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Dzikowski v. State

Court of Appeals of Maryland

December 30, 2013

ANTHONY A. DZIKOWSKI
v.
STATE OF MARYLAND

Argued October 11, 2011

Barbera, C.J. Harrell Battaglia Greene Adkins [*] Bell Eldridge, John C. (Retired (Specially Assigned), JJ.

OPINION

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.

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 Article against 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 theories and 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 ...

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