Dzikowski v. State

• Decision Date: 30 December 2013
• Docket Number: No. 15,Sept. Term, 2011.,15
• Citation: 82 A.3d 851,436 Md. 430
• Parties: Anthony A. DZIKOWSKI v. STATE of Maryland.
• Court: Maryland Court of Appeals

436 Md. 430

82 A.3d 851

Anthony A. DZIKOWSKI

v.STATE of Maryland.

No. 15, Sept. Term, 2011.

Court of Appeals of Maryland.

Dec. 30, 2013.

Brian M. Saccenti, Asst. Public Defender (Paul B. DeWolfe, Public Defender, Baltimore, MD), on brief, for petitioner.

Brenda Gruss, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for respondent.

Argued before BARBERA, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, BELL ^*, JOHN C. ELDRIDGE (Retired, Specially Assigned), JJ.

BELL, C.J. (Retired).

We granted certiorari in this case to determine whether, when a defendant, upon timely request, is statutorily guaranteed a bill of particulars detailing the allegations against him and the factual basis of those allegations, the State's response to the defendant's request for a bill of particulars meets the statutory requirement if it merely directs the requesting defendant to the discovery it has provided, some of it voluntarily. The Circuit Court for Montgomery County answered that question in the affirmative. A divided Court of Special Appeals affirmed that judgment in an unreported opinion. We disagree with the judgments of the courts below and, thus, reverse.

I.

The petitioner, Anthony Dzikowski, was driving a vehicle with five other passengers at 1:00 a.m. in Gaithersburg, Maryland on January 6, 2008, when he came upon a man, later identified as Manuel Ramirez–Gavarete, standing in the middle of the road, and, as a result, had to swerve in order to avoid colliding with him. After passing Mr. Ramirez–Gavarete, however, and upon the suggestion of one of the passengers, the petitioner returned to the scene. Once there, when he and one of the passengers, Joshua Jones, got out of the vehicle, Mr. Ramirez–Gavarete, who appeared to be highly intoxicated, staggered towards them and attempted to hug or lean on the petitioner. The petitioner pushed him away, nearly knocking him into a slowly passing vehicle. Mr. Ramirez–Gavarete then approached Mr. Jones, who struck him in the face, knocking him down onto the roadway. The petitioner and Mr. Jones then immediately drove away, leaving Mr. Ramirez–Gavarete lying in the road. Shortly thereafter, another vehicle ran over Mr. Ramirez–Gavarete, killing him.

The State charged the petitioner with manslaughter, reckless endangerment, and conspiracy to commit assault, and he was tried in the Circuit Court for Montgomery County. As to the reckless endangerment count, the indictment, using the statutory “short form” prescribed by Maryland Code (2002) § 3–206(d)(2) of the Criminal Law Article ¹ (“CL”), charged that the petitioner, “on or about January 6, 2008, in Montgomery County, Maryland, committed reckless endangerment, in violation of Section 3–204[ ²] of the Criminal Law Articleagainst the peace, government, and dignity of the State.” Because the short form indictment was used, it did not set out the elements of the charged offense or the factual basis for that offense. In response, the petitioner, pursuant to Maryland Rule 4–241(a),³ timely requested that the State provide him with a bill of particulars, in response to the following questions:

“[9.] Describe the conduct of Mr. Dzikowski that allegedly constitutes reckless endangerment.

“[10.] State all the facts that tend to prove that Mr. Dzikowski acted recklessly.

“[11.] State all the facts which constitute conduct that created a substantial risk of death or serious physical injury to another.

“[12.] State all of the facts the State will rely on to prove Mr. Dzikowski consciously disregarded a substantial risk of death or serious physical injury to another.”

The State responded, as follows:

“9. Mr Dzikowski's conduct that constitutes reckless endangerment is contained in discovery.

“10. The facts that prove Mr. Dzikowski acted recklessly are contained in discovery.

“11. The facts which constitute conduct that created a substantial risk of death or serious physical injury to Mr. Ramirez–Gavarete are contained in discovery.

“12. The facts that Mr. Dzikowski consciously disregarded as a substantial risk of death or serious physical injury to Mr. Ramirez–Gavarete are contained in discovery.”

