Simpson v. State

BARBERA, C.J. It is well understood that the federal and Maryland constitutions prohibit the prosecutor in a criminal case from making an adverse comment upon the defendant’s failure to testify. Griffin v. California, 380 U.S. 609 , 85 S.Ct. 1229 , 14 L.Ed.2d 106 (1965) (holding that the prosecutor’s comment during closing argument concerning the defendant’s failure to testify violated the Self-Incrimination Clause of the Fifth Amendment); Smith v. State, 367 Md. 348, 358 , 787 A.2d 152 (2001) (holding that the prosecutor’s comment during closing argument violated Article 22 of the Maryland Declaration of Rights); see also Md.Code (2013 Repl.Vol.) § 9-107 of the Courts and Judicial Proceedings Article. 1 The question we answer in the present case is whether the remarks the prosecutor made — not during closing argument, but rather in opening statement — ran afoul of that prohibition. We hold that, ⁴⁴⁹ under the facts of this case, the answer is yes, thereby entitling Petitioner, William Siam Simpson, III, to a new trial. I. Petitioner was charged in a multi-count indictment with crimes in connection with three incidents that occurred at the house where Petitioner’s former girlfriend, Jasmine Byers, and her family resided.

All three incidents occurred at night. The first incident involved the intentional burning of the detached garage on the property; the second involved the intentional burning of the roof of the house; and the third involved an attempt to set fire to an automobile parked on the driveway. Mrs. Byers witnessed part of the third episode and began screaming at the culprit, who then fled the scene. The family contacted the police.

Upon arrival, the police reviewed with members of the family a video-recording of the incident, which had been captured by a surveillance camera the Byers had installed after the previous fires. The family informed the police that they recognized the masked individual, by reference to his walk, body frame, and posture, to be Jasmine’s former boyfriend, Petitioner. The police went to Petitioner’s home, where Joy, an accelerant-detecting dog, scanned the outside of a car parked there. Joy alerted to the presence of an accelerant on the driver’s side door handle and the trunk.

The police then went to the house and, upon knocking, were allowed by Petitioner to enter. The police smelled gasoline as they entered the house, and one of the officers placed Petitioner under arrest. Petitioner consented to a search of the interior of the car and the house. Joy detected additional accelerant inside the trunk and passenger area of the car.

During the search of the house, the police seized from Petitioner’s bedroom a pair of tennis shoes. Subsequent testing of the shoes disclosed the presence of gasoline. Petitioner was transported to the police station, where he ⁴⁵⁰ was advised of and waived his Miranda rights. 2 Left alone with pen and paper, Petitioner wrote, without assistance or involvement of the police, the following statement: I William Siam Simpson III burned the garage down of the byers house. I set the fire inside the garage.

I ran away and let the fire burned. I just poured gasoline all over the garage and let it burn. The second attempt was the roof that I set on fire. I just climbed up the tree pour gasoline and just left.

Let the house burned. My third attempt was tonight. I wore a mask, gloves, leather jacket, poured gasoline all over the nissan altima and tried to burn it. I’m crazy and I need help.

I have anger management issues I cannot control myself. Put me in the chair for lethal injection. I’m ashamed of what I become I failed my family, friends, and myself. God help me!

Petitioner signed the statement confirming that it was “true and correct to the best of my knowledge.” Thereafter, a detective conducted an interview, took notes of his questions and Petitioner’s responses, and then had Petitioner review and sign each response at the end of the interview to verify that the written version was fair and accurate. As we shall see, the State introduced into evidence both Petitioner’s handwritten confession and the confession produced during the detective’s interview of Petitioner. Petitioner was charged in a ten-count indictment and tried in the Circuit Court for Prince George’s County. The first trial resulted in an acquittal of one of those counts and a mistrial on the remaining nine counts.

On retrial of the remaining counts, the prosecutor included the following in her opening statement to the jury: On November the 15th, 2009, the Defendant came onto the Byers’ property, came to their home, and set their detached garage on fire. It burned down to the ground, ⁴⁵¹ along with all of their personal and sentimental property-inside. And on April the 4th, 2010, the Defendant came back to the Byers’ home and set the roof of their home on fire. There were four family members home at the time.

They woke up in the middle of the night, or in the early morning hours, to a smoke-filled house and flames. On May the 16th, 2010, yet again, the Defendant returned back to the Byers’ home, and while on video surveillance poured gasoline on Mrs. Byers’ car and attempted to set it on fire. Ladies and gentlemen, I’m going to tell you up front that this is not a who-done-it case, ... and this is not [a] trial where the facts of how the crime was committed [are] missing, and this is not a case where motive is a mystery. Ladies and gentlemen ..., the Defendant himself will tell you, number one, that he burned down that garage— (emphasis added).

Defense counsel objected, and the court overruled the objection, without comment. The State continued: —he committed those crimes of arson. And further, he’ll tell you why he did it. But even with the Defendant’s own words, the State — I will bring members of the Prince George’s County’s Fire Marshal’s office, and members of the Prince George’s County Police Department, here to testify before you.

