Argued: November 29, 2018
Circuit Court for Worcester County Case No.: 23-K-16-000038
Barbera, C.J. Greene, McDonald, Watts, Hotten, Getty, Adkins,
Sally D., (Senior Judge, Specially Assigned) JJ.
past twenty years have seen a dramatic increase in heroin
use, abuse, and accessibility. Unsurprisingly, Maryland has
experienced a correlating spike in heroin and opioid-related
deaths. Our State, and Marylanders alike, seek
tools to combat this epidemic. We are asked to consider under
what circumstances the dangers of heroin would justify
holding a dealer liable for involuntary manslaughter for
supplying the means by which his customer fatally overdoses.
The issue is fraught. The perception of an epidemic cannot
solely dictate its legally recognized danger. As our role
requires, we address the issue in the specific context of
this sale of heroin to determine where the act falls
on the continuum of culpability.
question presented is at once straightforward and weighty:
whether the evidence in the trial court was sufficient to
sustain Patrick Joseph Thomas' ("Thomas")
conviction for involuntary manslaughter. We resolve this
case in favor of Petitioner, holding that there was
sufficient evidence to convict Thomas of gross negligence
State charged Thomas with three counts: distribution of
heroin, reckless endangerment, and involuntary manslaughter.
Thomas entered, what we have termed before, a "hybrid
plea," wherein the parties "agree to the ultimate
facts," while "maintain[ing] the ability to argue
legal issues, as well as sufficiency." Bishop v.
State, 417 Md. 1, 22 (2010). "The State's
proffer may not contain disputes of material fact, because
the judge cannot resolve credibility issues on a mere
proffer." Id. at 24. These agreed factual
findings were read into the record by the State's
Attorney and are quoted at length below.
initial matter, Thomas objects to the State's citation of
"at least ten journal articles, newspaper reports, and
internet websites" to support its argument, because, he
asserts, we are confined to the record "as presented to
the lower court." Moreover, Thomas states that he
"does not agree to the facts identified by the
State" in its brief, particularly considering that they
are not placed in the context of the time in which this
incident occurred, 2015.
agree with Thomas that newspaper articles-excepting those
referenced in the agreed statement of facts-play no role in
consideration of this case. Still, this Court is able to take
judicial notice of facts "not subject to reasonable
dispute" and "capable of accurate and ready
determination by resort to sources whose accuracy cannot
reasonably be questioned." Maryland Rule 5-201(b). We
may take such notice on request or sua
sponte, see id. 5-201(c), regarding a range
of reliable scientific and historical data. See,
e.g., Faya v. Almaraz, 329 Md. 435, 445
(1993) (Surgeon General's Reports issued by the U.S.
Department of Health and Human Services); B.N. v.
K.K., 312 Md. 135, 139-40 (1988) (reports issued by the
Centers for Disease Control and Prevention, as well as other
academic publications); Gillespie-Linton v. Miles,
58 Md.App. 484, 499 (1984) (life expectancy tables).
Agreed Findings of Fact
[O]n June 26th of 2015, at approximately 3:19 in the morning,
Worcester Central received a 911 call from Tammy Colleen
Matrey [("Tammy")], who resides . . . [in] Ocean
Pines, Worcester County, Maryland. Tammy advised that she had
located her son, Colton Lee Matrey [("Colton")],
locked in her bathroom. Colton was unresponsive, had no pulse
and was not breathing. Tammy would testify that she had
previously seen Colton earlier that day, alive and well, and
had found him at this particular time of evening or early
morning hours of the 26th of June unresponsive.
At 3:27 in the morning Ocean Pines Emergency Medical Services
and Ocean Pines Police Officer Kerrigan arrived at the
residence and located Colton seated on the toilet in the
bathroom with his head propped on the vanity top. They
pronounced Colton deceased. Because of the scene, it was
determined that Colton died of a probable heroin overdose.
