Simms v. State

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). ²⁹⁰ 3. Is Mr. Sims entitled to a remand for the purpose of seeking a sentencing revision (Md. R. 4-345(e)(l)(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 máximums 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. ²⁹¹ 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 ²⁹² he was running away because Thompson’s “back was turned.” When he returned to the comer 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 ²⁹³ 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 ²⁹⁴ 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: “[0]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 police on July 10, 2007, Huggins did not indicate that Mr. Thompson had a knife. He explained that he was “confused, scared, you know, I didn’t know what was happening.” The State showed Mr. Huggins the statement he gave to the police on July 10, 2007. Mr. Huggins read from it as follows: “ “What made it seem like [Sims] wasn’t going to kill no one is he moved the young lady Montreal [sic] out of the way’ — I mean ‘out of the way so that she wouldn’t get hurt.’” Mr. Huggins explained the discrepancy between his earlier testi ²⁹⁵ mony, in which he indicated that Montcreal was out of “reach of Perry,” and his statement of July 10, 2007, as follows: “That’s when everything was fresh in my mind. Some of it’s not even fresh in my mind anymore.” Upon review of his statement, he recalled that when Thompson and Cornish approached Sims, Thompson asked, “ ‘Is that him?’ ” and Cornish answered: “Yes, that’s him, that’s the one.” Montcreal Huggins testified that she and Sims “were friends” in 2007, but appellant had been her boyfriend in 2005.

She indicated that on the evening of June 30, 2007, she was at her residence at the corner of Lloyd and Granby Street, “outside standing on the porch” with her brother, Brent; her cousin; and her cousin’s friends. She saw Sims ride “on his bike,” “past [her] house.” He then “came over and he asked [her] how [she] was doing and [they] continued to have a conversation.” She explained that, “[i]n the middle of the conversation Apollo [Thompson] and Paul [Cornish] came around the comer and then ... they stopped in front of [Sims] and they — basically it was a problem.” Ms. Huggins stated: “I don’t know what the situation was but it was conflict.” She continued: “[T]hey walked up to him and ... well, Mr. Thompson said, ‘Is this the nigger right here?’ He stated that to Paul.” At the time, Ms. Huggins was about three or four feet away from Sims. Ms. Huggins testified that Cornish and Thompson “continued to get closer and as they got closer ... [Sims] lifted up his shirt.” At that time, Ms. Huggins saw a “gun.” She claimed that Cornish and Thompson “didn’t do anything. They just still stood there.” Sims “warned them that he had a gun because Mr. Thomas [sic] ... had a weapon also.” According to Ms. Huggins, Thompson was carrying a knife “[o]n his hip.” Ms. Huggins recalled that Thompson and Cornish were within “arm’s reach” of Sims, and she was about “four or five feet” from Sims when he “pulled out the gun.” Cornish and Thompson then “ran off,” with “[t]heir back ... towards [Sims] as they ran away.” She “was going into [her house].” While inside, she heard two gun shots.

However, she said: “I didn’t see him shoot the gun.” ²⁹⁶ About an hour after the shooting, appellant called Ms. Huggins and apologized for “put[ting] [her] in harm’s way.” 6 Ms. Huggins indicated that “the defendant told [her] that a Mend of his ... was shot” on June 29, 2007. When asked if the person’s name was “Tim,” Ms. Huggins replied that she didn’t “recall names.” The following exchange ensued: [PROSECUTOR]: Okay. What area did the defendant tell you that the people who did something to Tim lived in? [MS. HUGGINS]: My neighborhood. [PROSECUTOR]: All right and just so the record is clear, this conversation that you’re having with the defendant regarding Tim, is that after the shooting of Mr. Cornish? [MS.

HUGGINS]: Yes. [PROSECUTOR]: Okay---- In that same conversation with the defendant where he discussed something happening to his Mend Tim ... does the defendant explain to you why it is he came back down to Lloyd Street on the day of Mr. Cornish’s shooting? [MS. HUGGINS]: Yes. * * * He said that someone from our neighborhood had robbed and shot his friend and he was just coming down here to solve a problem. * * * He didn’t come down here to fight. Later that night, Ms. Huggins was interviewed by Detective Diaz and another detective at the police station. She stated that she “didn’t tell them that [she] knew who did the shooting. [She] didn’t tell them anything.” Additionally, she agreed that she did not tell police that Mr. Thompson had a knife.

