Cox v. State

• Decision Date: 17 September 2010
• Docket Number: No. 473, Sept. Term, 2009.,473, Sept. Term, 2009.
• Citation: 5 A.3d 730,194 Md.App. 629
• Parties: Ronald COX v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

5 A.3d 730

194 Md.App. 629

Ronald COX

v.STATE of Maryland.

No. 473, Sept. Term, 2009.

Court of Special Appeals of Maryland.

Sept. 17, 2010.

Mark Gitomer of Owings Mills, MD, for appellant.

Edward J. Kelley (Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellee.

Panel: DAVIS ^*, GRAEFF, ALAN M. WILNER, (Retired, Specially Assigned), JJ.

GRAEFF, J.

On January 29, 2009, a jury sitting in the Circuit Court for Baltimore City convicted Ronald Cox, appellant, of first degree murder, use of a handgun in the commission of a felony or a crime of violence, wearing, carrying or transporting a handgun, and possession of a regulated firearm after conviction of a disqualifying crime. The court imposed a sentence of life imprisonment on the first degree murder conviction and a consecutive sentence of twenty years, five years without parole, on the conviction for use of a handgun.¹

Appellant presents the following issues for our review, which we have rephrased:

1. Is the right to confrontation implicated: (a) when an inmate admits to another inmate in jail that he committed a crime; or (b) when the defendant, by his presence and his silence, adopts that admission as his own statement?

2. Did the trial court err in admitting appellant's statements to Michael West because they were the "fruit" of an illegal arrest?

3. Was the evidence sufficient to support appellant's convictions? For the reasons that follow, we shall affirm the judgments of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

On January 18, 2008, appellant was indicted, in three separate indictments, on five charges: (1) first degree murder; (2) conspiracy with Rodney Johnson to murder the victim; (3) unlawful use of a handgun in the commission of a felony or a crime of violence; (4) wearing, carrying and transporting a handgun upon his person; and (5) possession of a regulated firearm by a person previously convicted of a disqualifying crime. Appellant and Mr. Johnson initially were scheduled to betried together, but the court ultimately severed the trials.

Suppression Hearing

On January 5, 2009, the court held a hearing on motions, including appellant's motion to suppress the gun seized from a car driven by appellant.² Detective Milton Smith, III, amember of the Baltimore City Police Department, testified that, on December 28, 2007, he was on patrol in an unmarked vehicle with Detectives Derek Phyall and Eugene Bush. At approximately 12:30 p.m., the officers observed that the driver of a black 2006 Mercedes Benz was not wearing his seatbelt, and the driver failed to come to a complete stop at a stop sign. The officers initiated a traffic stop of the vehicle.

Detective Smith approached the passenger side of the vehicle. He observed that the passenger's hands were visibly shaking "in a nervous manner." Detective Smith asked the passenger his name, and at that point, a broadcast came over the police radio regarding a shooting at Church Square, which was approximately ten city blocks away.³ The broadcast stated that a black male in a black hooded sweatshirt was seen fleeing the scene by foot.

After the broadcast, the passenger, who was wearing a black hooded sweatshirt, became more nervous. His hands began to shake uncontrollably, he started making erratic eye movements, and his chest was "moving through his shirt." In response to this behavior, Detective Smith asked the passenger if he had anything illegal on his person. The passenger replied in the negative, and the detective inquired if he "could check." The passenger removed his seatbelt, with his hands "still shaking vigorously," and he exited the car. Detective Smith conducted a pat down of the passenger, which revealed no weapons or drugs. Detective Smith identified Mr. Johnson as the passenger of the vehicle and appellant as the driver.

Detective Phyall approached appellant on the driver's side of the vehicle. He informed appellant why he had been pulled over, and he asked for appellant's driver's license and registration. Appellant appeared calm during this conversation.

Detective Phyall testified that he did not call dispatch to ascertain the validity of appellant's license or registration because, approximately three to five minutes after the stop, he heard the broadcast regarding the shooting and the description of the fleeing suspect. Detective Smith alerted Detective Phyall that the passenger matched the description of the suspect. Appellant and Mr. Johnson were patted down, and they were seated on the curb. Detective Phyall asked appellant if there was anything in the car, and he testified that appellant consented to a search of the vehicle by stepping out of his vehicle with his hands in the air. He admitted, however, that no verbal consent was given.

