Cox v. State

Citation28 A.3d 687,421 Md. 630
Decision Date20 September 2011
Docket NumberSept. Term,2010.,No. 125,125
PartiesRonald COXv.STATE of Maryland.
CourtCourt of Appeals of Maryland


Mark Gitomer (The Law Office of Mark Gitomer, Owings Mills, MD), on brief, for Petitioner.Edward J. Kelley, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Respondent.Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.GREENE, J.

On January 29, 2009, a jury in the Circuit Court for Baltimore City convicted Ronald Cox (Petitioner), of multiple offenses relating to a murder in 2007. Cox appealed to the Court of Special Appeals, which affirmed his convictions. Cox v. State, 194 Md.App. 629, 5 A.3d 730 (2010). Subsequently, Cox filed for certiorari and we granted his petition. Cox v. State, 417 Md. 500, 10 A.3d 1180 (2011). In his petition Cox sought review of three questions:

I. Did the Court of Special Appeals err in upholding the admission of the hearsay testimony of State's witness Michael West, a jailhouse informant, in violation of the Petitioner's right of confrontation under the Sixth Amendment to the United States Constitution?

II. Did the Court of Special Appeals err in affirming the trial court's denial of the Petitioner's motion to suppress the Petitioner's statements allegedly made to Michael West, a jailhouse informant, at Central Booking following the Petitioner's unlawful arrest?

III. Did the Court of Special Appeals err in finding the evidence sufficient to sustain the Petitioner's convictions?

We answer all three questions in the negative.

The Court of Special Appeals held that, because the out-of-court statements to fellow inmate Michael West were made voluntarily and were unprompted in casual conversation, the statements were nontestimonial, and therefore their admission did not violate the Confrontation Clause of the United States Constitution. 1 Cox, 194 Md.App. at 649–50, 5 A.3d at 742. Additionally, the court held that, because the trial court found that Petitioner had adopted the statements as his own, he was effectively the declarant, and thus his availability to testify satisfied the Confrontation Clause. Cox, 194 Md.App. at 652, 5 A.3d at 743. The court also held that West's testimony was properly admitted because it was “sufficiently attenuated” from the “taint” of an earlier illegal search and arrest. Cox, 194 Md.App. at 661, 5 A.3d at 748–49. Finally, the court concluded that the evidence presented at trial, including the extrajudicial confession and the medical examiner's testimony that the manner of death was homicide, was sufficient to allow a reasonable jury to find that Petitioner was guilty beyond a reasonable doubt. Cox, 194 Md.App. at 663, 5 A.3d at 750.

For reasons stated in this opinion, we shall affirm the judgment of the Court of Special Appeals.


On December 28, 2007, at approximately 12:38 p.m., Baltimore City Police Officer William Keitz found Todd Dargan lying face up, bleeding and unresponsive, at the Church Square Shopping Center in Baltimore. Officer Keitz called for a medic and surveyed the scene. He later testified that he found a bullet casing and a head wrap, or “do-rag” at the crime scene. The lead detective on the case, Baltimore City Homicide Detective David McDermott, arrived on the scene at approximately 1:00 p.m., accompanied by Detective Chester Norton. At that time, Dargan had already been transported to the hospital. Upon arrival, Detective McDermott canvassed the area and observed the head wrap and bullet casing as well.

Baltimore City crime lab technician Natalie Hoban arrived on the scene with another evidence technician, Tech Payne, at approximately 2:40 p.m. Ms. Hoban preserved the physical evidence at the scene, and identified the bullet casing observed by law enforcement to be a nine-millimeter cartridge casing. Ms. Hoban later testified at trial that, although the casing was dusted for latent fingerprints, none were found. The day after the incident, Dr. Donna Vincenti, an assistant medical examiner with the Office of the Chief Medical Examiner, conducted an autopsy of the victim's body. Dr. Vincenti determined that the victim sustained a gunshot wound to the head and the cause of death was homicide.

At approximately 12:30 p.m. on the same day the victim was shot, Baltimore City Police Detectives Milton Smith, III, Derek Phyall, and Eugene Bush were patrolling in an unmarked car approximately ten blocks away from the Church Square Shopping Center when they observed Petitioner driving a black 2006 Mercedes Benz without his seatbelt fastened. Rodney Johnson, a black male wearing a black hooded sweatshirt, was sitting in the passenger's seat. When the car failed to come to a complete stop at a stop sign, the detectives initiated a traffic stop. Although all three detectives testified at a pretrial hearing involving Petitioner's motion to suppress, the exact time line of the events that followed, between the initial stop and Petitioner's arrest, remains unclear.

