State v. Sims
Decision Date | 15 July 2011 |
Docket Number | 2010.,No. 112,Sept. Term,112 |
Citation | 420 Md. 705,25 A.3d 144 |
Parties | STATE of Marylandv.Perry SIMMS a/k/a Perry Sims. |
Court | Maryland Court of Appeals |
OPINION TEXT STARTS HERE
Gary E. O'Connor, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Petitioner.Scott M. Edson, Assigned Public Defender (O'Melveny & Myers LLP, Washington, D.C.; Paul B. DeWolfe, Public Defender, Baltimore, MD), on brief, for Respondent.Argued before BELL, C.J. HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS, and BARBERA, JJ.GREENE, J.
In this case, we are asked to review whether it was error for a trial judge to admit a defendant's alibi disclosure notice as substantive evidence even though the defendant did not offer testimony to establish alibi, testify or put on a defense. We shall hold that admission of the alibi notice was error, and an abuse of discretion, and the error was not harmless. Thus, we affirm the judgment of the Court of Special Appeals.
On August 9, 2007, Respondent Perry Simms, a/k/a Perry Sims,1 was charged by indictment with the June 30, 2007 murder of Paul Cornish as well as various weapons charges. Pursuant to the notification requirement in Md. Rule 4–263(d)(3) (2007),2 Respondent's defense counsel filed a timely Notice of Alibi Witnesses on February 5, 2008, some six months before the August 2008 trial date. The notice listed the names and addresses of eleven individuals. Prior to admission, the notice was redacted so that it showed only the name and address of Sims's father, Perry Simms, Sr. Respondent elected a trial by jury. At trial, the State proffered to the trial judge that the alibi notice was relevant evidence because it showed Sims's consciousness of guilt in the commission of the underlying offenses. The trial judge reasoned that the notice was probative evidence of guilt when considered in conjunction with jailhouse phone calls in which the defendant and other callers referred to people who could vouch for the defendant's whereabouts on the night of the incident. The notice was admitted into evidence by the State, during its case-in-chief, through the testimony of a police officer involved in the investigation. Consequently, the notice was submitted to the jury along with transcripts of the admitted jailhouse phone calls. A Baltimore City jury convicted Respondent of manslaughter and two weapons charges. Respondent then filed a timely appeal to the Court of Special Appeals. The intermediate appellate court reversed and remanded the case for a new trial because the “circuit court erred or abused its discretion” by admitting, over objections, a redacted copy of the alibi notice and that error “was not harmless beyond a reasonable doubt.” Simms v. State, 194 Md.App. 285, 307, 327, 4 A.3d 72, 85, 96 (2010). The State petitioned for certiorari, asking:
1. Where the plain language of the alibi-notice rule does not indicate that such notices are inadmissible as a matter of law, did the Court of Special Appeals err in determining that the trial court erred in admitting the alibi notice, where Sims's defense at trial was a de facto alibi defense, Sims never withdrew his alibi notice, the alibi notice was redacted to eliminate all names but one, and recordings of jailhouse telephone conversations supported an inference that the alibi notice was willfully false as to one person because that person was in a different city at the time of the charged offenses?
2. Did the Court of Special Appeals err in concluding that the alibi notice was not admissible, where an inference that the alibi notice was willfully false as to one person because that person was in a different city at the time of the charged offenses was not the only possible inference based on the record in this case? 3
We granted the State's petition. State v. Simms, 417 Md. 384, 10 A.3d 199 (2010).
Perry Sims was arrested on July 13, 2007 in connection with a shooting death that occurred at approximately 9:00 p.m. on June 30, 2007. Sims waived his Miranda rights and gave a statement to Detective Diaz, in which he indicated that on the date of the crime, he was at his mother's house with his mother and two brothers until about 11 p.m. when he “went up Douglas projects.” The statement, which was played for the jury, also indicated that Sims told Detective Diaz that “someone named Tim” had been shot that day, but Sims denied shooting anyone.
While Sims was in custody pending his trial date, the State recorded several telephone conversations between Sims, his mother, his friend, and others. As discussed below, three of those phone calls were played for the jury at trial and transcripts of the calls were sent into the jury deliberation room. The defense attorney objected when the State offered for admission into evidence the three recorded telephone conversations, as well as the alibi witness disclosure list. The Court of Special Appeals summarized the following colloquy between the court and the parties concerning admissibility of the alibi notice and the jailhouse phone calls:
In connection with the ruling on the admissibility of the recorded telephone conversations, the [trial] court also discussed the defense's alibi notice. The prosecutor advised the court that the defense had disclosed a list of “about 10” alibi witnesses, and that, in one of the recorded telephone conversations, [Sims] referred to about twenty people who saw him at a party. Referring to the alibi notice, the [trial] court asked: “Are you going to put that into evidence?” The court then said: “[I]f the alibi statement sounds to be probative, [defense counsel is] the agent of the defendant, so it's admissible against him....” The [trial] court also said to the prosecutor: “[Y]ou should put the filing into evidence so that you can argue it to the jury.” The following ensued:
And the State bringing up the Defense's attorney filing a notice of alibi witnesses, shifts the burden that my client then has to rebut.
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