The Bill of Particulars – Alive and Kickin’!
THE BILL OF PARTICULARS – ALIVE AND KICKIN’ AGAIN!
Robert C. Bonsib, Esq. & Megan E. Coleman, Esq.
With its decision in Dzikowski v. State, 2013 WL 6850029 (12-30-13) the Court of Appeals has infused new vitality into the use of a bill of particulars as a tool to ensure constitutional notice to one charged with a crime where a charging document has been drafted using the statutory short form or is otherwise very general in it allegations.
The question before the COA in Dzikowski was whether the State’s response to the defendant’s request for a bill of particulars met the statutory requirement if it merely directed the defendant to look to the discovery the State has provided where 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 COA answered that question in the negative and found that the trial court abused its discretion with resulting prejudice to the defendant when it denied Dzikowski’s exceptions to the State’s nonspecific responses to the question posed in his demand for a bill of particulars.
The COA in Dzikowski held that merely directing a defendant to look to the discovery provided by the State cannot suffice as a substitute for a legally sufficient bill of particulars pursuant to CL 3-206(d)(5). Some criminal statutes provide for mandatory bills of particulars and other statutes, with no specific statutory entitlement to a bill of particulars, call upon the trial court to exercise its discretion in deciding whether or not to grant a defendant’s request for a bill of particulars. The COA reviewed the statutory entitlement to a bill of particulars as to the charge of reckless endangerment in the Dzikowski case and concluded that the State’s response to the defendant’s demand was legally insufficient. The COA provided guidance on the parameters of a legally sufficient bill, finding that “discovery” does not pass constitutional muster in terms of notice of a charge.
In Dzikowski the focus was on the statute which permitted charging reckless endangerment in a short form and also included a statutory provision providing that a defendant was entitled to a bill of particulars. Upon review, the rationale used by the COA in enforcing the statutory right to a bill of particulars appears equally applicable to circumstances where a bill of particulars is filed under Maryland Rule 4-241, most specifically in those cases where the indictment or charging document is general in nature or in a statutory short form, even where the authority for the use of the short form does not also include the statutory right to demand particulars.
A charging document must satisfy the requirements imposed by Article 21 of the Maryland Declaration of Rights 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.” The COA noted that statutes permitting a short form of indictment, where 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 particulars of the accusation protects him against lack of notice. When required, a bill of particulars, therefore, must, at the very least, provide the defendant with “a means of ascertaining the exact factual situation upon which he or she was charged.”
In Dzikowski the COA held that the State violated CL section 3-206(d)(5) when it responded to the defendant’s bill of particulars by simply directing him to the discovery that had been provided. In so doing, the COA noted that the State had switched the burden to the defendant to identify the facts underlying the indictment. It specifically stated “discovery, even open file discovery, that includes police reports and witness statements, is not the same and cannot substitute for a legally sufficient bill of particulars. While such discovery may contain the full facts of the case, when a defendant is charged using a short form indictment it is not and cannot be, a substitute, or satisfy a demand, for a bill of particulars. Discovery does not particularize or relate the factual information contained therein to the offense charged. It is this perspective and the relation of the factual information to the offense charged that satisfies the form in substance of a bill of particulars.
Rejecting the State’s argument that the defendant was seeking the State’s legal theory of the case, the COA stated the defendant’s demand for bill of particulars did not seek the State’s legal theory, only the factual basis underlying the reckless endangerment charges. The demand for particulars expressly asked that the State either describe or state the conduct and/or the facts supporting the reckless endangerment charge, not a “hypothesis of commission,” and continued that if the mere existence of discovery were sufficient to provide a defendant with notice required by Article 21, CL 3-206(d)(5) would both be superfluous and surplusage and the right it prescribes nugatory.
The COA continued that the information requested by the defendant was that which the State, had it used a traditional charging document, would have been constitutionally required to furnish. It continued “were we to conclude otherwise, we would effectively permit the State to circumvent the obligations imposed upon it by the State Constitution through the use of a statutory short form charging document, which, by the terms of the legislation authorizing it, shows the Legislature’s intent to avoid such circumvention.”
