State v. Simms

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 ⁷¹⁰ 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: ⁷¹¹ 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 ⁷¹² 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 ⁷¹³ 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 ⁷¹⁴ 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 ⁷¹⁵ 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 [Sims] and his mother on July 31, 2007. The following excerpt is relevant (emphasis added): [SIMS]: ...

Ma’ [sic] I just need everybody, Ma’, that you can get Ma’, (unintelligible) [SIMS’S MOTHER]: Uh huh. [SIMS]: And vouch for me and say the same shit, see what I’m saying? [SIMS’S MOTHER]: Yeah I know. [SIMS]: I told them that you know my hair was all over my head, you done my hair. [SIMS’S MOTHER]: Uhhuh. [SIMS]: You see what I’m saying from at um what—you start doing my hair like seven o’clock but the party started at six. I been there ever since that morning. You feel me? [SIMS’S MOTHER]: Yeah. [SIMS]: (inaudible) you already know. [SIMS’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. [SIMS]: Okay. Right. [SIMS’S MOTHER]: On my birthday that’s the way it went. [SIMS]: Uh huh.

That’s what I’m saying right, and all, and everybody Aunt Lisa everybody you see what I’m saying? ⁷¹⁶ [SIMS’S MOTHER]: Uh huh. [SIMS]: See what I’m saying—vouch for me—everybody that was at that party. [SIMS’S MOTHER]: Yeah. [SIMS]: As long as I have at least about seven people, I’m good Ma’ [sic] I know you can get that, you hear me? [SIMS’S MOTHER]: I know baby and I know. The State next played a telephone conversation between [Sims] and his mother on July 15, 2007. [Sims] 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 [Sims] and Tim on July 18, 2007. [Sims] 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 ... got mad and start (unintelligible). (Unintelligible) when I get my motions and all that, you feel me? ... Right, right, right, right. Somebody ratting hard, you hear me, something terrible.....

During the phone call, Tim indicated that he was with a “couple” of other people, and [Sims] asked Tim to put one of those persons on the phone. [Sims] 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? ⁷¹⁷ The State showed [its witness, investigating police officer] Detective Diaz State’s Exhibit No. 30, which was a redacted version of the alibi notice that [Sims’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? [DEFENSE COUNSEL]: Objection, Your Honor. THE COURT: Basis.

Defense counsel sought to incorporate her earlier arguments. At the bench, the following occurred: [DEFENSE 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. [DEFENSE COUNSEL]: But they’re—it’s prepared by counsel, it’s not.... THE COURT: It’s an agent of a defendant. ⁷¹⁸ [DEFENSE 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 [he] 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. [DEFENSE 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.[ 5 ] 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 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. ⁷¹⁹ The State then offered State’s Exhibit 30 into evidence. [Defense counsel] again objected, the court again overruled the objection, and the redacted alibi notice was admitted. After the prosecution rested, 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. 6 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. 7 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 w[ere] some tapes played for you recently during the trial.

And there w[ere] 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: 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. 8 ⁷²⁰ Simms, 194 Md.App. at 298-306 , 4 A.3d at 79-84 (footnotes in original) (emphasis in original). The trial judge accepted the State’s argument that the redacted notice was probative on the issue of defendant’s “consciousness of guilt” 9 when coupled with the phone calls implicating a false alibi. The notice was admitted during the direct examination of Detective Diaz, a State’s witness, and circulated to the jury.

At trial, the defense did not call an alibi witness, it did not assert in its opening statement that the defendant had an alibi, and it did not request an alibi jury instruction. The defense did explicitly refer to the alibi notice in its closing argument asserting that the State could have investigated the alibi witness but chose not to and the defense chose not to put him on the stand. The court did not give an alibi instruction or a “false exculpatory statement instruction,” 10 even though it suggested an example of the latter to the prosecutor. I. Admissibility of the Redacted Alibi Notice At trial, the State proffered that the alibi notice, when considered in conjunction with three admitted jailhouse phone calls, was admissible because it showed Sims’s “consciousness ⁷²¹ of guilt,” i.e., it was circumstantial evidence of his complicity in the criminal offenses. 11 Before the Court of Special Appeals, the State asserted alternative reasons to uphold the admission of the notice, including: use of the notice to impeach the defendant; use as a party admission; use to counter the defendant’s de facto alibi defense; and use because the defendant did not withdraw the notice.

