Burrell v. State

KARWACKI, Judge. In this case we return to an issue familiar to this Court: under what circumstances the entering of a nolle prosequi by prosecutors to a charge of a lesser included crime deprives the defendant of the right to a fair trial. We addressed this question in Hook v. State, 315 Md. 25 , 553 A.2d 233 (1989), where we first clearly enunciated the fairness considerations which create certain limitations on the generally broad discretion of the State to “nolle pros” charges. The case before us does not raise such considerations.

We shall hold that the ⁴²⁸ defendant’s right to a fair trial was not denied by the nolle prossing of lesser included charges against him and affirm the ruling of the court below. I Mack Tyrone Burrell, the petitioner, was charged with a number of crimes arising out of a single incident, a holdup of a gas station in Baltimore County. It is instructive to examine in some detail the specific circumstances of Burrell’s involvement in the holdup. Burrell was convicted in large part on the testimony of a single eyewitness to Burrell’s involvement, Christopher Affoon, who happened to be at the gas station at the time of the holdup.

Affoon testified that he noticed a young man, whom he later identified as Burrell, standing at the pay phone and “[w]atching in all direction[s].” Affoon also testified that he saw a gray station wagon parked near the phone booth, with a woman in front and two men crouched low in the back seat. After making his purchases and chatting with the attendant, who was a friend of his, Affoon left the attendant’s booth and passed the two men he had seen in the back of the gray station wagon, now entering the station. Affoon got back into his vehicle, but realized the station attendant was being robbed by the two men he had just seen enter the station. At this point Affoon drove his vehicle over to the pay phone where Burrell was still standing with the phone at his ear.

Affoon asked Burrell to call the police because “they were robbing the gas station.” Burrell then left the pay phone, got into the driver’s seat of the station wagon, and drove away from the gas station. Affoon followed in his truck, taking down the license plate number of the automobile Burrell was driving, and saw one of the two men he had seen rob the station climb into the back seat of Burrell’s car. Police traced the license plate and tracked down Burrell, who was arrested for participation in the armed robbery at the gas station and charged in six counts with robbery with a deadly weapon, robbery, theft of $300 or over, theft under $300, use of a ⁴²⁹ handgun in the commission of a felony and use of a handgun in the commission of a crime of violence. Burrell’s defense at trial was that he did not participate in the crime.

His evidence consisted of one witness, Jacqueline Anderson, who testified that she and Burrell were alone in the automobile and had stopped at the gas station to make a phone call, and that neither was involved in any way with the crime which occurred at the gas station that day. Burrell did not testify in his own defense. At the conclusion of the presentation of evidence at Burrell's jury trial in the Circuit Court for Baltimore County (Howe, J., presiding), but before the jury was charged, the State entered a nolle prosequi to the robbery and theft under $300 charges; Burrell was subsequently convicted by the jury of robbery with a deadly weapon, theft of $300 or over, and the two handgun charges. The court sentenced Burrell to ten years (with five suspended) for the robbery with a deadly weapon and to a concurrent five year sentence without parole for the use of a handgun in the commission of a felony.

The remaining theft and handgun counts were merged. Burrell turned to the Court of Special Appeals, challenging among other things the State’s right to enter a nolle pros of the simple robbery offense over his objection. He argued that the nolle pros infringed on the jury’s discretion to evaluate the evidence and convict him of the less serious offense. The Court of Special Appeals, applying Hook and its most important variation, Jackson v. State, 322 Md. 117 , 586 A.2d 6 (1991), held in an unreported opinion that the nolle pros of the less serious offense did not affect the fairness of Burrell’s trial and affirmed his convictions.

We issued our writ of certiorari to determine whether the State’s decision to nolle pros the lesser included charge of robbery, which left the jury with the “all-or-nothing” choice of complete acquittal of the robbery charge or conviction on the more serious charge of armed robbery, violated Burrell’s common law right to a fair trial. II Maryland Rule 4-247 provides: ⁴³⁰ “(a) Disposition by Nolle Prosequi.—The State’s Attorney may terminate a prosecution on a charge and dismiss the charge by entering a nolle prosequi on the record in open court.” The State’s power to enter a nolle prosequi to any charge in a criminal case was thoroughly examined by this Court in Hook v. State, 315 Md. 25 , 553 A.2d 233 (1989). We recognized our past decisions that “ ‘[t]he entry of a nolle prosequi is generally within the sole discretion of the prosecuting attorney, free from judicial control and not dependent upon the defendant’s consent.’ ” Id. at 35 , 553 A.2d at 238 (quoting Ward v. State, 290 Md. 76, 83 , 427 A.2d 1008, 1012 (1981)). Nevertheless, we noted that “[t]he prosecutor’s power is not absolute.” Hook, 315 Md. at 36 , 553 A.2d at 238 (citing U.S. v. Batchelder, 442 U.S. 114 , 124, 99 S.Ct. 2198, 2204 , 60 L.Ed.2d 755 (1979)).