And, therefore, the Worcester County Criminal Enforcement
Team was contacted and asked to respond to conduct a criminal
investigation of the circumstances surrounding Colton's
At approximately 4:30 in the morning, Detective Jeff Johns
[("Johns")] of the Ocean City Police Department,
assigned to the Worcester County Criminal Enforcement Team,
arrived at the residence. Without objection, Johns would have
been offered and accepted as an expert in the valuation and
identification of controlled dangerous substances
[("CDS")], the common practices of users and
dealers of [CDS] and [CDS] investigations generally.
Johns arrived at the residence, went into the bathroom of the
residence, observed Colton, determined that Colton's body
had not been moved. . . .
Johns located one white wax paper bag inside of Colton's
right hand. There were three additional identical white wax
paper bags on the ground directly beneath Colton between the
toilet and the vanity. Each one of these bags was stamped
["banshee"] in blue, with a blue-colored emblem.
Those packages contained trace amounts of suspected
contraband [and] are what Johns knows is commonly used to
[State's exhibits] reflect the photograph of Colton's
right hand which contained the one empty package of banshee
and the other photograph depicts what was found in
Colton's pants pocket, which was a syringe.
Colton's bedroom was searched with the consent of his
mother. And located in Colton's bedroom were four
additional hypodermic syringes, a spoon and a Q-tip inside of
a folded pair of Colton's jeans in the closet. These were
identified by Johns as heroin paraphernalia. There was also a
prescription pill bottle with the label torn off that
contained six 50-milligram tramadol pills, which is a
Schedule IV [CDS]. It was determined that Colton did not have
a prescription for the tramadol pills and possibly had taken
these pills, unknowingly, from his mother.
Johns spoke with the individuals who were present in the
residence at the time [of Colton's death]. In addition to
Tammy, . . . there was also James Godino
[("Godino")], who was the boyfriend of Tammy, and
Carissa Koons [("Koons")], who was the girlfriend
It was determined . . . by interrogating or questioning those
three individuals that Colton had been abusing heroin for
approximately four[-]and[-]a[-]half years. He resided in
Pennsylvania up until February of 2015, when he moved to
Ocean Pines, Maryland to live with his mother. . . .
Koons had been in a relationship with Colton for four years.
She advised that Colton had always had a heroin addiction.
Approximately two[-]and[-]a[-]half years ago Colton had
overdosed after being released from a halfway house where he
had become clean of opiates. Narcan, or naloxone, was
administered, and he had survived that overdose. However,
Koons advised that he continued to abuse heroin after that
In February of 2015[, ] Colton moved out of the Pennsylvania
area and into his mother's home in an attempt to isolate
himself from the lifestyle of heroin abuse in Pennsylvania. .
[O]n June 25th[, ] Colton had asked his mother to borrow her
debit card. Tammy allowed Colton to have her debit card so
that he could rent a couple of movies.
After his death, she checked her bank transactions. She
observed that Colton had rented two movies and then withdrew
$40 in U.S. currency. This $40 in U.S. currency was withdrawn
at 11:59 in the evening on the 25th of June . . . .
On June 25th of 2015[, ] at approximately 11:50[, ] Koons
woke up from her sleep and observed that Colton had her car
keys. . . . He then left the residence. . . .
Approximately five minutes after Colton left the residence,
Koons called Colton. He did not answer. She woke up at
approximately [1:00] in the morning, noticed that Colton was
not in the bedroom with her and called him again. He did not
answer, and she fell back asleep.
At approximately 3:10 to 3:15 in the morning[, ] Koons woke
up again. Colton was still not back in the bedroom. She then
checked the bathroom and noticed that the door was locked,
looked under the door crack and observed Colton's shoes.
She then woke up Colton's mother, Tammy, and Godino.
Godino removed the door hinges, at which time they were able
to locate Colton's body in the bathroom. He was checked
for a pulse. It was determined that he was not breathing and
that's when 911 had been called.
Johns, as part of the investigation, seized Colton's
black in color cellular telephone. . . . Tammy granted Johns
permission to search the contents of the phone in an attempt
to identify Colton's supplier of heroin. . . .
Later in the day[, ] Tammy contacted Johns and advised that
she had found a piece of paper inside Colton's wallet
that had two names and phone numbers written down. . . .
The names and numbers written down on this piece of paper was
[sic] the name Pat, with the number . . ., and also
the name G - G . . . and his number . . . .
