Dzikowski v. State

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 ⁴³⁵ 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 ⁴³⁶ 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 ⁴³⁷ 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 ⁴³⁸ 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[.] i|; ;¡í i[í ;¡í ⁴³⁹ “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 RamirezGavarete 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. RamirezGavarete down, and for all inten[ts and] purposes, out. * * * H* ⁴⁴⁰ “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. RamirezGavarete 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 three years. ⁴⁴¹ The petitioner unsuccessfully appealed his conviction to the Court of Special Appeals, arguing, in part, that the trial court abused its discretion when it denied his exceptions to the State’s non-specific responses to the questions posed in his demand for a bill of particulars and that he was prejudiced at trial by that ruling. This, he asserted, prevented him from preparing and executing a proper defense. The petitioner timely filed a petition for writ of certiorari, which we granted, Dzikowski v. State, 419 Md. 646 , 20 A.3d 115 (2011), to address three issues: (1) whether the trial court abused its discretion in overruling the petitioner’s exceptions to the State’s bill of particulars response; (2) whether the trial court abused its discretion by denying a new trial when the State refused to provide a proper response to the petitioner’s bill of particulars and the trial court’s decision to permit the State to change its theory of reckless endangerment unfairly surprised the petitioner and effectively foreclosed him from putting on a case; and, (3) whether the trial court erred in denying the petitioner’s motion to dismiss when the trial court’s decision to permit the State to change its theory of reckless endangerment rendered the indictment duplicitous. For the reasons that follow, we shall hold that the State’s responses to the questions posed in the petitioner’s demand for a bill of particulars were inadequate and, therefore, the trial court abused its discretion when it overruled the petitioner’s exceptions to those responses.

Consequently, we shall reverse the judgment of the Court of Special Appeals. As a result, we do not need to, and, thus, do not, reach the merits of the petitioner’s other contentions.

II

The petitioner’s argument in support of his contention that the trial court abused its discretion when it overruled his exceptions to the State’s response to his demand for a bill of particulars, at bottom, is that, when the State charges a defendant using the statutory short form, discovery materials provided to him or her cannot substitute for the bill of particulars to which CL § 3-206(d)(5) entitles him. The peti ⁴⁴² tioner emphasizes that the purpose of a bill of particulars is to apprise the defendant of the charges against him and the factual basis supporting those charges, which, in turn, enables the defendant to prepare for trial, without the fear of, or the need to guard against, unfair surprise. This purpose, the petitioner asserts in his brief, required the State to submit “a document setting forth ... detailed information, and not merely a boilerplate statement that the facts sought were in the discovery.” A response to a request for a bill of particulars that merely directs the defendant to discovery materials, as the State’s response did, is inconsistent -with that purpose, he submits, because it does not provide notice of the conduct from which the State’s allegations arise. The petitioner acknowledges that the Legislature, in enacting CL § 3-206, did not define “bill of particulars,” or expressly state its purpose.

Those omissions, he argues, were supplied by the Legislature’s decision to include a right to a bill of particulars in CL § 3-206, and by the definitions of “bill of particulars,” contained in legal dictionaries, see pp. 445-46, 82 A.3d at 860 infra, which would have informed the Legislature’s understanding of the general form and substance of a bill of particulars. The petitioner also concludes that the State’s use of a short form indictment and its refusal to particularize the conduct that gave rise to the reckless endangerment charge, caused him unfair surprise at trial and hindered his efforts to defend against the charge of reckless endangerment. The petitioner asserts that without a specific response to his demand for a bill of particulars, he was unable to prepare properly for trial. Specifically, his defense to the reckless endangerment count, alleging conduct “which creates a substantial risk of death or serious physical injury to another,” CL § 3-204(a)(l), rather than on the petitioner’s pushing the victim in the direction of a slowly moving vehicle, naturally focused on those actions, on the night in question, that led, or were likely to lead, directly to the victim’s death.