And they’re going to sit right there in that jury box and they’re going to corroborate everything that the Defendant has said.... [A]t the end of this trial I’m going to ask you to listen to what the Defendant has said, to listen to how his words are corroborated.... (Emphasis added). Before making his opening statement, defense counsel informed the court that he intended to make an “additional motion” either before or after opening state ⁴⁵² ment. The court asked counsel to proceed directly to opening statement.

As he did, defense counsel stated, in relevant part: Based on the State’s opening statement some of you may be wondering why are we even here. Based on her suggestion that my client is going to state— to stand up in front of you and admit to all of the offenses, you’re saying, wait a minute, that doesn’t make sense, something doesn’t make sense here; if he’s guilty, why don’t, you know, you say he’s guilty and let us all go about our business. Well, there’s something that was not entirely clear from the State’s opening statement, because what she’s referring to is a so-called confession that my client gave. But if you’ve listened to that presentation where she said it’s not a who-done-it case, we know he did it, he admitted everything; then forget it, forget about asking any questions, forget about your oath to listen to the evidence before you render a decision — because then something’s gone terribly wrong, because my client, William Siam Simpson, III, sits here before you with the presumption of innocence, and it is the State’s job to prove beyond a reasonable doubt that he’s guilty.

Let’s talk about this so-called confession which the State — and I believe they even used the word. They acted like he’s going to come up here and testify in front of you, as if he did all of these things. My client, on May 16th of 2010, signed a statement, and that’s what [the prosecutor] was referring to. The statement referred to the three incidents.

Following the parties’ opening statements, the court dismissed the jury for lunch. At that time, defense counsel moved for a mistrial, arguing that, although he understood that the prosecutor was referring to his client’s written statement, the prosecutor only spoke of what the Petitioner had said or would say, and the prosecutor “can’t refer to a client’s testimony or non-testimony. That’s a Fifth Amendment right. ⁴⁵³ He has a right not to testify.” The judge denied the motion for a mistrial, noting only that Petitioner’s confession is admissible as “evidence as to what his words are.” 3 During its case-in-chief, the State offered into evidence the written confession Petitioner had made to the police as well as the detective’s written interview with Petitioner. Petitioner elected not to testify in the defense case.

At the close of all the evidence, the court, at defense counsel’s request, included among numerous other jury instructions the following: “The Defendant has an absolute Constitutional right not to testify. The fact that the Defendant did not testify must not be held against the Defendant. It must not be considered by you in any way or even discussed by you.” During his closing argument, defense counsel again discussed the prosecutor’s opening statement. He said in part: “She said my client would testify.

She said it at least three times. And I objected. But she was permitted to make that statement. But the fact is, he didn’t testify....

He made a statement to the police. But that’s not testifying.” The jurors found Petitioner guilty of only one of the nine counts before them — attempted second degree arson of the automobile. On appeal to the Court of Special Appeals, Petitioner raised, among others, the claim that the prosecutor’s opening state ⁴⁵⁴ ment violated his privilege against self-incrimination guaranteed by the Fifth Amendment, Article 22 of the Maryland Declaration of Rights, and § 9-107 of the Courts and Judicial Proceedings Article (hereafter “CJP”). The Court of Special Appeals concluded that there was no such violation and affirmed the judgment of conviction. 214 Md.App. 336, 381 , 76 A.3d 458 (2013).

Petitioner sought, and we issued, a writ of certiorari to review that decision, 436 Md. 501 , 83 A.3d 779 (2014), and we now reverse. 4 II. Petitioner asserts that his right to protection from adverse comment on his decision not to testify at trial, guaranteed by the privilege against self-incrimination set forth in the Fifth Amendment, Article 22, and CJP § 9-107, was violated when the prosecutor in opening statement referred several times to what Petitioner “will tell” the jury. Petitioner maintains that ⁴⁵⁵ the words suggested that the members of the jury could expect him to take the stand and admit his guilt. These words, without more, Petitioner asserts, created the constitutional error.

The State counters that the prosecutor’s words did not violate Petitioner’s right to protection from adverse comment on the right not to testify, and even if the prosecutor’s words did so, the error was harmless beyond a reasonable doubt. The parties disagree about the proper legal standard by which to assess the challenged remarks of the prosecutor. As we shall see, the disagreement is resolved by application of the rationale underpinning the holdings of the Supreme Court in Griffin v. California, 380 U.S. 609 , 85 S.Ct. 1229 , 14 L.Ed.2d 106 (1965), and this Court in Smith v. State, 367 Md. 348 , 787 A.2d 152 (2001). We start with the pertinent language of the Fifth Amendment to the Constitution of the United States: “No person shall ... be compelled in any criminal case to be a witness against himself[.]” What the Griffin Court referred to as the “Self-Incrimination Clause,” 380 U.S. at 611, 85 S.Ct. 1229 , was made applicable to the states in 1964.

