Cox v. State

GREENE, J. On January 29, 2009, a jury in the Circuit Court for Baltimore City convicted Ronald Cox (“Petitioner”), of multi ⁶³⁶ pie 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 ⁶³⁷ 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. FACTS AND PROCEDURAL HISTORY 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 Yincenti, 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 cai1 approximately ten blocks away from the Church ⁶³⁸ 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. ⁶³⁹ 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. 2 ⁶⁴⁰ 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 between when Mr. Johnson left Petitioner’s car and when he returned, as Petitioner would not have had first-hand knowledge of those events and thus could not adopt the statements. To support its ruling, the hearing court cited to 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), in which we held that a party ⁶⁴¹ can make a “tacit admission” adopting another’s statement by his or her silence. 4 Following the pretrial motions hearings, trial commenced on January 27, 2009.

Police officers Keitz, McDermott, Norton, and Phyall testified regarding the stop, arrest, and crime scene. The lab technician and medical examiner testified as to the crime scene evidence and wounds on the victim. Additionally, Michael West testified about the conversation between Mr. Johnson, himself, and Petitioner. At the pretrial suppression hearing, Mr. West testified regarding the statements made by Mr. Johnson, which were deemed tacit admissions of Petitioner.

The jury convicted Petitioner 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. Petitioner appealed to the Court of Special Appeals, which affirmed his convictions. Cox v. State, 194 Md.App. 629 , 5 A.3d 730 (2010). The intermediate appellate court held that Petitioner’s Sixth Amendment right to confrontation had not been violated, that Mr. Johnson and Petitioner’s admission in the presence of Mr. West was sufficiently attenuated from the illegal detention and search so as to not require exclusion, and that the State produced sufficient evidence at trial to allow a reasonable jury to find Petitioner guilty beyond a reasonable doubt.

Id. DISCUSSION As we explained recently in Smith v. State, 414 Md. 357, 361 , 995 A.2d 685, 687-88 (2010): ⁶⁴² We review the Circuit Court’s ruling on the motion to suppress and “consider only the facts and information contained in the record of the suppression hearing.” Longshore v. State, 399 Md. 486, 498 , 924 A.2d 1129, 1135 (2007). “The factual findings of the suppression court and its conclusions regarding the credibility of testimony are accepted unless clearly erroneous.” Prioleau v. State, 411 Md. 629, 638 , 984 A.2d 851, 856 (2009) (quoting Rush v. State, 403 Md. 68, 82-83 , 939 A.2d 689, 697 (2008)). The foregoing notwithstanding, we “undertake our own independent constitutional appraisal of the record by reviewing the law and applying it to the facts of the present case.” Id. (internal citations omitted).

A. Confrontation Clause The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” Similarly, Article 21 of the Maryland Declaration of Rights provides “[t]hat in all criminal prosecutions, every man hath a right ... to be confronted with the witnesses against him.” Because “[t]he Fourteenth Amendment renders the [Confrontation] Clause binding on the States,” Michigan v. Bryant, 562 U.S. -, 131 S.Ct. 1143, 1152 , 179 L.Ed.2d 93, 104 (2011) (citing Pointer v. Texas, 380 U.S. 400, 403 , 85 S.Ct. 1065 , 13 L.Ed.2d 923 (1965)), we analyze the admission of out-of-court statements against criminal defendants under the framework created by the United States Supreme Court in Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004). In Crawford , the State obtained a tape recording of a statement that the defendant’s wife had previously given to the police. She claimed marital privilege and did not take the stand to testify. Crawford, 541 U.S. at 38 , 124 S.Ct. at 1356-57 , 158 L.Ed.2d at 185 .

At trial, the State played the taped recording over defense objection. Crawford, 541 U.S. at 40 , 124 S.Ct. at 1358 , 158 L.Ed.2d at 186 . The United States Supreme Court explained that the Confrontation Clause is ⁶⁴³ focused specifically on the defendant’s right to confront “the witnesses against him,” U.S. CONST, amend. VI, and the Court determined that the prevailing definition of the word “witness” at the time the Sixth Amendment was drafted was “those who ‘bear testimony.’ ” Crawford, 541 U.S. at 51 , 124 S.Ct. at 1364 , 158 L.Ed.2d at 192 (citing 2 N. WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1828)).

As a result, the Court held that: An accuser 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. The constitutional text, like the history underlying the common-law right of confrontation, thus reflects an especially acute concern with a specific type of out-of-court statement. Crawford, 541 U.S. at 51 , 124 S.Ct. at 1364 , 158 L.Ed.2d at 192-93 . The Court continued that, regardless of the prevailing hearsay laws or how reliable a statement may be, “the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had a prior opportunity for cross-examination.” Crawford, 541 U.S. at 53-54 , 124 S.Ct. at 1365 , 158 L.Ed.2d at 194 .

