Martin v. State

KRAUSER, C.J. Convicted, after a jury trial in the Circuit Court for Anne Arundel County, of attempted first-degree murder, 1 Charles Brandon Martin, appellant, presents seven issues for our review. Divested of argument, they are: I. Whether the circuit court erred in failing to suppress text message evidence obtained by law enforcement officers from the victim’s cell phone; II. Whether the circuit court erred in allowing a State’s DNA expert to testify regarding the results of DNA tests she did not personally perform; III. Whether the circuit court erred in not requiring the State to provide the defense with a bill of particulars after the State purportedly changed its prosecution theory; IV.

Whether the circuit court erred in finding that there was sufficient evidence to convict appellant of attempted first-degree murder; V. Whether the circuit court erred in instructing the jury that appellant was charged with being an accessory before the fact rather than an aider and abettor; VI. Whether the circuit court erred in accepting purportedly inconsistent verdicts; and ⁸ VII. Whether the circuit court erred in considering evidence of a letter allegedly written by appellant and then purportedly sentencing appellant for a crime of which he had been acquitted. After argument before this Court, the parties filed a joint motion to stay any further action by this Court, until Williams v. Illinois, No. 10-8505, had been decided by the Supreme Court, and Dzikowski v. State, No. 15, September Term, 2011, by the Court of Appeals, as those pending decisions might affect the resolution of the issues presented in the instant case.

Because those cases did, in fact, involve many of the same issues presented by this appeal, we granted their motion and deferred a decision in this matter. Subsequently, the Supreme Court rendered a decision in Williams, 567 U.S. -, 132 S.Ct. 2221 , 183 L.Ed.2d 89 (2012), as did the Court of Appeals in Dzikowski, 436 Md. 430 , 82 A.3d 851 (2013). We therefore now consider the issues raised by this appeal in light of those decisions. 2 FACTS 3 On October 27, 2008, Jodi Lynne Torok, the victim, was found at her home in Crofton, Maryland, with a gunshot wound to her head. Having survived that wound, the victim testified, at the trial below, that she had been in a romantic relationship with Martin, who was married to someone else, and that about eight or nine weeks before the shooting, she had become pregnant with his child.

After the victim informed Martin of her condition, he angrily demanded that she obtain an abortion. Although she had, at first, agreed to do so, she later changed her mind and decided to have the baby. Upon informing Martin of her change of mind, the victim ⁹ advised him of her intention “to go to court and take him for child support.” Predictably, that advisement led to cooling of their relationship. Subsequently, on the day of the shooting, at about 3:00 p.m., the victim was talking on the phone, at her home, with a close friend, Blair Wolfe, 4 when a man, purporting to be a salesman, knocked on her front door.

She then ended the call to respond to the “salesman,” but thereafter never called Ms. Wolfe back or answered any of Wolfe’s subsequent telephone calls. Growing increasingly concerned but unable to take any action on her own, 5 Ms. Wolfe telephoned Jessica Higgs, the victim’s roommate, and requested that she leave work and return home to make sure that the victim was safe. Upon arriving at the residence that she shared with the victim, Ms. Higgs found the front door unlocked and the victim lying on the foyer, unconscious and bleeding from a gunshot wound to her head. Higgs immediately called “911.” When the first police officer arrived at the victim’s residence, he secured the scene.

Then, upon entering the residence, he found the victim, Ms. Torok, “laying in the doorway,” “fully clothed,” still breathing, but unresponsive. There were no signs of forcible entry or that the victim’s personal property had been disturbed. When paramedics arrived at the scene, they transported the victim to the Shock Trauma Center at the University of Maryland Hospital in Baltimore City, where she remained for nearly a month. As a result of the gunshot wound, the victim’s pregnancy was terminated, and she suffered severe and disabling injuries.

