Jackson v. State

MOYLAN, Judge. The overriding interest of fundamental fairness will occasionally dictate, under special circumstances in a rare case, the carving out of an exception from an otherwise salutary rule. That is as it should be. Whenever that occurs, creative defense counsel invariably seek to expand the exception to the limits of its logic.

That also is as it should be. Equally invariably, they frequently try to push it beyond the limits of its logic. The exception, unless vigilantly restrained, soon threatens to swallow its rule. The “rare” soon becomes commonplace.

Such a pattern is now unfolding with the case of Hook v. State, 315 Md. 25 , 553 A.2d 233 (1989). Indeed, if such awards were given, Hook would probably qualify as the contention-generating case of the year. The precise issue under scrutiny is the authority of the State to enter a nolle pros as to one or more counts once a trial is in progress. Hook asserted that in this regard, “The prosecutor’s power is not absolute.” 315 Md. at 36 , 553 A.2d 233 .

As Hook candidly acknowledged throughout the entire course of its discussion, however, it was not stating the general rule; it was recognizing rather a limited exception to the rule. “We think that the exceptional circumstances of this case present a rare occasion calling for a tempering of the broad authority vested in a State’s Attorney to terminate a prosecution by a nolle prosequi.” 315 Md. at 41 , 553 A.2d 233 . (Emphasis supplied). The rule itself with respect to the generally broad and exclusive authority of the State’s Attorney to enter- a nolle pros was well stated by Judge Eldridge for the Court of ⁴⁴¹ Appeals in Ward v. State, 290 Md. 76, 83 , 427 A.2d 1008 (1981): “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____ A nolle prosequi may be entered as to an entire charging document, or one or more counts, or even a part of a count.” (Citations and footnote omitted). What then will qualify as the “exceptional circumstances” presenting the “rare occasion” that calls for the “tempering of the broad authority vested in a State’s Attorney”?

Hook recognized as controlling authority Ward v. State, supra, on the proposition that the decision as to a nolle pros “is generally within the sole discretion of the prosecuting attorney, free from judicial control.” 315 Md. at 35 , 553 A.2d 233 . The limited exception Hook carved out from that authority is that the act of nolle prossing may not be manipulated so as to perpetrate an injustice: “ 'This “settled rule” allowing prosecutorial choice,’ however, is not completely without restraint. The prosecutor’s power is not absolute____ We recognized in Ward v. State, 290 Md. at 83 n. 6, 427 A.2d 1008 , that ‘[tjhere is authority ... suggesting that the court may or may not permit the entry of the nolle prosequi in order to prevent injustice.’ ... ‘The right of an accused to a fair trial, although not a perfect trial, is paramount.’ ” (Citations and footnote omitted). 315 Md. at 35-36 , 553 A.2d 233 . “Injustice,” moreover, is not a term lightly to be invoked. Hook “cautioned” that it was narrowly conditioning the exception not upon a mere denial to a defendant of some technical advantage or tactical edge he otherwise might enjoy but only upon the transcendent consideration of preventing true injustice: “ ‘In order to declare a denial of [fundamental fairness, the reviewing court] must find that the absence of that fairness fatally infected the trial; the acts complained of ