ANTONIO W. JOHNSON
STATE OF MARYLAND
Arthur, Friedman, JJ.
Circuit Court for Baltimore City granted the State's
motion for a mistral in its prosecution of Antonio W. Johnson
on charges of first-degree murder and related crimes. Johnson
then moved to dismiss the indictment, asserting that another
trial would subject him to double jeopardy. The circuit court
denied his motion. He filed an interlocutory appeal and
presents one issue, which we have reworded:
Did the court abuse its discretion by granting the
State's motion for a mistrial on the ground of manifest
affirm. During opening statement, appellant's trial
counsel presented the jury with an extremely detailed
exculpatory narrative, but failed to present any evidence
whatsoever to support it. The State moved for a mistrial,
asserting that its case was irreparably prejudiced. After
hearing argument from counsel and reviewing the opening
statement, the trial court carefully considered the possible
remedies-i.e., an instruction to the jury or allowing
latitude to the State in closing argument-and concluded that
neither would be effective. The court then granted the
State's motion on the basis that doing so was manifestly
necessary. We conclude that the trial court did not abuse its
discretion in doing so. Therefore, principles of double
jeopardy do not bar a new trial.
November 5, 2012, Gerald Cox became alarmed because his
daughter, Deborah Simon, had not returned his recent
telephone calls. Mr. Cox went to her residence on Washington
Boulevard in Baltimore and found his daughter lying dead in a
pool of her own blood on her kitchen floor. The police
investigation established that Ms. Simon had been murdered
and that the murder took place on the evening of November 3.
Appellant was charged with first-degree murder, robbery, and
concealing a dangerous weapon in connection with Ms.
Simon's death. Appellant was tried before a jury of the
Circuit Court for Baltimore City, the Hon. Kendra Y. Ausby,
presiding, in June 2015.After the trial court granted the
State's motion for a mistrial, appellant filed a motion
to dismiss his indictment, asserting that the constitutional
prohibition against double jeopardy barred a new trial. The
circuit court, the Hon. Evelyn Omega Cannon, presiding,
denied the motion.
Counsel's Opening Statement
parties' contentions revolve around defense counsel's
opening statement. We will set it out in full:
Ladies and gentlemen, Antonio Johnson is innocent. Mr.
Johnson did not kill Deborah Simon. Antonio Johnson had
nothing to do with Ms. Simon's death. Somebody else
killed Deborah Simon, and Mr. Johnson was later duped into
holding the bag.
Now, ladies and gentlemen, the State wants you to believe
that its case is open and shut. After all, the police found
Antonio Johnson with Ms. Simon's luggage. Forensic
testing revealed spots of Ms. Simon's blood on Mr.
[Johnson's] right shoe, pant leg, and sleeve. Therefore,
the State says Mr. Johnson must have killed Ms. Simon.
But, ladies and gentlemen, if you carefully examine the
evidence in this case, you will see that something does not
add up. The pieces of the puzzle do not fit together. The
evidence you would expect to find, if Mr. Johnson had killed
Ms. Simon, is not there. You'll see that Mr. Johnson only
came into possession of Ms. Simon's luggage after the
Ladies and gentlemen, you will see that this is a case where
the police rushed to judgment. If you follow the trail of
forensic evidence in this case, you will see that that trail
leads away from Antonio Johnson and towards somebody else.
Ladies and gentlemen, Antonio Johnson had nothing to do with
Deborah Simon's murder.
Now, back in November 2012, both Antonio Johnson and Ms.
Simon lived on the 1200 block of Washington Boulevard. They
only lived about nine houses apart. They were not close
friends, but they had the polite, cordial relationship one
would expect neighbors to have who live on the same block.
There was no history of hostility between them.
Mr. Johnson washed cars for neighbors on the block. He made
friends easily. He was somebody who never met a stranger.
Now, back in November 2012, Mr. Johnson was also struggling
with an addiction to drugs, and Mr. Johnson would perform odd
jobs, such as selling cigarettes, to make extra money to
support his habit.
Now, on November 3rd, 2012, a Saturday, Mr. Johnson got into
the argument with his girlfriend about his drug use. Later in
the day, he washed cars. In the late afternoon hours,
afterwards, he made his way out to East Baltimore where his
mom lived. He saw his mom. He asked his mom for money. His
mom gave him some money. He left the house, went to the
projects, bought drugs, used the drugs, got high. You'll
see that he went back to his mother's house and then
eventually made his way back to a bus stop and took both the
Orange Line and the Green Line back to the area where he
He got off of the bus around the B&O Railroad Museum on
Pratt Street. Now, by this point in time, it was already
dark. It was nighttime. On his way back to his house, he
walked through the grounds of Baltimore Behavioral Health off
of Pratt Street. Mr. Johnson saw a man with the piece of
luggage. Now, Mr. Johnson didn't know this man by name,
but he recognized him as somebody who he had done drug
activity with in the past.
