Sims v. State

967 So. 2d 148, 2007 WL 2002477
CourtSupreme Court of Florida
DecidedJuly 12, 2007
DocketSC04-1879
StatusPublished
Cited by1 cases

This text of 967 So. 2d 148 (Sims v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sims v. State, 967 So. 2d 148, 2007 WL 2002477 (Fla. 2007).

Opinion

967 So.2d 148 (2007)

Merrit Alonzo SIMS, Appellant,
v.
STATE of Florida, Appellee.

No. SC04-1879.

Supreme Court of Florida.

July 12, 2007.
Rehearing Denied October 11, 2007.

*150 P. Benjamin Duke of Covington and Burling, LLP, New York, New York, and Benjamin S. Waxman of Robbins, Tunkey, Ross, Amsel, Raben, Waxman, and Eiglarsh, P.A., Miami, Florida, for Appellant.

Bill McCollum, Attorney General, Tallahassee, Florida, Sandra S. Jaggard and Margarita I. Cimadevilla, Assistant Attorneys General, Miami, Florida, for Appellee.

PER CURIAM.

Merrit Alonzo Sims appeals the denial of his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons stated below, we reverse the trial court's denial of relief and remand the case for a new trial.

I. FACTUAL AND PROCEDURAL BACKGROUND

The following facts were set forth by this Court in its Sims opinion on direct appeal:

Charles Stafford, a Miami Springs police officer, followed Sims as he drove onto state road 112 on June 11, 1991. Premised upon his belief that Sims was driving a stolen car, Officer Stafford, in full uniform and driving a clearly marked police car, signaled to Sims to pull over on the exit ramp. It was subsequently discovered that Sims had borrowed the car from his cousin, Sam Mustipher, but when Sims failed to return the car as promised, Mustipher reported it stolen.
As Officer Stafford was handcuffing him, Sims struck the officer in the head with his police radio, robbed him of his police pistol, and shot him twice. Sims admitted shooting Officer Stafford, who subsequently died from his wounds, but asserted from the outset that he had done so in self-defense after Officer Stafford had choked him, used racial epithets, and repeatedly threatened to kill him. After the shooting, Sims drove to a park and threw the gun into a river. He spent the night in his car, changed his clothes in the morning, and found a friend to cut the handcuff off his arm. Four days later, Sims arrived by bus in California searching for his former girlfriend and their two children. He testified that he intended to surrender to police the next day, but panicked and tried to escape when the police arrived. Sims confessed to the crime and waived extradition.

Sims v. State, 681 So.2d 1112, 1113 (Fla. 1996).

At trial, the State introduced the testimony of Detective Scott Silva, a police officer who worked in the Narcotics K-9 Unit at the Metro-Dade Police Department, and Sims' counsel did not object. Detective Silva testified that his dog alerted him to the presence of narcotics in the passenger side of the car that Sims was driving. No drugs were found in the car, and there was no evidence that Sims had ever used drugs or been involved in the sale of them.[1] Nonetheless, Silva testified *151 that the dog would alert to the scent of narcotics after the drugs had been removed, and the State used this to develop its theory of Sims' motive for killing Officer Stafford.[2]

After Silva testified, the State called Sims' parole officer, Essie Lynn, to testify that if Sims were found in possession of drugs, he would be in violation of his conditional release and be eligible to return to prison for up to two years. At a sidebar hearing, Sims' counsel vehemently objected to this testimony on the basis that Lynn was not on the State's witness list and that there was no "evidence that [Sims] possessed or used narcotics." During the sidebar hearing, the trial judge indicated that he thought there was "enough to go to the jury on the presence of drugs in that car." The following business day the court held a hearing regarding the admissibility of Lynn's testimony and overruled Sims' objection. Lynn subsequently testified, and Sims' counsel never moved to strike the canine-alert evidence that laid the predicate for Lynn's testimony. During closing argument, the prosecutor repeatedly suggested that Sims killed Officer Stafford because Sims knew he had drugs in the car, and he did not want to be found in violation of his conditional release.

The jury found Sims guilty of first-degree murder and armed robbery, and the jury recommended the death penalty by a vote of eight to four. See id. at 1113. The trial court sentenced Sims to death. Id.[3] On direct appeal, this Court affirmed Sims' convictions and sentence. Id. at 1119.[4]

*152 On June 28, 1999, Sims filed the instant amended postconviction motion,[5] which the trial court denied after holding an evidentiary hearing on three of the grounds Sims raised for relief. Then, on April 3, 2006, this Court issued an order temporarily relinquishing jurisdiction to the trial court to hold an evidentiary hearing on a fourth issue:

[W]hether defense counsel's performance was deficient for not challenging the canine-alert testimony presented by Officer Silva and/or for not moving to strike that testimony once defense counsel learned that the State was going to present the testimony of Sims' parole officer to show that, if Sims was in possession of drugs, he would be found in violation of his conditional release.

This Court's order also explained that the testimony in question was "clearly prejudicial" because "[i]t was essential to the State's argument that Sims' motive for shooting Officer Stafford was to avoid being found in violation of the terms of his conditional release and returned to prison."

After conducting an evidentiary hearing on July 24-27, 2006, the trial court issued an order concluding that counsel was not deficient. At the evidentiary hearing, Sims called Clinton Pitts, Sims' lead counsel for the guilt phase. Pitts testified that he knew the State intended to present a motive involving the possession of drugs based upon the canine-alert evidence. Pitts also stated that he did not have a strategic reason for failing to move to preclude the canine-alert evidence and that he could not recall a strategic reason for not objecting to the canine-alert testimony when Detective Silva was called. Pitts testified that upon reviewing the transcript he was surprised that no objections to Detective Silva's testimony were present. Pitts admitted that looking back on the face of the record, this failure to object was not proper and that he failed to meet professional standards of performance of counsel in a capital case. However, Pitts stated that he recalled that Judge Carney had already made a decision to allow Detective Silva to testify and that Judge Carney reacts strongly when attorneys do not heed his rulings. Further, Pitts testified that he did not have a strategic reason for not moving to strike the canine-alert testimony in connection with the defense's objection to Lynn's testimony. Generally speaking, though, Pitts stated that moving to strike testimony makes the jury focus upon that stricken testimony. Moreover, Pitts recalled that his overall strategy regarding the canine-alert testimony "was that that evidence had very little importance and I am going to be able to argue to the jury proficiently that the testimony was very weak."

Sims also called Arthur Carter, Sims' co-counsel for the guilt phase and lead counsel for the penalty phase. Carter testified that he thought Silva's testimony was irrelevant since no drugs were found in the car and the alert occurred two days after the car had been moved and left unattended.

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Bluebook (online)
967 So. 2d 148, 2007 WL 2002477, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sims-v-state-fla-2007.