A man serving a life sentence for the 1979 murder of a Garrett County Sheriff’s deputy was in Washington County Circuit Court on Monday, seeking a new trial based on a higher court decision in the case of a man convicted of murdering a Hagerstown police officer in 1975.
Roberto Oskar Rezek, formerly of Fairmont, W.Va., was convicted in 1980 in the shooting death of Deputy David Livengood during a burglary in Oakland, Md.
That court vacated Moylan’s ruling and sent the case back to him to reconsider in light of a Maryland Court of Appeals ruling affirming a circuit court ruling overturning the conviction of Merle Unger, court recortds said.
Unger was convicted of killing off-duty Police Officer Donald Kline, who happened upon a robbery on Dec. 13, 1975, and was shot in a gunfight with Unger.
Unger’s new new trial is set for June in Talbot County, where his 1976 trial took place.
Unger’s conviction was overturned on a post-conviction petition asserting the trial judge erred by telling jurors his instructions on the law were “advisory” and they were not bound by them, Rezek’s attorney Michael Patrick Lytle told Moylan.
In 2011, Moylan reversed Rezek’s conviction stating the judge in his trial also gave “advisory” instructions. However, the appeal was based on ineffective assistance of counsel, in that Rezek’s trial attorney failed to object when the instructions were given, Lytle said.
Lytle argued that, due to the Unger decision, Rezek does not have to prove ineffective assistance of counsel because the judge’s instruction was a “structural defect” that courts have ruled is grounds for a new trial.
Garrett County State’s Attorney Lisa Thayer Welch argued Rezek’s trial attorney failed to object to the jury instructions, thus waiving his right to raise that on appeal. She also said jury instructions had little effect on the trial.
“It is beyond any doubt that there was a felony. It is beyond any doubt that the defendant was involved, and it is beyond any doubt” that Livengood was killed, Welch told Moylan.
A new trial is not in the interest of justice, she said.
Moylan said he will issue a decision within 30 days.
Richard Tichnell was also convicted in Livengood’s murder. He died in prison in 2006.
At Rezek’s 1980 trial, his attorney maintained that Rezek had surrendered to Livengood when Tichnell shot the deputy.