Simmons v. State

• Citation: 436 Md. 202,81 A.3d 383
• Decision Date: 18 December 2013
• Docket Number: Sept. Term, 2013.,No. 29,29
• Parties: Stephen SIMMONS v. STATE of Maryland.
• Court: Court of Appeals of Maryland

436 Md. 202

81 A.3d 383

Stephen SIMMONS

v.STATE of Maryland.

No. 29, Sept. Term, 2013.

Court of Appeals of Maryland.

Dec. 18, 2013.

Allison Pierce Brasseaux, Asst. Public Defender (Paul B. DeWolfe, Public Defender of Maryland, Baltimore, MD), on brief, for petitioner.

Sarah Page Pritzlaff, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for respondent.

Argued before BARBERA, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, McDONALD and DALE R. CATHELL (Retired, Specially Assigned), JJ.

GREENE, J.

“In criminal prosecutions, the polygraph test is a pariah; ‘polygraph’ is a dirty word.” State v. Hawkins, 326 Md. 270, 275, 604 A.2d 489, 492 (1992). In this case, we consider whether defense counsel's reference, during opening statement, to his client's willingness to take a lie detector test creates manifest necessity for a mistrial, where the trial judge gave a curative instruction to the jury immediately following the improper reference and the prosecutor did not request a mistrial for reason of that improper remark until two days further into the trial. We shall affirm the judgment of the Court of Special Appeals and hold that the trial judge did not abuse his discretion in granting a mistrial two days after the improper statement and immediate curative instruction.

I. FACTUAL AND PROCEDURAL HISTORY

Petitioner Stephen Simmons was charged in the Circuit Court for Prince George's County with murder and other related offenses arising out of the shooting death of Christopher Wright on July 1, 2009. On that date, Petitioner was standing outside the apartment building where the victim and his roommate, Razaq Sarumi, resided. Simmons became angry after Sarumi spit out of his apartment window overlooking the building entrance where Simmons was standing. Sarumi joined Simmons outside, where the two engaged verbally. Simmons displayed a firearm, began “rubbing” it, and then went into an apartment on the first floor of the building. He shortly returned outside with the gun and fired one shot, which grazed Sarumi's leg. After he was shot, Sarumi ran toward the road and heard more shots in the building. He turned around and saw Simmons come out of the building and fire a shot from the sidewalk. Sarumi ran across the road, got in a car with some friends also present during the incident, and began driving to the hospital. None of the witnesses saw the shooting of Wright or who shot him, but he was dead when the police arrived. Simmons was arrested in connection with this incident. He was held for a nearly ten hour recorded interrogation and gave the police a taped statement. During the interrogation, Simmons offered to take a lie detector test. No test was ever performed.

Prior to trial, Simmons moved to suppress the taped statement given to police during his interrogation, arguing that it was involuntary. After a hearing on June 11, 2010, the Circuit Court denied the motion to suppress. Trial began on August 16, 2010. Defense counsel's opening statement proceeded as follows:

[DEFENSE COUNSEL]: You will hear that when my client was arrested, he was held for ten hours in a frigid interrogation room. He was given no food. He was allowed to make no phone calls. He had no grandmother or paid lawyers rushing down to help him. He was entirely alone. And a rotation of experienced homicide detectives tried every trick in the book to try to get Stephen Simmons to admit that he had shot Christopher Wright.

They even lied to him. They told Stephen Simmons that Christopher Wright had survived and had identified him as the shooter. But even though he was shivering cold, he was exhausted and utterly alone, Stephen Simmons had one thing on his side that protected him. He was actually innocent of the death—

[PROSECUTOR]: Objection.

[DEFENSE COUNSEL]:—of Christopher Wright.

THE COURT: The objection is sustained as to innocence. The State's burden is to prove guilt beyond a reasonable doubt. That's a factual issue for you. The assertions by the attorneys are to be ignored in that regard.

You may continue, counsel.

[DEFENSE COUNSEL]: Thank you, Your Honor.

You will hear him protest his innocence through the long hours of questioning, tell the detectives over and over again the one thing that he knew to be true, “I did not shoot that man. I did not shoot that man.” Stephen Simmons offered to take a lie detector test.

[PROSECUTOR]: Objection.

