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

420 Md. 705

25 A.3d 144

STATE of Maryland

v.Perry SIMMS a/k/a Perry Sims.

No. 112

Sept. Term

2010.

Court of Appeals of Maryland.

July 15, 2011.

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.

PROCEDURAL HISTORY

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).

FACTS

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:

[DEFENSE COUNSEL]: Your Honor, I would have an objection to that and ask for an opportunity to be heard—

THE COURT: You'll be heard.

[DEFENSE COUNSEL]:—on that collateral issue.

THE COURT: All right. But if—well, why don't you tell me now. Why shouldn't your alibi statement—you're the agent of the defendant, why wouldn't that come in?

[DEFENSE COUNSEL]: Your Honor, the Defense has no burden to put any defense on.

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.

* * *

THE COURT: Let me put on my Defense attorney hat for a minute. ... [The defense attorney is] not bound to put on an alibi defense. ... She [i.e., the defense] just has to give you warning. ... And suppose she as a careful lawyer says, all right, I better file [the alibi notice] so I have the option of using it and decides not to do it. Then what's the relevance for the State to put it in?

[PROSECUTOR]: The relevance for the State, whether she puts it in or not, is consciousness of guilt. The State's argument—

THE COURT: It could be. But how does that show consciousness of guilt? It's only consciousness of guilt if it's false.... The fact that she doesn't use it doesn't mean it's false.... The fact that she's not—how do you prove it's a false alibi.... At least it is an admission by counsel.... I mean counsel could say and the defendant could say, you know, I've got these alibi witnesses, but maybe they've got criminal records, maybe the jury won't like them, so I'm going to make a tactical decision not to put them on. And making that tactical decision should not bite them frankly. I only think it comes in if it's clear the defendant knows that he's lying.

* * *

[PROSECUTOR]: Right. What I'm saying is they are putting forth alibi witnesses saying that they were at this party—

THE COURT: Was there a party to your knowledge?

[PROSECUTOR]: Okay, well, I can't say that—

THE COURT: You don't know.

[PROSECUTOR]: ... There may have been a party. I believe that there might have been—

* * *

THE COURT: What else you've (sic) got that shows that he knows that it's a false alibi?

[PROSECUTOR]: All right. On the alibi, and this is during the time that the defendant is on the telephone calls, he's speaking again to his mother, and then one time also to his father. And in one conversation with his mother, he's discussing with his mother that they have alibi witnesses, and that the defendant was at his mother's house because the father and the little brother went out of town.... That's why he came over for his mother's birthday party.

* * *

THE COURT: How do you show it's [i.e., alibi notice] false and that he knows it's false?

[PROSECUTOR]: By his response to the statement, by the fact that he speaks to his father, by the fact that they say he's in Myrtle Beach on the phone call.

* * *

THE COURT: Okay, you're telling me there's a phone call in which the defendant says father and brother were out of town?

[PROSECUTOR]: Town, right. He's talking to the mother.

THE COURT: And he says they were out of town, and then he lists those two as alibi witnesses .... why it matters is your proffer that there is a subsequent phone call in which he says where he's going to use two people as alibi witnesses, father and brother I think you said. And did in fact list those two people he knows were not there. Based on that proffer, if I understood you correctly, that there is a subsequent phone conversation in which he says in effect we'll use father and brother I think that subsequently helps to pull this one in.[ ⁴] ... So let me hear from [defense counsel]. What do you want to tell us?

[DEFENSE COUNSEL]: ... The speaker who's not institutionalized [i.e., Sims's mother] says “because you came home, because you're staying with your father, and your father then went out of town, your father and your little brother. That's why you was over here with me.” ... But where it indicates that the father and the little brother were out of town. I mean where's the impeachment portion of that?....

THE COURT: Okay. I hear you, but I think it's enough...