Denicolis v. State

• Decision Date: 10 December 2003
• Docket Number: No. 4,4
• Parties: Christopher A. DENICOLIS v. STATE of Maryland.
• Court: Maryland Court of Appeals

837 A.2d 944

378 Md. 646

Christopher A. DENICOLIS v. STATE of Maryland.

No. 4, Sept. Term, 2003.

Court of Appeals of Maryland.

December 10, 2003.

Laurel A. Albin (Byron L. Warnken, Warnken, LLC, Towson), on brief for petitioner.

Annabelle L. Lisic, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for respondent.

Argued Before BELL, C.J., and ELDRIDGE,¹ RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ WILNER, Judge.

Petitioner was convicted by a jury in the Circuit Court for Baltimore County of two counts of solicitation to commit murder, for which he was given concurrent sentences of 20 years in prison. Those judgments were affirmed by the Court of Special Appeals. Petitioner complains that (1) because the two charges were confusing and ambiguous, he was not given sufficient notice of the offenses charged, and (2) the court failed to inform him or his attorney of a note from the jury. We find merit in the second complaint and shall reverse for that reason. The first complaint was not preserved for appeal, but, because the issue will likely arise again when the case is retried, we shall, for the guidance of the trial court, comment on it as well.

BACKGROUND

In the Fall of 2000, petitioner and two co-defendants—Jaffey and Horwitz—were incarcerated at the Baltimore County Detention Center, awaiting trial for several armed robberies. The prosecutor, with respect to all three, was Assistant State's Attorney Mickey Norman.² In late September, Jaffey and Horwitz appeared before Judge Dana Levitz and entered guilty pleas to the charges against them. Sentencing was deferred pending the preparation of presentence investigation reports. At some later time, petitioner also appeared before Judge Levitz and pled guilty to two counts of armed robbery and one count of simple robbery. Sentencing was deferred in his case as well.

On December 1, 2000, Judge Levitz sentenced Jaffey and Horwitz to 20 years in prison. Shortly before then—some time in November—petitioner, whose sentencing was set for February, 2001, acquired a new cellmate, Kenneth Moroz. Moroz had previously been convicted of second degree murder and was on probation. He was awaiting trial on charges of credit card misuse and certain controlled dangerous substance offenses. Moroz stated that, at some point in mid-December, following the sentencing of Jaffey and Horwitz, petitioner said that he would like to have both Judge Levitz and Mr. Norman killed and, aware that Moroz had once been convicted of murder, asked whether he would be interested in committing those murders. After some haggling over the price, Moroz and petitioner agreed that Moroz would be paid $10,000 for killing Judge Levitz and $5,000 for killing Mr. Norman. In the belief that he would shortly be released on bond, Moroz advised petitioner that he would be able to commit the murders. The two discussed the deal several more times in December and early January.

On January 9, 2001, Moroz was taken from the Detention Center to be served with new charges. While in the custody of the police and in an effort to obtain some benefit for himself, he disclosed to them petitioner's plan to kill the judge and the prosecutor and gave a written statement to that effect. On January 11, Moroz was fitted with a body wire and replaced in his cell with petitioner. The two again discussed the proposed killing, although this time petitioner indicated that he was not "really pressed" about killing Mr. Norman-Judge Levitz remained the target. Petitioner advised Moroz to steal a car and drive to Buffalo after the killing and said that he would arrange for a friend there to drive Moroz into Canada. Petitioner seemed to be concerned about the long sentences Judge Levitz had imposed on his co-defendants and thought that, if the judge were killed, his case would be transferred to another judge who might be more lenient.

Based on these conversations, petitioner was charged by criminal information with two counts of solicitation to commit murder. Neither count identified the intended victim. Count I charged that, between December 14 and 16, 2000, petitioner solicited the aid of Moroz "for the purpose of committing and with the intent of committing murder." Count II was identical, except that it alleged the solicitation as occurring between January 9 and 11, 2001.

Petitioner filed an "Omnibus Motion Pursuant to Rule 4-252 Maryland Rules of Procedure," in which, among other things, he moved "[t]hat all charges against this Defendant be dismissed for that there are defects in the institution of the prosecution and in the charging documents." Nowhere in that motion, or in any other motion or submission to the court, did petitioner attempt to identify or articulate the defects he believed existed. At a hearing on the motion, petitioner sought only to suppress the taped recording of January 11, and any testimony regarding that conversation. He did not press, or even mention, any claim that the criminal information was defective.