Johns, utilizing the LInX Law Enforcement database, input the
number that corresponded with the name of Pat. The database
search identified Patrick Joseph Thomas
[("Thomas")], with a date of birth of 8/16/56, a
58-at the time-year old white male as the owner of the phone.
[Koons] indicated [to Johns] that when she woke up at
approximately 11:50 on June 25th of 2015, and Colton was
still in the house, she heard Colton complaining that Pat was
not answering the phone. This was right before Colton left
the residence in Koon's car. There was no real
familiarity with Pat. Koons had never met Pat.
A physical examination of Colton's phone . . . shows that
an individual by the name of Pat was saved as one of his
contacts. And the phone number . . . corresponded with the
number found in Colton's wallet.
Johns then looked through the . . . call log on Colton's
phone and observed the following: On June 25, 2015, starting
at 11:45 in the evening, [23:45] hours, Colton called Thomas
27 times . . . between 11:45 and 12:07 a.m. All of those call
durations, except for the last one, were zero seconds,
indicating no answer, no contact. That last call was 27
seconds long, indicating contact.
Additionally, there were text messages sent from Colton's
cellular telephone sent to the number associated with Thomas.
Those text messages were sent on June 25, 2015, at [23:46]
hours, which stated, "I got $30, man, call me,
please." June 25, 2015, at [23:48] hours, "Call
me." June 25, 2015, [23:48], "I'll come to
you." June 26, 2015, at two minutes past midnight, . . .
"I'm here, I need 4." . . . June 26, 2015, at
[00:05] hours, "Yo, I'm here."
Johns would testify, based on his training, knowledge, and
experience . . . that these were outgoing cell phone calls
and text messages reaching out to Thomas, inquiring about
purchasing five [sic] bags of heroin during those
several minutes. . . .
[F]rom Colton's last communication until the time
he's pronounced dead, the only person he attempted to
communicate with was Thomas.
Based on that information, a search and seizure warrant was
authored by Johns. And on July 2nd of 2015, a search and
seizure warrant was executed on the person of Thomas and [his
Johns located a total of 60 individual white wax paper bags.
These bags were stamped ["banshee"] in blue, with a
blue emblem. These bags were identical in appearance to the
bags recovered from Colton from the date that he expired.
These bags were on a table that was directly next to the
chair where Thomas was seated during the warrant execution.
Each of these bags contained a light brown powdery substance
that was suspected heroin. . . . [E]ight bags were loose on
the table, and there were another 52 bags that were packaged
in four bundles.
There were several hundred empty . . . wax paper bags on
the floor directly next to the chair where Thomas was seated
and on the table next to Thomas. . . . Johns noticed a
combination of the following: . . . wax paper bag[s] stamped
"banshee" in blue with a blue emblem[;] . . . white
wax paper bags stamped "banshee" in blue with no
emblem[;] . . . white wax paper bags stamped "New
York" in black with a black mask emblem[;] . . . blue
wax paper bags stamped "Gucci" in red with a red
emblem[;] . . . [and] blue wax paper bags stamped
"slam" . . . in red with no emblem.
Also seized from Thomas was an LG brand cellular telephone
that was on the table next to where he was seated.
[Johns examined Thomas' phone.] [A] screen shot of the LG
phone . . . identified as Thomas' identif[ied] an
individual logged . . . as a contact. The name is
"Colton". . . . [The number] corresponds with
Colton's cellular telephone.
Toll records show that the cellular telephone that was in
Thomas' possession received 28 incoming phone calls from
Colton's phone number, starting as [23:45] hours, or
11:45, on the evening of June 25th of 2015, and continued
through seven minutes after midnight on June 26th of 2015. .
Johns would testify that the inconsistency, meaning there was
27 versus 28 [calls], would be that one of those calls would
have been deleted by Colton accidentally.
The 60 bags recovered from Thomas' residence [were] . . .
submitted . . . for testing and analysis. . . . [T]hat report
reflects that the gross weight was 13.10 grams. . . . Five
specimens were analyzed separately, resulting in the
conclusion that those items contained the substance of
heroin, a Schedule I [CDS].
