed up on. So outraged. He 

had the same documents. And I raise this only because in closing the Defense 

raised it. And again, I reiterate for the record, he has no obligation. It is the 

State’s burden and you have that jury instruction and because it is so 

important it is number two right here. It’s my burden and I’m in no way, 

shape or form trying to say that it is the Defense burden. But ask yourself 

that question with regard to the phone records[.]

As is apparent from this review of the case law, Maryland appellate courts have not 

been quick to label as burden-shifting prosecutorial closing comments on a shortage of 

defense evidence. In the one instance our search revealed where our courts held the 

comments impermissible, the prosecutor spoke directly to the defendant’s failure to 

provide evidence. We have little trouble concluding the prosecutor’s comments here do 

not fit that category. Unlike Smith, the prosecutor did not call out Harriston’s failure to 

provide an explanation for his innocence. See supra, Smith, 367 Md. at 351–52 (holding 

the prosecutor engaged in burden-shifting when he instructed jurors to ask themselves, 

“What evidence has been given to us by the defendant for having the leather goods? Zero, 

none.”). 

The prosecutor’s comments are dissimilar to those in Smith in another important 

respect. While the prosecutor pointed out the defense did not discuss the phone records, a 

lack of explanation for the records’ (still unknown) contents is not indicative of Harriston’s 

guilt—and certainly not to the same extent as a lack of explanation for a defendant’s 

possession of stolen goods. That both parties chose not to investigate or discuss the phone 

records at trial, despite having the ability, yields no implication in either party’s favor. The 
12

prosecutor’s comments may have neutralized the defense’s statement, but they did not shift 

the burden. 

In this same vein, we view the prosecutor’s comments in the context of the opening 

the door doctrine, as an express response to defense counsel’s closing remarks. We agree 

with the State that its comments on the defense’s ability to analyze the cell phone data are 

similar to those upheld in Mitchell regarding the defense’s subpoena power. In our view, 

the Mitchell prosecutor’s comment that the defense could have subpoenaed witnesses if it 

“thought it would contradict something [the State] presented” might even have been closer 

to burden-shifting than the instant case. 408 Md. at 379. The prosecutor’s comments here 

do not come so close to implying the defense’s failure to discuss the phone records means 

the State’s case is incontestable. Rather, the prosecutor’s comments suggest the phone 

records may not have been significantly helpful to either party’s case. 

We also do not read the overall message of the prosecutor’s comments to be “that 

the defendant should have produced certain evidence,” as Harriston asserts. Reading the 

prosecutor’s comment as a response to defense counsel’s closing, the statement that would 

come closest to burden-shifting—“But ask yourself [why didn’t they talk about the phone 

records?]”—is not a suggestion that Harriston’s case hinged on his explanation of the 

phone records. Rather, it was an instruction for the jury to consider the defense’s argument 

that the State failed to investigate important evidence in light of the defense’s own failure 

to use the documents. 

For these reasons, we can find no fault in the prosecutor’s comments. Even if we 

did, we could not ignore that the prosecutor emphasized the defense was not obligated to 
13

analyze the phone records. In Funkhouser, this Court was persuaded simply by the trial 

court’s provision of the burden instructions in holding that either burden-shifting had not 

occurred, or that if it did occur it was corrected. Funkhouser, 51 Md. App. at 30. Given 

that, here, those instructions were provided by the trial court and again by the prosecutor, 

we conclude the jury would have been aware a verdict of not guilty did not hinge on the 

defense’s explanation of the phone records.

In sum, we do not find the prosecutor’s closing comments amounted to burdenshifting. Instead, they were a narrowly tailored response to the defense’s closing remarks.

II. Cross-Racial Identification Instructions 

Harriston contends the circuit court abused its discretion in declining to provide a 

cross-racial instruction, since this case was one where “identification [was] a critical issue” 

and the “eyewitness’s cross-racial identification [was] not corroborated by other evidence 

giving it independent reliability”—factors Harriston says make such an instruction a 

requirement. The State disagrees, saying that no Maryland appellate court has ever held a 

cross-racial instruction to be required, and that one was particularly unnecessary here since 

Sgt. Maggio’s identification of Harriston was not a cross-racial identification of a stranger, 

but of a person Sgt. Maggio knew. For the reasons that follow, we concur with the State.

We review a trial court’s decision on whether to provide a cross-racial identification 

instruction for an abuse of discretion. Kazadi v. State, 240 Md. App. 156, 190 (2019), 

rev’d on other grounds, 467 Md. 1 (2020).

In Gunning v. State, 347 Md. 332 (1997), our Court of Appeals made clear the 

appropriateness of an identification instruction cannot be measured in “absolute[s]”: 
14

If a party requests an instruction on identification, therefore, the trial 

judge should first evaluate whether the evidence adduced at trial suggests the 

need for the requested instruction. In making this determination the court 

might consider such factors as any equivocation associated with the 

identification, the extent to which mistaken identification is reasonably at 

issue and the existence of, or lack of corroboration of the eyewitness 

identification. 

