Cox v. State

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. 1 ⁶³⁴ 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 be tried 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, a ⁶³⁵ member 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 12:80 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. ⁶³⁶ 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 the gun 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 “[pjrobably 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. The ⁶³⁷ officers 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 that ⁶³⁸ the 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 ruled ⁶³⁹ that 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 commenced. Baltimore City Police Officer William Keitz testified that, at 12:38 p.m. on December 28, 2007, he answered a call for a shooting at the Church Square Shopping Center. He immediately went to the shopping center and observed a black male lying on his back in front of the Stop Shop & Save grocery store.

The victim was bleeding and unresponsive, and Officer Keitz called for a medic. He found a head wrap and a bullet casing on the scene. Natalie Hoban, a crime lab technician for the Baltimore City Police Department Mobile Unit, responded to a call for a homicide. She and another evidence technician, Tech Payne, arrived at the scene at 2:40 p.m.

Ms. Hoban marked the physical evidence found at the scene, including a head scarf, or do-rag, and a 9-millimeter cartridge casing. The cartridge casing was processed for latent prints, but no prints were found. David McDermott, a homicide detective with the Baltimore City Police Department, responded to the scene of the shooting with Detective Chester Norton at approximately 1:00 p.m. When they arrived at the scene, the victim had already been transported to the hospital, but Detective McDermott observed the head scarf and the cartridge casing.

As the primary detective on the scene, Detective McDermott was responsible for directing police personnel, checking the area for evidence, and locating witnesses at the crime scene. He canvassed the area on foot, but he was unable to locate any witnesses or additional evidence. Dr. Donna Vincenti, an assistant medical examiner with the Office of the Chief Medical Examiner, was admitted as an expert in the field of forensic pathology. Dr. Vincenti conducted an autopsy on the victim’s body on December 29, 2007. ⁶⁴⁰ The victim sustained a gunshot wound to the head, and Dr. Vincenti testified that the cause of death was homicide.

Detective Phyall testified about the traffic stop of appellant and Mr. Johnson, advising the jury that the vehicle was stopped between 12:00 and 12:30 p.m., approximately 12 blocks from the scene of the murder. His trial testimony generally was consistent with his testimony at the suppression hearing. Due to the court’s ruling, however, he did not testify regarding the discovery of the handgun in the trunk or the subsequent arrest of appellant and Mr. Johnson. Mr. Michael West testified about a conversation that took place between Mr. Johnson, himself, and appellant.

Mr. West was arrested on December 28, 2007, and the next day, December 29, 2007, he was released to the day room in central booking, where he had a conversation with appellant and Mr. Johnson. Mr. West had known Mr. Johnson for approximately fifteen years. Mr. West testified that Mr. Johnson told him, with appellant standing within “arm’s reach,” that he and appellant had murdered the victim, a person Mr. West had known for years. Mr. Johnson told Mr. West that he and appellant were riding on Carlisle Street when they observed the victim.

Appellant offered Mr. Johnson $15,000 to kill the victim, and Mr. Johnson replied: “I’ll do it.” Appellant gave Mr. Johnson a gun, described by Mr. West as “a nine.” Mr. Johnson exited the car, wearing a black hoodie. He then returned to the vehicle, and placed the gun in the trunk. Appellant and Mr. Johnson drove away, but shortly thereafter, they were pulled over by the police for running a stop sign. 7 Mr. West testified that appellant contributed to the conversation, denying that he ran the stop sign and commenting that, when they were pulled over, the police noticed that Mr. Johnson was visibly nervous. ⁶⁴¹ After the conversation in central booking, which lasted approximately 45 minutes to one hour, Mr. West contacted Detective Kershaw. He testified that he contacted the police because he “had just found out [his] friend got killed.” That same week, Detective Kershaw picked up Mr. West and brought him to the homicide division.

Mr. West identified Mr. Johnson and appellant in separate photo arrays. On the back of the photo array including appellant, Mr. West wrote: I know this man from central booking and he told me that he was the driver and the one who gave Row dog the gun that killed (TEE) and he also said he wanted to kill (TEE) his self but Row dog said he [would] do it and told Row dog if he do it he would give him $15[,]000 and he did. Michael West[ 8 ] Mr. West testified that he was not offered any incentive by the State’s Attorney to testify in this case. Although he was originally detained in the Maryland state system for a handgun violation, his case had been moved to federal court.

He had entered into a plea agreement in federal court, where he was facing a sentence of 15 years to life. Mr. West testified that his plea agreement provided that the United States Attorney’s Office could ask for less time if he assisted in the prosecution of others, but Mr. West understood that to mean a sentence in federal court, not state court. Following Mr. West’s testimony, the State rested its case. At the close of the State’s case, appellant made a motion for judgment of acquittal on all counts, arguing that there was insufficient evidence to support a conviction, because there was not sufficient corroboration of his confession to Mr. West.