[H]ad this matter gone to trial, . . . the State would have
introduced the postmortem examination of the Office of the
Chief Medical Examiner. . . . [The] autopsy [was] performed
by [Theodore M. King, M.D. ("King")]. . . . [T]he
toxicology report and findings [stated:]
"This 23-year-old white male, Colton Lee Matrey, died of
alcohol and narcotic (free morphine) intoxication. The manner
of death could not be determined. Autopsy detected increased
levels of alcohol and a drug (free morphine) in the heart
blood of the deceased and also showed evidence of heart
disease and injuries to the head, neck, back, upper
extremities and lower extremities. The additional finding in
the prostate gland was incidental to the man's death. The
deceased had been consuming alcoholic beverages and heroin (a
drug) a [sic] prior to death. Post mortem testing
for additional drugs was negative."
During Johns' testimony, . . . inquiry would have been
made regarding the general public awareness regarding the
dangers of heroin. It would be his testimony that Worcester
County, this particular region, and the State of Maryland has
been consumed with heroin overdoses, some resulting in
deaths, and that these overdoses have resulted in an acute
awareness of the dangers of heroin. Simply put, he would say,
heroin kills, and everyone knows it.
He would also testify that even . . . outside of the drug use
or abuse realm, it is still commonly known. He would testify
that one local paper is currently running a weekly series of
articles regarding the dangers of heroin use . . . . He would
testify that the community itself has come together and
formed groups in order to address the opioid and heroin
problems facing this particular community. It would be his
testimony . . . that anyone in Thomas' situation would
understand the dangers of heroin, and its propensity to harm
physically, if not kill, individuals who are ingesting it.
Following Thomas' arrest, he was transported to the
Worcester County Sheriff's Office. . . . Corporal Wells
[("Wells")] and [other officers] . . . met with
Thomas at the sheriff's office in the processing room.
Wells advised Thomas of his Miranda rights . . . .
[T]here is no argument as to the voluntariness of
Wells asked Thomas, "How many bags of heroin do you use
a day?" Thomas replied, "About 12." Wells
asked Thomas, "How many bags do you use in a single
shot?" Thomas replied, "Four."
Wells advised Thomas that investigators were aware that he
was travelling to Delaware to get his supply of heroin. Wells
asked Thomas, "How often do you go to Delaware to get
heroin?" Thomas replied, "Every two to three
days." Wells asked Thomas, "How many bundles do you
get at a time?" Thomas replied, "Five." Wells
asked Thomas, "How much . . . did you pay today for the
five bundles?" Thomas replied, "Three hundred
A bundle . . . would be testified by Johns as [being] . . .
anywhere from ten to thirteen . . . individual bags of
heroin. They are rubber-banded together and sold as a bundle.
. . .
Wells asked Thomas, "When did you last go to Delaware to
get heroin?" Thomas replied, "Today." . . .
Wells asked Thomas, "How much do you sell a bag of
heroin for?" Thomas replied, "Ten to fifteen
dollars." Wells asked Thomas, "So out of the five
bundles you got today, how many bags would you normally
sell?" Thomas replied, "About 30."
Wells asked Thomas, "What is the best heroin out there
now?" Thomas replied, "Banshee." Wells asked
Thomas, "How long have you been selling the banshee
bags?" Thomas replied, "A month or a month and a
Wells advised Thomas, "We saw you sell some heroin to a
boy named Colton, or something like that, the other
week." Thomas replied, "Yeah, you mean Colt."
Wells asked Thomas, "What do you know about Colt?"
Thomas replied, "He is a young boy. He told me he did
some prison time in Pennsylvania." Wells asked Thomas,
"How many times have you sold heroin to Colt?"
Thomas advised, "A few times."
Wells told Thomas, "When we saw you sell to Colt, it was
like midnight. Do you remember that?" Thomas replied,
"Yeah, it was late." Wells asked Thomas, "Is
that what time you normally meet with Colt?" Thomas
replied, "No, that was weird. I usually met him
earlier." Wells asked Thomas, "So that was the only
time you sold heroin to Colt at around midnight?" Thomas
replied, "Yeah." Wells advised Thomas, "Do you
remember how many bags you ...