Regarding the “consciousness of guilt” theory, the Court of Special Appeals held that the redacted alibi notice was inadmissible at trial because “the State’s theory of falsity was not clear from the evidence.” Simms, 194 Md.App. at 316 , 4 A.3d at 90 . Particularly, the intermediate appellate court determined that because the “evidence that [Sims’s] father was out of town arguably supported [Sims’s] alibi.... [Sims’s] identification of his father as an alibi witness was not inconsistent with his pretrial claim that he was not at the scene of the shooting.” Simms, 194 Md.App. at 316 , 4 A.3d at 90 . The court also rejected the State’s contention that the notice could be used to impeach because Sims “neither testified nor called any witnesses.” Simms, 194 Md.App. at 313 , 4 A.3d at 88 . Additionally, the court disagreed that the notice was an admissible pleading because it contained party admissions, or because Sims did not ⁷²² act to withdraw it.

Simms, 194 Md.App. at 315, 318 , 4 A.3d at 89, 91 . Before this Court, the State framed its petition for certiorari broadly requesting review of the admissibility of the notice as “consciousness of guilt evidence” and for purposes of impeachment because Sims allegedly mounted a de facto alibi defense and did not withdraw the notice. 12 We affirm the judgment of the Court of Special Appeals and similarly hold that the notice could not be used to impeach nor to rebut an alleged de facto alibi defense, that failure to withdraw the notice does not necessarily open the door for admission of an alibi notice, and that the notice was not admissible “consciousness of guilt” evidence because it was irrelevant to the matter in dispute. A. The Alibi Notice Requirement Under Maryland Law In criminal cases, the State must prove “criminal agency (including [the defendant’s] presence at the scene where pertinent)” beyond a reasonable doubt. Schmitt v. State, 140 Md.App. 1, 30 , 779 A.2d 1004, 1020 (2001).

A criminal defendant may choose to present an alibi defense in order to controvert the State’s evidence of criminal agency, i.e., that the defendant was at the place and time that the criminal incident occurred. See Grandison v. State, 390 Md. 412, 439 , 889 A.2d 366, 382 (2005) (noting that “alibi negates criminal agency”) (quoting Borchardt v. State, 367 Md. 91 , 786 A.2d 631 (2001)). A defendant may also be entitled to a jury instruction on alibi, even if he, himself, does not generate the issue of an alibi at trial. See Robertson v. State, 112 Md.App. 366, 382 , 685 A.2d 805, 810 (1996) (noting that an alibi defense is not an affirmative defense and “the defendant, himself, need not introduce alibi evidence in order to generate the basis for an instruction on the issue.”). ⁷²³ In Maryland, as in “the federal system and more than forty states,” a defendant must “give advance notice of his [or her] intent to raise an alibi defense.” Simms, 194 Md.App. at 308 , 4 A.3d at 85 (quoting Wayne R. LaFave et al., Criminal Procedure § 20.5(b) (5th ed.2009)).

At the time of the incident, Maryland Rule 4—263(d)(3) 13 required that the defense disclose the names and addresses of anyone other than the defendant who the defense intended to call to “show that the defendant was not present at the time, place, and date designated by the State.... ” In Taliaferro v. State, 295 Md. 376 , 456 A.2d 29 (1983), we recognized that the requirement of advance notice of potential alibi witnesses to the State serves four purposes, including: preventing surprise; deterring false alibis because the State can investigate the witnesses prior to trial; avoiding delay because meritorious alibis warrant dismissal and the opportunity for pre-trial investigation avoids continuances; and affording more respect to the alibis actually presented at trial. Taliaferro, 295 Md. at 385-86 , 456 A.2d at 34-35 (affirming the trial judge’s decision to exclude an alibi witness not disclosed pretrial) (quoting Epstein, Advance Notice of Alibi, 55 J.Crim. L., Criminology & Police Sci. 29, 31-32 (1964)). An alibi notice is, in fact, a tool of discovery that is unique to criminal cases and the beneficiary of the required rule is clearly the State.

