University of Baltimore Law Forum Volume 34 Article 5 Number 2 Spring 2004 2004 Recent Developments: Denicolis v. State: Failure to Notify Defendant and Counsel of Jury Note Requesting Clarification of Definition of Solicitation Is a Violation of Maryland Rule 4-326(c) Victoria Z. Sulerzyski Follow this and additional works at: http://scholarworks.law.ubalt.edu/lf Part of the Law Commons Recommended Citation Sulerzyski, Victoria Z. (2004) "Recent Developments: Denicolis v. State: Failure to Notify Defendant and Counsel of Jury Note Requesting Clarification of Definition of Solicitation Is a Violation of Maryland Rule 4-326(c)," University of Baltimore Law Forum: Vol. 34 : No. 2 , Article 5. Available at: http://scholarworks.law.ubalt.edu/lf/vol34/iss2/5 This Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in University of Baltimore Law Forum by an authorized editor of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. Recent Developments Denicolis v. State: Failure to Notify Defendant and Counsel of Jury Note Requesting Clarification of Definition of Solicitation is a Violation of Maryland Rule 4-326(c) By: VictoriaZ. Sulerzyski he Court of Appeals of charged by criminal information with was in the record, but the record T Maryland held a failure to two counts of solicitation to commit was silent as to whether the court notify defendant and counsel ofa jury murder. Neither count identified an responded to the note. There was note requesting clarification of the intended victim. no date-stamp on the exhibit. definition of solicitation is a violation Denicolis filed an Omnibus Counsel was unaware of the note of Maryland Rule 4-326(c). Motion pursuant to Maryland Rule 4- until after the verdict and sentencing, Denicolis v. State, 378 Md. 646, 837 252 arguing the charges be dismissed when appellate counsel discovered it A.2d 944 (2003). In so holding, the because ofdefects in the institution of in the record. court emphasized the Maryland Rules the prosecution and in the charging On appeal, the Court ofSpecial require communication between a jury documents. However, the motion was Appeals of Maryland held the and ajudge shall be communicated silent as to the specific defects. The record was silent with respect to the to a defendant and his or her counsel. motion was denied and the trial began. jury note and Denicolis had failed to Id. The court, in its preliminary jury establish that error was committed. In 2000, Christopher A. instructions, stated the State alleged The Court ofAppeals of Maryland Denicolis (Denicolis) and two co­ the petitioner solicited an individual to granted certiorari to determine defendants were awaiting trial for murder Judge Dana M. Levitz on or whether the court erred in failing to several armed robberies. Judge Dana aboutJanuary 11,2001, while he was notify Denicolis and counsel ofthe Levitz of the Circuit Court for incarcerated. The judge said nothing jury note. Baltimore County sentenced the co­ about solicitation for Mickey The court began its discussion defendants to twenty years in prison. Norman's murder or the allegations by stating the requirements of After the co-defendants were ofCount I ofthe indictment. Similarly, MarylandRule4-326(c). Thisrule sentenced, Denicolis approached his in opening statements, the prosecutor "requires a trial court to notify the cellrnate, Kenneth Moroz (Moroz), stated Denicolis was only being defendant and the State's Attorney and solicited the murder of Judge charged with solicitation to murder ofthe receipt ofany communication Levitz and prosecutor Mickey Judge Levitz and was silent on the from the jury pertaining to the action Norman. Moroz agreed to commit alleged solicitation to murder Mickey before responding to the communi­ the murders and a price was Norman. Not until the judge cation." Id. at 656,837 A.2d at 950. negotiated. Later, seeking relief for instructed the jury at the end of the Further, the rule specifies, "all such himself, Moroz told police that evidence stage was the alleged communications between the court Denicolis had solicited him to murder solicitation to murder Mickey and jury shall be on the record in open the judge and prosecutor. Moroz Norman mentioned. No objection court or shall be in writing and filed obtained a recording of their was made on the record by the in the action." Id. The rule partially discussions regarding the details ofthe defense, and no exceptions were preserves a defendant's constitutional murders, wherein Denicolis stated he made. and common-law right to be present was not completely set on killing Mr. The jury passed four notes to the at every critical stage oftrial. Id. Norman, but Judge Levitz remained judge. The note in question concerned Maryland law requires a his primary target. Denicolis was a clarification ofsolicitation. The note criminal defendant to be present 34.1 U. Bait. L.F. 15 Recent Developments during communications between the insufficient, so, surely, is a silent named in an indictment for solicitation jury and judge. Id. The court referred record." Id. at 659,837 A.2d at 952. to commit murder. to Midgett v. State, 216 Md. 26, 36- Accordingly, the court reversed and 37, 139 A.2d 209, 214 (1958), remanded. Id. where it held a defendant has the Denicolis raised a second issue right to be present "when there shall on appeal. Id. at 649,837 A.2d at be any communication whatsoever 947. The court concluded the issue between the court and the jury[,] was not properly preserved, but did unless the record affinnatively shows address the issue of whether the trial that such communications were not court erred when the criminal prejudicial or had no tendency to information failed to meet the influence the verdict ofthe jury." Id. constitutional requirement ofinform­ Appellants have a responsibility ing the defendant ofcharges against to provide a sufficient factual record him as guidance to the trial court on for the appellate court to determine remand. Id. at 655,837 A.2d at 950. whether clear error occurred. Id. at The complaint did not specify by 657, 837 A.2d at 951. However, name the targets of the solicited Denicolis was incapable ofproducing murders. Id. at 659, 837 A.2d at such a record because the record was 952. Appellant argued there was silent as to the jury note. Id. confusion since the two intended Appellant and his counsel were not victims were not specifically named informed about the jury note until after in the indictment, and Maryland Rule the verdict was rendered and sentence 4-202(a) requires the complaint imposed. Id. at 657-58, 837 A.2dat specifically and concisely name 951. Even though the record was potential solicitation victims. Id. The silent on whether the trial judge court stated the rule does not require responded to the jury note without a victim to be specifically named and consultation, the court determined the discussed the rule's legislative intent. record was sufficient enough to Id. at 662, 837 A.2d at 953-54. determine an error had occurred. Id. The holding in DenicoliS v, State at 658,837 A.2d at 951. makes it clear that a failure to notify a The court further reasoned once defendant and counsel of ajury note error is established, it becomes the is a violation ofthe Maryland Rules. State's burden to show, beyond a Furthermore, the court emphasized reasonable doubt, that it was a Maryland Rule 4-326(c) requires any harmless error. Id. at 658-59, 837 communication between ajury and a A.2d at 952. Here, the State failed judge shall be communicated to to meet its burden. Id. The court defendant, his or her counsel, and the referred to its holding in Taylor v. State's Attorney prior to responding State, 352 Md. 338, 351, 722 A.2d to a jury's question. The court of 65, 71 (1998), in which it stated appeals also provided guidance to "even an ambiguous record cannot criminal law practitioners that support a harmless error argument, Maryland Rule 4-202(a) does not and if an ambiguous record is require a victim to be specifically 34.2 U. BaIt L.F. 16 .