State v. Rodriguez

Decision Date05 March 1999
Docket NumberNo. 237,237
PartiesSTATE of Maryland v. Francisco RODRIGUEZ.
CourtCourt of Special Appeals of Maryland

725 A.2d 635
125 Md.
App. 428

STATE of Maryland

No. 237, Sept. Term, 1998.

Court of Special Appeals of Maryland.

March 5, 1999.

725 A.2d 637
Annabelle L. Lisic, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Gwen C. Kinsey, Jr., Asst. Atty. Gen., Baltimore, and Marna McLendon, State's Atty. for Howard County, Ellicott City, on the brief), for appellant

George E. Burns, Jr., Asst. Public Defender (Stephen E. Harris, Public Defender on the brief), Baltimore, for appellee.

Byron L. Warnken, Law Offices of Bonnie L. Warnken, Baltimore, Counsel for Amicus Curiae, Virginia Wolf, Maryland Troopers Ass'n, Inc., National Law Enforcement Officers' Rights Center of the Nat. Ass'n of Police Organizations, Inc., Concerns of Police Survivors, Inc., Stephanie Roper Foundation, Inc., Maryland Coalition Against Crime, Inc.

Argued before MURPHY, C.J., and HOLLANDER and KENNEY, JJ.

725 A.2d 636
MURPHY, Chief Judge

In this appeal from the Circuit Court for Howard County, the State seeks to set aside its plea agreement with Francisco Rodriguez, appellee. For the reasons that follow, we shall dismiss the State's appeal.


On March 29, 1990, in Howard County, Corporal Ted Wolf of the Maryland State Police was murdered by Eric Tirado, whose conviction for that offense was affirmed by this Court in Tirado v. State, 95 Md.App. 536, 622 A.2d 187 (1993), cert. denied, 331 Md. 481, 628 A.2d 1067 (1993). Francisco Rodriguez, the appellee in this case, was an accomplice to the murder and was also charged with first degree murder and related offenses.

When Tirado's case was brought to trial in the Circuit Court for Howard County, Rodriguez was incarcerated on unrelated charges in a New York correctional facility. While Tirado's trial was underway, a Howard County Assistant State's Attorney ("the Assistant") and a Maryland State Police Detective traveled to New York to meet with Rodriguez and his attorney, Robert Morin, now an Associate Judge of the Superior Court for the District of Columbia. Rodriguez agreed to be interviewed provided that anything he said would not be used against him in subsequent criminal proceedings. According to the State, Rodriguez acknowledged during this interview that he was present when Tirado shot Corporal Wolf, but claimed that the shooting had been a complete surprise to him. At this point, a plea agreement was discussed but was not then finalized. Rodriguez was transported to Howard County as a possible witness in Tirado's trial, but he was never called to testify.

At Tirado's trial, his friend Edgar Devarie testified as follows:

Tirado told Devarie that he shot a police officer. Tirado explained to Devarie that he and Rodriguez were travelling from Virginia through Maryland in a stolen car, and that he was speeding. Tirado told Devarie that he stole the car because he did not have enough money to get back to New York.

According to Devarie, Tirado told him that a State trooper pulled over the stolen car, and after talking with Tirado, walked back to his vehicle with Tirado's license and registration. At that point, Tirado and Rodriguez discussed who would kill the officer. Tirado said, "I'll do it." Rodriguez handed Tirado a .357 magnum and Tirado "put it in his pants." The trooper then told Tirado and Rodriguez to come to his vehicle, and Tirado got in the front passenger seat of the police vehicle and Rodriguez got in the back.... Tirado then pulled out the gun and shot Corporal Wolf. Tirado told Devarie that the trooper

725 A.2d 638
"straightened up, opened his eyes." Because "he didn't know where the first bullet went," Tirado shot the trooper a second time in the head
Tirado went on to tell Devarie that, after he shot the trooper, he took the ticket book, his driver's license, and other papers. He then "cleaned up a bit and he ran." The two men got back in the stolen car and drove to the next exit and abandoned the vehicle. As they ran away, they burned Corporal Wolf's ticket book because it had Tirado's name on it.1

The Tirado jury also heard the prior recorded statements of another witness who claimed that Rodriguez "`hates police,'" and that before Tirado and Rodriguez left Virginia for New York she heard Rodriguez say that "`[h]e was so mad that if somebody got in his way or stopped—or stopped him he would kill the person.'"2 This witness added that she also overheard Rodriguez say "`I have nothing to lose, I'm going to jail.'"3