A paramount consideration is the right of an accused to a fair trial. Id. (citing Crawford v. State, 285 Md. 431, 451 , 404 A.2d 244, 254 (1979)). Therefore, we held that if the right to a fair trial is clearly offended by the State’s Attorney’s decision to nolle pros a charge, the court may intervene: “We believe that under the concept of fundamental fairness with respect to a trial in a criminal cause, the broad authority vested in a prosecutor to enter a nolle prosequi may be fettered in the proper circumstances.

A case-by-case evaluation is necessary.” Hook, 315 Md. at 37 , 553 A.2d at 239 . In Hook , the defendant Hook was charged with and had confessed to the robbery and murder of two individuals. Evidence tended to show that he was intoxicated at the time of these crimes. Hook, 315 Md. at 34 , 553 A.2d at 238 .

At the close of the prosecution’s case-in-chief, the State’s Attorney nolle prossed the charge of second-degree murder, over the objections of the defense attorney, and the jury members were given instructions and a verdict sheet which gave them four options: convict or acquit the defendant of first degree murder based on felony murder, or convict or acquit the defendant of first degree murder based on premeditated murder. Id. at ⁴³¹ 36-37 , 553 A.2d at 240 . Despite the evidence of intoxication, the court refused to instruct the jury that voluntary intoxication could preclude felony murder and mitigate premeditated murder to second-degree murder, 1 because the charge of second-degree murder was withdrawn by the nolle prosequi entry and was thus not before the jury. Id. at 37, 239-240 .

Hook was convicted of first degree murder based on both theories. On appeal, we granted Hook a new trial. After finding sufficient evidence of intoxication to support a second degree murder verdict, we held that the nolle prossing of the lesser included second degree murder charge and the trial court’s resulting refusal to instruct the jury on second degree murder unfairly prejudiced the defendant and tainted the guilty verdicts. Our holding that the convictions were unfair rested in large part on a fundamental premise about the workings of a jury, described succinctly by the United States Supreme Court: “Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.” Keeble v. United States, 412 U.S. 205, 213 , 93 S.Ct. 1993, 1998 , 36 L.Ed.2d 844 (1973), quoted in Hook, 315 Md. at 38 , 553 A.2d at 240 .

In other words, when faced with an “all-or-nothing” choice, a jury would likely convict a clearly culpable defendant of a more serious crime than the evidence truly supports rather than acquit the defendant and allow him to go unpunished for the crimes he did commit. Therefore, we ruled that if upon retrial the evidence of Hook’s intoxication was again found sufficient to support a charge of second degree murder, the State would be precluded from nolle prossing the lesser included charge. The jury would then ⁴³² have another verdict option besides the “all-or-nothing” of complete acquittal or conviction of first degree murder. We then generalized our holding to craft a test for other situations in which the court will preclude the entry of a nolle prosequi to a lesser included offense because a nolle pros would deny the defendant a fair trial: ‘When the defendant is plainly guilty of some offense, and the evidence is legally sufficient for the trier of fact to convict him of either the greater offense or a lesser included offense, it is fundamentally unfair under Maryland common law for the State, over the defendant’s objection, to nol pros the lesser included offense____ In short, it is simply offensive to fundamental fairness, in such circumstances, to deprive the trier of fact, over the defendant’s objection, of the third option of convicting the defendant of a lesser included offense.” Hook, 315 Md. at 43-44 , 553 A.2d at 243 .

See also Fairbanks v. State, 318 Md. 22 , 566 A.2d 764 (1989) (fairness considerations enunciated in Hook applied in a non-murder context). The purpose of the Hook test for nolle prossing a lesser included offense is to attempt to prevent jurors from convicting a defendant of the greater offense when they want to convict the defendant of some crime and they have no lesser option. The Hook test balances the broad discretion of the State to nolle pros charges with the danger of an unfair jury verdict. By allowing the lesser included charge to go to the jury in some circumstances, the Hook rule actually operates to provide a measure of jury control even as