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Appeals court upholds re-conviction of Eastern Shore man in ’80 murder

A Wicomico County man found guilty last year in a retrial for the 1980 murder of his wife has had his second conviction upheld by Maryland’s intermediate appellate court.

Charles Edward Simms was serving life in prison for the death of Darlene Simms until the conviction was vacated in 2015 after he filed a motion for a new trial in the wake of the Court of Appeals’ 2012 ruling in Unger v. State that trial judges before 1980 routinely violated defendants’ constitutional right to due process by telling jurors that their judicial instructions to them were merely “advisory.”

He was retried and convicted in March 2017. During the second trial, a neighbor testified about Charles Simms’ behavior after Darlene moved in with her mother in 1979, including parking near the house almost daily, following her home and making threats with a gun, according to the Court of Special Appeals’ unreported opinion.

On the day of the murder, the neighbor accompanied Darlene to Charles’ home to retrieve something, according to the opinion. Darlene entered, and the witness later heard screams and gunshots and saw Charles emerge from the home with a shotgun, put it in his car and drive away, according to the opinion. Darlene Simms was discovered with a head wound and died at the hospital.

Other witnesses, including the couple’s children, testified about Charles Simms’ threats to kill his wife as well as threats to a man who became friends with her after she moved into her mother’s home.

On appeal, Charles Simms argued the trial court erred in allowing a law enforcement officer to testify about “specialized knowledge about crime scene investigations and firearms” to prove premeditation. But Senior Judge Arrie W. Davis, writing for the unanimous three-judge panel, held the crime scene testimony was properly based on the witness’s observations and the objection to the firearms testimony was not preserved.

Simms also objected to the prosecutor’s remarks during closing arguments that the witness testimony about Simms’ threats to kill his wife was “uncontradicted” because it implied jurors can draw a negative inference from Simms’ failure to testify.

Simms argued at trial the remarks shifted the burden of proof and improperly required him to put on evidence. But Davis, sitting by special assignment, wrote that was different than the argument that he put forth on appeal, that they were a comment on his failure to testify, so the claim was not preserved.

“As the record indicates, Appellant made only one argument in support of his Motion for Mistrial, i.e., burden-shifting,” Davis wrote, joined by Judges Douglas R.M. Nazarian and Melanie Shaw Jeter. “Therefore, Appellant has failed to preserve the claim he now asserts on appeal for our review.”

Assistant Maryland Public Defender Brian L. Zavin, Simms’ appellate attorney, declined to comment on the court’s decision Monday and said no decision about petitioning the Court of Appeals for a writ of certiorari has been made.

A spokeswoman for the Maryland Office of the Attorney General said the office is pleased Simms’ convictions were affirmed.

The case is Charles Edward Simms v. State of Maryland, No. 711, Sept. Term 2017.

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