According to the findings of the Circuit Court at the suppression hearing, when the police stopped Mr. Johnson and Petitioner, Mr. Johnson's hands were visibly shaking, and Petitioner appeared calm. As the detectives spoke with Petitioner and Mr. Johnson, a series of calls came over the police radio reporting the nearby shooting, and Mr. Johnson appeared increasingly nervous as he overheard the calls. Observing this, Detective Smith asked Mr. Johnson if he possessed anything illegal, and after Mr. Johnson replied that he did not, the detective asked if he “could check.” Mr. Johnson stepped out of the car and Detective Smith patted him down, but did not find either drugs or weapons in his possession. Mr. Johnson was instructed to sit on the curb beside the car.

Based on the testimony of the officers at the suppression hearing and police dispatch records, the Circuit Court found that, between fifteen and twenty-three minutes after the initial stop, a description of the suspect in the Church Square shooting was relayed over the radio describing a “black male wearing a black hoodie.” Noting that Mr. Johnson matched that description, Detective Phyall asked Petitioner if there was anything in the car. In response, Petitioner stepped out of the car with his hands in the air. Detective Phyall testified that he felt this action constituted consent to a search, and while Detective Bush patted Petitioner down, finding no drugs or weapons, Detective Phyall searched the vehicle and found a handgun in the trunk. At this point, both Petitioner and Mr. Johnson were placed under arrest.

Petitioner and Mr. Johnson filed a pretrial motion to suppress the evidence obtained during the stop, namely the recovered gun. The Circuit Court held an evidentiary hearing, during which the court heard testimony from Detectives Phyall, Bush, and Smith, and subsequently granted the motion and suppressed the handgun in addition to any testimony relating to the search or arrest. The court found that the initial stop was lawful, but concluded that the length of that detention, which was between fifteen and twenty-three minutes, was unreasonable. The court based this determination on the facts that the police did not conduct a check for warrants prior to the arrest, and no citations were issued during the period between the initial detention and the call reporting the description of the murder suspect. Additionally, the hearing judge found that the police lacked both consent and probable cause to search the vehicle. See Cox, 194 Md.App. at 637–38, 5 A.3d at 734. The State does not challenge that the detention, and therefore the search and subsequent arrest, were unlawful.

The Circuit Court held a second pretrial suppression hearing regarding Petitioner's motion to suppress the testimony of a fellow inmate named Michael West. At the hearing, Mr. West testified that he had been arrested, on an unrelated weapons charge, on the same date as Petitioner and Johnson. According to Mr. West, he saw Petitioner and Mr. Johnson the next day in central booking. Mr. West explained that he had known Mr. Johnson for approximately fifteen years. According to Mr. West, Mr. Johnson told Mr. West about the murder and the subsequent arrest in detail, without provocation, while Petitioner stood close by, listening and occasionally filling in details. Mr. West continued that, according to Mr. Johnson, Petitioner and Mr. Johnson were driving by the shopping center when Petitioner identified the victim as someone who had been involved in the murder of an acquaintance. 2 Mr. Johnson told Mr. West that Petitioner offered him $15,000 to kill the victim. When Mr. Johnson agreed, Petitioner gave him a nine-millimeter pistol and dropped him off on Caroline Street, adjacent to Church Square Shopping Center. Mr. Johnson ran up behind the victim and shot him in the head, then met Petitioner on Bond Street around the corner, put the gun in the trunk of the car, and got into the vehicle. According to Mr. West, Mr. Johnson then explained that they had been pulled over, and Petitioner added that the police had noticed Mr. Johnson's nervousness.

Petitioner's counsel objected to the admission of this testimony as hearsay, a violation of his right to confrontation, and as the “poisonous fruit” of the illegal detention, search, and arrest. The hearing court denied Petitioner's motion to suppress the statements, finding that, because the Petitioner made an independent decision to speak to Mr. West and did not deny the statements made by Mr. Johnson, the statements were ‘outside of the ambit of the fruit of the poisonous tree doctrine.’ Cox, 194 Md.App. at 638, 5 A.3d at 735. As to the hearsay issue, the hearing court held that the statements by Mr. Johnson, to Mr. West, were admissible under Md. Rule 5–803(2) 3 as adopted admissions by Petitioner, with the exception of those statements regarding events...

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