Perry Sims v. State Of Md..

Decision Date03 September 2010
Docket NumberNo. 1509, Sept. Term, 2008.,1509, Sept. Term, 2008.
PartiesPerry SIMMS a/k/a Perry Sims v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

OPINION TEXT STARTS HERE

COPYRIGHT MATERIAL OMITTED.

Scott M. Edson (Elizabeth L. Julian, Acting Public Defender, on the brief) Baltimore, MD, for appellant.

Gary E. O'Connor (Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellee.

Panel: HOLLANDER, * SALMON, MEREDITH, JJ.

HOLLANDER, J.

Following a trial in August 2008, Perry Simms, a/k/a Perry Sims, appellant, was convicted by a jury in the Circuit Court for Baltimore City of manslaughter in connection with the fatal shooting of twenty-eight year old Paul Cornish. 1 Appellant was also convicted of two handgun offenses. Sims, who was eighteen at the time of the offenses, was sentenced to a total of thirty years in prison.

On appeal, we must determine, inter alia, whether the trial court erred by permitting the State to introduce at appellant's trial a redacted version of his pretrial alibi notice, even though appellant did not testify or present a defense case. Appellant poses the following three questions:

1. Is Mr. Sims entitled to a new trial because the trial judge erroneously permitted the prosecution to introduce to the jury Mr. Sims's pretrial alibi notice even though Mr. Sims did not testify or call any witnesses at trial?

2. Is Mr. Sims entitled to a new trial because the trial judge acted as a co-prosecutor by asking questions that improved and expanded upon prosecution witness testimony? See Diggs v. State, 409 Md. 260, 973 A.2d 796 (2009).

3. Is Mr. Sims entitled to a remand for the purpose of seeking a sentencing revision (Md. R. 4-345(e)(1)(B)) and a sentencing redetermination from a three-judge panel (Md.Code Ann., Crim. Proc. § 8-102 & Md. R. 4-344) because his trial counsel was constitutionally ineffective in failing to take advantage of either procedure, even though the eighteen-year-old Mr. Sims was sentenced to the statutory maximums resulting in thirty years in prison?

For the reasons set forth below, we answer Question 1 in the affirmative. Therefore, we shall reverse and remand for a new trial. Our disposition of the first issue makes it unnecessary for us to address the remaining questions, as they are not likely to recur on remand.

FACTUAL AND PROCEDURAL BACKGROUND

On August 9, 2007, appellant was charged with the first-degree murder of Paul Cornish on June 30, 2007. See Md.Code (2002), § 2-201 of the Criminal Law Article (“C.L.”). He was also charged with use of a handgun in the commission of a felony and crime of violence, in violation of C.L. § 4-204; and wearing, carrying or transporting a handgun, in violation of C.L. § 4-203. E.D. Eshmont entered an appearance as defense counsel on August 31, 2007. Eshmont was replaced on January 30, 2008, when Audre Davis-Robinson, Assistant Public Defender, entered her appearance. 2 Shortly thereafter, on February 5, 2008, Davis-Robinson filed a Notice of Alibi Witnesses, pursuant to Md. Rule 4-263(d)(3). 3 It listed eleven names and addresses, including that of appellant's father, Perry Simms, Sr.

The trial was held six months later, in August 2008. What follows is a summary of the evidence adduced at trial.

On the evening of June 30, 2007, shortly before 9:00 p.m., Apollo Thompson and the victim were at the corner of Lloyd and Granby streets in Baltimore City. Thompson testified that they were “just hanging right there getting ready to go to the club. We was drinking.” While there, they noticed a man riding his bicycle on Granby Street. Thompson recounted:

We was looking at him to see who it was. We didn't recognize the dude. I wasn't really paying him no mind but Paul was and him and the dude was having some strong eye contact.... And Paul was saying something like, you know, who the fuck is that? What the fuck is he looking at?

The person on the bicycle made a left turn on Lloyd Street and disappeared from view. Thompson stated: “I walked to the corner to see where he was at.” Thompson recalled, he's still right there. He didn't go no where.” According to Thompson, Cornish “was like let's go see what the fuck his problem is.” Thompson continued:

After he said that, I was like “well, come on.” Then we started walking across the street. Once we got to the corner, I approached the dude first on the bike ‘cause I was walking in the front. And I walked right up to him and I put my finger in his face and I looked at Paul and said “this nigger right here.”

After I said that, the dude dropped down the bike said “this nigger right here what?”