The court denied the motion. Appellant did not testify in his own defense. Brendon Hurson, Mr. West’s federal public defender, testified to the plea agreement that Mr. West entered into regarding his ⁶⁴² federal case. He explained that Mr. West entered into a cooperation agreement with the United States Attorney’s Office whereby, based on Mr. West’s cooperation, the government could make a motion to lower the sentencing guideline level in the federal court proceeding.

Following Mr. Hurson’s testimony, appellant renewed his motion for judgment of acquittal. The court denied the motion. After jury instructions and closing arguments, the jury found appellant guilty on all charges. This timely appeal followed.

I. Right to Confrontation Appellant contends that the court erred in admitting Mr. West’s testimony regarding statements that Mr. Johnson made to him at central booking. He argues that this testimony should have been excluded because it violated his “right of confrontation under the Sixth Amendment to the United States Constitution.” The State contends that this claim is unpreserved for our review. Although conceding that appellant “did mention his right to confrontation in the context of arguing the inadmissibility of West’s testimony,” it asserts that “the thrust of his argument was that the testimony violated state rules against the admission of hearsay,” and therefore, we should decline to address appellant’s confrontation claim on appeal. On the merits, the State argues that the admission of Mr. Johnson’s statements did not violate appellant’s right to confrontation for either of two reasons: (1) the statements were not testimonial; and (2) adoptive admissions do not implicate a defendant’s right to confrontation.

A. Proceedings Below As indicated, the admissibility of Mr. Johnson’s statements to Mr. West, which implicated Mr. Johnson and appellant in the victim’s murder, was addressed at the motions hearing on ⁶⁴³ January 23, 2009. Appellant’s counsel argued that Mr. Johnson’s statements constituted inadmissible hearsay. He further argued that admitting these statements would be “in complete violation of the confrontation clause,” explaining that he would not be able to cross-examine Mr. Johnson regarding these statements. 9 The State argued that Mr. Johnson’s statements to Mr. West should be admitted as a tacit admission by appellant. 10 Noting that appellant did not object to Mr. Johnson’s statements to Mr. West about his involvement in the murder, the State argued: “[Njormally if someone’s accusing you of being a participant in a murder[,] [that] would certainly rouse your objection.” Here, not only did appellant fail to object to Mr. Johnson’s statements, he participated in the conversation and added some details. Thus, the State asserted, Mr. Johnson’s statements constituted a tacit admission by appellant, ie. he “was agreeing with” Mr. West.

Defense counsel argued that Mr. West needed to testify regarding the circumstances surrounding the conversation before the court could make a determination whether Mr. Johnson’s statements could be deemed a tacit admission by appellant. The State arranged for Mr. West to be brought to court. Mr. West testified to his conversation with Mr. Johnson and “Scoop,” who he identified as appellant. He testified, consistent with his trial testimony, that Mr. Johnson told him that appellant pointed out the victim, stated that he would give Mr. ⁶⁴⁴ Johnson $15,000 to kill the victim, and gave Mr. Johnson a gun.

Mr. Johnson told Mr. West that he walked up behind “T,” shot him in the back of the head, and took off running. He returned to the car, dropped the gun in the trunk, and got in the passenger seat. He and appellant then left and were pulled over by the police. Mr. West testified that, during the time that Mr. Johnson was talking, “Johnson was sitting down, [appellant] was standing right beside him, and [Mr. West] was standing in front of both of them,” “arm-reach” away.

At no time did appellant express disagreement with anything Mr. Johnson said. Appellant occasionally participated in the conversation, adding that he provided the gun to Mr. Johnson, that he parked on the street waiting for Mr. Johnson after he killed the victim, and that Mr. Johnson was scared when the police stopped their car. The court denied appellant’s motion to suppress Mr. West’s testimony regarding Mr. Johnson’s statements, indicating that the motion had “evolved into the State’s motion to admit the hearsay statements of Mr. Johnson made to witness West at the Baltimore City intake facility.” The court ruled that Mr. Johnson’s statements to Mr. West were admissible as a tacit admission, stating: The Court finds, based on Mr. West’s testimony, that Mr. Cox was present and heard the statement. Mr. West’s testimony that Mr. Cox was joining in, adding in information about the statements clearly demonstrates that Mr. Cox heard Mr. Johnson’s statement.