In contrast, the Court explained that if a statement is nontestimonial, the Confrontation Clause does not bar its admission, and the only remaining question is whether the statement is admissible under the relevant rules of evidence. Crawford, 541 U.S. at 68 , 124 S.Ct. at 1374 , 158 L.Ed.2d at 203 (stating that “an approach that exempted such [nontestimonial] statements from Confrontation Clause scrutiny altogether” would be “wholly consistent with the Framers’ design”). Thus, following Crawford , whether a statement was considered “testimonial” became critically important to the Confrontation Clause analysis. The Court explained: Various formulations of this core class of “testimonial” statements exist: “ex parte in-court testimony or its functional equivalent—that is, material such as affidavits, custo ⁶⁴⁴ dial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,” ... “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.” Crawford, 541 U.S. at 51-52 , 124 S.Ct. at 1364 , 158 L.Ed.2d at 193 (citations and quotations omitted).

Although the Court found that the term testimonial “applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations,” it left “for another day any effort to spell out a comprehensive definition of ‘testimonial.’ ” Crawford, 541 U.S. at 68 , 124 S.Ct. at 1374 , 158 L.Ed.2d at 203 . Later, Davis v. Washington, 547 U.S. 813 , 126 S.Ct. 2266 , 165 L.Ed.2d 224 (2006), expanded on the Crawford principle, creating the following test for determining whether an out-of-court statement given during police interrogation is 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. Davis, 547 U.S. at 822 , 126 S.Ct. at 2273-74 , 165 L.Ed.2d at 237 .

In Davis , the defendant was accused of domestic violence against his former girlfriend. The trial court allowed the State to play a tape recording of a 911 call the victim made, seeking help during a physical altercation with Davis. Davis, 547 U.S. at 817 , 126 S.Ct. at 2271 , 165 L.Ed.2d at 234 . ⁶⁴⁵ The Court concluded that, under the above test, the recording was admissible despite the fact that the victim did not testify, because the statements “were not testimonial.” Davis, 547 U.S. at 829 , 126 S.Ct. at 2277 , 165 L.Ed.2d at 241 . The Court explained that the victim’s “call was plainly a call for help resulting from a bona fide physical threat....[T]he nature of what was asked and answered in Davis , again viewed objectively, was such that the elicited statements were necessary to be able to resolve the present emergency, rather than simply to learn (as in Crawford) what had happened in the past.” Davis, 547 U.S. at 827 , 126 S.Ct. at 2276 , 165 L.Ed.2d at 240 .

Although the facts of Davis “[made] it unnecessary to consider whether and when statements made to someone other than law enforcement personnel are ‘testimonial,’ ” Davis, 547 U.S. at 823 n. 2, 126 S.Ct. at 2274 , 165 L.Ed.2d at 238 , the Court strongly implied that statements made in casual conversation between prisoners are nontestimonial. While other courts did not necessarily use the term “testimonial” or explicitly refer to the distinction between testimonial and nontestimonial statements until Crawford in 2004, the Court in Davis pointed out that courts have consistently found that the right to confrontation “applied only in the testimonial context” throughout American history. Davis, 547 U.S. at 824 , 126 S.Ct. at 2275 , 165 L.Ed.2d at 238 . The Court continued that “Lw]here our cases did dispense with those [Confrontation Clause] requirements ... the statements at issue were clearly nontestimonial.” Davis, 547 U.S. at 825 , 126 S.Ct. at 2275 , 165 L.Ed.2d at 239 .

To illustrate this point, the Court cited Bourjaily v. United States, 483 U.S. 171 , 181—84, 107 S.Ct. 2775 , 97 L.Ed.2d 144 (1987) (finding no Confrontation Clause violation in admission of statements made by a co-conspirator to an undercover informant) and Dutton v. Evans, 400 U.S. 74, 87-89 , 91 S.Ct. 210 , 27 L.Ed.2d 213 (1970) (plurality opinion) (finding no violation in the admission of a statement made by a co-conspirator to another inmate). Davis, 547 U.S. at 825 , 126 S.Ct. at 2275 , 165 L.Ed.2d at 239 . Although the pre-Crawford reasoning employed in Dutton is no longer valid, the facts of Dutton are quite similar to those ⁶⁴⁶ in the present case and the Supreme Court’s subsequent treatment of those facts in its post-Crawford Confrontation Clause cases aids in our analysis. As a result, it is significant that the Davis Court referred to the Dutton statements as “clearly nontestimonial.” Id.