Detective Phyall searched the car and found a gun inside the trunk. Once thegun was found, both appellant and Mr. Johnson were placed under arrest. ⁴

Detective Bush testified that, during the traffic stop, he initially stood at the rear of the vehicle. After being alerted that the passenger matched the description of the alleged shooter, Detective Bush assisted Detective Phyall by conducting a pat down of appellant; no weapons or drugs were found. Detective Bush stayed with appellant and Mr. Johnson on the curb while Detective Phyall searched the vehicle. Detective Phyall found the gun "[p]robably several minutes after the vehicle was pulled over." Detective Bush then "cleared" the weapon by pulling out the magazine, taking the safety off, and bringing in the slide. As a result of these actions, a round was ejected from the gun's chamber.

During cross-examination of the three detectives, appellant's counsel extensively questioned the officers regarding the timeline of events during the traffic stop. Specifically, counsel established that, although calls regarding the Church Square shooting came in at 12:38 p.m. and 12:40 p.m., it was not until 12:53 p.m. that a call came over the radio indicating that a suspect in a black hoodie was seen fleeing the scene. Theofficers testified that the time periods written in the statement of probable cause, as well as that to which they testified in court, were approximations.

The State argued that the initial stop of appellant and Mr. Johnson was a valid traffic stop. With respect to the subsequent search of the trunk, which uncovered the firearm, the State argued that the search was valid because the police had probable cause to believe that the vehicle contained evidence of a crime, based on the radio call regarding the shooting and that the passenger matched the description of the suspected shooter.

Appellant's counsel argued that the detention was illegal, focusing on the length of the traffic stop. He asserted that the police did not have probable cause to believe that appellant was involved in criminal activity until 12:53 p.m., when they received the radio call with the description of the fleeing shooter. Appellant's counsel stated that "the detention was illegal [because] [t]hey should have been given a ticket for the seatbelt and sent on their way [and] [t]he fact that they were even in police custody at 12:53," 23 minutes after the initial stop, was illegal.

On January 6, 2006, the day after the hearing, the court granted the motion to suppress. The court made factual findings that the stop occurred no later than 12:30 p.m., that the first call informing the officers about the shooting took place at 12:38 p.m., and that the call with the description of the shooter, which prompted the officers to ask appellant and Mr. Johnson to exit the car, occurred at 12:53 p.m. Stating that the officers failed to account for what took place between 12:30 p.m. and 12:53 p.m., the court found that, "during the time period that the vehicle was stopped, there was not the traffic stop activity of issuing a citation." The court stated that it could not "find any other legitimate investigatory reason for detaining the two for 15 to 23 minutes if they had no evidence of the shooting in the area before 12:53," and it concluded that the detention "exceeded the scope of the purported reason for the traffic stop." The court found thatthe police did not have reasonable suspicion or probable cause to extend the stop until they learned of the shooting. Accordingly, it granted appellant's motion to suppress the gun.

On January 23, 2008, another motions hearing took place.⁵ Appellant first moved to suppress statements that he made in central booking to an individual named Michael West. Defense counsel argued that, but for the illegal traffic detention, appellant would not have been arrested and in custody to talk to Mr. West. Counsel argued that any statements to Mr. West should be excluded as "fruits" of the illegal detention.⁶

The court denied appellant's motion, finding that appellant's conversations with Mr. West did not involve a state actor, and appellant's "decision to talk to Mr. West was an independent decision not related in any way to any illegal or unlawful contact by the Baltimore City Police Department." The court stated that appellant's decision to talk rendered his statements "outside of the ambit of the fruit of the poisonous tree doctrine."

Appellant then argued that the court should exclude statements that Mr. Johnson made to Mr. West in central booking, arguing that these statements constituted inadmissible hearsay. The State argued that Mr. Johnson's statements were admissible under either of two hearsay exceptions: (1) statements of a co-conspirator; and/or (2) tacit or vicarious admissions. The court denied the motion with respect to all but one of the statements. As discussed in more detail, infra, it ruledthat Mr. Johnson's statements to Mr. West were made in the presence of appellant, who reasonably would have disagreed with the statements if untrue, and therefore, with one exception, Mr. Johnson's statements to Mr. West were admissible as tacit admissions.

On January 27, 2009, trial...