Tracy v. State

573 A.2d 38, 319 Md. 452, 1990 Md. LEXIS 77
CourtCourt of Appeals of Maryland
DecidedMay 8, 1990
Docket108, September Term, 1989
StatusPublished
Cited by34 cases

This text of 573 A.2d 38 (Tracy v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tracy v. State, 573 A.2d 38, 319 Md. 452, 1990 Md. LEXIS 77 (Md. 1990).

Opinion

CHASANOW, Judge.

On November 22, 1987, Richard Purman was shot to death. The next day Petitioner Brian Matthew Tracy, 16, was arrested, and confessed to having shot and killed Purman. Tracy told police that he and two friends planned to run away to California, and in furtherance of their plot, they decided to steal Purman’s automobile for their trip and to kill Purman.

On January 14, 1988, a four count criminal information was filed in the Circuit Court for Carroll County charging that on November 22, 1987, Tracy did commit premeditated murder, conspiracy to commit first degree murder, use of a handgun in the commission of a felony, and assault and battery. Trial was set for June 6, 1988.

Less than one month before trial, the State filed a second criminal information charging Tracy with six additional offenses all related to the killing of Purman. The six additional offenses were felony murder, robbery with a deadly weapon, conspiracy to commit robbery with a deadly weapon, conspiracy to use a handgun in the commission of a crime of violence, robbery, and conspiracy to commit robbery. Upon discovering that a preliminary hearing on the new information could not be scheduled until June 9th, three days after the scheduled June 6th trial date, the State elected to proceed by way of grand jury indictment.

On May 26, 1988, the grand jury convened and returned an indictment charging Tracy with the same six additional *455 offenses that had been included in the second criminal information. The indictment labeled these six charges as “additional counts” counts 5 through 10. The “additional counts” were filed in the same criminal jacket as the original four count criminal information.

On June 3rd, Tracy filed a “Motion to Dismiss” the six new counts contained in the indictment. The motion alleged that the six additional counts were “added to this case without the consent of the Defendant,” and that the indictment “has been joined with the information previously filed in this case” in violation of the Maryland Rules, and in violation of Tracy's constitutional right to due process.

A hearing on Tracy’s motion to dismiss took place on June 6th, the scheduled trial date. At that hearing the trial judge noted that he took a “dim view” of the way the State had proceeded with the additional counts, but when the judge suggested that the trial as to all 10 counts be continued at least until June 10th to afford Tracy a preliminary hearing on counts 5 through 10, both sides advised the court that they were not moving for a continuance. Defense counsel also stated “Your Honor, I want it abundantly clear, for the record that we are, in fact, ready to proceed on the case that was scheduled for trial today, and to do so today.” Defense counsel, however, continued to argue that the six additional charges were not properly before the court, and should be dismissed. When the judge, referring to the six new charges again inquired “but you’re not moving for a continuance you’re moving for a dismissal?” Defense counsel responded, “I’m moving for a dismissal with respect to these charges.” The trial judge then, after reciting the procedural history, reiterating the offer that “the court would grant a continuance upon application,” and noting that the defense counsel’s request for a dismissal rather than a continuance appeared to be “maneuvering,” denied the motion to dismiss counts 5 through 10.

A jury trial was held and Tracy was convicted of all counts except conspiracy to use a handgun in the commission of a crime of violence. The trial judge merged some of *456 the convictions, and then sentenced Tracy to the following consecutive terms of imprisonment: Life for premeditated and deliberate first degree murder, life for conspiracy to commit murder, 20 years for robbery with a deadly weapon, 20 years for conspiracy to commit robbery with a deadly weapon, and 20 years for use of a handgun in the commission of a crime of violence. The Court of Special Appeals, in an unreported per curiam opinion, affirmed the convictions and sentences. This Court granted certiorari to consider the issues presented by Tracy’s motion to dismiss counts 5 through 10, as well as his consecutive sentences for conspiracy to commit murder and conspiracy to commit robbery with a deadly weapon.

I. MOTION TO DISMISS COUNTS 5 THROUGH 10

Preliminarily, we should note that the issue before us is not whether Tracy would have been entitled to a continuance. The State does not suggest that Tracy could be compelled to stand trial eleven days after being indicted for counts 5 through 10. The trial judge offered and reoffered to continue the trial, but Tracy steadfastly refused a continuance and insisted on a dismissal of the new counts. Tracy’s first contention is that dismissal is mandatory because the addition of six new counts constituted an amendment of the charging document which changed the character of the offense charged, and since it was not consented to, the amendment was improper under Md. Rule 4-204.

That rule provides:

On motion of a party or on its own initiative, the court at any time before verdict may permit a charging document to be amended except that if the amendment changes the character of the offense charged, the consent of the parties is required. If amendment of a charging document reasonably so requires, the court shall grant the defendant an extension of time or continuance.

“Amendments” contemplated by Rule 4-204 are changes, alterations, or modifications to an existing charge *457 in an existing charging document. Bringing new charges by new charging documents are not amendments. It is generally recognized that the word amendment implies something upon which the change, correction, alteration, or reformation can operate, something to be reformed, corrected, rectified, or altered. Logic and reason would dictate that a criminal defendant should have the right to preclude the State from making material changes to an existing charge. However, the rule was not meant to require, and should not require, consent of a defendant before the State can file additional charging documents charging new offenses. In the instant case, the additional six counts charged in the indictment were not “amendments” to the four counts in the criminal information, and did not require Tracy’s consent before they could be filed.

Tracy next maintains that counts 5 through 10 should have been dismissed because if these counts are not amendments, then they were improperly joined with counts 1 through 4. He does not contend that the charges involve separate criminal events and should not be joined; instead he argues that “absent a motion for joint trial by either party, the trial court lacked authority to order a joint trial.” Even if Tracy is correct, the proper remedy for an improper joinder is a severance, not a dismissal. Tracy knew that the additional charges were “joined” for trial with the prior charges, but he never asked for a severance. The only relief he requested was dismissal of the indictment charging counts 5 through 10. He was not entitled to have the indictment dismissed even if we assume it was improperly joined for trial with another charging document.

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Cite This Page — Counsel Stack

Bluebook (online)
573 A.2d 38, 319 Md. 452, 1990 Md. LEXIS 77, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tracy-v-state-md-1990.