Lomax v. State

• Docket Number: 1857 Sept. Term, 2021
• Decision Date: 26 July 2023
• Citation: 298 A.3d 937,258 Md. App. 386
• Parties: Marco Darrin LOMAX v. STATE of Maryland
• Court: Court of Special Appeals of Maryland

258 Md.App. 386

298 A.3d 937

Marco Darrin LOMAX

v.STATE of Maryland

No. 1857 Sept. Term, 2021

Appellate Court of Maryland. *

July 26, 2023

Argued by: Marc A. DeSimone, Jr.(Natasha Dartigue, Public Defender of Maryland, on the brief), Baltimore, Maryland, for Appellant

Argued by: Jessica V. Carter(Brian E. Frosh, Atty. Gen. of Maryland, on the brief), Baltimore, Maryland, for Appellee

Panel: Kehoe, Berger, Arthur, JJ.

Arthur, J.

In 2013, appellantMarco Darrin Lomax was convicted of attempted murder, largely on the basis of the testimony of three Baltimore City police officers.One of those officers was Detective Daniel Hersl, who was later convicted of racketeering, robbery, and other federal offenses as a result of his role in the infamous Gun Trace Task Force or "GTTF."

In a post-conviction proceeding in 2021, Lomax claimed, among other things, that the State had withheld exculpatory information in violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215(1963).In an effort to establish that claim, Lomax served an Assistant State's Attorney with a subpoena commanding her to produce " Brady material," including Internal Affairs files for Hersl and the other officers who testified at Lomax's trial, from the date of the offense through the date of the subpoena.

On the State's motion, the Circuit Court for Baltimore City quashed the subpoena.The court reasoned that a post-conviction petitioner has no right to "discovery" and that a subpoena could not compel the State to provide "something that should have been provided" at the petitioner's criminal trial.The court later denied Lomax's petition for post-conviction relief, which included his Brady claim and two unrelated claims alleging ineffective assistance of counsel.

We granted Lomax's application for leave to appeal.For the reasons discussed below, we reverse in part.We hold that, when a post-conviction petitioner makes a well-founded assertion that the State violated its Brady obligations, the petitioner may use a subpoena to compel the State to produce the exculpatory information that it was obligated to produce at trial.

FACTUAL AND PROCEDURAL BACKGROUND

The Evidence at Trial

Testimony of Detective Daniel Hersl

At Lomax's criminal trial, Hersl testified that on January 6, 2011, at approximately 7:30 p.m., he and Detective John Burns, Detective Howard Ilgenfritz, and one other officer were working in a plainclothes capacity on patrol, in an unmarked police car, on Harford Road in Baltimore City.While driving by a carry-out restaurant in the 2300 block, Hersl noticed 10 to 15 people standing around out front.Hersl slowed down.As he passed by, he observed a tall person with long braids, wearing a black mask and leather jacket, approach a man and shoot him multiple times.According to Hersl, the person fired four to five gunshots from a silver gun.

Once the gunfire stopped, Detective Ilgenfritz, the front-seat passenger, got out of the unmarked cruiser and ran towards the front of the store.Hersl drove the cruiser in a "circle around the block" to provide backup for Ilgenfritz.

As Hersl pulled up to the intersection of Sherwood Avenue and Cliftview Avenue, he looked to his left and saw Detective Ilgenfritz running down the middle of the street, pointing at a silver Nissan speeding away down Cliftview Avenue.Hersl followed the Nissan, based on what he called his "police intuition" that Ilgenfritz's gesture meant that the shooter was in that vehicle.

Hersl chased the Nissan at a high rate of speed in a series of turns through the neighborhood and was, in his words, "at least two small city blocks behind them."Hersl lost sight of the Nissan at one point, but later observed what he called an "identical" car parked on the 600 block of Gutman Avenue.Hersl admitted that he could not definitively identify the parked car as the same as the one that he had pursued because he never got close enough to read the license plate or see how many people were in the vehicle.Still, citing his "police intuition through training and experience,"he insisted that he"knew" and had "no doubt" the two were the same.

Hersl observed two men, whom he identified as Lomax and Ravanna Cornish, get out of the Nissan.Lomax threw a silver object underneath the car.Lomax and Cornish both ran from the scene, and Lomax threw a black object with his right hand.Further along, Cornish threw down a set of keys.Following a foot chase, Lomax was arrested without resistance.Cornish was detained a few blocks away.

Once Lomax was in custody, Hersl returned to the parked car.He found a silver handgun underneath the car and a black ski mask nearby.The handgun was a six-shot, .357 revolver, containing three live cartridges and three spent cases.

