Fennell v. State
| Decision Date | 08 February 2023 |
| Docket Number | 1351-2021 |
| Parties | CORY DWAYNE FENNELL v. STATE OF MARYLAND |
| Court | Court of Special Appeals of Maryland |
Circuit Court for Baltimore County Case No. C-03-CR-19-3178
OPINION [*]
At 11:17 a.m. on August 4, 2019, when Derrick Towe-Williams approached a vehicle on the street near his residence in Randallstown, Maryland, neighbors' security surveillance cameras recorded his death. Cory Dwayne Fennell, appellant and Markus Haggins were charged with Mr. Williams' murder. A jury in the Circuit Court for Baltimore County credited the State's "attempted robbery gone wrong" theory, that Mr. Haggins and Mr. Fennell "set up" Mr. Williams by arranging to purchase marijuana from him, but instead of Mr. Fennell robbing Mr. Williams while Mr. Haggins drove the getaway car as planned, Mr. Fennell shot Mr. Williams. Both co-defendants were convicted of first-degree felony murder, attempted robbery with a dangerous weapon, use of a handgun in the commission of a crime of violence, and possession of a regulated firearm after a disqualifying conviction for a crime of violence.
Although their appeals have been consolidated because they present overlapping records and issues, each case has been separately argued and reviewed in this Court.
For the reasons explained below, we shall affirm the circuit court's judgments.
Surveillance footage recovered from residences on Southall Road in Randallstown, Maryland shows that at 11:17 a.m. on August 4 2019, Mr. Williams walked up to a gold Chevrolet Suburban that had stopped on the street a few houses away from his. Before Mr. Williams could open the rear passenger door, a person wearing a mask jumped out of the front passenger seat.[2] When Mr. Williams took steps toward him, the masked individual shot Mr. Williams in the chest, then in the back.
Based on evidence developed by police investigators that Mr. Fennell and Mr. Haggins arranged to buy marijuana from Mr. Williams, while planning to rob him instead, the State charged both Mr. Fennell and Mr. Haggins with first-degree felony murder, attempted robbery with a dangerous weapon, use of a firearm in the commission of a crime of violence, and possession of a firearm after a disqualifying conviction.[3]
After police arrested Mr. Haggins and Mr. Fennell together, Mr. Fennell admitted to shooting Mr. Williams ("I did it") and simultaneously exculpated Mr. Haggins ). Mr. Fennell moved to suppress these statements on the ground they were improperly elicited after he invoked his right to counsel, in violation of his Fifth and Sixth Amendment rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). Finding that there was "a clear and unequivocal invocation of the right to remain silent," the suppression court granted Mr. Fennell's motion to exclude his ensuing statements, which included both his inculpatory admission and his exculpatory declarations regarding Mr. Haggins' involvement.
Mr. Haggins then moved to sever his trial from Mr. Fennell's, arguing that Mr. Fennell's statements were admissible in Mr. Haggins' defense under the hearsay exception for statements against the declarant's penal interest. At a hearing on April 30, 2021, the circuit court heard from Mr. Haggins and the State. Having not been notified of the motion or hearing, neither Mr. Fennell nor his counsel were present.
The court denied Mr. Haggins' severance motion, ruling that Mr. Fennell's statements would not be admissible in a separate trial of Mr. Haggins. See Md. Rule 5-804(b)(3). The court explained that, although the inculpatory parts of Mr. Fennell's statement to police were "against his penal interest," he "is an unavailable witness . . . because he will invoke his Fifth Amendment right," and "this statement has been suppressed." The court explained that statements exculpating Mr. Haggins would not be admissible in a separate trial because "they are not the corroborating circumstances which would support trustworthiness of the statements." In turn, the court found no "prejudice in trying the [d]efendants together" and denied the motion to sever.
At trial, the State's prosecution theory was that Mr. Fennell and Mr. Haggins "set up what Mr. Williams believed would be a drug deal" but, instead, was a plan to rob him that went "bad."