Further, Mr. West’s testimony that the men were within arms reach corroborates that even though there may have been noise in the facility Mr. Cox was able to hear the statements of Mr. Johnson. The Court finds that the statements are of a type that a reasonable person in Mr. Cox’s position would have disagreed with the statements. The statements at issue, in essence, are that Mr. Cox solicited Mr. Johnson to murder T by offering him 15,000 dollars, giving him a gun, waiting for him in a vehicle, as Mr. Johnson allegedly went and shot T. ⁶⁴⁵ A reasonable person, the court finds, in Mr. Cox’s position would have objected to these statements being made in the presence of another party as they were statements which clearly implicated Mr. Cox in the offense of murder. In the face of these statements, Mr. Cox not only remained silent he joined in adding details, specifically according to Mr. West’s testimony, Cox offered that he gave Rodney the gun and he was going to park and wait on Bond and Eager after he killed T. Upon reviewing the Henry [v. State, 324 Md. 204 , 596 A.2d 1024 (1991), cert. denied, 503 U.S. 972 , 112 S.Ct. 1590 , 118 L.Ed.2d 307 (1992) ] case which is earlier than the commentary in Professor McL[ai]n’s book, the Henry case requires the following!;] That the party heard and understood the other person’s statement; at the time the party had a reasonable opportunity to respond; and under the circumstances a reasonable person in the party’s position who disagreed with the statement would have voiced that disagreement.

The facts clearly indicate that Cox had an opportunity to respond, that he heard and understood the statements, and as the Court has already found that he would have disagreed with the statements and failed to do so.[ 11 ] B. Preservation Before addressing the merits, we will address the State’s preservation argument. Although acknowledging that ⁶⁴⁶ appellant “did mention his right to confrontation” in the circuit court, the State argues that the issue is not preserved because “the thrust of [appellant’s] argument was that the testimony-violated state rules against the admission of hearsay.” The State cites to Collins v. State, 164 Md.App. 582, 602 , 884 A.2d 181 (2005), cert. denied, 390 Md. 501 , 889 A.2d 418 (2006), in which this Court declined to address an argument regarding the constitutional right to confrontation where the sole argument raised at trial was based on hearsay. The State’s preservation argument is not supported by the record. Appellant clearly raised the issue of his right to confront the witnesses against him.

Defense counsel argued that admission of Mr. Johnson’s statements through Mr. West’s testimony would be “in complete violation of the confrontation clause” because he could “only cross examine Mr. West regarding the nature of these statements but not the declarant.” Appellant adequately preserved this issue for appellate review. 12 C. Testimonial Statements On the merits, appellant’s claim involves the Sixth Amendment to the United States Constitution, which provides that a defendant in a criminal trial has the right “to be confronted with the witnesses against him.” U.S. CONST, amend.

VI

It “guarantees a defendant’s right to confront those ‘who “bear testimony” ’ against him.” Melendez-Diaz v. Massachusetts, - U.S. -, -, 129 S.Ct. 2527, 2531 , 174 L.Ed.2d 314 (2009) (citations omitted). In Crawford v. Washington, 541 U.S. 36, 53-54 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004), the Supreme Court held that the Sixth Amendment prohibits “admission of testimonial statements of a witness who did not appear at trial unless he was ⁶⁴⁷ unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” The Supreme Court declined in Crawford to “spell out a comprehensive definition of ‘testimonial,’ ” leaving that “for another day.” Id. at 68 , 124 S.Ct. 1354 . It did, however, identify a “core class” of testimonial statements: “[E]x parte in-court testimony or its functional equivalent— that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorialfyf’]; “extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions!”]; “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial” Id. at 51-52 , 124 S.Ct. 1354 (citations omitted). In Davis v. Washington, 547 U.S. 813, 817 , 126 S.Ct. 2266 , 165 L.Ed.2d 224 (2006), the Supreme Court discussed in more detail when statements made in response to police interrogation were testimonial: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.

They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. Id. at 822 , 126 S.Ct. 2266 . The Court held that statements to a 911 operator to seek assistance with an ongoing emergency are not testimonial, id. at 828 , 126 S.Ct. 2266 , whereas statements made to investigate past criminal conduct, where there was no present emergency, are testimonial. Id. at 830 , 126 S.Ct. 2266 . ⁶⁴⁸ The Court of Appeals has observed that the standards set forth by the Supreme Court for the purpose of identifying whether a statement is testimonial “ ‘share a common nucleus in that each involves a formal or official statement made or elicited with the purpose of being introduced at a criminal trial.’ ” State v. Lucas, 407 Md. 307, 314 , 965 A.2d 75 (2009) (quoting State v. Snowden, 385 Md. 64, 81 , 867 A.2d 314 (2005)).