Neither during that time nor thereafter could she recall the events that took place, from the end of her telephone conversation with Ms. Wolfe on October 27th until Thanksgiving, one month later. ¹⁰ The evidence recovered by the police at the scene of the shooting included a Gatorade bottle, which appeared to be fashioned into a home-made silencer; 6 a spent projectile as well as a spent shell casing; and the victim’s Blackberry cell phone. Gatorade bottle/silencer From the Gatorade bottle, police evidence technicians extracted “a human hair” of “Negroid origin” 7 and saliva from the mouth of the bottle. DNA testing of both linked the bottle to Martin. 8 The victim testified that neither she nor Ms. Higgs drank Gatorade, but that Martin did and often. 9 Martin’s fondness for Gatorade was later confirmed by the officer who drove him to the Anne Arundel police station, who testified that, on the way to the station, he and Martin stopped at a convenience store, where Martin purchased a bottle of Gatorade to drink. ¹¹ Granted immunity from prosecution for the shooting and possibly for other unrelated charges, Michael Bradley testified that, on the day of the shooting, he; his brother, Frank Bradley; Martin; and Jerry Burks, an acquaintance of Martin, were together at Maggie McFadden’s house “about noon” and that he observed Frank Bradley carrying “some white ... medical tape” and a Gatorade bottle upstairs to McFadden’s bedroom, where he was joined by Martin. Then, according to Michael Bradley, Martin and Burks left together, “approximately 1:80, 2:00” p.m., and returned after 3:00 p.m. but before 6:30 p.m. the same day. 10 Finally, Sheri Carter, one of Martin’s former girlfriends, 11 testified that Martin, approximately one month before the shooting, while at her residence, used a computer to conduct internet research on how to assemble a home-made silencer.

She further stated that, during the first week of November 2008, approximately one week after the shooting and shortly after Martin had been questioned by police, Martin took the computer from her apartment, telling her “that [they] had looked up so many crazy things on the internet that in case [Carter’s] apartment got searched [Martin] didn’t want it found there.” Martin, in her words, then “got rid of’ the computer. Ballistic evidence The bullet recovered by police, a .380 caliber bullet, and the shell casing that was found, could have been fired, according to a State’s expert witness, from a semi-automatic firearm. ¹² Such a firearm could have been manufactured by any one of sixteen different manufacturers, which was consistent with Martin’s purchase, in 2003, of two .380 caliber semi-automatic handguns made by Bryco Arms, one of those sixteen manufacturers. 12 Moreover, Sheri Carter testified that, in September and October of 2008, the time period just before the shooting, she had observed Martin carrying a “small, silver, [black-handled], semi-automatic” handgun. The firearm itself was never found. The testimony of Michael Bradley suggested why that was so.

According to Michael Bradley, when Martin returned to McFadden’s home the evening of the shooting, he saw Martin give a brown paper bag to Frank Bradley and tell Bradley to “get rid of this.” Victim’s cell phone Finally, the last of the four items found at the victim’s residence was her Blackberry cell phone. Text messages extracted from that phone by police confirmed that Martin had exchanged several text messages with the victim on the day of the shooting. 13 Martin’s statement The day after the shooting, Martin gave a statement to police. During the interrogation, Martin downplayed his relationship with Ms. Torok, the victim, telling detectives that he did not know her last name and that he was unsure where she lived, but he conceded that he had previously been to her house. And, although he was “highly doubt[ful]” that he was the father of the victim’s baby, since they “hadn’t had any contact,” he admitted to police that he had agreed to provide money to her to “help her out.” Finally, Martin claimed that, on the day of the shooting, he was at home with his wife and ¹³ children until mid-day and that later he had visited “Frankie” and “Mike” Bradley, who were friends of his, arriving at “around” 1:00 p.m., staying with them until about 4:30 p.m., and then returning home.

DISCUSSION I. Martin contends that the circuit court erred in denying his motion to suppress text messages retrieved by police from the victim’s cell phone, in violation of the Maryland Wiretap Act, Maryland Code (1974, 2006 Repl.Vol.), § 10-401 et seq. of the Courts & Judicial Proceedings Article (“CJP”). 14 Specifically, Martin claims that, in reading and, later, recording the text messages from the victim’s Blackberry cell phone, the police had “intercepted” those text messages and were therefore required, in accordance with the strictures of the Maryland Wiretap Act, to apply for a court order before doing so, which they did not do. CJP § 10-406(a). Furthermore, the State’s use of evidence derived from those text messages, maintains Martin, violated the Maryland Stored Communications Act, CJP § 10-4A-01 et seq. When the police arrived at the victim’s residence, they found, inside her home, her cell phone.