The petitioner reasons that the State’s failure to indicate which acts tended to prove the existence of reckless endangerment caused him to prepare a defense to the conduct option that ⁴⁴³ more immediately led to the petitioner’s death — leaving him in the road — rather than the less likely option — the prior push by the petitioner, albeit in the direction of a slowly moving car, which left the victim standing. The State acknowledges that “the reckless endangerment count against Dzikowski, set forth in the short form prescribed by Section 3-206 of the Criminal Law Article, gave no information regarding the allegation of reckless endangerment except for the date and county of the offense[,]” and “contained neither the conduct constituting reckless endangerment, nor the name of the victim.” It also concedes “that the bill of particulars that [the petitioner] was entitled to by statute was a bill particularizing the facts underlying the charges[.]” Nevertheless, the State maintains that the trial court did not err when it overruled the petitioner’s exceptions to its answer to the petitioner’s demand for a bill of particulars. The State first argues that, if it were forced to particularize the facts underlying its reckless endangerment charge, it, effectively, would have been forced to reveal its legal theory of the case. For support, the State cites Hadder v. State, 238 Md. 341, 351 , 209 A.2d 70, 75 (1965), which, it argues, limits the scope of a bill of particulars by precluding the use of a bill to obtain the State’s legal theory of a case.

Citing Spector v. State, 289 Md. 407, 425-27 , 425 A.2d 197, 205-07 (1981), and two cases decided by the Court of Special Appeals, Grant v. State, 55 Md.App. 1, 32 , 461 A.2d 524, 539 (1983), and Polisher v. State, 11 Md.App. 555, 591 , 276 A.2d 102, 120 (1971), cert. denied, 262 Md. 749 (1971), 404 U.S. 984 , 92 S.Ct. 449 , 30 L.Ed.2d 368 (1971), the State also argues that, because “discovery apprises the defendant of the facts that may be used to prove the charges against him, the objectives of a bill of particulars may be satisfied by the State’s voluntary disclosure.” The premise of this argument is that the open-file discovery used in this case, once coupled with the direction that the petitioner consult that discovery, constituted a form of voluntary disclosure, which satisfied the underlying ⁴⁴⁴ purposes of a bill of particulars, such that an actual bill of particulars was not, in fact, warranted. Proceeding from these premises, the State submits that the petitioner could not have been subjected to unfair surprise at trial because he received the required notice of the facts that gave rise to the reckless endangerment charge. It reasons that since there was a single reckless endangerment charge, and only three possible actions to which that charge could possibly correspond, the State’s focus on the petitioner’s pushing the victim could neither have subjected the petitioner to unfair surprise, nor caused the petitioner any prejudice. In that regard, the State emphasizes that a case generally may go to a jury on any theory supported by the evidence, even if it was not previously advanced by the prosecution.

Therefore, it contends that, despite the fact the State did not state, before trial, that it would be relying on the initial push as the primary basis of the reckless endangerment charge, the petitioner, in light of the discovery, was equipped with all the necessary facts to prepare its defense. The State thus concludes that the petitioner’s demand for a further particularized description of the facts was aimed at learning the State’s legal theory of the case, to which he was certainly not entitled. We begin with an overview of the nature and purpose of a “bill of particulars,” as it relates to the constitutional underpinnings of a charging document. An indictment is defined as “[t]he formal written accusation of a crime, made by a grand jury and presented to a court for prosecution against the accused person.” Black’s Law Dictionary 842 (9th ed. 2009).

It is a well-settled principle of criminal law that the purpose of an indictment is “to inform the defendant of the charge against him in order that he may prepare his defense and may also protect himself against a subsequent prosecution for the same offense.” Seidman v. State, 230 Md. 305, 312 , 187 A.2d 109, 113 (1962). This principle is rooted in the due process requirement of notice under the Fourteenth Amendment to the United States Constitution, and, more specifically, Article 21 of the Maryland Declaration of Rights, which pro ⁴⁴⁵ vides, in part, that a defendant, in all criminal prosecutions, has the “right to be informed of the accusation against him,” and to be provided with “a copy of the Indictment, or charge, in due time (if required)” to enable him to prepare for his defense. See Pearlman v. State, 232 Md. 251, 257 , 192 A.2d 767, 771 (1963), cert. denied, 376 U.S. 943 , 84 S.Ct. 797 , 11 L.Ed.2d 767 (1964). Under Maryland law, a charging document satisfies the requirement imposed by Article 21 “that each person charged with a crime be informed of the accusation against him,” by first, “characterizing the crime and, second, by so describing it as to inform the accused of the specific conduct with which he is charged.” Jones v. State, 303 Md. 323, 336 , 493 A.2d 1062, 1069 (1985); Williams v. State, 302 Md. 787, 790-91 , 490 A.2d 1277, 1279 (1985); State v. Morton, 295 Md. 487, 491 , 456 A.2d 909, 911 (1983); Ayre v. State, 291 Md. 155, 163 , 433 A.2d 1150, 1155 (1981).

