Jackson v. State

¹¹⁹ CHARLES E. ORTH, Jr., Judge, Specially Assigned. I Justice is the objective of Maryland’s judicial process. The process reaches for this objective by seeking the truth. It seeks the truth by means of a fair trial.

In our administration of criminal justice, a fair trial is one which is in accord with the organic, statutory and common law to which an accused is subject, either by way of entitlement or obligation. 1 To assure that the laws are not offended, we have followed certain principles, which have become firmly established, and we have adopted, from time to time, appropriate rules. II Hook v. State, 315 Md. 25 , 553 A.2d 233 (1989), and Fairbanks v. State, 318 Md. 22 , 566 A.2d 764 (1989), are cases in which we recognized the need to temper the principles and rules to assure a fair trial. Both of them involved the right of a prosecutor to enter a nolle prosequi, over objection, to charged lesser offenses included in a greater offense charged. Maryland Rule 4-247(a) provides, in pertinent part: 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 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.” Ward v. State, 290 Md. 76, 83 , 427 A.2d 1008 (1981). 2 The ¹²⁰ foundation upon which the decisions in Hook and Fairbanks rested, however, was our conclusion that the rule allowing prosecutorial choice “is not completely without restraint.

The prosecutor’s power is not absolute.” Hook, 315 Md. at 36 , 553 A.2d 233 , citing United States v. Batchelder, 442 U.S. 114, 124 , 99 S.Ct. 2198, 2204 , 60 L.Ed.2d 755 (1979). We declared our belief 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. Id., 315 Md. at 37 , 553 A.2d 233 .

We built on that foundation by looking to the opinions of the Supreme Court of the United States in Keeble v. United States, 412 U.S. 205 , 93 S.Ct. 1993 , 36 L.Ed.2d 844 (1973); Beck v. Alabama, 447 U.S. 625 , 100 S.Ct. 2382 , 65 L.Ed.2d 392 (1980); Hopper v. Evans, 456 U.S. 605 , 102 S.Ct. 2049 , 72 L.Ed.2d 367 (1982); and Spaziano v. Florida, 468 U.S. 447 , 104 S.Ct. 3154 , 82 L.Ed.2d 340 (1984). Hook, 315 Md. at 38-41 , 553 A.2d 233 . We concluded that the federal lesser offense rule was that in a capital case, at the request of the defendant, the court shall instruct the jury regarding a lesser included offense when the evidence warrants such an instruction, that is, when the offense is fairly supported by the evidence. Id. at 41 , 553 A.2d 233 (emphasis added).

We pointed out that “[t]he seed of the lesser offense rule was planted in Keeble , enunciated in Beck , explicated in Evans , and applied in Spaziano.” Hook at 41, 553 A.2d 233. We adopted this rule and applied it in Hook and then looked beyond it. We considered the matter in the light of the concept of fundamental fairness in the Maryland common law and expanded the federal lesser offense rule to encompass non-capital cases. Id. at 43 , 553 A.2d 233 .

We declared: When the defendant is plainly guilty óf some offense, and the evidence is legally sufficient for the trier of fact to convict him of either the greater offense or a lesser ¹²¹ 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. The same rationale ... that supports the Supreme Court rule supports this view. 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. And if the trial is before a jury, the defendant is entitled, if he so desires, to have the jury instructed as to the lesser included offense.

Id. at 43-44 , 553 A.2d 233 . In Hook we held that the challenged nol pros of the lesser included offense was improper because the evidence warranted a verdict of guilty on that offense, that is fairly supported it. The circumstances in Hook , as recounted in Fairbanks, 318 Md. at 25-26 , 566 A.2d 764 (citation omitted), were that Hook was charged with the murder of two persons and related offenses. At the close of the evidence, the State entered a nolle prosequi to all counts but first degree premeditated murder.

Evidence was presented at trial that Hook was intoxicated at the time the murders were committed; thus, a determination by the jury that he was so intoxicated as to lack the capacity to entertain a specific intent would have precluded a conviction of first degree premeditated murder. Consequently, [Hook] objected to the nolle prosequi of the lesser included offense of second degree murder, arguing that he had a right to have the jury consider that lesser offense. We determined that there was evidence which supported a charge of second degree murder. We found that with the unequivocal evidence that Hook had murdered two persons, the entry of the nolle prosequi left the jury with the “Hobson’s choice” to either convict Hook of first degree murder or return a verdict of not guilty....

Thus, we concluded that the entry of the nolle prosequi which removed the lesser included offense of second degree murder from ¹²² consideration by the jury enhanced the risk of an unwarranted conviction and denied the defendant a fair trial. In Fairbanks , we reached the same conclusion. Fairbanks was charged 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). 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. 318 Md. at 24 , 566 A.2d 764 . We pointed out: That misdemeanor breaking and entering under § 31A is a lesser included offense of common law or statutory burglary is not disputed.

The State also concedes, and we agree, that the evidence before the jury was legally sufficient to convict Fairbanks of either burglary or the lesser included offense of misdemeanor breaking and entering. Id. at 26, 566 A.2d 764 . We held: In the circumstances, we think the refusal of the trial court to permit the lesser included offense of misdemean- or breaking and entering to go to the jury was prejudicial ¹²³ error under the fundamental fairness concepts delineated in Hook that deprived Fairbanks of a fair trial. Id. at 26-27 , 566 A.2d 764 .

We explained: The entry of the nolle prosequi over the defendant’s objection in this case foreclosed the possibility of a guilty verdict of less than burglary. The jury had the singular choice of convicting Fairbanks of burglary under Counts 1 or 3, or finding him not guilty of any crime. Id. at 26 , 566 A.2d 764 . In other words, the evidence warranted a conviction on the lesser included offense in that it was fairly supported by the evidence.

We noted, “That Fairbanks did not request a jury instruction or present argument as to the lesser included offense does not distinguish this case from Hook.” Id., 315 Md. at 27 , 553 A.2d 233 . Ill A The criminal information filed against Allan Jackson, Jr. and one Marshall McNeill by the State’s Attorney for Baltimore City charged: 1st count — possession of cocaine with intent to distribute; 2nd count — possession of cocaine; 3rd count — conspiracy to distribute cocaine; 4th count — conspiracy to possess cocaine with the intent to distribute; 5th count — conspiracy to possess cocaine. The information came to trial before a jury in the Circuit Court for Baltimore City. At the close of all the evidence, defense counsel informed the judge that she understood that the State was nol prossing the second and fifth counts.

The State protested, “The State is not nol prossing those.” The State’s position was that it was simply not allowing ¹²⁴ those counts to go to the jury. 3 Regardless of how the State characterized its action, she objected to it. She requested that all the counts go to the jury. Her position was that with the State arbitrarily not calling and not doing anything with [counts two and five, concerned with mere possession], it does not allow the jury to consider those lesser included offenses. She believed that taking the possession counts away from the jury precluded “having a hung jury” or a “compromise verdict.” The judge denied her request.

Only the first, third, and fourth counts were submitted to the jury, and it rendered a verdict of guilty on each of them. The Court of Special Appeals affirmed the judgments entered on the convictions. Jackson v. State, 82 Md.App. 438 , 572 A.2d 567 (1990). We granted Jackson’s petition for the issuance of a writ of certiorari.

He presents one question: Did the trial judge err in permitting the prosecution, over objection, to enter nolle prosequi to lesser included offenses? B The Court of Special Appeals’ summary of the evidence fairly reflects the testimony adduced at the