SNOW HILL – The defense attorney for one of two men indicted on first-degree murder charges for the beating death of a Berlin teen in May last week filed a motion to dismiss the indictment against his client citing shaky if not criminally false witness statements to authorities and a not so veiled hint of “an elaborate cover-up.”
Fernando Angelo Musiani, 19, of Berlin is one of two remaining suspects charged with first-degree murder in the beating death of Michael Harry Mitchell in the Decatur Farm community in Berlin in May. The fatal beating occurred on May 29 when a group of individuals including Mitchell and another victim in the case, Daniel Edward Riley, were confronted by another group of individuals in a vehicle including Musiani and co-defendant Dominic Richard Canale, 22, of Ocean City.
According to police reports, what started as a verbal altercation turned deadly when Musiani, who was driving the vehicle, allegedly popped the trunk to allow Canale to get out a baseball bat. Canale allegedly began swinging the bat wildly at the group, first striking Riley and later Mitchell, who reportedly came to the defense of his injured friend.
Mitchell was allegedly struck in the right temple area, which knocked him to the ground unconscious and bleeding profusely from the head, according to police reports. He was later pronounced dead from his injuries at AGH. Musiani, Canale and a third suspect, who was later cleared in the case, fled the scene but were taken into custody a short time later.
In June, a Worcester County grand jury indicted Canale and Musiani on first-degree murder and other serious charges related to the incident, but Musiani’s attorney, Paul Abu-Zaid, attempting to dismiss the grand jury’s indictment against his client, filed several motions last week.
The motion to dismiss the indictment states the charging documents against his client, or any defendant for that matter, shall contain a concise and definite statement of the essential facts of the offense with which the defendant has been charged and, with reasonable particularity, the time and place the offense occurred. According to Abu-Zaid’s motion, the state has failed to do so in Musiani’s case and further suggests the prosecution is relying on flimsy witness statements in the case.
“Discovery provided does not identify the facts upon which the state intends to rely in support of the indicted charges,” the motion reads. “This dilemma is compounded by discovery revealing that several witnesses were instructed to give false statements to the police.”
The motion to dismiss the indictment against Musiani goes on to assert one or more of the state’s witnesses in the case have since been charged with giving false statements to investigators and suggests a more sinister effort by other witnesses to prevent the truth from coming out.
“Moreover, only through his own investigation has the defendant discovered exculpatory evidence that at least one of the state’s witnesses is charged criminally in connection with his false statements to investigators,” the motion reads. “The defendant further maintains that the grand jury was presented with evidence now known by prosecutors and investigators to be false and part of an elaborate cover-up among several of the witnesses.”
Another procedural irregularity cited in the motion to dismiss the grand jury indictment against Musiani filed last Thursday is a problem with how the defendant was identified in the initial charging documents. The original indictment called the defendant Angelo Fernando Musiani, but has since been changed to the correct Fernando Angelo Musiani.
The motion states the misnomer is compounded by the fact the indictment contained no identifying factors such date of birth, a physical description of the suspect etc. Adding to the alleged confusion is the fact the vehicle allegedly used in the commission of the crime is registered to Angelo Fernando Musiani, who is the defendant’s father.
In a separate motion filed by the defense last week, Abu-Zaid is attempting to have several of the counts against Musiani dismissed including second-degree murder, first-degree assault, accessory before the fact and accessory after the fact because of disjunctive language in the indictment. According to the motion, the state chose to use the short form in the indictment.
For example, in the second-degree murder count, the indictment states Musiani “did with the intent to kill or the intent to inflict such serious bodily harm that death would be the result, did kill Michael Harry Mitchell.” That “or” between the two variations provides two alternatives for the prosecution within the same count, which is problematic for the defense, according to motion. Similar wording exists in each of the counts for which the defense seeks a dismissal.
“If more than one of the prohibited acts is charged in a single count of an indictment, the word ‘and’ must be substituted for the word ‘or’,” the motion reads. “The disjunctive nature of counts II, III, V and VI, each of which alleges more than one act that could form the basis of a conviction, is defective as indefinite and uncertain.”