We do not find instructions on such issues to be always mandatory, 

but neither do we consider them never necessary nor per se improper. . . We 

instead recognize that an identification instruction may be appropriate and 

necessary in certain instances, but the matter is addressed to the sound 

discretion of the trial judge.

Id. at 347–48 (emphasis added). 

Our search reveals four reported cases from Maryland appellate courts reviewing 

the provision of cross-racial identification instructions. None of these opinions held the 

trial court abused its discretion in failing to give such an instruction. See Kazadi, 240 Md. 

App. at 191 (explaining at the time of that opinion (February 2019), only three such cases 

had been reported and none had found an abuse of discretion in the refusals below). 

First, in Smith v. State, 158 Md. App. 673, 689 (2004), rev’d on other grounds, 388 

Md. 468 (2005) (“Smith I”), we held the circuit court had not abused its discretion in 

refusing to provide a cross-racial identification instruction where the witness expressed 

that she was particularly good with faces, and “there was no evidence of any problem 

associated with cross-racial identification.” Id. at 704. We similarly held the court did not 

err in disallowing defense counsel from arguing issues of cross-racial identification in 

closing arguments, since there was no evidence race played a factor in the witness’ 

identification of the suspect. Id. at 705–06. The Court of Appeals reversed our decision 

on the latter issue, reasoning that because “the victim’s identification of the defendants was 
15

anchored in her enhanced ability to identify faces . . . defense counsel should have been 

allowed to argue the difficulties of cross-racial identification in closing argument.” Smith 

v. State, 388 Md. 468, 488–89 (2005) (“Smith II”). The Court of Appeals did not reach the 

separate issue of the cross-racial identification instructions. Id. at 470.

Next, in Janey v. State, 166 Md. App. 645 (2006), we affirmed the circuit court’s 

refusal to give a cross-racial identification instruction where a store clerk made a crossracial identification of a person who stopped by his business. We addressed the test for the 

propriety of such instructions adopted in New Jersey:

In Cromedy, 727 A.2d at 467, the New Jersey Supreme Court 

emphasized that an instruction on cross-racial identification “should be given 

only when ... [1] identification is a critical issue in the case, and [2] an 

eyewitness’s cross-racial identification is not corroborated by other evidence 

giving it independent reliability.” Consequently, even if Janey had been tried 

in New Jersey, where the Cromedy standard requires that an instruction on 

cross-racial identification be given under certain circumstances, it would not 

have been reversible error for the trial judge to refuse to grant the instruction 

in Janey’s case because (1) Akhtar’s identification was not a critical issue in 

the case, and (2) in any event, Akhtar’s identification was corroborated by 

Janey’s childhood friend, Jones, who placed Janey at Akhtar’s filling station. 

Janey, 166 Md. App. at 664 (2006).3 We also noted that because the witness testified he 

had difficulty identifying African-American persons, a cross-racial instruction would have 

been redundant. Id. at 664–65. 

Most recently in Kazadi v. State, we affirmed the circuit court’s refusal to give the 

Cromedy cross-racial identification instructions where two Hispanic witnesses 

3 Cromedy was abrogated in State v. Henderson, 208 N.J. 208 (2011). There, the 

New Jersey Supreme Court ruled that enhanced instructions on the reliability of 

identification testimony would be required and directed that state’s committee on pattern 

jury instructions to draft enhanced instructions. 208 N.J. at 296-99.
16

independently identified an African-American defendant. 240 Md. App. at 192, 194. We 

found persuasive the trial judge’s consideration of the fact that the witnesses expressed 

certainty in identifying the defendant, and that the defendant was their neighbor of twoand-a-half years. Id. at 194. We held the trial judge had not abused his discretion, given 

his observations that this was “not the prototypical scenario contemplated in the New 

Jersey [cross-racial] instruction,” and that the instruction might “prejudice or confuse the 

jury, by suggesting that jurors should disregard or discount the identifications made by [the 

witnesses], based solely on the difference in appellant’s race.” Id. We reiterated our 

position from Janey that “a court may reasonably exercise its discretion by considering 

whether such an instruction will be misunderstood as a judicial directive that the cross-race 

effect is a universal phenomenon at work in every identification involving a witness and 

suspect of a different race or ethnicity.” Id.

Harriston’s argument hinges largely upon two passages he quotes from Janey:

Conversely, the mere fact that a witness denies any difficulty in 

making cross-racial identifications should not deter the trial judge from 

considering giving such an instruction, particularly if, in the language of the 

Cromedy court, “identification is a critical issue in the case, and [the] 

eyewitness's cross-racial identification is not corroborated by other evidence 

giving it independent reliability.” 727 A.2d at 467. Even in the face of a 

witness’s strenuous denial of personal difficulty in making cross-racial 

identifications, because the studies cited by the Court of Appeals in [Smith 

II] at 478–86, indicate that there is a “strong consensus among researchers ... 

that some witnesses are more likely to misidentify members of other races 

than their own,” id. at 482, the trial judge must, upon request, consider 

whether an instruction is appropriate in the case.

