Man’s Plea Violations Could Lead To New Trial

allegedly failing to satisfy certain terms of his plea agreement, an Ocean City
man who pleaded guilty to reckless endangerment for his role in the beating
death of a Berlin man in 2008 had the case against him reactivated earlier this

In May 2008, a Worcester
County grand jury indicted Fernando Musiani, then 19, of Ocean City, on
first-degree murder and other charges for his alleged role in the beating death
of Michael Mitchell during a fight at late night party in Berlin that went
terribly wrong. Dominic Canale, now 23, of Ocean City, produced a baseball bat
from Musiani’s trunk and swung it wildly at a crowd closing in on him, hitting
Mitchell in the head and causing injuries that caused his death.

Canale was later found
guilty of manslaughter by a Worcester County jury in November of 2008 and was
sentenced to 10 years in jail the following January. In October 2008, after a
grand jury indicted Canale and Musiani on first-degree murder charges, Musiani
reached a plea agreement with prosecutors in which he pleaded guilty to
reckless endangerment for his role in the incident.

Musiani was sentenced to
five years in jail, all of which was suspended but the roughly three months he
spent in custody while awaiting trial and Musiani was placed on supervised
probation for three years. The plea agreement included numerous special
conditions on his probation including substance abuse counseling, a
psychological evaluation, anger management and 100 hours of community service
among others.

However, nearly two
years after the plea arrangement, Musiani has allegedly failed to meet certain
aspects of the plea agreement and the case against him has been formally
reopened. He is scheduled to appear for a violation of probation hearing next
month and if it is determined the allegations he has not held up his end of the
agreement are confirmed, he could face the original five-year sentence
suspended two years ago.

According to a report
submitted by the Department of Parole and Probation, Musiani was discharged
from his anger management program on three separate occasions and has failed to
complete even one hour of the 100 hours of community service required of him as
a condition of probation. Should a Worcester County Circuit Court judge rule
the infractions violated the terms of his probation, the plea arrangement could
be voided and Musiani could face a new sentencing hearing or a new trial

The fateful incident
began with a night of parties and heavy drinking by young people celebrating
Stephen Decatur High School’s graduation on May 29, 2008. When a party on
Libertytown Rd. in Berlin broke up early in the morning, Canale, Musiani and at
least one other individual moved on to the next party at a residence in Decatur

A short time later,
Canale got into a physical altercation with the owner of the residence during
which he was struck several times. A large crowd surrounded Canale, Musiani and
others as they backed across the property toward Musiani’s vehicle. When the
fight reached Musiani’s car, Canale was able to produce a baseball bat from the
trunk and swung at his attackers, striking and killing Mitchell, who was not
one of the main aggressors in the confrontation.

At first, police
believed Musiani opened the trunk and allowed Canale to pull out the baseball
bat, but it was later determined during Canale’s trial it was Canale who had
the keys to the vehicle. After Mitchell was struck with the bat, Canale,
Musiani and another man fled the scene and ultimately disposed of the bat. The
bat was later recovered in the shallow bays near Ocean City.

In June 2008, a
Worcester County grand jury indicted Canale and Musiani on charges of first-
and second-degree murder, first- and second-degree assault and reckless
endangerment. Musiani was also charged with accessory before and after the fact
for his role in the fatal attack.

Canale was ultimately
found guilty of manslaughter in a compromise verdict of sorts and was sentenced
to 10 years in jail. He appealed the Circuit Court verdict on several issues,
not the least of which was Musiani’s testimony allowed during Canale’s trial
about comments made about the fateful baseball bat much earlier in the evening.

Canale allegedly found
the bat in the trunk of Musiani’s car in the parking lot of an Ocean City
convenience store hours before the altercation, handled it and allegedly said,
“Man, this could really hurt someone.” In his appeal, Canale argued the Circuit
Court erred by allowing Musiani’s testimony on what he allegedly said about the
bat hours earlier because it prejudiced the jury by painting him as a
potentially violent person.

The state argued
Canale’s comments about the bat were relevant and Musiani was allowed to
testify at trial. In May, the state’s Court of Special Appeals ruled allowing
Musiani’s testimony was not a reversible error because Canale, or his counsel,
did not object to the testimony during trial.

Meanwhile, Musiani has
allegedly since violated the terms of his probation and is scheduled to appear
for a hearing in two weeks. Should it be determined his violated probation,
Musiani could face a new trial for his role in the incident.