This has been held to mean that, specifically, a criminal charge must: “(i) ... put the accused on notice of what he is called upon to defend by characterizing and describing the crime and conduct; (ii) ... protect the accused from a future prosecution for the same offense; (iii) ... enable the defendant to prepare for trial; (iv) ... provide a basis for the court to consider the legal sufficiency of the charging document; and (v) ... inform the court of the specific crime charged so that, if required, sentence may be pronounced in accordance with the right of the case.” Ayre, 291 Md. at 163 , 433 A.2d at 1155 . Maryland Rule 4-202(a), in implementation of these requirements, thus, requires that a charging document “contain a concise and definite statement of the essential facts of the offense with which the defendant is charged and, with reasonable particularity, the time and place the offense occurred.” In cases in which a defendant is charged by short form indictment, the common law rule in this State is that the “charging document must allege the essential elements of the offense charged,” Jones, 303 Md. at 336-37 , 493 A.2d at 1069 ; ⁴⁴⁶ Pearlman, 232 Md. at 257-58 , 192 A.2d at 771 ; Neusbaum v. State, 156 Md. 149, 155-56 , 143 A. 872, 875-76 (1928), although it need not do so expressly; “elements may be implied from language used in the indictment or information.” Jones, 303 Md. at 337 , 493 A.2d at 1069 . The manner or means of committing the offense, if not otherwise provided by the prosecutor, is obtainable through a bill of particulars. Id. at 339 , 493 A.2d at 1070 .

Therefore, we said in Pearlman : “Statutes prescribing a short form of indictment — provided the simplified form contains the essential elements of the crime it purports to charge — are generally upheld on the ground that the right of the defendant to demand the particulars of the accusation protects him against injury.” 232 Md. at 257-58 , 192 A.2d at 771 (citing Neusbaum v. State, 156 Md. at 156-157 , 143 A. at 875 ; Kelley v. State, 181 Md. 642, 647 , 31 A.2d 614, 616 (1943)). As we have seen, CL § 3-206(d), which prescribes the short form indictment for reckless endangerment, carries this principle a step further, by making a bill of particulars mandatory, if timely demanded, whenever a statutory short form indictment is used to charge that crime. CL § 3 — 206(d)(5). A “bill of particulars,” which this Court has not explicitly defined, is, according to the Black’s Law Dictionary 189 (9th ed. 2009), “a formal, detailed statement of the claims or charges brought by a plaintiff or a prosecutor, usu[ally] filed in response to the defendant’s request for a more specific complaint.” Stated differently, it is “a formal written statement by the prosecutor providing details of the charges against the defendant.

Its functions are to give the defendant notice of the essential facts supporting the crimes alleged in the indictment or information, and also to avoid prejudicial surprise to the defense at trial.” 1 Charles Alan Wright et al., Fed. Prac. & Proc.Crim. § 130 (4th ed., April 2012 Update). Generally, the decision whether to grant or refuse a request for a bill of particulars is committed to the sound discretion of a trial court. Veney v. State, 251 Md. 159, 163 , 246 A.2d 608, 611 (1968); Seidman v. State, 230 Md. 305, 313 , ⁴⁴⁷ 187 A.2d 109, 114 (1962). In this case, the parties agree that the petitioner was statutorily entitled to a bill of particulars pursuant to CL § 3-206(d)(5).

Nevertheless, the decision to sustain or overrule the petitioner’s exceptions to the bill of particulars filed by the State, that is, the determination of whether the particulars provided were legally sufficient, is also generally committed to the discretion of the trial court. See Williams v. State, 226 Md. 614, 619 , 174 A.2d 719, 721 (1961) (applying an abuse of discretion standard in determining whether to grant the State’s exceptions to the questions posed in the defense’s demand). While we have not previously outlined the parameters of the bill itself, we have recognized that its purpose “is to guard against the taking of an accused by surprise by limiting the scope of the proof.” McMorris v. State, 277 Md. 62 , 70 n. 4, 355 A.2d 438 , 443 n. 4 (1976). 5 This allows the defendant to prepare a defense properly, including the process of securing witnesses. A bill of particulars provides “a means of ascertaining the exact factual situation upon which [a defendant] was charged.” Id.

A bill specifies particulars as to the offense charged and not as to all evidence that the State may adduce to prove it. Polisher v. State, 11 Md.App. 555, 591 , 276 A.2d 102, 120 (1971). The bill of particulars