Tirado's appeal was pending in January of 1992 when the Assistant and the Detective Sergeant again met with Rodriguez and Morin. The State alleges that at this time Rodriguez amended his statement to conform more to the evidence adduced at Tirado's trial. Thereafter, the State and Rodriguez negotiated the following plea agreement:


The Defendant, Francisco Rodriguez, (hereafter "the Defendant") and the State of Maryland (hereafter "the State"), hereby agree to the following matters:
1. This plea is offered pursuant to Rule 4-243, of the Maryland Rules of Procedure, in that the parties and the Court agree to bind themselves to the conditions described hereafter, prior to the acceptance of the plea.
2. The Defendant will withdraw his previously entered plea of not guilty and enter a plea of guilty to one count of firstdegree murder (aiding and abetting).
3. Upon acceptance of the plea, the Defendant will waive his right to have a Pre-Sentence Report prepared and the Court will sentence the Defendant to life imprisonment, the sentence beginning as of June 12, 1991. The sentence shall run concurrently with any other sentence and specifically shall run concurrently, subject to the terms of this Agreement, especially paragraph # 5, to the sentence received by the Defendant pursuant to his conviction in the United State District Court of the Eastern District of Columbia.
4. After sentencing, the Defendant will file a motion for reconsideration of sentence which motion will be taken under advisement of the Court.
5. Under this Agreement, the Defendant agrees to make himself available as a witness to the State to provide truthful testimony about the events concerning the death of Maryland State Trooper Theodore Wolf, at any re-trial of co-defendant Eric Tirado (hereafter "the co-defendant"). The parties aver that previously the Defendant has given an oral statement concerning the death of Trooper Wolf. The parties agree that the Defendant will have complied with the terms of this agreement that he give truthful testimony if called as a witness he testifies truthfully and consistent with the substance of his oral statement. Should Defendant fail to comply with the requirements of this paragraph, this agreement is voided, such that the sentence imposed on the Defendant will be life imprisonment consecutive to Defendant's Federal sentence as referenced in paragraph # 3. If this Agreement is voided, the Defendant shall receive no credit with regard to the life imprisonment sentence for the incarceration time served in the Federal System so that the life sentence shall be imposed to run consecutively to said Federal time.

6. Upon affirmance on direct appeal by the highest court (the Maryland Court of Special Appeals or by the Maryland Court

725 A.2d 639
of Appeals or the United States Supreme Court if certiorari is granted by either), of the co-defendant's conviction after exhaustion of all appellate remedies, or upon completion of any retrial of the co-defendant, the parties agree that the Defendant's sentence will be modified to life imprisonment all but fifteen (15) years suspended, the sentence beginning as of June 12, 1991, to run concurrently with any sentence.

The agreement is signed by the Assistant who negotiated it on behalf of the State, by Rodriguez's counsel, and by Rodriguez.

On January 24, 1992, the agreement was presented to the circuit court judge who had presided over the Tirado trial. The Assistant informed the court:

Your Honor I would indicate on the record that the State is recommending the disposition that it has surveyed and reflected and judged to be necessary with respect to the State's interest in the prosecution with regard to the death of Corporal Wolf and the State is recommending that the Court accept the terms and conditions of the plea agreement pursuant to that which has been worked out by counsel. That the State's Attorney's Office feels it's necessary and important that this case be disposed of in this manner to insure that the appropriate resolution of all these cases takes place.

In presenting the court with a statement of facts in support of the guilty plea the Assistant who had negotiated the agreement identified witnesses, including Edgar Devarie, who would be called if the case were brought to trial. The Assistant then summarized, in pertinent part:

Your Honor, testimony would show that in the early morning hours of March 29, 1990, this Defendant, Francisco Rodriguez, ... was travelling in the passenger's seat of a stolen Toyota driven by Eric Tirado, travelling northbound on Interstate 95 in Howard County, Maryland. This vehicle had been stolen in Virginia by Defendant Rodriguez, Tirado and another individual in order that Rodriguez and Tirado could return to New York in time [for] a meeting with their probation officer that morning. In the vicinity of the intersection of Interstate 95 and Maryland Route 32 Maryland State Police Corporal Theodore Wolf on routine patrol in a Maryland State Police vehicle ... observed the speeding Toyota driven by Tirado and attempted to engage a stop of the vehicle. This was eventually accomplished so that the two vehicles came to a stop approximately under the overpass of eastbound Maryland Route 175 at Interstate 95, that still being in Howard County, Maryland.
Your Honor, during the course of the Toyota coming to a stop the Defendant Francisco Rodriguez and Eric Tirado engaged in conversation. Eric Tirado stated that the trooper who

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