But, she told Detective Diaz and his partner that the person who fired the shots “was on a bike” and “had a hat on,” although she did not “remember seeing his face.” She explained that she did not initially tell the police that Sims was the shooter because she “did not want to be involved” and that she was “protecting [her]self.” However, Ms. Huggins later ²⁹⁷ acknowledged that, during her first police interview, she told police that she “saw the flash or the flare of the gun” as it was fired. According to Ms. Huggins, on July 9, 2007, “Officer Diaz and his partner” came to her house and told her “that they needed [her] down at the station.” She claimed that Officer Diaz’s partner began to “threaten” her when he was in her home and then again at the police station. According to Ms. Huggins, “he told me that if I — he asked me did I like my neighborhood and he told me that if I liked where I live, he should — I should tell the truth because if I didn’t, he would get me and my family put out.” Ms. Huggins agreed that the detective also told her “she could be charged with a crime.” After that threat, she identified appellant as the man she had seen on the bicycle with the gun. 7 The court asked Ms. Huggins: “As a result of these threats you gave a statement?” Ms. Huggins answered, “Yes.” The court then asked: “Was your statement truthful or did you lie?” Ms. Huggins replied: “No, I did not lie. I told them exactly what I saw.” Ms. Huggins later acknowledged that she lied during her first interview, when she claimed she did not know the identity of the shooter.

She stated: “[I]t was a lie because I did know who he was.” Ms. Huggins was shown a photo array during the second interview; she identified Sims as the shooter. On the back of the photo array, Ms. Huggins wrote: “[P]erry is my ex-Boyfriend. [P]erry shot Paul.” Detective Diaz testified that appellant was arrested on July 13, 2007, was advised of his rights, waived them, 8 and made a recorded statement. It was played for the jury. In that ²⁹⁸ statement, appellant claimed that, on the date of the crime, he was at his mother’s home all day until he “went up Douglas projects” at about 11:00 p.m.

Appellant also claimed that, between 9:00 p.m. and 11:00 p.m., his mother blew out and braided his hair, and that his younger and older brothers were also at the house. In addition, Sims indicated that someone named Tim, who “live up the street” from appellant, had been shot that day. 9 Appellant denied that he owned a bicycle. He also denied that he shot anyone. The State sought to play three recorded telephone conversations involving appellant, which took place during appellant’s pretrial incarceration. 10 In connection with the ruling on the admissibility of the recorded telephone conversations, the 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, appellant referred to about twenty people who saw him at a party. Referring to the alibi notice, the court asked: “Are you going to put that into evidence?” The court then said: “[I]f the alibi statement sounds to be probative, she’s [i.e., defense counsel] the agent of the defendant, so it’s admissible against him----” The 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: ²⁹⁹ [APPELLANT’S COUNSEL]: Your Honor, I would have an objection to that and ask for an opportunity to be heard— THE COURT: You’ll be heard. [APPELLANT’S 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? [APPELLANT’S 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. * * * She’s 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] this 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. ³⁰⁰ [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 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., the 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.[ 11 ] 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. ³⁰¹ 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. * * * So let me hear from [appellant’s counsel]. What do you want to tell us? [APPELLANT’S COUNSEL]: * * * The speaker who’s not institutionalized [i.e., appellant’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 to let it in.

The telephone recording that the State played first was of a conversation between appellant and his mother on July 31, 2007. The following excerpt is relevant (emphasis added): [APPELLANT]: ... Ma’ [sic] I just need everybody, Ma’, that you can get Ma’, (unintelligible) [APPELLANT’S MOTHER]: Uh huh. [APPELLANT]: And vouch for me and say the same shit, see what I’m saying? [APPELLANT’S MOTHER]: Yeah I know. [APPELLANT]: I told them that you know my hair was all over my head, you done my hair. [APPELLANT’S MOTHER]: Uh huh. [APPELLANT]: You see what I’m saying from at um what — you start doing my hair like seven o’clock but the ³⁰² party started at six. I been there ever since that morning.

You feel me? [APPELLANT’S MOTHER]: Yeah. [APPELLANT]: (inaudible) you already know. [APPELLANT’S MOTHER]: Because you came home, because you was staying with your father and your father and them went out of town — your father and your little brother — that [sic] why you was over here with me. [APPELLANT]: Okay. Right. [APPELLANT’S MOTHER]: On my birthday that’s the way it went. [APPELLANT]: Uh huh. That’s what I’m saying right, and all, and everybody Aunt Lisa everybody you see what I’m saying? [APPELLANT’S MOTHER]: Uh huh. [APPELLANT]: See what I’m saying — vouch for me— everybody that was at that party. [APPELLANT’S MOTHER]: Yeah. [APPELLANT]: As long as I have at least about seven people, I’m good Ma’ [sic] I know you can get that, you hear me? [APPELLANT’S MOTHER]: I know baby and I know. The State next played a telephone conversation between appellant and his mother on July 15, 2007.