Text messages that ¹⁴ were later extracted, by law enforcement personnel, from that phone showed, among other things, that Martin and the victim had exchanged several text messages on the day of the shooting. At 8:23 a.m. on the day of the shooting, Martin sent the victim a text message asking, “What time do u work[?]” Less than a minute later, the victim replied, “I’m off.” At 9:29 a.m., an hour later, the victim, having received no reply from Martin, sent another text message, stating, “Hello.” But that greeting elicited no response from Martin until 5:11 p.m., a little more than two hours after the shooting, when he sent a message stating, “I got some stuff with the kids to about 7 so any time after how much did u need[?]” Based in part on the text messages retrieved from the victim’s cell phone and in part on Martin’s own cell phone text messages, search warrants were obtained for Martin’s home and vehicle; for Maggie McFadden’s home; for Jerry Burks’s home and computer; as well as for samples of Martin’s saliva and hair. Among the items recovered, upon the execution of those warrants, were Martin’s saliva and hair samples, as well as a roll of white medical tape, from McFadden’s home, that, in the words of a State expert, “exhibited the same characteristics as” the medical tape found on the home-made Gatorade silencer. Before trial, Martin filed a “motion to suppress wiretap,” contending that the police had violated the Maryland Wiretap Act by “unlawfully intercept[ing]” the text messages from the victim’s cell phone and requesting that the court “suppress the contents of any intercepted wire, oral or electronic communication and evidence derived therefrom.” After several hearings were held, the circuit court declined to suppress the text messages recovered from the victim’s cell phone, holding that the retrieval of those messages did not violate the Maryland Wiretap Act. 15 It also declined to suppress any derivative evidence, declaring that, even if all of the references to both ¹⁵ the victim’s and Martin’s cell phone text messages had been deleted from the warrant affidavits, there was still probable cause to issue a search warrant for, among other things, Martin’s saliva and hair samples.

The Maryland Wiretap Act states that it is “unlawful for any person to ... [w]illfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication.” 16 CJP § 10-402(a)(1). It defines “intercept” as “the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device,” CJP § 10-401(3), and describes an “electronic communication” as “any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic, or photooptical system.” CJP § 10—401(11). 17 Although there are no Maryland appellate decisions 18 that have specifically construed the term “intercept,” there are a number of federal appellate decisions that have, under the Federal Wiretap Act, 18 U.S.C. § 2510 et seq., the federal analogue of the Maryland Wiretap Act. In language that is ¹⁶ largely mimicked by the Maryland statute, 19 the federal act provides that “any person who intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication” commits a crime and is further subject to civil suit. 18 U.S.C. § 2511 (1)(a). Both acts define “intercept” and “electronic communication” in nearly 20 identical terms.

Compare 18 U.S.C. § 2510 (4) and (12) with CJP § 10-401(3) and (11) (defining, respectively, “intercept” and “electronic communication”). See also Davis v. State, 426 Md. 211 , 220 & n. 3, 43 A.3d 1044 (2012) (observing that definitions of “intercept” in Maryland and Federal Wiretap Acts are “identical[ ].”). We therefore turn to the pertinent federal appellate decisions interpreting those terms for guidance. Id. at 223 , 43 A.3d 1044 .

We begin with Steve Jackson Games, Inc. v. United States Secret Service, 36 F.3d 457 (5th Cir.1994). There, the United States Court of Appeals for the Fifth Circuit held that the seizure of a computer, in which were stored private e-mail messages sent from remote computers but not as yet read by their intended recipients, was not an “intercept” of those messages under the federal act, though they were clearly “electronic communications.” In addressing the question of what constituted an “intercept” of “electronic communications” at that time, the federal appellate court observed that there was a “[c]ritical” difference in the definitions of two categories of communication, “wire communication” and “electronic communication,” both of which fell within the federal statutory prohibition against unlawful “interception”: Both categories of communication included the “transfer” of information, but a “wire communication” further encompassed “any electronic ¹⁷ storage of such communication,” (which it no longer does, as we shall later explain), while “electronic communication” did not. Steve Jackson Games, 36 F.3d at 461 . This textual difference, the Fifth Circuit believed, evidenced a Congressional intent that the term “intercept” be applied to “electronic communication[s]” only when those communications are in transit and not when they are in electronic storage.

Id. at 461-62 . Because the electronic communications at issue in Steve Jackson Games were in storage when Secret Service agents obtained them, the Fifth Circuit held that there had been no “interception” of them. Id. Other federal appellate courts have subsequently adopted this construction of “intercept.” For example, in Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir.2002), the United States Court of Appeals for the Ninth Circuit, applying Steve Jackson Games, held that an “interception” under the Federal Wiretap Act had not occurred when an employer, using a third-party’s password, obtained access to messages stored on a secure website maintained by one of its employees.

The Ninth Circuit suggested that the enactment of the “PATRIOT” Act, 21 which amended the Federal Wiretap Act, 22 evidenced Congress’s intent that the term “intercept” be narrowly defined. In passing the PATRIOT Act, Congress, explained the Ninth Circuit, had “essentially reinstated the [narrow] definition of ‘intercept’—acquisition contemporaneous with transmission—with respect to wire communications.” Id. at 878 . The federal appellate court therefore concluded that the Federal Wiretap Act did not apply where the acquired communications were in storage at the time of their acquisition. Accord United States v. Steiger, 318 F.3d 1039 (11th Cir.2003) (holding that anonymous informant who hacked into ¹⁸ the accused’s computer to retrieve images of child pornography did not, under the Federal Wiretap Act, “intercept” those images because she did not acquire them during their transmission). 23 Prior to 2002, the Maryland Wiretap Act defined “wire communication” to include “any electronic storage of a communication as described in this paragraph,” just as the Federal Wiretap Act did before the enactment of the PATRIOT Act.