The motion was denied, and trial commenced on October 3, 2001. In its preliminary instructions to the jury in preparation for voir dire, the judge said that the allegations "include the allegation by the State that [petitioner] had solicited an individual to murder Judge Dana M. Levitz, who is a Circuit Court judge here in Towson, on or about January 11, 2001, while incarcerated at the Baltimore County [Detention] Center." Nothing was said about any solicitation to kill Mr. Norman or about the allegation in Count I regarding the solicitation(s) occurring December 14-16, 2000. In her opening statement, the prosecutor also informed the jury that petitioner was charged with "trying to have Judge Levitz killed," and said nothing about Mr. Norman. Moroz testified about both the first conversation, in which petitioner offered $10,000 to kill Judge Levitz and $5,000 to kill Mr. Norman, and the subsequent recorded conversation that focused only on Judge Levitz. When asked about the situation with respect to Mr. Norman, Moroz testified that petitioner said that "he would only go as high as paying me a thousand dollars for knocking him off" and that he (Moroz) could not remember whether petitioner had withdrawn his request to have Mr. Norman killed. The conversation of January 11, he said, was "mainly about the judge."

Nothing more of significance was said about any solicitation to kill Mr. Norman until the judge instructed the jury at the close of evidence. Referring to the criminal information, he said, without any objection, that the first paragraph (Count) "is alluding to the fact that [petitioner] had solicited the murder ... of Judge Levitz" and that the second Count "alleged solicitation by [petitioner] of Mr. Moroz to kill the prosecutor in the particular case ..." No exceptions were taken to any of the court's instructions, including that one. In her closing argument, the prosecutor also alluded to solicitations to kill both Judge Levitz and Mr. Norman but informed the jury that the solicitation to kill Mr. Norman had been "withdrawn," that Norman "was out of the picture," and "isn't an issue anymore." Defense counsel responded that it went beyond Mr. Norman being "dropped". He said that he did not know "where Micky Norman came from in the first place as a part of the case," and suggested that it came from Moroz, not petitioner.

Four notes were received from the jury following its retirement to deliberate. The first note, labeled Court Exhibit 2, asked "May we get clarification on this information[?] Are there (2) separate charges? 1) 1st count? 2) 2nd count? Are we deliberating on one charge only?" After discussion with counsel, it was agreed that the court would respond, in writing, that "there are two separate charges, counts, and therefore you must return two separate verdicts." That response was given. The second note, labeled Court Exhibit 3, was from the forelady, who asked that she not be referred to by name and inquired whether she was to state the verdict to the court. Without objection, the court proposed to respond that it would refer to her as "foreperson" and that she would be required to announce the verdict. Although there is no record of a written response, we presume that the court, at some point, responded as it indicated it would.

The third note asked for a definition of solicitation. That is the note at issue here. Although the note is in the record and is labeled Court Exhibit 4, the record reveals no mention of or response to it. It is not time-stamped, and apparently counsel were unaware of it until after the verdict had been taken, sentence had been imposed, and appellate counsel, while reviewing the record for purposes of appeal, discovered it in the record. The last note, not at issue here, simply informed the court that the jury had reached a verdict.

After the jury returned a verdict of guilty on both counts, the court postponed sentencing pending receipt of a presentence investigation report. At the sentencing hearing, conducted three months later, the prosecutor, the judge, Mr. Norman, and the Division of Parole and Probation all seemed to believe that one of the solicitation counts did involve Mr. Norman. Included in the presentence investigation report prepared by the Division of Parole and Probation was a victim impact statement from Mr. Norman, in which he described the impact on him of petitioner's solicitation "to murder Judge Levitz and myself." He observed that "[u]nlike the victim of a crime who is merely a target of opportunity, I was specifically targeted as the object of the defendant's criminal endeavor, singled out because I fulfilled my professional responsibilities as a prosecutor." The very inclusion of such a statement indicates that the Division of Parole and Probation also considered Mr. Norman a victim of at least one of the solicitations. See Md.Code, § 11-402 of the Criminal Procedure Article (victim...