Appellant told his mother that “they saying I supposed to did that at 10:10.” He also said that at “10:10 Ma and I ain’t leave, I ain’t leave outside really about up Douglas until like 11 o’clock any mu [sic], any way, you see what I’m saying. You did my hair and everything, my hair was all over my head, come on now, Ma.” The third recording concerned a telephone conversation between appellant and Tim on July 18, 2007. Appellant stated: Right — So they — man—they ain’t got nothing on me, man, they ain’t got nothing, man. All it is, somebody, somebody snitching on me, though, (unintelligible).

One of them niggahs got mad and start (unintelligible). (Unintelligible) ³⁰³ when I get my motions and all that, you feel me? * * * Right, right, right, right. Somebody ratting hard, you hear me, something terrible. Some nigga.

During the phone call, Tim indicated that he was with a “couple” of other people, and appellant asked Tim to put one of those persons on the phone. Appellant told that individual: I got alibis and everything, saying I was at the house the whole time, feel me, this and that. Yo, you know the whole time, the thing was suppose [sic] to went down my mother birthday, you hear me, so where as though I gotta like 20, 25 people already signed papers and everything saying I was in the house whole time, man. You feel me?

The State showed Detective Diaz State’s Exhibit No. 30, which was a redacted version of the alibi notice that appellant’s attorney had submitted on February 5, 2008. As noted, the alibi notice initially contained the names of eleven alibi witnesses. The redacted version contained only the name of appellant’s father, and was in the form of a pleading, signed by appellant’s attorney. Captioned “NOTICE OF ALIBI WITNESS,” it stated: “Pursuant to Maryland Rules of Procedure, 4-263(d)(3), Defendant is disclosing the name and address of the following witness:” The Notice listed “Perry Simms, Sr.” along with his address.

The following testimony is pertinent: [PROSECUTOR]: During the investigation and approaching the trial date in this case, did there come a time that you received any documentation relating to Notice of an Alibi Witness on behalf of the defendant? [DETECTIVE DIAZ]: Yes ma’am. [PROSECUTOR]: When you received the document that I’m showing you, State’s 30, does that document — what it that — what is the name on State’s 30 that was disclosed on behalf of the defendant as an alibi witness? [APPELLANT’S COUNSEL]: Objection, Your Honor. ³⁰⁴ THE COURT: Basis. Defense counsel sought to incorporate her earlier arguments. At the bench, the following occurred: [APPELLANT’S COUNSEL]: Okay. Your Honor, my objection is that the document [i.e., the redacted alibi notice], in and of itself, is tantamount to a pleading----* * * It’s not evidence in this case.

THE COURT: Pleadings can be if there are admissions. [APPELLANT’S COUNSEL]: But they’re — it’s prepared by counsel, it’s not.... THE COURT: It’s an agent of a defendant. [APPELLANT’S COUNSEL]: That’s correct and I just want it placed on the record so the Court knows. As I indicated previously, Mr. Sims was represented by another attorney. I picked up his case after [appellant] had been charged, had his indictment, had been arraigned.

I did not enter my appearance in this case until January and as his attorney I felt duty bound to turn over whatever information I had. THE COURT: Understood. [APPELLANT’S COUNSEL]: And it’s not necessarily proper to assume the information I had came from the defendant and entering this Notice of Alibi Witness into evidence, I believe creates that aura that it came from him. THE COURT: On a personal level, I’m sympathetic---but I, as I understand the law, an emaciate [sic] pleading can be an admission and when you enter into a pleading on his behalf, it is — can be an admission against him. The record should reflect that Exhibit 30 has been redacted so that only one name of the, I don’t know, dozen that you submitted, is going to the jury and the reason and that one name is Perry Simms, Senior — . * * * [A]nd the only reason I’m letting it in is because of the taped conversation which he says his father was out of town.

I would not let in ³⁰⁵ other names for all kinds of reasons so your objection’s noted, appreciated, overruled. The testimony resumed, as follows: [PROSECUTOR]: [W]hose name was provided as an alibi witness on behalf of the defendant? [DETECTIVE DIAZ]: I received Senior, Perry Simms, Senior. The State then offered State’s Exhibit 30 into evidence. Appellant again objected, the court again overruled the objection, and the redacted alibi notice was admitted.