Malloy v. Hogan, 378 U.S. 1 , 84 S.Ct. 1489 , 12 L.Ed.2d 653 (1964). The language of the Self-Incrimination Clause of the Fifth Amendment is nearly identical to that of Article 22 of our Declaration of Rights: “That no man ought to be compelled to give evidence against himself in a criminal case.” The Court decided Griffin less than one year after Malloy . The issue before the Court in Griffin was whether the prosecutor’s comments in closing argument and the trial court’s jury instructions on the defendant’s failure to testify violated the Self-Incrimination Clause of the Fifth Amendment. 380 U.S. at 613, 85 S.Ct. 1229 . Griffin had been charged with first degree murder of a woman named Essie Mae and did not testify at the trial for murder.

Id. at 609, 85 S.Ct. 1229 . The prosecutor commented several times on Griffin’s failure to testify, including stating during his closing, “Essie Mae is dead, she can’t tell you her side of the story. The defendant ⁴⁵⁶ won’t.” Id. at 610-611, 85 S.Ct. 1229 . The trial court, following California statutory law, instructed the jury that the defendant had a constitutional right not to testify, yet, [a]s to any evidence or facts against him which the defendant can reasonably be expected to deny or explain because of facts within his knowledge, if he does not testify or if, though he does testify, he fails to deny or explain such evidence, the jury may take that failure into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may be reasonably drawn therefrom those unfavorable to the defendant are the more probable.

Id. at 610, 85 S.Ct. 1229 . The Supreme Court held that the Self-Incrimination Clause forbids both the comment by the prosecution on the accused’s silence and the instructions by the court that such silence is evidence of guilt. Id. at 615, 85 S.Ct. 1229 . This Court has had several opportunities to address the application of the Fifth Amendment, Article 22 of the Maryland Declaration of Rights, and CJP § 9-107 in the context of closing arguments.

Insofar as our research discloses, the first opportunity was presented in Smith v. State, 169 Md. 474 , 182 A. 287 (1936) (hereinafter Smith I). That case involved a trial on a charge of bastardy. Id. at 475 , 182 A. 287 . During closing arguments, the prosecutor pointed to the accused and said: “This prosecuting witness has testified that this defendant is the father of her child, and this defendant has sat here all during the trial and has not denied his fatherhood.” Id. at 476 , 182 A. 287 .

Understandably, given that Smith I predated by nearly three decades the Supreme Court’s decision in Malloy v. Hogan, we relied solely on Article 22 in holding that the prosecutor’s remark violated that provision of our state constitution because “it was susceptible of the inference by the jury that they were to consider the silence of the traverser in the face of the accusation of the prosecuting witness as an indication of his guilt.” Id. ⁴⁵⁷ We further concluded, however, that the trial court’s error in permitting the prosecutor’s statement was harmless. Id. at 477 , 182 A. 287 . We pointed out that the defense had promptly objected to the prosecutor’s statement; immediately thereafter, the judge instructed the jury that a defendant has the right not to testify; and the jury was prohibited from indulging an adverse presumption from either the defendant’s election not to testify or the prosecutor’s comments. Id.

The judge also instructed the prosecutor that he should not comment further on that matter. Id. We held that the prosecutor’s “error was followed so closely by its adequate correction at the hands of the court that the minds of the jurors could not have been prejudiced against the accused by the remark.” Id. We do not undertake here to revisit the harmless error analysis employed in Smith I. It nevertheless bears noting that Smith I was decided when errors occurring at criminal trials were subject to the same “no prejudice” standard as was applied in civil cases.

Dorsey v. State, 276 Md. 638, 643 , 350 A.2d 665 (1976). Since then, we have rejected the no prejudice test used in Smith I and formally adopted the standard announced by the Supreme Court in Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967). See Dorsey, 276 Md. at 658-59 , 350 A.2d 665 . Under the Dorsey standard, an error will be deemed harmless only if “a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict____” Id. at 659 , 350 A.2d 665 .

Far more recently, we decided Smith v. State, 367 Md. 348 , 787 A.2d 152 (2001) (hereinafter Smith II). As in Smith I, the case involved the prosecutor’s comment, in closing argument, about the defendant’s failure to testily. Id. at 354 , 787 A.2d 152 . The defendant in Smith II was on trial for burglary, conspiracy to obstruct justice, malicious destruction of property, and four counts of theft.

Id. at 352, 787 A.2d 152 . In his closing, the prosecutor argued: The Judge has said that you can look backwards in this case. Look to see who ends up with the property and then ⁴⁵⁸ you can work backwards and here if the recent unexplained possession of stolen property allows you to work backwards to conclude, hey, this guy was the thief, this guy was the burglar. In making that conclusion, ask yourself this.

What explanation has been given to us by the defendant for having the [stolen] goods? Zero, none. Id. (emphasis in original).

Over defense counsel’s objection, the judge found that