See Md.Code (1974, 1998 Repl.Vol.), § 10-401(1)(ii) of the Courts & Judicial Proceedings Article. But, in 2002, the General Assembly enacted the Maryland Security Protection Act of 2002, which, among other things, altered the definition of “wire communication” in the Maryland Wiretap Act so that it would no longer include electronic storage, thereby tracking the change in definition adopted in the PATRIOT Act and, in effect, narrowing the scope of the term “intercept.” 2002 Md. Laws, ch. 100, at 1271-72. In light of the nearly identical definitions of “intercept” and “electronic communication” in both the Federal and Maryland ¹⁹ Wiretap Acts, as well as the fact that Maryland has adopted the same narrow definition of “wire communication” that first appeared in the PATRIOT Act, we shall join the federal courts in construing “intercept” as requiring “acquisition contemporaneous with transmission” of the messages. Konop, 302 F.3d at 878 .

That is to say, an “intercept” does not occur when, conversely, the electronic communication was in storage at the time of acquisition. 24 We therefore conclude that the police, in the instant case, did not unlawfully “intercept” text messages from the victim’s cell phone, as those messages were, at the time of their seizure, already stored in that phone, having already been sent and received before police gained access to them. The Maryland Wiretap Act, moreover, prohibits only interceptions that occur “through the use of any electronic, mechanical, or other device.” CJP § 10-401(3). Since a cell phone is not a “device,” under the Wiretap Act, as it specifically excludes “telephone” from the statutory definition of “electronic, mechanical, or other device,” see id. § 10-401(4), messages found in the victim’s cell phone are not covered by the Act and therefore are not subject to exclusion under the strictures of the Act. That the data was subsequently transferred onto a police department computer by means of a universal memory exchanger (“UME”) is of no consequence, because the data at issue was already in the possession of police investigators before its transfer via the UME.

As a consequence, even if we assume that the UME is a “device,” as Martin contends, it was not used to “intercept” the text messages. Rather, the UME was used to record the data after it had already been lawfully acquired. See United States v. Harpel, 493 F.2d 346, 350 (10th Cir.1974) (holding that “the recording of a conversation is immaterial when the overhearing is itself legal”). ²⁰ Finally, contrary to Martin’s claim, the Maryland Stored Communications Act provides neither a rationale nor remedy for excluding as evidence the information obtained from the victim’s cell phone (as well as any derivative evidence). The Stored Communications Act forbids “obtain[ing] ... access to a wire or electronic communication while it is in electronic storage in an electronic communications system by (1) [¿Intentionally accessing without authorization a facility through which an electronic communication service is provided; or (2) [i]ntentionally exceeding an authorization to access a facility through which an electronic communication service is provided.” CJP § 10-4A-02(a).

That prohibition, however, does not apply to the victim’s cell phone, which is not a “facility through which an electronic communication service is provided,” but presumably to the network infrastructure (such as the cell phone tower, its transmitters, and servers and switches), which is managed and operated by cell phone service providers. Even if there were a violation of the Maryland Stored Communications Act, exclusion of evidence, obtained by that violation, is not an appropriate remedy. During the pendency of this appeal, we were presented with this very issue, and we held that, given the absence of a statutory exclusionary rule in the Maryland Stored Communications Act, we would “not create a suppression remedy” where none existed. Upshur v. State, 208 Md.App. 383, 399 , 56 A.3d 620 (2012), cert. denied, 430 Md. 646 , 62 A.3d 732 (2013).