According to Mr. Williams' mother, her son sold small quantities of marijuana to family and friends. Daniel Todd, a close friend of Mr. Williams, testified that Mr. Williams knew Mr. Haggins, who previously lived a few houses away on the same street as Mr. Williams.
To link Mr. Fennell and Mr. Haggins to the murder, the State presented evidence from cell phones, surveillance cameras, and the vehicle carrying the shooter and driver. Cell phone records showed calls and texts between Mr. Haggins and Mr. Fennell beginning early in the morning on August 4, 2019, attempting unsuccessfully to arrange a drug purchase with someone unrelated to this investigation. At 8:58 a.m., Mr. Haggins texted Mr. Fennell, "hit him for an OZ right quick." At 11:12 a.m., Mr. Fennell called Mr. Williams, with the call lasting 43 seconds. Five minutes later, Mr. Williams called Mr. Fennell, at 11:17 a.m. That call lasted 24 seconds and corresponded to events captured by surveillance videos.
The arrival of Mr. Haggins' vehicle, Mr. Williams' approach, Mr. Williams' death, and the flight of Mr. Haggins' vehicle appear on footage recovered from the residences on Southall Road. At 11:08 a.m., a gold 2004 Chevrolet Suburban featuring a Virginia license plate, distinctive "after market rims," and a back window sticker, came into view. That vehicle was later determined to be registered to Mr. Haggins. The Suburban paused at the intersection of Shenton Road, before going on to park in front of one of the houses on Southall Road.
At the same time he made the 11:17 a.m. call to Mr. Fennell, Mr. Williams walked toward the Suburban while holding his cell phone to his ear. When Mr. Williams approached the rear passenger door, a masked and armed person jumped out of the front passenger seat. After Mr. Williams "took a few steps towards" him, the individual fired, causing Mr. Williams, with "blood on his chest," to turn and flee. The assailant fired several more shots at Mr. Williams as he ran down the street. The assailant got back in the Suburban, which drove off with the front passenger door still open.
Mr. Williams died on the sidewalk. He had two bags containing 16 grams of likely marijuana with a street sale value "between $180 and $350" and $48.47 on his person. His cause of death was close-range gunshot wounds to his chest and back.
Mr. Williams' cell phone was within his reach at the time of his death. His mother, who rushed to the scene, "took it in the house for his best friend, Daniel [Todd], to have." Shortly after Mr. Williams was shot, Mr. Todd "got the phone numbers that the victim had recently spoken to" from Mr. Williams' mother, who screenshot them from her son's phone.[4] Mr. Todd "proceeded to dial those numbers and tried to . . . hear anything or find out what [he] could from the numbers [he] dialed." The first two numbers he reached were friends who were distressed to hear about Mr. Williams' death.
At 11:56 p.m., Mr. Todd called Mr. Fennell's number. When "[s]omeone answered," Mr. Todd " After that, Mr. Fennell's phone never made or received another call. Later that evening, though, text messages sent from Mr. Haggins' phone show that Mr. Fennell was "using Mr. Haggins' phone to send messages."
Investigators obtained records showing that one of the last cell phone numbers with which Mr. Williams communicated was the number assigned to Mr. Fennell's phone. Also, Mr. Fennell's cell phone made frequent calls and texts to the number assigned to Mr. Haggins' cell phone.
On the morning of the shooting, Mr. Haggins and Mr. Fennell exchanged a series of messages consistent with attempting to set up a drug purchase with another individual. Mr. Haggins texted Mr. Fennell, "hit him for an OZ right quick," and an expert in drug transactions testified that that referred to buying an ounce of marijuana. At 9:59 a.m., after several intervening messages reporting that "[h]e ain't answer," Mr. Haggins texted Mr. Fennell that he was "OMW" (on my way), and Mr. Fennell replied, "At the gas station."
Special Agent Mathew Wilde, with the FBI's Cellular Analysis Survey Team, conducted a historical cell site analysis of Mr Haggins' and Mr. Fennell's phones, then mapped calls and movements in relation to the site and time of Mr. Williams' death. He testified, without objection, that after 10:00 a.m. on August 4, 2019, both phones were "consistently in the same...
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