Argued November 7, 2014.
Certiorari to the Court of Special Appeals (Circuit Court for Prince George's County). Maureen M. Lamasney, Judge.
ARGUED BY: John Christopher Belcher (of Oxon Hill, MD) on brief FOR PETITIONER.
ARGUED BY: Ryan R. Dietrich, Assistant Attorney General (Douglas F. Gansler, Attorney General of Marlyand, of Baltimore, MD) on brief FOR RESPONDENT.
ARGUED BEFORE: Barbera, C.J., Harrell, Battaglia, Greene, Adkins, McDonald, Watts, JJ.
[442 Md. 448] 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. 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, [442 Md. 449] under the facts of this case, the answer is yes, thereby entitling Petitioner, William Siam Simpson, III, to a new trial.
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 [442 Md. 450] was advised of and waived his Miranda rights. 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 ...