II

Relying upon Melendez-Diaz v. Massachusetts, 557 U.S. 305 , 129 S.Ct. 2527 , 174 L.Ed.2d 314 (2009), Martin contends that the circuit court’s admission of the testimony of Terry Melton, Ph.D., one of the State’s DNA experts, regarding the results of mitochondrial DNA testing, violated the Confrontation Clause of the Sixth Amendment because she had not personally performed that testing. In Melendez-Diaz , the Supreme Court held that the Confrontation Clause had been violated when a trial court allowed the prosecution to ²¹ introduce into evidence test reports, purporting to establish that a substance seized from the accused was cocaine of a specified weight, without the testimony of anyone who performed the underlying tests, leaving the accused without anyone to cross-examine as to the accuracy of those reports. 25 We must first determine whether this issue was preserved for our review. The State contends that it was not and we agree, for the following reasons: Maryland Rule 5-103(a)(1) provides that “[e]rror may not be predicated upon a ruling that admits ... evidence unless the party is prejudiced by the ruling, and ... a timely objection or motion to strike appears of record[.]” Such an objection, according to Maryland Rule 4-323(a), “shall be made at the time the evidence is offered or as soon thereafter as the grounds for objection become apparent. Otherwise, the objection is waived.” After the State had completed its direct examination of Dr. Melton, Martin, during cross-examination of the doctor, objected to the admissibility of her testimony on Confrontation Clause grounds and moved “to strike all of it.” This objection led to an extended bench conference, during which the parties disagreed over the applicability of Melendez-Diaz , which, at that time, was the most recent Supreme Court decision addressing the scope of the Confrontation Clause.

That conference was, in turn, followed by a brief recess to afford the court and counsel the opportunity to research the question further. When the bench conference resumed, the State propounded a new claim, namely, that Martin’s belated objection had resulted in waiver of his Confrontation Clause claim. That claim prompted a shift in the focus of the bench conference ²² from the Melendez-Diaz issue to the discovery materials that had been provided to Martin. After examining those materials, the circuit court made a preliminary finding that those documents had, indeed, “put[ ]” Martin “on notice that there was a technician other than [Dr.] Melton involved in the case.” Having made that tentative finding, the court felt impelled to warn Martin’s counsel that it was “going to find waiver” unless he could “come up with something that show[ed]” otherwise.

The court then recessed for the weekend. Upon reconvening on Monday morning, the circuit court, after entertaining additional argument, found that Martin’s counsel had “received in discovery,” and well before trial had begun, “a clear indication” that Dr. Melton “was not the technician who did the original lab work”; and furthermore had been “put on notice by” Dr. Melton’s “earlier” testimony that others had performed that work and yet “did not object.” The court therefore concluded that Martin had waived his objection and then denied his motion to strike Dr. Melton’s testimony. That ruling, we cannot say, was clearly erroneous. The discovery materials provided by the State to Martin’s counsel gave Martin, in the words of the court, “a clear indication” that Dr. Melton had not performed the laboratory work. 26 ²³ Nor can we say that Dr. Melton’s “earlier” testimony did not, as the circuit court found, put Martin on further notice that technicians other than Dr. Melton had actually performed the laboratory work. 27 Therefore, in accordance with Maryland Rules 4-323(a) and 5-103(a)(1), the court below did not err in ruling that Martin’s counsel had waived his objection.

See Melendez-Diaz, 557 U.S. at 314 n. 3, 129 S.Ct. 2527 (observing that “[t]he right to confrontation may ... be waived, including by failure to object to the offending evidence; and States may adopt procedural rules governing the exercise of such objections”). In his reply brief, Martin contends, as an alternative ground for reversal, that his trial counsel was ineffective in failing to lodge below a timely “Confrontation” objection to Dr. Melton’s testimony. This issue is not properly before us, however, as Martin failed to raise it in his initial brief. Williams v. State, 188 Md.App. 691, 703 , 982 A.2d 1168 (2009) (observing that function of reply brief is limited and that it may not be used to raise issues not previously raised in initial brief), aff'd, 417 Md. 479 , 10 A.3d 1167 cert. denied, 565 U.S. -, 132 S.Ct. 93 , 181 L.Ed.2d 22 (2011).

In any event, a claim of ineffective assistance of counsel is, ordinarily, more appropriately addressed in a post-conviction proceeding, because that proceeding affords an opportunity for an evidentiary hearing and a chance for defense counsel to explain what ²⁴ may have been a tactical reason for his belated objection. Mosley v. State, 378 Md. 548, 558-62 , 836 A.2d 678 (2003).

III

Martin claims that the trial court erred in denying his exceptions to the State’s refusal to provide a bill of particulars and that, as a result, he was forced to defend himself without knowing whether the State was claiming that he was a principal in the first degree, an aider and abettor, or an accessory before the fact. He further asserts that, because of this uncertainty, he was unfairly surprised when, during the trial, the State purportedly changed its theory of the case, from alleging that he accompanied the shooter to the victim’s house to asserting that he was at McFadden’s house at the time of the shooting, and that it was there that he prepared the homemade silencer used in that attack. He therefore maintains that he was unfairly prejudiced by the denial of his request for a bill of particulars and, as a consequence, denied due process of law. We find no merit to this claim.

