Judge grants new trial for W.Va. man in Garrett deputy's 1979 slaying

November 23, 2011|By DON AINES |

HAGERSTOWN — More than three decades after he was convicted of killing a Garrett County Sheriff’s deputy, Roberto Oskar Rezek was granted a new trial this week in Washington County Circuit Court.

Judge Daniel W. Moylan on Monday reversed Rezek’s 1980 convictions for first-degree murder, robbery and other offenses in the 1979 shooting of Deputy David Livengood during a burglary at an Army-Navy surplus store in Oakland, Md., court records said.

Moylan ruled that the instructions on the law given the jury by Judge Frederick C. Wright III should have been binding and not advisory. In his opinion Moylan cited two Maryland Court of Appeals decisions in 1980 and 1981 which the state’s highest court ruled “the court’s instructions are binding on the jury.”

“Anything I say to you about the law ... is merely advisory and you are in now way bound by them. You may feel free to reject my advice on the law and arrive at your own independent conclusion as to what the law is,” Wright said in his instructions to the jury, according to Moylan’s ruling.

Rezek, formerly of Fairmont, W.Va., filed numerous appeals, including a petition for post conviction relief in Washington County Circuit Court in 1982, which he later withdrew, court records said.

A second post conviction relief petition was filed in 1987, alleging the state presented perjured testimony, court records said. Moylan denied post conviction relief, court records said. In March 2010, Rezek’s circuit court motion to reopen his post conviction relief petition, based on ineffective assistance of counsel in 1980 and 1987, was granted by Moylan, court records said.

The state filed an application with the Court of Special Appeals for permission to appeal Moylan’s decision, but it was denied and Rezek’s case was sent back to circuit court, court records said.

A post conviction relief hearing was held in September 2010, in which testimony and arguments were heard on the issues raised in his appeal. The parties were back in court Monday at which time Moylan announced his ruling.

Rezek, now 63, was granted a change of venue from Garrett to Washington County for his 1980 trial. He was convicted and sentenced to life in prison.

A co-defendant, Richard D. Tichnell was tried in Wicomico County and received the death penalty, a sentence later commuted to life in prison.

Tichnell died in prison in 2006.

Livengood and his K-9 partner, Sarge, were killed on the night of Jan. 18, 1979, when they responded to the burglar alarm.

During Rezek’s 1980 trial, his attorney Stanley H. Needleman maintained that Rezek had surrendered to Livengood and was lying on the ground when Tichnell shot and killed the deputy, according to a published account in The Morning Herald. The dog, Sarge, was killed with a samurai sword, trial accounts said.

Needleman reiterated that when he testified at the 2010 hearing, also testifying that Tichnell initially fled the scene, but returned and was ordered to the ground by Livengood.

Sarge attacked Tichnell as he lay on the ground, who then ran to his car and retrieved a medical bag with a handgun inside, Needleman testified last year. Tichnell then shot Livengood, he testified.
Rezek also testified at last year’s hearing.

“I always believed in my heart he died a hero,” Rezek testified of Livengood. “I was a factor in the death of Officer Livengood,” he testified.

No date has been set for a new trial for Rezek, according to court records.

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