The standard focuses on a statement “ ‘made in the course of a criminal investigation initiated by the government.’ ” Id. (quoting Snowden, 385 Md. at 81 , 867 A.2d 314 ). The determination whether an out-of-court statement is testimonial “is a question of constitutional law subject to plenary review by an appellate court.” Head v. State, 171 Md.App. 642 , 649 n. 7, 912 A.2d 1 (2006), cert. denied, 398 Md. 315 , 920 A.2d 1059 (2007). Here, we hold that Mr. Johnson’s statements to Mr. West were not testimonial for purposes of the Confrontation Clause.

This is so for several reasons. Initially, the statements were not a formal declaration, see Davis, 547 U.S. at 830 n. 5, 126 S.Ct. 2266 (“formality is indeed essential to testimonial utterance”), and they were not initiated by a known government official. Id. at 825 , 126 S.Ct. 2266 (statements made “unwittingly” to a government informant are “clearly nontestimonial”). Rather, Mr. Johnson’s statements were casual remarks made during a conversation with an acquaintance while waiting in central booking.

See Crawford, 541 U.S. at 51 , 124 S.Ct. 1354 (a witness “who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not”). Moreover, there is nothing to suggest that the statements were made “ “with the purpose of being introduced at a criminal trial.’ ” Lucas, 407 Md. at 314 , 965 A.2d 75 (quoting Snowden, 385 Md. at 81 , 867 A.2d 314 ). Rather, the statements were made during a conversation with another inmate. The trial court suggested that the purpose of the conversation was to brag about a crime. ⁶⁴⁹ Other courts have found that statements by one inmate to another inmate in jail are not testimonial.

For example, in United States v. Johnson, 495 F.3d 951, 975-76 (8th Cir.2007), the United States Court of Appeals for the Eighth Circuit addressed whether the admission of testimony by an inmate, regarding statements made by Johnson’s boyfriend while in jail, violated Johnson’s right to confrontation. The Court held that the admission of the statements did not violate the Confrontation Clause because the statements were not formal statements, and they were not “elicited in response to government interrogation whose primary purpose was to establish facts potentially relevant to a criminal prosecution.” Id. at 976 . Accord United States v. Smalls, 605 F.3d 765, 780 (10th Cir.2010) (inmate’s statement to fellow inmate boasting about murder “undoubtedly nontestimonial under any legitimate view of the law”); State v. Hughes, 286 Kan. 1010 , 191 P.3d 268, 276 (2008) (Hughes’ out-of-court hearsay confession to a cellmate was not testimonial because it was not made “ ‘under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’ ”) (citation omitted). See also Horton v. Allen, 370 F.3d 75, 84 (1st Cir.2004) (“statements ... made during a private conversation” are nontestimonial), cert. denied, 543 U.S. 1093 , 125 S.Ct. 971 , 160 L.Ed.2d 905 (2005).

Here, Mr. Johnson’s remarks to Mr. West, while in the recreational room of central booking, were not formal statements, they were not elicited in response to government questioning, and they were not made under circumstances in which a reasonable person would believe that the statements would be available for use at a later trial. Accordingly, Mr. Johnson’s statements were not testimonial. The Supreme Court has indicated that only testimonial statements are subject to the Confrontation Clause. See Davis, 547 U.S. at 821 , 126 S.Ct. 2266 (Only testimonial statements “cause the declarant to be a ‘witness’ within the meaning of the Confrontation Clause____It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay ⁶⁵⁰ evidence, is not subject to the Confrontation Clause.”).

Accord Clark v. State, 188 Md.App. 110, 120 , 981 A.2d 666 (2009). Because Mr. Johnson’s statements were not testimonial, they did not implicate the Confrontation Clause. Appellant’s claim in this regard has no merit. D. Tacit Admissions The State contends that the admission of Mr. West’s testimony regarding Mr. Johnson’s statements did not violate the Confrontation Clause for yet another reason.

It notes that the trial court admitted Mr. Johnson’s statements as tacit admissions by appellant, and it argues that tacit admissions are “not within the target zone of the Crawford opinion.” Appellant attempts to distinguish the cases relied upon by the State, but he does not otherwise address the merits of the issue raised by the State. A tacit admission occurs when a person makes “another person’s statement his or her own,” 6A Lynn McLain, Maryland Evidence State and Federal § 801(4):3, at 114 (2d ed.2001), when the person “remains silent in the face of an accusation that, if untrue, would naturally rouse the accused to speak in his or her defense.” Darvish v. Gohari, 130 Md.App. 265, 278 , 745 A.2d 1134 (2000), aff'd on other grounds, 363 Md. 42 , 767 A.2d 321 (2001). The Court of Appeals has explained that a party “ ‘may make a “tacit admission,” adopting, by his or her silence, another person’s statement,’ ” if the following prerequisites are satisfied: “(1) the party heard and understood the other person’s statement; (2) at the time, the party had an opportunity to respond; (3) under the circumstances, a reasonable person in the party’s position, who disagreed with the statement, would have voiced that