The COA also made clear that while the opinion in Dzikowski does not suggest that CL 3-206 or Rule 4-241 requires the State to make an election between the facts relevant to proving its case, merely directing a defendant to discovery is not responsive to a demand for bill of particulars and certainly does not provide the constitutionally required notice, which includes the element of the charges and their corresponding factual basis.
Factual Background in Dzikowski
Dzikowski was driving a vehicle with other passengers when he noticed Ramirez-Gavarete standing in the middle of the road. Dzikowski swerved to avoid colliding with Ramirez-Gavarete. At the suggestion of one of his passengers, Dzikowski returned to the scene and he and one of the passengers, Jones, got out of the vehicle. Ramirez-Gavarete appeared to be highly intoxicated and attempted to hug Dzikowski. Dzikowski pushed him away, almost knocking him into a slowly passing vehicle. Ramirez-Gavarete approached Jones who struck him in the face, knocking Ramirez-Gaverete down onto the roadway. Dzikowski and Jones drove away leaving Ramirez-Gavarete lying in the road. Shortly thereafter, another vehicle ran over Ramirez-Gavarete, killing him.
Procedural Background in Dzikowski
Dzikowski was charged with manslaughter, reckless endangerment, and conspiracy to commit assault. The State used the short form to charge in a reckless endangerment count that “on or about January 6, 2008, in Montgomery County, Maryland, [Dzikowski] committed reckless endangerment…”
Pursuant to § 3-206(d)(5), Dzikowski filed a bill of particulars demanding that the State particularize the conduct that constituted reckless endangerment, the facts that tended to prove that he acted recklessly, the conduct that created a substantial risk of death or serious physical injury, and all of the facts the State would rely on to prove he consciously disregarded a substantial risk of death or serious physical injury to another.
The State’s response to each of those requests was that the facts are “contained in discovery.”
Dzikowski timely filed exceptions to the State’s responses, challenging the sufficiency of the State’s response.
The trial court ruled that the State’s responses to the particulars demanded which simply direct Dzikowski to look to the discovery satisfied the requirements of Maryland Rule 4-241(b).
In its opening statement, the State framed its theory of prosecution as one of “senseless violence” where Dzikowski pushed Ramirez-Gavarete. The State did not reference or mention that Dzikowski pushed the identified victim in the direction of a passing vehicle. The prosecutor focused on the connection between the actions of Dzikowski and Jones as related, not independent.
At the end of the State’s case, the trial court granted the defendant’s motion for judgment of acquittal as to manslaughter and conspiracy, but denied the motion as to the reckless endangerment count ruling that “the action of him pushing the victim into the car…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.” Dzikowski was convicted of that count.
Analysis by the COA
Short Form Indictments Generally
Dzikowski reminds us that “[s]tatutes 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 defendant has a right to demand the particulars of the accusation and that right protects him against injury.”
Short Form Indictments with Mandatory Bill of Particulars Language
CL § 3-206(d) allowing the short form indictment for reckless endangerment, “carries this principal 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.” (citing CL §3-206(d)(5)).
What makes a bill of particulars legally sufficient?
Dzikowski tells us that if particulars are provided, whether a defendant is statutorily entitled to the bill or not, a determination must still be made to see whether the particulars provided are legally sufficient. The parameters of the bill itself have never before been outlined. The COA reaffirmed that the purpose of the bill “is to guard against the taking of an accused by surprise by limiting the scope of the proof.”
The COA held that although the indictment in Dzikowski sufficiently alleged the elements of the crime, it failed to provide a description of the particular act(s) alleged to have been committed so as to inform the accused of the specific conduct with which he was charged. The State’s response of simply directing the petitioner to the defendant “switched the burden to the defendant to identify the facts underlying the indictment.” The State should have specified the alleged conduct to which the subject charge relates. Discovery is not a substitute and does not satisfy a demand for a bill of particulars.
What, then, we can take away from Dzikowski – some thoughts follow:
1. Defendants are statutorily entitled to a legally sufficient bill of particulars when the statute provides such a right.
2. A defendant should file for particulars when charged using a statutory short form, even where the specific charging statute does not provide such a statutory right.
