High Court Reserves Opinion On Manslaughter Appel

BERLIN – An Ocean City man serving a 10-year sentence for a manslaughter conviction in the baseball-bat beating death of another local man in May 2008 had his appeal for a new trial, or at least a reconsideration of his sentence, heard last week by the state’s Court of Special Appeals, as a sort of test case or teaching tool for students and faculty at the University of Maryland’s School of Law.

In November 2008, a Worcester County jury found Dominic Canale, now 23, of Ocean City, guilty of manslaughter in the death of Michael Harry Mitchell at a post-graduation party on May 29, 2008 in Berlin that went terribly wrong. In January 2009, Canale was sentenced to 10 years for the manslaughter charge, but quickly filed for a reconsideration of the sentence at the Circuit Court level, citing a variety of perceived reversible errors during his trial.

When the motion for reconsideration of sentence was denied at the trial court level, Canale filed an appeal with the state’s Court of Special Appeals, seeking a new trial at the Circuit Court level, or in the alternative, a new sentencing hearing. Nearly a year later, Canale’s appeal was heard last Wednesday by the three-judge Court of Special Appeals panel in the University of Maryland School of Law Ceremonial Courtroom.

Canale’s appeal was one of five cases heard on Wednesday in the law school’s ceremonial courtroom, used from time to time by the Court of Special Appeals as a means to show students and faculty the appeal process first hand with actual cases. While Canale’s appeal was heard outside the confines of the Court of Special Appeals’ usual courtrooms, any pending decision by the high court on the case will be binding.

The three-judge panel reviewed briefs submitted by both sides and listened to oral arguments, but did not render an opinion on Canale’s appeal that day. Typically, there is a lag time of several weeks between oral arguments and a formal opinion. Ironically, one of the other cases heard at the law school last Wednesday was also a Worcester County case. Kendall Northam, convicted of second-degree murder in the beating death of a Pocomoke woman, also had his appeal heard last Wednesday.

Canale’s appeal is based on a variety of issues considered ripe for reversal during the trial at the Circuit Court level. For example, Canale’s appeal, prepared by state public defender Geraldine Sweeney, asserts the trial court erred by allowing testimony about Canale’s statements regarding the baseball bat in the trunk of his friend’s car hours before the fateful incident.

Canale’s allegedly found the bat in Fernando Musiani’s trunk in an Ocean City convenience store hours before the fatal altercation, handled it and allegedly said, “Man, this could really hurt someone.” Musiani was also charged in Mitchell’s death, but entered a plea bargain in exchange for agreeing to testify during Canale’s trial, during which he told the jury about the defendant’s statement about the bat.

In his appeal, Canale argued allowing Musiani’s testimony on what he said about the bat hours before the incident prejudiced the jury by painting him as potentially violent person.

“The introduction of Mr. Musiani’s testimony carried the very real risk that it would cause the jury to view Canale as being violent, or view him as a bad man,” the appeal reads. “The admission of this evidence could only serve to arouse the prejudice of the jury against Canale by allowing them to draw the improper inference that Canale is prone to and thinks about hurting others and that he, therefore, caused Mr. Mitchell’s death.”

However, the state argued in its formal answer to the appeal, which was prepared and argued by the state Attorney General’s office, Musiani’s testimony about Canale’s comments about the bat were relevant during the Circuit Court trial.

“The testimony was relevant to Canale’s state of mind at the time of the charged offenses, and made it more probable that Canale acted with intent to harm rather than solely in self defense,” the answer reads. “The testimony about the bat was relevant because it helped the jury evaluate the state’s theory of the case and the defense theory of the case and to decide which was more credible.”

When Canale was convicted of manslaughter in November 2008, a pre-sentence investigation (PSI) was ordered before Circuit Court Judge Theodore Eschenberg sentenced him to 10 years. However, Canale’s appeal to the Court of Special Appeals asserts the PSI contained inaccurate information from the original statement of charges that might have biased the judge and caused him to mete out the maximum sentence in the case.

From the beginning, there were veiled hints of a cover-up in the case and a handful of the witnesses were actually charged with obstruction of justice. Canale’s appeal asserts some of that inaccurate information was included in the erroneous PSI, which may have contributed to judge’s decision to sentence Canale to the maximum.

“Mr. Canale’s right to a fair and accurate pre-sentence investigation was violated, and the use of the erroneous PSI at sentencing constituted an impermissible consideration that requires vacating his sentence,” the appeal reads.

The appeal also asserts the Maryland Sentencing Guidelines suggested a sentence of one to six years in the case, or considerably lower than the maximum handed down by the judge. The appeal also asserts the PSI conducted by a special investigator swayed the judge to hand down the maximum sentence.

“The conclusion that Judge Eschenberg was influenced by the sentencing recommendation in the PSI is inescapable,” the appeal reads. “Judge Eschenberg adopted the precise recommendation in the PSI and gave Mr. Canale the maximum sentence of 10 years, far above the range recommended by the guidelines. Such a harsh sentence is highly unusual.”

However, the state’s answer argues the prosecutors asked for the maximum 10 years, as did several friends and family members who testified at the sentencing hearing. In addition, Eschenberg presided over the trial and was obviously familiar with the facts of the case.

In short, the state argued the judge based his decision on a wide variety of factors and not solely on the findings of the PSI. In addition, the state argued Canale’s defense attorney had ample opportunity to object to the allegedly erroneous PSI before the sentence was handed down.

“Canale did not object at sentencing to the trial court’s consideration of the pre-sentencing investigation report,” the answer reads. “Defense counsel addressed the PSI at sentencing, but did not indicate that is was inaccurate. Thus, because he did not object at sentencing, he waived this claim.”

Finally, Canale’s appeal asserts the trial court erred by denying his motion to strike two potential jurors because of their prior knowledge of the case. One of the potential jurors said she first heard about the case at her car mechanic’s shop, that she had read about the case in the newspaper and that there had been some discussion about the case at her church.

When asked during jury selection if she could put aside what she knew about the case and decide impartially on the facts presented, she allegedly hesitated before saying, “okay, I’ll say yes.” Another potential juror said his wife worked as a nurse at the hospital where the victim was treated and that he had multiple connections through his family to people involved in the case.

The two jurors were not put on the jury, but Canale argued in his appeal he had to use two of his 20 peremptory strikes on the two, essentially limiting his number of automatic disqualifications to 18, which is reason enough to reverse the outcome and remand the case for a new trial. However, the state argued Canale and his attorney did not object to the final jury and had ample time before trial to change it.

“Canale argues that the trial court erred in denying his motions to strike two prospective jurors for cause,” the answer reads. “Canale failed to preserve this issue because he indicated satisfaction with the jury at the end of the jury selection process.”

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