After the prosecution rested, 12 appellant rested. He did not testify or call any defense witnesses. The court and counsel discussed jury instructions, initially in chambers and then on the record. 13 In terms of argument as to the issue of alibi witnesses, the court limited the State to arguing only about appellant’s mother and father. 14 Immediately before giving “formal instructions on the law,” the court announced to the jury a “preliminary instruction on the evidence.” It said: Ladies and gentlemen, there was some tapes played for you recently during the trial. And there was some references there to potential alibi witnesses, and I want to tell you to strike from your mind any references about alibi witnesses except as the testimony concerned the defendant’s father and mother.

Other than father and mother, you should strike it from the record and do not consider it. In closing, defense counsel argued, in part: ³⁰⁶ Mr. Simms gave a statement to Detective Diaz, and he told him I wasn’t there. Not self defense. I had a gun, you had a gun, there are witnesses, weapons, two of them, one of me.

He never said it was self defense. He said I wasn’t there. It wasn’t me. Were you listening?

It has nothing to do with self defense. In rebuttal, the State argued: Defense tells you [Ms. Huggins is my witness]. Please understand that just because I called somebody to the stand, that don’t make them my witness. Please understand it’s my burden to prove a case, so I’ll get the witness here, but that doesn’t make them my witness, okay?

Montreal [sic] Huggins wasn’t my witness. She was his witness. His witness, his girl. What does she say?

I was threatened. I was threatened. Counsel tells you that when she went downtown that first night, she said she didn’t know who did the shooting. You know why she said she didn’t know who did the shooting?

Because that’s your witness. I’m not saying he has any burden to prove anything. The burden is all mine. I got that.

But I’m trying to get you to understand about the motive with which people come to court. And just because I put her on the stand, doesn’t mean that they have any (indiscernible) to me, to my cause.1 [ 15 ] We shall include additional facts in our discussion. DISCUSSION A. Appellant argues that he “is entitled to a new trial because the trial judge erroneously permitted the prosecution to introduce his pretrial alibi notice.” He posits that no state in the country permits the prosecution to “introduce an alibi ³⁰⁷ statement against a non-testifying defendant who calls no witnesses.” Sims asserts: [introducing an alibi notice against a non-testifying defendant who calls no witnesses impermissibly converts a rule of discovery into a method for extracting admissions, invites the jury to draw a negative inference from the defendant’s decision not to present a case, and calcifies the defendant’s trial strategy before he has the benefit of seeing the prosecution’s evidence. The State responds: “While [Sims] did not testify or call witnesses, his defense was essentially an alibi defense.” It maintains that the alibi notice was properly admitted because “Sims’s defense at trial was that he was elsewhere at the time of the offense.” 16 In addition, the State posits that the authorities suggesting that it is improper to introduce an alibi notice that has been “withdrawn” are not apposite, because Sims does not claim that he withdrew his alibi notice.

Further, the State contends that the redacted alibi notice was “relevant to a willfully false alibi.” It argues: The taped phone calls gave the trial court a sufficient basis for concluding that the alibi as to his father was willfully false. Thus, the redacted alibi notice was properly admitted because Sims essentially presented an alibi defense and other evidence tended to show that, as to one name on the alibi notice, it was willfully false. We conclude that the circuit court erred or abused its discretion by permitting the State to introduce into evidence appellant’s pretrial alibi notice, when appellant neither testified nor presented a defense case. We explain.

An alibi is “ ‘[a] defense that places the defendant at the relevant time of [the] crime in a different place than the scene involved....’” Robertson v. State, 112 Md.App. 366, ³⁰⁸ 375 , 685 A.2d 805 (1996) (citation omitted). See Smith v. State, 302 Md. 175, 180 , 486 A.2d 196 (1985). As one criminal scholar explains: “The presence of the defendant at the scene of the crime at the time it was committed is obviously an essential element of the prosecutor’s case[.]” Charles E. Torcia, Wharton’s Criminal Law § 27, at 273 (15th ed. 1993). When a defendant raises an alibi defense, “he is in effect denying the claim of the prosecution that he was present at the scene of the crime at the time it was committed.” Id. at 274.

