Fairbanks v. State

MURPHY, Chief Judge. John Franklin Fairbanks, Jr. was charged in the Circuit Court for Baltimore County with burglary in violation of the common law and Maryland Code (1982 Repl.Vol.), Article 27, § 30(a) (Count 1); misdemeanor breaking and entering in violation of § 31A (Count 2); felony daytime housebreaking in violation of § 30(b) (Count 3); and theft in violation of § 342 (Count 4). On the evening of February 7, 1987, a dwelling house owned by Ralph Ray and his wife was forcibly entered and property belonging to the owners was stolen. At the trial, a taxi driver testified that on February 8, at approximately 3:30 or 4:00 a.m., he picked up a man and drove him to an apartment complex.

The man thereafter requested that the driver take him to his disabled car, which was stuck in the mud near the crime scene. The driver stood by while his passenger unsuccessfully attempted to free the vehicle. The taxi driver then called for a tow truck. A tow truck operator testified that he picked up a man whom he later identified as Fairbanks, at a taxi stand around 5:00 a.m.

He said he drove Fairbanks to his disabled car and pulled it out of the mud. The witness said that the disabled car was full of “things.” He testified that once the vehicle was free, it was discovered that a tire was flat. Fairbanks decided not to have the tire changed at that time, and the tow truck operator left Fairbanks with his disabled vehicle. Another witness testified that Fairbanks arrived at an inn a short distance from the scene of the crime around 7:30 a.m. on February 8.

The witness, after agreeing to change Fairbanks’s flat tire, left him at the inn and went to Fairbanks’s disabled car. He testified that in and around the car he saw jewelry and a jewelry box. ²⁴ A police officer testified that at approximately 8:00 a.m., he observed a man changing a tire on a disabled, car near the crime scene. In and around the vehicle, he observed a television set, jewelry, a pillow case spilling over with various items and other pieces of property. Later on the morning of February 8, 1987, the officer located Fairbanks at the inn.

He said that Fairbanks admitted having thrown a brick through á window of the house but denied any knowledge of the property that had been found in and near his car. There was evidence showing that a number of the items in Fairbanks’s car were stolen from the Ray dwelling house. Fairbanks presented no evidence in his own behalf. Before the case was submitted to the jury, the prosecutor entered a nolle prosequi to Counts 2 and 4.

Fairbanks objected to the nolle prosequi of the misdemeanor breaking and entering charge (Count 2). He argued that he had a right to have that lesser included offense submitted to the jury. The trial judge overruled the objection, stating that the prosecutor had an absolute right to enter the nol-pros. He said that he would permit Fairbanks to argue to the jury that Count 2 was a lesser included offense of burglary, even though the jury would not be permitted to convict on this count because it had been nol-prossed.

Fairbanks made no argument to the jury that it could find him guilty of Count 2. Nor did he request a jury instruction with respect to the lesser included nol-prossed count. The jury convicted Fairbanks of burglary and, as a subsequent offender, he was sentenced to twenty-five years’ imprisonment. The Court of Special Appeals affirmed the conviction by an unreported opinion dated March 15, 1989.

It held, inter alia, that the entry of the nolle prosequi was generally within the sole discretion of the prosecutor. We granted certiorari to consider whether, in light of Hook v. State, 315 Md. 25 , 553 A.2d 233 , decided on February 13, 1989 (after the trial in this case), it was error for the trial judge to have ²⁵ overruled Fairbanks’s objection to the entry of the nolle prosequi to Count 2. I. In Hook , we held that while entry of a nolle prosequi is generally within the prosecutor’s sole discretion, that power is not absolute. We explained, 315 Md. at 43-44 , 553 A.2d 233 : “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.” The defendant in Hook was charged with the murder of two persons and related offenses. At the close of the evidence, the State entered a nolle