Thompson was asked how close he was to the person on the bicycle. He answered: “Like right next to him, like two feet.” Thompson claimed that the man on the bicycle got off of his bike and pulled a gun out and kept repeating, ‘this nigger right here what?’ Thompson stated: “And we just saying ‘all right, ain't no problem. Chill out. Chill out.’ Thompson “ran across Lloyd Street, across Granby Street, into the parking lot on the other side of Lloyd Street. On the opposite corner where he was at.” Thompson denied that he (Thompson) had a knife in his possession.

After Thompson started running, he heard “five or six” gunshots. Thompson explained that he did not see Cornish as he was running away because Thompson's “back was turned.” When he returned to the corner a few seconds later, he saw Cornish on the ground with blood coming from his leg. Cornish was transported to Johns Hopkins Hospital, where he died of his gunshot wounds. 4

Thompson testified that after he left the hospital, he “went back down to the area, Lloyd and Granby” because that was where his car was parked. According to Thompson, he did not speak to the police because “that just ain't what people do ‘round the way.” Thompson was not contacted by the police until June 1, 2008. He gave a statement to Baltimore City Police Detective Juan Diaz.

On direct examination, the prosecutor did not ask Thompson if he could identify Mr. Sims. On cross-examination, however, Thompson was asked if Mr. Sims was “the man who was on the bike that night[.] Thompson responded, “No.” He agreed that Sims “is lighter than the man who was on the bike[.] On redirect, the following exchange took place:

[PROSECUTOR:] ... When you testified, did you indicate that the person sitting at the table is not the person who was on the bike or did you testify under oath that you are not sure?

[THOMPSON:] I said it don't look like him. That's what I said I think.

[PROSECUTOR]: Did you say “I don't know”?

[THOMPSON]: I don't remember.

[PROSECUTOR:] Court's indulgence. And then counsel questioned you about how long you had an opportunity to see the person on the bike as they rode down Granby Street. When you first saw, total, how much time did you spend looking at the man on the bike on Granby Street?

* * *

[THOMPSON:] Face I just had like a couple quick glances, like maybe two or three seconds.

Brent Huggins testified that on the night of June 30, 2007, he was outside of his residence, located at the corner of Lloyd and Granby, with his sister, Montcreal; 5 his cousins; and a couple of “homeboys.” Sims arrived on a bicycle and spoke to Ms. Huggins. About five or ten minutes later, “two men approach, comes around the corner, very awkward-very peculiar, and (Unintelligible) approaches Perry Simms.” Huggins knew one of the two men as “Apollo.” He testified: “I noticed Perry starting to back up while he was on his bike. And they continued to approach him. After they continue[d] to approach him, he suddenly started to drop the bike.” Huggins recounted that Sims “warned them not to come closer. However, they kept coming. They would not stop.” Sims then “pulled a weapon out” and they still continued to come forward. And he wasn't pointing or aiming it at them at all, at first. It was just basically down, but they continue to come.”

Huggins continued: “Once they kept coming he aimed, and then that's when they decided to start walking away.” Huggins noted that “it was as if they didn't care, so they kept coming, ready to attack him. So he-after they kept coming, he aimed. Not at them. He was just-he just shot.” He added that, at the time that the gunfire was initiated, the two men were “backing up,” away from Sims. Huggins indicated that, at the time, “Montcreal was ... in the doorway” and “not in reach of Perry.”

When asked if he saw Sims shoot anyone, Mr. Huggins said: “No, I did not see him shoot him.” Huggins also agreed that he did not “know ... if someone was shot at all.” Further, Huggins said: [H]e was not aiming at anybody, pretty much.”

In addition, Mr. Huggins testified: [O]nce I heard-once he shot, that was it. I was gone. I don't know what happened after that.” Mr. Huggins explained that he “fled the scene” because he “didn't want to be a part of none of that.” He also claimed that he did not contact the police that night to report what he saw because he was “scared[,] ... frightened[,] ... didn't know what to do.”

The State introduced a photo array shown to Mr. Huggins by Detective Diaz on July 10, 2007. Mr. Huggins had identified Sims as “the person who committed the crime.” On the back of the photo array, Mr. Huggins wrote:

This person is someone who makes surprised [sic] appearances at the basketball club. From what I've seen, he's not a person who would commit a crime such as this. The crime happened out of self-defense. This whole crime wouldn't have happened if the two men wouldn't have approached him at the first place. I know him as Perry. Once approached by the two men, he pulled out a handgun, not to kill but to send a warning to back off. He had a look that may have seemed scared and confused, and out of desperation he fired the gun. After the first shot, I don't know what happened.

Mr. Huggins saw Mr. Thompson with a knife “on his hip, on his pants,” but Thompson never removed the knife from his pants. However, when questioned by the...

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