Man charged in shooting goes free on technicality Deadline lapses in prosecutor error

September 29, 1993|By Dennis O'Brien | Dennis O'Brien,Staff Writer

A man charged with attempted murder for shooting two Annapolis youths went free yesterday after a prosecutor acknowledged that he took too long to bring the case to trial.

Damien A. Day, 18, of the 800 block of Brooke Court, Annapolis, was released yesterday after pleading guilty to assault as part of a plea agreement negotiated between his attorney and Assistant State's Attorney Fred Paone.

The binding agreement was reached after Day's attorney, Deputy Public Defender James McCarthy, notified Mr. Paone just before trial that he had been awaiting trial more than 180 days, the maximum under Maryland law.

Circuit Judge Eugene M. Lerner, who was required to order Day's release as part of the attorney's binding agreement, said he was accepting it "very, very reluctantly."

"You got away with attempted murder, that's what you got away with, and you got away with it because of a technicality," Judge Lerner told Day. "What I'm saying is, it's awful under these circumstances."

Under Maryland law, prosecutors are required to try criminal defendants within 180 days of when the accused makes an initial appearance in court.

The 180-day requirement may be waived by the defense, or by a judge if a prosecutor can demonstrate "good cause" for an extension of the trial date.

Mr. Paone said yesterday that Day's initial appearance was March 29, which meant the 180-day deadline for trial expired Saturday.

He said that the original Aug. 31 trial date was postponed because on that day, he was in a three-day jury trial prosecuting an Annapolis man for shooting at three Annapolis police officers during a drug raid.

All trial dates in Anne Arundel Circuit Court are set by the state's attorney's office.

State's attorney Frank R. Weathersbee said that his 30 attorneys are responsible for scheduling the cases assigned to them to ensure they meet the 180-day rule, and that he will discuss ways to avoid such problems at a staff meeting today.

"Fred made a mistake, and I'm not going to shoot him because he made a mistake. Nobody feels worse about it than he does," Mr. Weathersbee said.

In court yesterday, Mr. Paone assumed full responsibility for the mistake and said he was sorry it happened.

"Trust me judge, this one hurts me more than it does you," he told Judge Lerner.

Mr. McCarthy said that his client agreed to plead guilty to assault because otherwise he would have been forced to file a motion to dismiss the charges, and Judge Lerner could have denied that motion and kept him in jail.

Day was credited with the seven months and 28 days he served in county jail while awaiting trial.

Day was charged with attempted murder, assault charges and handgun violations Jan. 30 after an early morning shooting during a fight between rival Annapolis street gangs, Mr. Paone said.

As the groups were dispersing, Day pulled out a sawed off-shotgun and fired into a crowd of about 20 people, hitting two victims standing about 10 feet away, according to a statement of charges filed by police.

Curtis Smith and Donwand Harman, both of the 1100 block of Eastport Terrace, Annapolis, were hit with several shotgun pellets. They were treated at Anne Arundel Medical Center and released.

Frances Wallace, the mother of 17-year-old Curtis Smith, said yesterday that she was enraged.

"Now this kid is going to think that he can shoot someone and get away with it," she said. "It's not right, and if the court system lets it happen, then the court system isn't right."

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