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Confrontation Clause argued in murder appeal

ANNAPOLIS – A defense attorney urged Maryland’s top court Tuesday to overturn his client’s first-degree murder conviction and life sentence, saying the man was denied his constitutional rights to confront at trial the person whose incriminating statements were referenced by prosecutors in court.

The appellant, Ronald Cox, should have been allowed to cross-examine Rodney Johnson regarding his statements to a “jailhouse informant” that Cox had paid Johnson $15,000 and given him a gun to kill Todd Dargan, attorney Mark Gitomer told the Court of Appeals.

The informant, Michael West, told of the conversation with Johnson when he testified at Cox’s trial.

Dargan, 25, was shot to death Dec. 28, 2007, at the Church Square Shopping Center in Baltimore. Johnson, who was tried separately from Cox, was acquitted of the murder and of conspiracy to commit murder.

A state prosecutor told the high court that Cox had no constitutional right to confront Johnson at trial because his statements to West were made in Cox’s presence and not directly relied upon by the prosecution. Rather, the prosecution based its case, in large part, on Cox’s failure to respond to Johnson’s provocative comments about paying to have a man killed, said Assistant Attorney General Edward J. Kelley.

Silence in the face of such a serious accusation may be introduced at trial to indicate the defendant’s “tacit admission” of guilt without the accuser having to testify, Kelley told the high court.

Kelley’s argument drew strong support from several Court of Appeals judges.

Judge Clayton Greene Jr. said that the Constitution’s Confrontation Clause is not implicated when the defendant essentially “adopts the language” of the alleged accuser by remaining silent in the face of a provocative statement.

An accuser whose words are not being used directly against the defendant need not testify and be subjected to cross examination, unless the words were said to a police officer during an investigation, Greene said.

Gitomer responded that Maryland’s rules of evidence might allow the state to introduce a “tacit admission” by a defendant but only if its introduction does not violate the Constitution.

“You cannot have a state evidentiary rule trump the Confrontation Clause,” said Gitomer, a solo practitioner in Owings Mills.

He contended that West, by subsequently informing the police of the conversation, was acting as an agent of law enforcement. Thus, Johnson’s statement to West should be subjected to cross-examination as a statement to police, Gitomer said.

“The court should not close its eyes to the role that Mr. West plays in all of this,” he told the high court.

But Judge Mary Ellen Barbera interjected that Cox was not a victim of a police sting when he sat down with West and Johnson and chose not to respond to Johnson’s version of events.

“He [Cox] voluntarily presented himself to the circumstance where the tacit admission came about,” Barbera said.

Chief Judge Robert M. Bell added that no evidence had been presented to show that West was operating at the police’s behest when he spoke with Johnson and Cox. Instead, the record indicates that West contacted the police only after the conversation, Bell said.

“If you were in Mr. West’s position, wouldn’t you have done the same thing?” Bell asked Gitomer, noting that West was burdened with a criminal charge. “Wouldn’t you have done the same thing to lighten your load?”

The conversation among Cox, Johnson and West occurred in a lounge area at Central Booking in Baltimore on Dec. 29, 2007.

Cox and Johnson had been arrested the previous day during a traffic stop and charged in Dargan’s killing.

West had been arrested on an unrelated handgun violation.

West’s case was moved to federal court, where he pled guilty. West testified at Cox’s trial that his plea agreement provided that the U.S. attorney’s office could ask for a lighter prison sentence if he helped in prosecuting others.

A Baltimore City Circuit Court jury convicted Cox on Jan. 29, 2009, of first-degree murder, using a handgun in the commission of a violent crime and other gun-possession offenses. Judge Shirley M. Watts sentenced him on April 14, 2009, to life in prison plus 20 years.

The Court of Special Appeals upheld the conviction and prison sentence in a reported opinion last Sept. 17, prompting Cox to seek review by the Court of Appeals.

The high court did not indicate when it will render a decision in the case, Ronald Cox v. Maryland, No. 125, September Term 2010.