Mr. Johnson and the man greeted each other with a hug. Mr.
Johnson noticed that the man had a stem in his hand, a stem
used for smoking drugs. Mr. Johnson and the man, in the dark
of night, then proceeded to get high again.
Now, Mr. Johnson asked the man about what was in the luggage.
The man showed him the contents of the luggage, and in the
luggage there was a carton of Marlboro cigarettes. And there
was also some gray object, which later turned out to be a
But what caught Mr. Johnson's attention was that carton
of Marlboro cigarettes. Mr. Johnson saw this as an
opportunity to make some money by selling the cigarettes so
he could make some additional cash. So Mr. Johnson and the
man walked around trying to sell cigarettes out of this piece
You will see that, later on that evening, a police officer
stopped Antonio Johnson on Washington Boulevard, and this
police officer stopped him and arrested him for misdemeanor
warrant that was out for Mr. Johnson. When the officer
stopped Mr. Johnson, the officer saw him with this piece of
luggage, which contained this carton of Marlboro cigarettes.
Now, you will see that when the officer approached Mr.
Johnson and spoke with him, the officer did not notice
anything unusual or out of the ordinary about Mr.
Johnson's behavior. Antonio Johnson did not appear to be
anxious to the police officer. He did not appear to be upset.
There was nothing erratic about his behavior. Mr. Johnson did
not try to run or flee as the officer approached him. Antonio
Johnson made no effort to try to distance himself from the
piece of luggage.
Antonio Johnson did not try to run or flee as the officer
approached because Antonio Johnson had nothing to hide. He
was only trying to sell cigarettes out of this piece of
luggage. In fact, Antonio Johnson actually asked the officer
at the time he was arrested if the officer could take the
piece of luggage to where he lived, to where Mr. Johnson
lived with his girlfriend Peggy Cash at 1246 Washington
Boulevard. The officer did this and left the luggage at Mr.
Johnson's house at Mr. Johnson's request.
Now, the police later determined that piece of luggage to
belong to Deborah Simon, who was found deceased in her home
on November 5th, 2012. The police arrested and charged Mr.
Johnson, already at Central Booking, with the murder of Ms.
Simon. But you will see, ladies and gentlemen, the case
against him does not add up. The evidence will show that Ms.
Simon was cut and stabbed a total of 29 times, in the front,
in the back, on the neck. She was cut in the jugular vein and
in the aorta. You will see that there was a large volume of
blood at the scene. And yet, ladies and gentlemen, on Mr.
Johnson's clothing, the blood detected to be Ms.
Simon's is barely visible to the naked eye. If you look
at the clothing, you can hardly see anything.
Now, ladies and gentlemen, Mr. Johnson did not kill Ms.
Simon. He had nothing to do with her death. Mr. Johnson
unwittingly made contact with somebody involved in her
homicide after the murder. When Mr. Johnson made physical
contact with the man and the luggage in the dark of night,
Mr. Johnson did not know that that man had blood on his
clothing. Mr. Johnson did not know that blood was transferred
from that man to Mr. Johnson's clothing. Mr. Johnson had
no idea that that piece of luggage was connected in any way
to a homicide. That's why he did not try to run or flee
when the officer approached. He had nothing to hide.
Ladies, gentlemen, somebody else killed Deborah Simon, and
Mr. Johnson was duped into holding the bag.
Now, ladies and gentlemen, you will see that other property
-- a television, a laptop computer, and a cell phone -- were
taken from Ms. Simon's residence at the time of the
homicide. Yet you will see that none of that property -- a
cell phone, a television, and a laptop computer -- were found
on Mr. Johnson at the time of his arrest. None of that
property was found inside of Mr. Johnson's house. None of
that property was found on Mr. Johnson or in his house
because somebody else killed Deborah Simon and stole that
You will see that, in this case, the police collected two
knives into evidence that they suspected were used in the
homicide. Yet you will see that there is not one iota of
forensic evidence connecting Mr. Johnson to those knives. No
fingerprints. No DNA.
Ladies and gentlemen, you will also see that there's not
one shred of forensic evidence implicating Antonio Johnson
that was found in Ms. Simon's house, the scene of the
homicide. Mr. Johnson's DNA was found nowhere in Ms.