In Dutton , the defendant, Alex Evans, was convicted of first degree murder for the fatal shooting of three policemen. Dutton, 400 U.S. at 76 , 91 S.Ct. at 213 , 27 L.Ed.2d at 219 . At his trial, the prosecution was allowed to introduce testimony by an inmate named Shaw, regarding a statement made by Evans’s co-conspirator, a man named Williams, when Shaw and Williams were sharing a jail cell. According to the Court, “Shaw said that when Williams was returned to the penitentiary from the arraignment, he had asked Williams: ‘How did you make out in court?’ and that Williams had responded, ‘If it hadn’t been for that dirty son-of-a-bitch Alex Evans, we wouldn’t be in this now.’ ” Dutton, 400 U.S. at 77 , 91 S.Ct. at 214 , 27 L.Ed.2d at 220 .

As in the present case, in Dutton , it did not appear that the witness was acting as a law enforcement agent at the time the incriminating statements by the co-conspirator were made. See Dutton, 400 U.S. at 87 , 91 S.Ct. at 219 , 27 L.Ed.2d at 226 (stating that the case “does not involve the use, or misuse, of a confession made in the coercive atmosphere of official interrogation”). Like the jailhouse informant in this case, it was purely coincidental that Shaw was in the same jail at the same time as Williams. Further, similar to Mr. Johnson’s statements to Michael West in the present case, Williams’s statements in Dutton arose purely out of casual conversation.

Additionally, several courts since Crawford have held that statements made by one inmate to another are nontestimonial, even where the testifying witness was acting as a government agent. See, e.g., United States v. Smalls, 605 F.3d 765, 779-80 (10th Cir.2010) (involving a statement to an inmate acting as confidential informant was “undoubtedly nontestimonial under any legitimate view of the law” because the defendant “did not make his statement to [the] Cl for the ‘primary purpose’ of establishing or proving facts relevant to a later prosecution” and the statement lacked the formality required to render a ⁶⁴⁷ statement testimonial); United States v. Johnson, 495 F.3d 951, 976 (8th Cir.2007) (determining that remarks by one inmate to another “fall safely outside the scope of testimonial hearsay” because “Honken was not making ‘formal statements.’ Nor were his statements elicited in response to government interrogation whose primary purpose was to establish facts potentially relevant to a criminal prosecution.”). Specifically, we find the analysis in Smalls particularly enlightening. In applying the primary purpose test from Davis , the 10th Circuit explained, Moreover, Cook did not make his statement to [the] Cl for the ‘primary purpose’ of establishing or proving facts relevant to a criminal prosecution.

Obviously, Cook would not have shared what he did had he known the Government was recording his statement or that his cellmate was a CL Objectively viewed from Cook’s standpoint, his statement was much more akin to casual remarks to an acquaintance than formal declarations to an official. Cook in no sense intended to bear testimony against Defendant Smalls; Cook in no manner sought to establish facts for use in a criminal investigation or prosecution. Cook boasted of the details of a cold-blooded murder in response to ‘casual questioning’ by a fellow inmate and apparent friend. Cook’s statement is undoubtedly nontestimonial under any legitimate view of the law.

Smalls, 605 F.3d at 779-80 (internal citations omitted). In a post-Crawford Confrontation Clause case decided by the United States Supreme Court, Giles v. California, 554 U.S. 353 , 128 S.Ct. 2678 , 171 L.Ed.2d 488 (2008), the Court held that a California statute providing a “forfeiture by wrongdoing” exception to the right of confrontation was too broad. Giles, 554 U.S. at 359-60 , 128 S.Ct. at 2683-84 , 171 L.Ed.2d at 495-96 . Responding to the dissent’s criticism in Giles that this holding would create particular hardships in domestic violence cases, Justice Scalia explained for the Court that “only testimonial statements are excluded by the Confrontation Clause.

Statements to friends and neighbors about abuse and intimidation and statements to physicians in the course of ⁶⁴⁸ receiving treatment would be excluded, if at all, only by hearsay rules.” Giles, 554 U.S. at 376 , 128 S.Ct. at 2692-93 , 171 L.Ed.2d at 505-06 . The Court’s declaration in Davis that the casual remarks in Bourjaily and Dutton were “clearly nontestimonial,” Davis, 547 U.S. at 825 , 126 S.Ct. at 2275 , 165 L.Ed.2d at 239 , the assertion in Giles that statements to “friends and neighbors” or to “physicians” are not testimonial, Giles, 554 U.S. at 376 , 128 S.Ct. at 2692-93 , 171 L.Ed.2d at 505-06 , and the underlying premise in Crawford that “[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an