By claiming “that he was at another place at the time when the alleged crime was committed, the defendant is denying by necessary implication, if not expressly, the allegations set forth in the charge.” Id. To prove an alibi, “the testimony must cover the whole time in which the crime ... might have been committed.” Floyd v. State, 205 Md. 573, 581 , 109 A.2d 729 (1954). However, an alibi defense is not an affirmative defense. Robertson, 112 Md.App. at 375 , 685 A.2d 805 .

Rather, it merely serves “to negate an element of the crime,” i.e., criminal agency. Id. Consequently, the defendant does not bear the burden of proof on that issue. See In re Parris W., 363 Md. 717, 728 , 770 A.2d 202 (2001) (“An alibi is not an affirmative defense, and a defendant does not bear the burden of proving that he or she was elsewhere during the commission of the crime.”); Robinson v. State, 20 Md.App. 450, 459 , 316 A.2d 268 (1974) (“Proof of an alibi, like any other defense testimony, is simply a means of controverting the State’s effort to establish criminal agency.”).

See also State v. Grady, 276 Md. 178, 184 , 345 A.2d 436 (1975). To be sure, a defendant “traditionally has not [been] required ... to plead specifically his defense. A plea of ‘not guilty’ ordinarily brings into issue all possible defenses to the substantive charge.” Wayne R. LaFave, et al, Criminal Procedure § 20.5(b) (5th ed. 2009) (“LaFave”). However, “the federal system and more than forty states require the defendant to give advance notice of his intent to raise an alibi defense.” Id.

Maryland is one of those states. See Williams ³⁰⁹ v. Florida, 399 U.S. 78, 83 , 90 S.Ct. 1893 , 26 L.Ed.2d 446 (1970) (“[T]he privilege against self-incrimination is not violated by a requirement that the defendant give notice of an alibi defense and disclose his alibi witnesses.”). At the relevant time, disclosure of an alibi notice was governed by Maryland Rule 4 — 263(d)(3). 17 Rule 4-263 is captioned “Discovery in circuit court.” Subsection (d) was captioned “Discovery by the State,” and pertained to the defendant’s discovery obligations. Rule 4-263(d)(3) provided: (d) Discovery by the State.

Upon the request of the State, the defendant shall: (3) Alibi witnesses. Upon designation by the State of the time, place, and date of the alleged occurrence, furnish the name and address of each person other than the defendant whom the defendant intends to call as a witness to show that the defendant was not present at the time, place, and date designated by the State in its request. In addition, under Maryland Rule 4-263(e), appellant was required to “furnish the discovery within ten days after service.” As noted, appellant’s attorney furnished the alibi notice soon after she entered her appearance in the case, some six months before the trial. The Court of Appeals elucidated the reasons for the required alibi notice in Taliaferro v. State, 295 Md. 376, 385-86 , 456 A.2d 29 (1983), cert. denied, 461 U.S. 948 , 103 S.Ct. 2114 , 77 L.Ed.2d 1307 (1983): The reasons underlying a procedure that requires notice of an alibi defense are well stated in Epstein, Advance Notice of Alibi, 55 J.Crim.

L., Criminology & Police Sci. 29, 31-32 (1964): “One. Foremost is the idea that the statute prevents surprise. Alibi has been termed a ‘hip pocket’ defense ³¹⁰ because of the ease with which it can be manufactured for introduction in the final hours of trial. Two.

The statute acts to deter false alibis because defendants know that the information furnished will be investigated before trial____ Three. Pretrial investigation results in a saving of money and trial time. This occurs in two ways. (1) If, after the investigation, the district attorney is satisfied that the alibi is true, the case should be dismissed; (2) the district attorney is not surprised at trial by the alibi defense, and there is no need for a continuance to investigate and prepare....

Four. Alibis which are presented at trial will be accorded more respect____” Rule 12.1(f) of the Federal Rules of Criminal Procedure expressly bars the admission of an alibi notice against the person who provided the notice. It states: “Evidence of an intention to rely on an alibi defense, later withdrawn, or of a statement made in connection with that intention, is not, in any civil or criminal proceeding, admissible against the person who gave notice of the intention.” As one court has said in regard to D.C.Super. CtCrim.

R. 12.1(f), which was modeled upon Fed.R.Crim.P. 12.1(f): Rule 12.1(f) apparently reflects the concern that the defendant not be harmed by this exception to the general concept that a defendant need not commit his or her defense to a particular course until the government has presented its entire case, so that the defense in no way aids the prosecution in its presentation. If the defendant could not freely withdraw an alibi defense,