3. A defendant should file for particulars when the charging document, even if not charged using a statutory short form, fails to provide the notice required to effectively prepare a defense.
Crimes that may be charged by statutory short form that include a statutory right to a bill of particulars
CL § 3-202 – 1st Degree Assault
CL § 3-203 – 2nd Degree Assault
CL § 3-204 – Reckless Endangerment
CL § 3-205 – Prison Employee – Contact with Bodily Fluid
CL §§ 3-206(b), (d)(5) – Charging Documents (include right to particulars)
CL § 3-303 – 1st Degree Rape
CL § 3-304 – 2nd Degree Rape
CL § 3-305 – 1st Degree Sex Offense
CL § 3-306 – 2nd Degree Sex Offense
CL § 3-307 – 3rd Degree Sex Offense
CL § 3-308 – 4th Degree Sex Offense
CL § 3-309 – Attempted Rape in the 1st Degree
CL § 3-310 – Attempted Rape in the 2nd Degree
CL § 3-311 – Attempted Sex Offense in the 1st Degree
CL § 3-312 – Attempted Sex Offense in the 2nd Degree
CL § 3-314 – Sexual Conduct between Correctional or Juvenile Justice Employee and Inmate or Confined Child
CL § 3-317(b) – Charging Documents (includes right to particulars)
CL § 6-102 – 1st Degree Arson
CL § 6-103 – 2nd Degree Arson
CL § 6-104 – Malicious Burning of Personal Property in the First Degree
CL § 6-105 – Malicious Burning of Personal Property in the Second Degree
CL § 6-106 – Burning with Intent to Defraud
CL § 6-107 – Threat of Arson
CL § 6-108 – Burning Trash Container
CL § 6-109 – Attempt to Burn Structure or Property
CL § 6-111(b) – Charging Documents (includes right to particulars)
Burglary – Breaking and Entering Offenses
CL § 6-202 – 1st Degree Burglary
CL § 6-203 – 2nd Degree Burglary
CL § 6-204 – 3rd Degree Burglary
CL § 6-205 – 4th Degree Burglary
CL § 6-206 – Breaking and Entering Motor Vehicle – Rogue and Vagabond
CL § 6-207 – Burglary with Destructive Devices
CL § 6-208 – Breaking and Entering a Research Facility
CL § 6-210(b) – Charging Document s (includes right to particulars)
CL § 7-104 – Theft
CL §7-105 – Motor Vehicle Theft
CL § 7-106 – Newspaper Theft
CL 7-108(c) – Charging Documents (includes right to particulars)
Crimes that may be charged by statutory short form but do not include statutory right to a bill of particulars
Conspiracy – Common Law
CL § 1-203. Conspiracy – Charging Document (short form only)
CL § 2-203 – 1st Degree Murder
CL § 2-204 – 2nd Degree Murder
CL § 2-205 – Attempt to Commit 1st Degree Murder
CL § 2-206 – Attempt to Commit 2nd Degree Murder
CL §2-207 – Manslaughter
CL § 2-208. Murder and manslaughter — Charging Document (short form only)
CL § 2-209 – Manslaughter by vehicle or vessel
CL § 2-209(e) Charging Document (short form only)
CL § 2-503 – Homicide by Motor Vehicle or Vessel While Under the Influence of Alcohol or Under the Influence of Alcohol Per Se
CL §2-504 – Homicide by Motor Vehicle or Vessel While Impaired by Alcohol
CL §2-505 – Homicide by Motor Vehicle or Vessel While Impaired by Drugs
CL § 2-506 – Homicide by Motor Vehicle or Vessel While Impaired by a Controlled Dangerous Substance
CL § 2-507 – Charging Documents (short form only)
CL § 3-211 – Life Threatening injury by motor vehicle or vessel while under the influence of alcohol and related crimes
CL § 3-212 – Charging Documents (short form only)
CL § 3-402 – Robbery
CL § 3-403 – Robbery with Dangerous Weapon
CL § 3-404 Charging Documents (short form only)
CL § 9-101(a) Perjury
CL § 9-101(c) Perjury – Contradictory Statements
CL §§ 9-103(a) and (b) Charging Document (short form only)
As noted in Dzikowski, the failure of the indictment to provide “such a description of the particular act to have been committed as to inform [the accused] of the specific conduct with which he is charged” is a failure that at common law “was required to be corrected by a bill of particulars supplementing the short form of the indictment.”