Several months before the scheduled trial date and a year before Martin’s trial ultimately took place, Martin filed a demand for a bill of particulars, “pursuant to Maryland Rule 4-241,” 28 as to all counts of the indictment. The demand directed the prosecution to: ²⁵ 1. State with particularity the exact time and place where the alleged offense occurred. 2. State with particularity what facts the State will prove to show the Defendant did commit the alleged offense. 3.

State with particularity the facts the State will prove to show the alleged offense was committed. 4. State with particularity the manner and means with which the Defendant did commit the alleged offense. 5. State with particularity if Defendant is charged with the alleged offense as a principal in the first degree or as a principal in the second degree. 6. State with particularity all facts the State intends to prove that show Defendant acted as a principal in the first degree or as a principal in the second degree.

(Emphasis added.) Two weeks later, Martin moved to dismiss the indictment, alleging that it “fail[ed] to sufficiently characterize the offenses in order to enable the Defendant to prepare a defense.” Five months later, having not received a response to his demand for a bill of particulars, Martin filed exceptions, insisting that, “[i]n view of the nature of the offenses charged in the above-captioned case, it is essential to the preparation of the defense in this matter that the State’s Attorney’s Office comply forthwith with the Demand for Particulars.” Two weeks after that, the State filed an opposition to Martin’s demand for particulars, contending that it had “given open file discovery” to Martin and that, as the discovery process had been “transparent,” there was “no chance” that the indictment was so general that it failed to disclose “sufficient information to afford” Martin “a fair and reasonable opportunity to defend himself.” In fact, Martin’s demand for particulars was, asserted the State, nothing more than “a surreptitious attempt” ²⁶ to force the State to disclose its “legal theories” and thereby “box the State in at trial.” That being so, it urged the circuit court to deny Martin’s request. A hearing was subsequently held on, among other things, Martin’s motion to dismiss the indictment and his exceptions to the State’s response to his demand for a bill of particulars. At the conclusion of that hearing, the circuit court overruled Martin’s exceptions and denied his motion to dismiss the indictment, concluding that Martin’s trial counsel had “to defend against everything,” that is, against the possibility that Martin was the shooter, as well as “the solicitor of the crime.” “[B]ills of particulars are intended to guard against the taking of an accused by surprise by limiting the scope of the proof,” Hadder v. State, 238 Md. 341, 351 , 209 A.2d 70 (1965), and, ultimately, ensure that an accused’s constitutional rights “to be informed of the accusation against him and ... to prepare for his defense” are protected. Seidman v. State, 230 Md. 305, 312 , 187 A.2d 109 (1962).

But a bill of particulars is meant “to secure facts, not legal theories.” Hadder, 238 Md. at 351 , 209 A.2d 70 (quoting Rose v. United States, 149 F.2d 755, 758 (9th Cir.1945)). Indeed, an accused is “not entitled to make the prosecution select and state its theory of the case.” Id. During the pendency of this appeal, the Court of Appeals decided Dzikowski v. State, 436 Md. 430 , 82 A.3d 851 (2013). In that case, the Court of Appeals considered whether a trial court abused its discretion in overruling Dzikowski’s exceptions to the State’s refusal to provide the information requested by his demand for particulars because the State believed that the information requested by that demand had been previously given to him before trial.

The pertinent facts of that case, as summarized by the Court of Appeals, were as follows: 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, ²⁷ 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, [Dzikowski] 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. [Dzikowski] 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. [Dzikowski] and Mr. Jones then immediately drove away, leaving Mr. RamirezGavarete lying in the road.

Shortly thereafter, another vehicle ran over Mr. Ramirez-Gavarete, killing him. Id. at 434-35 , 82 A.3d 851 . Dzikowski was charged in a three-count indictment, filed in the Circuit Court for Montgomery County, with manslaughter, reckless endangerment, and conspiracy to commit assault. Id. at 435 , 82 A.3d 851 .

The reckless endangerment count merely stated, as provided in the statutory short-form indictment, that Dzikowski, “on or about January 6, 2008, in Montgomery County, Maryland, committed reckless endangerment, in violation of Section 3-204 of the Criminal Law Article against the peace, government, and dignity of the State.” 29 Id. at 436 , 82 ²⁸ A.3d 851. Invoking Maryland Rule 4-241, Dzikowski filed a demand for a bill of particulars as to the charge of reckless endangerment. When the State responded, to each of his enumerated requests, that the facts requested were “contained in discovery,” Dzikowski filed exceptions to what he deemed an insufficient response. Id. at 437, 82 A.3d 851 .