Testimony of Detective Howard Ilgenfritz

Detective Ilgenfritz was in the front seat of Hersl's unmarked car at the time of the shooting.He saw several people standing in front of the carry-out restaurant, as well as several people scattering from the area.He heard four to five gunshots and then got out of the car.He ran to the scene and saw two men sprinting away towards Cliftview Avenue.One man was of average height, had a heavy build, and wore a tan jacket and blue jeans.The other was very tall, had a thin build, and wore a black ski mask, a black jacket, and blue jeans.

Detective Ilgenfritz ran after the men and saw them get into a silver, four-door Nissan.The Nissan pulled away, and Ilgenfritz continued to run after the vehicle.Ilgenfritz saw Hersl in his unmarked cruiser and pointed out the Nissan for Hersl to follow.After Lomax and Cornish had been detained, Ilgenfritz identified the Nissan as the one he saw the men enter while he was chasing them.

Testimony of Detective John Burns

Detective Burns was seated in the rear driver's-side seat of Hersl's unmarked police cruiser at the time of the shooting.As he was observing a large group of people lingering outside of the carryout restaurant, Detective Burns saw the shooter discharge a silver firearm at the victim, who collapsed on the sidewalk.He identified the shooter as a tall male with long braids, wearing a black mask and a black jacket.Burns saw the shooter and another man flee from the scene, running southbound on Harford Road towards Cliftview Avenue.Burns ran to the scene of the shooting to render aid to the victim, Alonzo Tunnell.

Testimony of Alonzo Tunnell

Alonzo Tunnell testified that he was shot six times, in his neck, left leg, left shoulder, right shoulder, and right buttocks.Tunnell also testified that he did not see who shot him, nor did he see a gun or anyone with a gun.However, he did acknowledge that he told detectives during an interview that he had seen someone with a mask and a gun.

Testimony of Devante Monroe

Devante Monroe was with Tunnell before the shooting and when he was shot.At trial, Monroe testified that he did not see the shooter or remember any other details of the crime.However, in a recorded statement taken on the day after the shooting, Monroe told investigators that he and Tunnell were walking to the store together when he noticed a Black male in a black ski mask coming from Cliftview Avenue.He said that the man was wearing a black hoodie and carrying a silver revolver with a brown handle in his right hand.Upon seeing the man, Monroe yelled, "Yo, he got a gun," and took off running.He heard approximately five gunshots.Once the gunfire ceased, Monroe looked back over his shoulder and saw the shooter run down Cliftview Avenue.

The Physical Evidence

Investigators found Lomax's fingerprints on the silver Nissan and on items inside that vehicle.Investigators also found DNA consistent with Lomax's on the vehicle, the .357 revolver, and the ski mask.A firearms examiner testified that the three cartridge cases found in the .357 revolver were fired from that weapon, but she could not offer any information about when or where the weapon had been fired.Lomax's hands were tested for gunshot residue after the shooting, and the results were negative.

Jury Findings and Sentencing

On May 24, 2013, after a seven-day trial, a jury found Lomax guilty of six criminal offenses related to the shooting of Tunnell: (1) attempted first-degree murder; (2) use of a handgun in the commission of a crime of violence; (3) possession of a firearm after having been convicted of a disqualifying crime; (4) unlawfully wearing, carrying, or transporting a handgun; (5) conspiracy to commit first-degree murder; and (6) conspiracy to use a handgun in the commission of a crime of violence.The court subsequently granted Lomax's motion to vacate the conspiracy convictions, because his co-defendant had been acquitted of the conspiracy charges.

Lomax, through new counsel, filed a motion for a new trial.At a hearing on the motion, Lomax presented video footage taken from a surveillance camera outside the entrance to a liquor store, located at the corner of Cliftview Avenue and Harford Road, near the scene of the shooting.Lomax argued that his trial attorney was ineffective in that he failed to inform him of the existence of the video until after his conviction.On July 31, 2014, the court denied Lomax's motion for new trial.

On December 1, 2014, Lomax was sentenced to 25 years’ incarceration.He filed an appeal, but did not pursue it.

Hersl and the GTTF

In February 2017, a federal grand jury indicted Hersl and six other Baltimore City police officers "for their participation in a racketeering conspiracy and substantive acts of racketeering, in violation of the Racketeer Influenced and Corrupt Organizations Act(‘RICO’), 18 U.S.C. § 1962, as well as other related crimes."United States v. Taylor & Hersl , 942 F.3d 205, 210(4th Cir.2019).These officers, who were members of the GTTF, "were charged with robbing citizens during the course of their police service, taking money, jewelry, and other items."Id."They were also charged with committing fraud in obtaining overtime...