In Dzikowski the COA pointed out that it “has encouraged defendants to seek such clarification on charges when appropriate.” It is significant and important to remember that Rule 4-241(a) allows a defendant to file a demand for a bill of particulars regardless of whether a defendant has been charged by a statutory short form.
It’s not right if you don’t exercise it – You MUST comply with the Rules!!
For the decision in Dzikowski to be effectively utilized, defense counsel must follow the requirements of Rule 4-241(a) to enforce the relief being sought. This means:
1. Making a timely demand for a bill of particulars, which means within 15 days after the earlier of the appearance of counsel or the first appearance of the defendant before the circuit court. Rule 4-241(a).
2. Making this demand, in writing, unless otherwise ordered by the court as required by Rule 4-241(a).
3. Specifying the particulars sought. Rule 4-241(a). Asking for the conduct or the facts that comprise the charge would be a good way to provide the specific type of demand that is required. Be specific in what you are seeking in the way of particulars. Analyze each count. Particulars that may be properly requested for one count may not be the same for another count. Review what is alleged in each count and then decide what facts you need to have particularized to have fair understanding of what is being alleged.
4. Within 10 days after service of the demand, the State is required to file a bill of particulars that furnishes the particulars sought or the State must state the reason for its refusal to comply with the demand. Rule 4-241(b). If the State fails to file any response within 10 days after the service of the demand, you must file exceptions and may also want to file a motion to compel. If you do nothing, when the State does nothing, then don’t expect the court to do anything either.
5. If the State files a response, and you believe that the State’s response is insufficient, take exception to the response by filing a Reply Excepting to the State’s Answer to Defendant’s Bill of Particulars and it must be within 10 days after the service of the State’s response to your bill of particulars.
6. With each request or exception, include a proposed Order with the specific relief that you are seeking. Examples follow:
Upon consideration of the Defendant’s Motion for Bill of Particulars it is this___ day of _______, 2014;
ORDERED that the State shall, within 10 days of the date of this Order, with respect to count one, reckless endangerment, particularize the specific conduct that the Defendant is alleged to have engaged in that the State will rely upon to prove that the Defendant (i) acted recklessly; (ii) created a substantial risk of death or serious physical injury to another; and (iii) consciously disregarded a substantial risk of death or serious bodily injury to another or the State will be precluded at the trial of this matter from offering any evidence regarding the alleged conduct of the Defendant to prove the allegations in count one, reckless endangerment.
Upon consideration of the Defendant’s Exception to the State’s Answer (or failure to answer) to the Defendant’s Motion for Bill of Particulars, it is this ____day of _______, 2014;
ORDERED that the Defendant’s Exceptions are sustained and the State is required to particularize the allegations in count one as demanded by the Defendant or the State will be precluded at the trial of this matter from offering any evidence regarding the alleged conduct of the Defendant to prove the allegations in count one, reckless endangerment.
Upon consideration of the Defendant’s Exception to the State’s Failure to Answer the Defendant’s Motion for Bill of Particulars, it is this ____day of _______, 2014;
ORDERED that within 10 days of the date of this Order the State is required to particularize the allegations in count one as demanded by the Defendant or the State will be precluded at the trial of this matter from offering any evidence regarding the alleged conduct of the Defendant to prove the allegations in count one, reckless endangerment.
Think about the relief you want and fashion your proposed Order accordingly. If the State is dilatory in responding to your demand, include proposed relief that gets the State’s attention by specifically requesting that the Court limit the State’s ability to introduce evidence as to any count with respect to which it has failed to provide particulars or has inadequately responded to the demand for particulars.
When the State says “go look for it in the discovery,” Dzikowski says “not so.”
When the States says “you are trying to box me in,” Dzikowski says that’s ok and that is one of the purposes of the bill of particulars.
The bill of particulars “lives again” and a well thought out use of the bill of particulars is a critical part of your pre-trial preparation.