THE COURT: The objection is sustained. Let me just tell you jurors when all the evidence begins, you're going to have to consider the evidence as opposed to what counsel says, what the State says, and what the defense says. But I sustained the objection with regard to the reference to a lie detector test. That's not something you can consider. It's not something you can be permitted to consider.

(Emphasis added). The State made no further objection to defense counsel's reference to a lie detector test and did not protest the adequacy or effectiveness of the court's instruction. Between the first two days of trial, August 16 and 17, 2010, the State presented the testimony of four witnesses. On August 17, 2010, the court recessed early, around 1:00 PM, to consider the admissibility of testimony by the State's firearms expert, which was ultimately excluded.

At the beginning of proceedings on August 18, 2010, the State moved for a mistrial claiming that defense counsel's reference to the lie detector test had prejudiced the jury, such prejudice could not be overcome, and the State was deprived of a fair trial. The prosecutor acknowledged the time delay between the improper statement and the motion for mistrial, stating that he “spent all night thinking about whether to make this motion.” Defense counsel objected to the motion, arguing that any prejudice arising from his “fleeting reference” to the lie detector test was cured by the court's immediate instruction, and suggested that the prosecutor's timing in requesting a mistrial was evidence of an improper motive on the part of the State, particularly where the motion for a mistrial came immediately after the court excluded the State's firearms expert.

In considering the motion for mistrial, the trial judge stated that “[t]he State made a timely objection[.]” He then “characterized the [c]ourt's response to be somewhat of a blurt, so to speak, in an effort to cure what the [c]ourt accepts as an absolute transgression as to presenting to a jury the notion that that which is inadmissible might be considered.” The trial judge then granted the State's motion, stating:

An opening statement is a powerful setting when counsel has the opportunity to introduce into the minds of the jury what will and what will not be presented to them in determining the issues in the case. The [c]ourt would accept that a lot of flourish is allowed with regard to opening statements and closing arguments, but the [c]ourt believes that each counsel is charged with respecting and appreciating certain limits.

In this particular instance, we're dealing with a statement not made by a witness, not unexpectedly presented by a witness, but a statement carefully made as part of a preview of the evidence to the jury. Indeed, considering that the jury has no right to expect that Mr. Simmons would testify, and that even if he were to testify, his testimony would be, “I did not shoot anyone,” the statement, in effect, constituted a substitute for the defendant's testimony.

The [c]ourt, especially upon the cross-examination quite skillful of Mr. Sarumi, is satisfied that credibility is central to the prosecution of this case. It's central to the defense of the case. The [c]ourt considers the motion to be timely. The [c]ourt believes that the prejudice to the State's ability to have a fair trial is clear, because in a case so close as this, that relies upon the credibility of witnesses, there is no way to erase the potential infection of the jurors' minds as to, well, he offered to take a lie detector test. That satisfies it for me. It may not be articulated, but that might be the determining factor.

The [c]ourt finds that as a matter of manifest necessity, a mistrial must be declared to ensure that the State is not deprived of a fair trial, and to ensure that the jurors are not permitted to allow knowledge that there was an offer of a lie detector test to cause them to find that the State was not able to meet its burden.

A mistrial is declared.

Petitioner thereafter filed a “Motion to Dismiss,” arguing that retrial was prohibited under double jeopardy principles. The trial court denied the motion the same day. On appeal, the Court of Special Appeals affirmed the judgment of the trial court, holding that the trial judge did not abuse his discretion in determining that manifest necessity existed for a mistrial and therefore double jeopardy principles do not prevent a retrial. Simmons v. State, 208 Md.App. 677, 694–95, 57 A.3d 541, 551 (2012). We granted certiorari, Simmons v. State, 431 Md. 219, 64 A.3d 496 (2013), to answer the following question:

Did manifest necessity exist to justify the declaration of a mistrial in a case where during defense counsel's opening statement the jury was told that Petitioner had offered to take a lie detector test, where the prosecutor's objection to that statement was sustained and an immediate curative jury instruction was given, and where the prosecutor waited to request a mistrial for two days, until after four State witnesses had testified and after the trial court had ruled that an expert witness for the State would not be allowed to testify?

We shall affirm the judgment of the Court of Special Appeals, and hold that there was no abuse of discretion by the trial judge in making a determination of manifest necessity to declare a mistrial where the trial court considered its own previously issued curative instruction and found that it was insufficient to cure the prejudice caused by defense counsel's improper remark.

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