Canale’s New Trial Bid Denied

BERLIN – An Ocean City
man, serving a 10-year sentence for manslaughter in the baseball bat beating
death of another local man in May 2008, will not get a shot at a new trial or a
reconsideration of his sentence after the state’s Court of Special Appeals last
week issued an opinion upholding the judgment of the Worcester County Circuit

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 sentence at the Circuit Court level, citing a variety of
perceived reversible errors during his trial.

When the motion for
reconsideration 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. The Court of
Special Appeals heard the appeal in April, and last week handed down an opinion
upholding the lower court’s judgment in the case, citing most of the pillars of
the appeal were not reversible.

Canale’s appeal was
based on a variety of issues considered ripe for reversal during the trial at
the Circuit Court level. For example, the appeal asserted 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 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 a potentially violent
person. However, the state argued Musiani’s testimony about Canale’s comment
about the bat was relevant during the Circuit Court trial.

In its opinion handed
down last week, the Court of Special Appeals ruled allowing Musiani’s testimony
about the bat was not a reversible error because Canale and his counsel did not
object to the testimony during the trial.

“The appellant was
required to object when Musiani testified to his statement on order to preserve
his claim for appellant review,” the opinion reads. “Appellant fails to even
acknowledge his failure to object during Musiani’s testimony, or to offer
alternative basis to permit our review of this claim. Accordingly, we decline
to reach the merits of the appellant’s claim as it is plainly not preserved.”

In another pillar of
Canale’s appeal, the defendant argued Judge Theodore Eschenberg was unduly
influenced by perceived erroneous information in the pre-sentence investigation
(PSI) report reviewed prior to sentencing. Again, the high court ruled in its
opinion Canale and his counsel did not object to the PSI at the time of
sentencing, which did not preserve it for review by the appeals court.

The opinion went on to
say even if Canale and his attorney had objected to the PSI, they likely would
not have reversed the Circuit Court’s judgment based solely on that issue.

“Even if appellant had
properly preserved this claim for our review, we would have found appellant’s
contention to be without merit,” the opinion reads. “The trial judge explicitly
recalled that is was undisputed that the appellant was not the original
aggressor and went into significant detail about his recollection of the trial
testimony, far beyond the cursory summary of facts contained in the PSI

Another issue raised in
the appeal called into question the judge handing down the maximum 10-year
sentence when state sentencing guidelines suggested a sentence in the range of
one to six years. The appeal suggested the trial court disregarded the
manslaughter convicted meted out by the jury and handed down a sentence more in
keeping with a second-degree murder conviction. However, the high court upheld
the judge’s decision on the 10-year sentence.

“The trial judge did not
disregard the jury’s finding, but instead attempted to explain to the appellant
that, no matter whether he subjectively believed that is was necessary to
defend himself, the jury had determined that he used more force than was
reasonable and that Mitchell ‘did not have to die’,” the opinion reads. “The
trial judge did not disagree with the jury’s finding and certainly did not
penalize the appellant because the jury declined to find him guilty of
second-degree depraved heart murder.”

Finally, Canale’s appeal
asserted the trial court erred by denying his motion to strike two potential
jurors because of their prior knowledge of 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, which was reason enough to reverse the outcome.
However, the Court of Appeals opinion denied that assertion pointing out the
defense counsel did not formally object to the make-up of the jury at the time
of the trial.