Accord Simms, 194 Md.App. at 313-314 , 4 A.3d at 88 (“We agree with [Sims] that ‘introducing an alibi notice against a non-testifying defendant who calls no witnesses impermissibly converts a discovery tool into a means of extracting admissions’ from a defendant”). Petitioner asserts that this case presents an exceptional circumstance because a generally inadmissible alibi notice should be admissible “where there is evidence that an alibi notice is willfully false, and the defendant did not affirmatively act to withdraw the notice ... particularly when the defendant presents a de facto alibi defense.” Respondent counters that evidence of the alibi notice was not legally relevant to estab ⁷²⁴ lish the underlying crime because inferences other than intentional falsity of the notice could be drawn, for instance that the witness could have confirmed the Respondent’s whereabouts the night of the incident. Additionally, Respondent argues that any probative value of the redacted notice was outweighed by the risk that the notice shifted the burden of proof to Sims to present an alibi defense. As the Court of Special Appeals noted, this Court has not previously addressed the permissible use of alibi notices during criminal trials, and the notice rule, itself, is silent as to admissibility.

Simms, 194 Md.App. at 311 , 4 A.3d at 87 . B. Standard of Review for Admissibility of Evidence Trial judges generally have “wide discretion” when weighing the relevancy of evidence. Young v. State, 370 Md. 686, 720 , 806 A.2d 233, 253 (2002) (“Trial courts have wide discretion in determining the relevance of evidence.”); accord Schmitt, 140 Md.App. at 17 , 779 A.2d at 1013 (noting that “with respect to evidentiary rulings on admissibility generally and rulings with respect to relevance specifically, the trial judge is vested with wide, wide discretion”). While trial judges are vested with discretion in weighing relevancy in light of unfairness or efficiency considerations, trial judges do not have discretion to admit irrelevant evidence.

See Pearson v. State, 182 Md. 1, 13 , 31 A.2d 624, 629 (1943) (noting that “the rule [of discretion] will not be extended to facts obviously irrelevant as well as prejudicial to the defendant”). In Ruffin Hotel Corp. of Md. v. Gasper, 418 Md. 594 , 17 A.3d 676 (2011), we explained the standards by which we review the admission, or exclusion, of evidence, stating: It is frequently stated that the issue of whether a particular item of evidence should be admitted or excluded “is committed to the considerable and sound discretion of the trial court,” and that the “abuse of discretion” standard of review is applicable to “the trial court’s determination of relevancy.” See e.g. Merzbacher v. State, 346 Md. 391, 404-05 , 697 A.2d 432, 439 (1997). Maryland Rule 5-402, however, makes it clear that the trial court does not have discretion to admit ⁷²⁵ irrelevant evidence.... [T]he “de novo” standard of review is applicable to the trial judge’s conclusion of law that the evidence at issue is or is not “of consequence to the determination of the action.” Parker v. State, 408 Md. 428, 437 , 970 A.2d 320, 325 (2009), (citations omitted) (quoting J.L. Matthews, Inc. v. Md.-Nat’l Capital Park & Planning Comm’n, 368 Md. 71, 92 , 792 A.2d 288, 300 (2002)).

Ruffin, 418 Md. at 619 , 17 A.3d at 690-91 . Thus, we must consider first, whether the evidence is legally relevant, and, if relevant, then whether the evidence is inadmissible because its probative value is outweighed by the danger of unfair prejudice, or other countervailing concerns as outlined in Maryland Rule 5-403. See Thomas v. State, 372 Md. 342, 350 , 812 A.2d 1050, 1055 (2002) (Thomas I) (“The fundamental test in assessing admissibility is relevance.”). During the first consideration, we test for legal error, while the second consideration requires review of the trial judge’s discretionary weighing and is thus tested for abuse of that discretion.

See J.L. Matthews, 368 Md. at 92 , 792 A.2d at 300, n. 18 (“Although at first glance such a determination may appear to be a legal conclusion, at its core it is based on a trial judge’s independent weighing of the probative value of the evidence against its harmful effects. As such, it is subject to the abuse of discretion standard.”). C. Irrelevance of the Redacted Alibi Notice to a Material Fact in Issue Maryland Rule 5-401 defines “relevant evidence” as evidence having “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Md. Rule 5-401 (2011). Irrelevant evidence is inadmissible.