Ultimately, the circuit court overruled those exceptions, holding that the State had complied with Rule 4—241(b). The Court of Appeals noted that, in its opening statement at Dzikowski’s trial, 30 the State stressed that Dzikowski (with co-defendant Jones) had committed “needless senseless violence” and had left Ramirez-Gavarete “in the middle of the road, where he was then hit and killed by another car.” Id. at 439 , 82 A.3d 851 . The State further alleged that both Dzikowski and Jones “pushed” Ramirez-Gavarete but, in the words of the Court of Appeals, “did not reference or even mention that it was in the direction of a passing vehicle.” Id. Instead, the State proffered that, after both Dzikowski and Jones had taken turns “push[ing]” Ramirez-Gavarete, Jones “punched” him, “knocking him down” and apparently “out.” The two men then left him in the middle of a “very dark” and “very dangerous” road, where he was subsequently run over and killed by a passing vehicle.

Id. at 439-40 , 82 A.3d 851 . At the conclusion of the State’s case-in-chief, Dzikowski moved for judgment of acquittal as to all counts. The trial court granted his motion as to the counts alleging manslaugh ²⁹ ter and conspiracy but denied it as to the count of reckless endangerment, which, at that point, was the only remaining count. As to that charge, the trial court found that, based upon testimony of the driver of the “slowly passing vehicle,” which had nearly struck Ramirez-Gavarete when Dzikowski shoved him in the direction of that vehicle, that Dzikowski had “timed” his shove of Ramirez-Gavarete “as though it were planned that ... when he pushed him, he would collide with this car.” Id. at 440 , 82 A.3d 851 .

Although this on-coming vehicle was traveling “at a crawl,” acknowledged the trial court, “if you lose your footing, and you fall underneath the wheels of a car going five miles an hour,” you will still be, the court observed, “a dead person.” Id. The trial court therefore concluded that there was “sufficient evidence from which a jury could conclude that there was reckless endangerment.” Id. “Armed with that ruling, the State thereafter proceeded on a new theory and factual basis,” observed the Court of Appeals. Id. That is to say, the State departed from its reliance upon Jones punching the victim, knocking him down, and leaving him in the road, to prove reckless endangerment, in favor of “rel[ying] on the fact that” Dzikowski pushed Ramirez-Gavarete “in the direction of a slowly passing car, thus recklessly endangering him.” Id.

After he was convicted of reckless endangerment, Dzikowski appealed, claiming that he had been unfairly surprised and prejudiced by the State’s mid-trial shift in strategy. Id. at 441 , 82 A.3d 851 . The Court of Appeals ultimately reversed and remanded for a new trial. Id. at 441, 457 , 82 A.3d 851 .

In so doing, the Court of Appeals noted that, because Dzikowski had been charged, under a statutory short-form indictment, with reckless endangerment, he was entitled to have the State respond to his demand for a bill of particulars, under Criminal Law Article, § 3—206(d)(5), which provides that, under that circumstance, “the defendant, on timely demand, is entitled to a bill of particulars.” Dzikowski, 436 Md. at 446 , 82 A.3d 851 . This statutory entitlement, the Court of Appeals observed, is intended “to provide ‘such a description of the particular act to ³⁰ have been committed as to inform [the accused] of the specific conduct with which he is charged.’ ” Id. at 448 , 82 A.3d 851 (quoting Ayre v. State, 291 Md. 155, 163 , 433 A.2d 1150 (1981)). Moreover, it is constitutionally required, declared the Court, so as to “apprise the defendant of the crime with which he is accused, as well as of the particular conduct to which that accusation relates and refers.” Id. Ordinarily, the charging document itself must provide the accused with the “constitutionally required” notice of “what he is called upon to defend,” Ayre, 291 Md. at 163 , 433 A.2d 1150 (citing Article 21 of the Maryland Declaration of Rights), but the statutory short-form indictment, at least as to certain offenses, is typically lacking in such information.

In those instances, the accused has a statutory right to particulars, which furnishes that information. Dzikowski, 436 Md. at 448, 453-54 , 82 A.3d 851 . Indeed, as the Dzikowski Court observed, the charging document in that case merely stated that Dzikowski, “on or about January 6, 2008, in Montgomery County, Maryland, did commit reckless endangerment, in violation of Section 3-204 of the Criminal Law Article,” providing no information as to the underlying facts. Id. at 448 , 82 A.3d 851 . “Generally,” whether to grant or refuse a demand for a bill of particulars is within the trial court’s discretion, as is the “the determination of whether the particulars provided were legally sufficient.” Id. at 446-47 , 82 A.3d 851 .