The petitioner timely filed exceptions to the State's responses, challenging the sufficiency of each response because, rather than specifically answering each question, the State simply directed the petitioner to discovery. Following a hearing, the trial court overruled the petitioner's exceptions, finding that the State's responses directing the petitioner to discovery satisfied the requirements of Maryland Rule 4–241(b), that the State's response “furnish[ed] the particulars sought.” ⁴ It reasoned, citing Polisher v. State, 11 Md.App. 555, 276 A.2d 102 (1971), that Rule 4–241(b) “provides on demand for particulars as to the offense charged and not as to all the evidence which the State may adduce to prove it:”

“This Rule does not contemplate that the State particularize all the evidence it may offer. Now here we're talking evidence, we're not talking legal theory. This just deals with evidence. It's to secure facts, not legal theories.

“So it's clear or no one is arguing that they don't have to give their legal theoriesand I believe that [ ] in large part is what the exceptions are to the bill of, the answer to the bill of particulars, that is, to ask the State their legal theories. And I don't believe I do find that the State does not have to give their legal theories on how they believe the involuntary manslaughter took place.

“I find that the defense has copies of statements of all the witnesses and they have 600 pages in discovery which the State is indicating gives them all their facts....

“I believe that the purpose of the bill of particulars is met by the answer from the State. The State gave the [petitioner] open file discovery. If there are any major inconsistencies with what the State has told the Defense, the trial judge can address it as need be.

“But I'm not finding that the State has to give more than what they have.”

In its opening argument, the State framed its theory as follows:

“This was senseless violence, needless for a man to lose his life[.]

* * * *

“But this was senseless, this was needless senseless violence that this defendant perpetrated on the victim, left him in the middle of the road, where he was then hit and killed by another car.

“Mr. Ramirez–Gavarete was no threat to the defendant, they didn't even know him. Manual Antonio Ramirez–Gavarete was 37 years old. He was a father, he was a working person, he did body and paint work at a local body shop in Rockville.

“And he went out drinking one night, and he walked home, he never made it home, because this defendant decided he wanted to mess with somebody that night.

“And more than mess with him, he and the co-defendant, Josh Jones, attacked Mr. Ramirez–Gavarete, left him in the road where the victim died.

“This case is a case of manslaughter. At the end of the case, we will ask, Mr. Roslund and I who represent the State of Maryland in this case, will ask you to return a verdict, guilty verdict of manslaughter for the killing of Mr. Ramirez–Gavarete, reckless endangerment, and conspiring with each other to commit an assault on the victim.

“Thank you.”

Significantly, although the State mentioned that the petitioner pushed the victim, it did not reference or even mention that it was in the direction of a passing vehicle. Indeed, specifically describing the petitioner's interaction with the victim, the prosecutor focused on the connection between the actions of the petitioner and Mr. Jones, viewing them as related, not independent. He said:

“This defendant pushed Mr. Ramirez–Gavarete, Mr. Ramirez–Gavarete was stumbling at this point. The co-defendant then pushed Mr. Ramirez–Gavarete, Mr. Jones, together one followed by the other, this defendant followed by Mr. Jones.

“Mr. Jones then punched the victim, knocking Mr. Ramirez–Gavarete down, and for all inten[ts and] purposes, out.

* * * *

“Where did the victim fall? In the, literally in the middle of Muncaster Mill Road, a very dark, a very dangerous road. A dangerous road where this defendant left Mr. Ramirez–Gavarete sprawled out in the middle of [sic] on Sunday morning, January 6, 2008.”

At the conclusion of the State's case-in-chief, the petitioner moved for judgment of acquittal on all three charges against him. The trial court granted the petitioner's motion as to the manslaughter and conspiracy counts, but denied it with regard to the reckless endangerment count. As to that count, and notwithstanding the State's theory of the case, the court ruled:

“On Count 2, reckless endangerment ... Ms. Cleaver said that the taller man pushed the smaller man towards her car in a way she said, and I quote this, it was timed, as though it were planned that he when he pushed him, he would collide with this car.

“Now, it is true, as [the petitioner] pointed out, that the car was at a crawl, but if you lose your footing, and you fall underneath the wheels of a car going five miles an hour, you may be a dead person.

“So, I find that the action of him pushing the victim into the car in a timed fashion, which was three or four feet, according to Ms. Cleaver, constitutes, or is sufficient evidence from which a jury could conclude that there was reckless endangerment....”

Armed with that ruling, the State thereafter proceeded on a new theory and factual basis. Instead of relying on the later act by Mr. Jones, the punching of the victim, knocking him down and leaving him in the road, to which the petitioner's earlier push was related, it relied on the fact that the petitioner pushed the victim in the direction of a slowly passing car, thus recklessly endangering him. And the jury found the petitioner guilty of reckless endangerment. The trial court denied the petitioner's motion for a new trial and sentenced him to five years in prison, suspending all but nine months and placing him on probation for...