See Md. Rule 5-402; see e.g., Simmons v. State, 392 Md. 279, 300 , 896 A.2d 1023, 1035 (2006) (holding that a trial judge’s prevention of an irrelevant line of questioning regarding the intention of a potential witness to invoke her Fifth Amendment privilege was correct). In Thomas I, we stated: ⁷²⁶ A person’s post-crime behavior often is considered relevant to the question of guilt because the particular behavior provides clues to the person’s state of mind. The reason why a person’s post-crime state of mind may be relevant is because, as Professor Wigmore suggested, the commission of a crime can be expected to leave some mental traces on the criminal. 372 Md. at 352 , 812 A.2d at 1056 (citing 1 J. Wigmore, Evidence § 173, at 632 (3d ed. 1940)), accord Decker, 408 Md. at 641 , 971 A.2d at 274. Speaking specifically to the issue of relevancy, we have also stated that “[a]pplying our accepted test of relevancy, ‘guilty behavior should be admissible to prove guilt if we can say that the fact that the accused behaved in a particular way renders more probable the fact of [his or her] guilt.’ ” Thomas I, 372 Md. at 352 , 812 A.2d at 1056 (quoting Andrew Palmer, Guilt and the Consciousness of Guilt: The Use of Lies, Flight and Other ‘Guilty Behavior’ in the Investigation and Prosecution of Crimes, 21 Melb.

U.L.Rev. 95, 98 (1997)); accord Decker, 408 Md. at 641 , 971 A.2d at 274 (citation omitted). Thus, the relevance of the alibi notice depends upon whether the conduct of naming Sims’s father as a potential alibi witness makes Sims’s guilt of the murder and related weapons charges more probable. The record indicates that the trial judge first asserted that “the alibi statement sounds to be probative ... so it’s admissible against him.” Upon objection by defense counsel, the trial judge then pressed the State’s Attorney to show “what’s the relevance for the State to put it in?” The State responded that “[t]he relevance for the State, whether she puts [the alibi defense] in or not, is consciousness of guilt.” The judge responded, “[fit’s only consciousness of guilt if it’s false.... The fact that [defense counsel] doesn’t use it doesn’t mean it’s false.” The judge then asked the State to identify evidence that the “defendant knows that it’s a false alibi.” Upon the State’s description of how particular proffered jailhouse phone calls suggest that the defendant listed a potential alibi witness who was identified during the phone call as being out of town at the pertinent time, the judge concluded “I see ⁷²⁷ why it’s probative.

And if you connect it up with a later phone call where the father and brother are out of town, and he says he knows they’re out of town.” Apparently, the trial judge assumed that the alibi notice was relevant to the issues in the case. It is true that relevance is generally a low bar, but it is a legal requirement nonetheless. We have described relevance by stating: To be relevant, it is not necessary that evidence of this nature conclusively establish guilt. The proper inquiry is whether the evidence could support an inference that the defendant’s conduct demonstrates a consciousness of guilt.

If so, the evidence is relevant and generally admissible. Thomas v. State, 897 Md. 557 , 577, 919 A.2d 49, 61 (2007) (Thomas II) (quoting Thomas v. State, 168 Md.App. 682, 712 , 899 A.2d 170, 188 (2006)) (emphasis in original) (internal citations omitted). The redacted alibi notice was, in fact, not relevant because it did not “ ‘render[ ] more probable the fact of [Sims’s] guilt.’ ” Thomas I, 372 Md. at 352 , 812 A.2d at 1056 . The State has not indicated which “fact that is of consequence to the determination of the action” is arguably made “more or less probable” by admission of the notice into evidence.

In our view, the State, in effect, manufactured an issue in the case, i.e., it presented defendant’s potential alibi defense prospectively, and then introduced evidence to undermine the credibility of the defense. The strategy might have been potentially appropriate in a rebuttal case after the defendant’s actual testimony and use of his alibi, but it was not appropriate here where the defendant did not testify or introduce any evidence to support an alibi defense. The Maryland Rules require that a criminal defendant file a Notice of Alibi Witnesses in order to preserve the right to present alibi witnesses that may negate the State’s evidence linking the defendant to the time and place of the alleged crime. In a criminal case, the State is not permitted to use the defendant’s compliance with the mandatory notice requirement as affirmative evidence of guilt or to prove the crimes charged.

Thus, the trial ⁷²⁸ judge erred in determining that the notice was admissible relevant evidence. D. The Insufficient Probative Value of the Redacted Alibi Notice Even if the notice was relevant to the ultimate question of guilt, which we hold it was not because it did not render Sims’s guilty conscience more probable, the trial judge had the discretion to bar the evidence because it was unfairly prejudicial to the defendant and misleading to the jury. See Md. Rule 5-403 (“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”). We have reversed convictions where alleged “consciousness of guilt” evidence was erroneously admitted.

See, e.g., Bedford v. State, 317 Md. 659, 668 , 566 A.2d 111, 115 (1989) (holding that “possession of the wire is so