Simmons v. State
299 Ga. 370
| Ga. | 2016Background
- Victim Jennifer Sutton was found dead on March 16, 2013, in a vacant lot; cause of death was asphyxiation from choking; her clothing was disturbed and there was blood in her mouth.
- Simmons and Sutton were seen together earlier that morning after leaving a nearby house where they had sexual contact; Simmons’s DNA was found on a used condom in the house and on Sutton’s vaginal and rectal samples.
- Simmons gave multiple inconsistent statements to police: initially denying sex, later admitting sex and saying Sutton fell unconscious in the road; he admitted moving her to the lot and not calling for help because he thought she would wake.
- Simmons was indicted for malice murder, felony murder (some counts later dismissed or vacated), rape, and aggravated sodomy; tried in April 2014, convicted on malice murder, rape, and aggravated sodomy, and sentenced to life plus concurrent terms.
- On appeal Simmons argued (1) the State improperly commented on and elicited testimony about his failure to come forward (a comment on silence), (2) admission of that testimony violated Mallory and his Fifth Amendment rights, and (3) trial counsel was ineffective for failing to object.
Issues
| Issue | Plaintiff's Argument (Simmons) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Improper comments/evidence about failure to come forward | State and investigator improperly commented on and elicited testimony that Simmons did not come forward, amounting to impermissible comment on silence | No contemporaneous objection was made at trial; comments during opening/closing are not preserved; investigator testimony falls under admissible evidence | Not preserved for review as to opening/closing remarks; investigator testimony reviewed for plain error and found not plain error |
| Plain error analysis for testimony about failure to come forward | Admission violated Mallory and thus was clear error requiring reversal | Mallory was decided under repealed statute; under the new Evidence Code the point is not controlled and thus not plain error | Not plain error because controlling authority on point was lacking; error if any was not "clear or obvious" |
| Fifth Amendment (self-incrimination) claim | Testimony and comments penalized silence in violation of the Fifth Amendment (Doyle/related doctrines) | No governmental inducement to remain silent; silence occurred pre-arrest and pre-Miranda so Doyle does not apply; invocation needed for Salinas-type protection | No clear constitutional error; admission of pre-arrest silence testimony not plainly unconstitutional |
| Ineffective assistance for failure to object | Counsel unreasonably failed to object to the State’s comments and investigator testimony, prejudicing trial | No hearing on amended motion for new trial; given strong evidentiary case and DNA/inconsistent statements, counsel’s failure was not prejudicial under Strickland | Ineffective-assistance claim denied: even assuming deficient performance, Simmons failed to show a reasonable probability of a different outcome |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency of the evidence review)
- Jenkins v. Anderson, 447 U.S. 231 (1980) (distinguishing pre-arrest silence from post-Miranda silence for self-incrimination rules)
- Salinas v. Texas, 133 S. Ct. 2174 (2013) (Fifth Amendment privilege must ordinarily be invoked to preserve silence)
- Mallory v. State, 261 Ga. 625 (1991) (Georgia rule on failure-to-come-forward evidence under prior Evidence statute)
- Cheddersingh v. State, 290 Ga. 680 (plain error test described)
- Crayton v. State, 298 Ga. 793 (preservation and limits on plain-error review for opening/closing remarks)
- Wilson v. State, 295 Ga. 84 (discussing limits of plain error where controlling authority is lacking)
- Sims v. State, 296 Ga. 465 (post-Evidence Code decisions addressing Mallory’s status)