In Dzikowski , the trial court abused its discretion in overruling Dzikowski’s exceptions, held the Court of Appeals, as the State’s response to Dzikowski’s demand for a bill of particulars merely directed him to discovery materials and therefore violated Criminal Law § 3-206(d)(5), which required that he be informed of “the factual basis underlying the reckless endangerment charge.” Dzikowski, 436 Md. at 449, 452 , 82 A.3d 851 . The Court of Appeals further held that the “trial court’s legal error,” 31 id. ³¹ at 454, 82 A.3d 851 was not harmless beyond a reasonable doubt, because it was “possible” that Dzikowski was “prejudiced” by the State being permitted “to proceed upon a factual basis, on which it did not rely, or even acknowledge, in the indictment, in the bill of particulars it filed and throughout the first half of the trial.” Id. at 456 , 82 A.3d 851 . Then, before reversing Dzikowski’s conviction, the Court rejected any suggestion that Dzikowski’s demand for a bill of particulars sought “the State’s legal theory of the case.” Id. at 452 , 82 A.3d 851 . Charged with first- and second-degree assault and reckless endangerment, in a short-form indictment, Martin had, because of those charges, 32 the same statutory right to a bill of particulars granted Dzikowski by Criminal Law § 3—206(d).

Martin does not, however, rely upon Criminal Law § 3—206(b) or (d) and, in fact, makes no mention of those statutory subsections in either his initial or reply brief. Instead, his dispute with the State’s response to his demand for a bill of particulars focuses specifically and only on the State’s theory of his criminal agency with respect to the attempted murder charges. We further presume that that is because the assault and reckless endangerment charges were nol prossed by the State, or, as in the case of first-degree assault, subsumed into the greater offense, attempted first-degree murder. Moreover, the conspiracy charge was also nol prossed and thus, despite being the focal point of much of the argument below, is no longer a part of this case.

Furthermore, Martin was acquitted of the solicitation charge, extinguishing its relevance and removing it from further consideration. The case at bar is distinguishable from Dzikowski , though the two cases share one similarity, which we believe to be of no consequence here, and that is, in both Dzikowski and the instant case, the State’s response to the demand for a bill of particulars was, in essence, that no response was necessary ³² because it followed a policy of “open file discovery.” Id. at 438 , 82 A.3d 851 . What renders the two cases disanalogous for the purposes of this decision is that, while Dzikowski was charged with reckless endangerment, by short-form indictment, and was therefore entitled to a bill of particulars, Martin was charged with attempted murder, and though it was also by short-form indictment, the crime of attempted murder is not an offense which carries with it this entitlement. See Spector v. State, 289 Md. 407, 423 , 425 A.2d 197 (1981) (observing that, while an accused has a right to a charging document that meets constitutional requirements, he “is not entitled as of right to particulars”). 33 Although Martin couches his argument in terms of what he calls “different factual scenario[s]” presented by the State, his complaint is actually with the State’s refusal to elect, prior to trial, a particular legal theory on which to proceed and then to inform him of the theory it chose.

That is clear from the following language in Martin’s demand for a bill of particulars: 5. State with particularity if Defendant is charged with the alleged offense as a principal in the first degree or as a principal in the second degree. 6. State with particularity all facts the State intends to prove that show Defendant acted as a principal in the first degree or as a principal in the second degree. His demand thereby directs the State to declare what theory of criminal culpability it has chosen to proceed upon.

An accused, however, is not entitled to know the State’s theory of the case prior to trial and, under Maryland Rule 4-241, has no right to compel the State to disclose it. Hadder, 238 Md. at 351 , 209 A.2d 70 . Martin further complains that, during the trial, the State changed its theory of the crime, thereby unfairly prejudicing his efforts to defend himself. He asserts, without elaboration, that the State, during its opening statement, “presented argument that Jerold Burks was definitely the shooter, that Appel ³³ lant had solicited his assistance, and that Appellant was guilty as a principal in the second degree by aiding and abetting Burks at the scene.” That assertion unfortunately distorts what the State actually said in its opening statement.

In fact, it is fair to say that the State made no such assertions about Burks, who, by that time, had already been acquitted of all charges stemming from his alleged role in the crime. We further reject Martin’s contention that, during trial, the State’s theory “morphed into one that made [him] only an accessory before the fact,” that is, as the Court of Appeals has put it, “one who is guilty of felony by reason of having aided, counseled, commanded or encouraged the commission thereof, without having been present either actually or constructively at the moment of perpetration.” State v. Ward, 284 Md. 189, 197 , 396 A.2d 1041 (1978), overruled on