Accordingly, our holding in this case—that the trial judge did not 

abuse his discretion in refusing to give the requested instruction on crossracial identification—should not be interpreted as holding that it is never 

appropriate to give such an instruction. Nor should the fact that no instruction 
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on cross-racial identification appears yet in the Maryland Criminal Pattern 

Jury Instructions serve as the basis for an arbitrary refusal to consider 

granting such an instruction.

166 Md. App. at 665–66. Harriston concludes from this a cross-racial instruction “would 

be required in a case in which ‘identification is a critical issue’ and in a case in which the 

‘eyewitness’s cross-racial identification is not corroborated by other evidence giving it 

independent reliability,’” as in the instant case. We disagree with this reading of Janey and 

Harriston’s application of this rule to the record.

While in Janey we generally supported consideration of the two factors Harriston 

points to, we referenced the Cromedy test to emphasize that even in a jurisdiction where a 

concrete test had been adopted, a cross-racial instruction would not have been required on 

Janey’s facts. We did not go so far as to present those factors as part of a required test in 

Maryland. This is clear from our conclusion in Janey that the Court of Appeals’ most 

recent opinion dealing with cross-racial identification instructions at that time, Smith II, 

“did not impose any new duty upon trial judges to give jury instructions addressing crossracial identification.” 166 Md. App. at 662–63. It is also apparent from our subsequent 

statement that “it would be helpful if the Court of Appeals provided guidance as to when 

and under what circumstances” it would be “appropriate for a trial court to mention specific 

factors [the jury should consider in its evaluation of eyewitness testimony], including crossracial identification.” Id. at 667. 

Janey, and more recently, Kazadi, make clear that Maryland courts are yet to require 

cross-racial identification instructions in certain scenarios. Instead, Janey made clear a 
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trial judge may not arbitrarily refuse to provide a cross-racial identification instruction: 

“[I]t would be an abuse of discretion for the trial judge to apply a uniform policy of 

rejecting all requested instructions that are not covered by some pattern instruction.” 166 

Md. App. at 666. Rather, the trial judge should “resolve discretionary matters” with 

“regard to the particulars of the individual case.” Id. (quoting Gunning, 347 Md. at 352). 

Here, the circuit court did not arbitrarily refuse to provide the instructions. The 

judge explained her consideration of the case’s unique facts:

THE COURT: Here’s the thing, I’m never tied completely to the 

Patterns. I’m not. But I’m not – I don’t feel comfortable giving the crossracial identification instruction that you’ve requested mainly because I don’t

- it’s – it applies here. We are dealing with a witness who indicated that he 

had absolutely zero problem – he wasn’t able to place your client’s name to 

the person that he remembered at first, but he remembered him as Little 

Larry. Given what I’ve heard I am going to decline that instruction because 

I don’t think it’s appropriate. 

The court’s rationale—that there was no evidence of the witness’ difficulty in identifying 

the suspect, and that the witness knew the suspect beyond having merely seen him—reflects 

relevant considerations from the case law. In Smith I, we found a cross-racial identification 

instruction unnecessary when there was no evidence the witness had difficulty identifying 

the suspect or that race affected the identification at all. 158 Md. App. at 704–06. And in 

Kazadi, we were persuaded the instruction was unnecessary where the witness and suspect 

had been neighbors for two years. 240 Md. App. at 192, 194. 

But even if our courts were bound by the Cromedy test, we still would likely not 

find the cross-racial instruction was required. The cross-racial identification that occurred 

in this case was offset by the fact that Sgt. Maggio knew Harriston prior to identification. 
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Sgt. Maggio had not merely seen Harriston before but had varying levels of interaction 

with him over the course of more than a decade. Sgt. Maggio testified to seeing and 

chatting with Harriston when Harriston was younger, and frequently enough that Sgt. 

Maggio used Harriston’s childhood nickname. Sgt. Maggio testified to seeing Harriston 

around in subsequent years, although less frequently, and said Harriston’s appearance had 

not changed much. Further, Sgt. Maggio’s identification of Harriston as the suspect in the 

footage was corroborated, albeit in piecemeal fashion, by his sister’s and girlfriend’s 

identification of him in different stills.

Since no test on the propriety of cross-racial identification instructions has been 

adopted by Maryland courts, the decision to provide or decline the instruction was a matter 

left to the sound discretion of the circuit court. Since the circuit court exercised that 

discretion by considering the unique facts of the case, we conclude it did not abuse its 

discretion in refusing to provide such an instruction.

JUDGMENT OF THE CIRCUIT COURT 

FOR BALTIMORE CITY AFFIRMED. 

APPELLANT TO PAY THE COSTS.