Simon's house, the scene of the murder. Mr. Johnson's
fingerprints were found nowhere in Ms. Simon's house, the
scene of the homicide. Ladies and gentlemen, you will see
that if you follow the trail of forensic evidence in this
case, that trail leads you away from Antonio Johnson and
toward somebody else.
You will see that Ms. Simon's house appeared to be
ransacked following the homicide, particularly the living
room area. Her wallet was found upside down on the floor with
the money missing. The evidence will show that the DNA of an
unknown male was found on the outside of that wallet. The
evidence will show that the fingerprints of an unknown person
were found at two critical locations inside of Ms.
Ladies and gentlemen, you will see that the police in this
case failed to follow through on important investigative
leads, which could have helped resolve what really happened.
Because of the police failure to follow those important
investigative leads, at the end of this case, you'll be
left to guess and to speculate as to what really happened.
Ladies and gentlemen, this is a case where the police rushed
to judgment. As a result of the police rush to judgment, Mr.
Johnson sits here accused of a crime he did not commit.
I ask you to remember throughout these proceedings that the
burden is on the State to prove its case beyond a reasonable
doubt. This high standard of proof exists to protect the
innocent from wrongful conviction. This high standard exists
to protect the innocent from false accusations. Antonio
Johnson has been wrongly accused.
I ask you to withhold judgment in this case until the end of
the trial, until after you've heard all the evidence.
I'm confident that if you do so, you will find Mr.
Johnson not guilty on all counts.
evidence presented by the State was that Ms. Simon returned
to her row home on Washington Boulevard just before 8 p.m. on
November 3, 2012. Two days later-November 5, 2012-Ms. Simon
was found, dead, lying in a pool of blood on her kitchen
floor, wearing the same clothes she had worn two days
earlier. Ms. Simon had been stabbed and beaten to death.
There were no signs of forced entry, but the front room of
her house appeared to have been ransacked.
State also presented evidence that, just after midnight on
November 4, 2012-that is, several hours after Ms. Simon
returned home-appellant was stopped on Washington Boulevard
by Baltimore City Police Officer Dien Pham,  and arrested
after Officer Pham discovered that there was a warrant for
his arrest. At the time, appellant was in possession of a
rolling suitcase. Officer Pham searched the suitcase and
found a printer, a pack of cigarettes, and a lighter. Because
the contents were not dangerous, Officer Pham inquired as to
how he should dispose of the suitcase. At appellant's
request, Officer Pham asked Peggy Graves,  appellant's
girlfriend with whom he had resided on Washington Boulevard,
whether she would be willing to keep the suitcase until he
could retrieve it. She agreed and Officer Pham left the
suitcase at her residence.
November 6, 2012, Ms. Graves found a knife in her backyard
and called the police. Ms. Graves knew that a woman down the
street had been murdered, and suspected that the knife might
be related. One of the officers assigned to the Simon
investigation was Baltimore City Police Detective Chris
Brockdorff. He responded to Ms. Graves's call and learned
from her that a suitcase had been left at her residence two
significance of the suitcase became apparent to Detective
Brockdorff a few hours later, when he spoke to Ms.
Simon's parents. Ms. Simon's parents inquired as to
whether Detective Brockdorff had seen a Samsonite
rolling-suitcase that they had recently given to Ms. Simon,
and they reported that certain electronics, including a
printer, a laptop, a television, and a cell phone, were
missing from Ms. Simon's home. Detective Brockdorff
executed a search and seizure warrant at Ms. Graves's
home, and recovered the suitcase. The suitcase contained a
printer, pack of cigarettes, and lighter.
point, police identified appellant as a suspect, and executed
a search and seizure warrant at the Central Booking and
Intake Facility. The police recovered the clothes that
appellant was wearing at the time they executed the warrant,
a blue jersey, black sneakers, and black jeans, as well as
the clothes he was wearing when he was arrested, a black
hooded sweatshirt and a black hat. The police also swabbed
appellant for DNA.
police recovered a fingerprint on the pack of cigarettes,
which was ultimately identified as belonging to Ms. Simon.
Laboratory test results revealed that stains on
appellant's sweatshirt, jeans, and right shoe tested
positive for the presence of blood. Ms. Simon was determined
to be the major female DNA contributor to stains on all three
from the fact that Ms. Simon and appellant resided on
Washington Boulevard in November 2012, the only evidence that
they knew each other came from Ms. Graves. She testified that
appellant washed cars to earn money, and that appellant had
said that Ms. Simon owed him five dollars for washing her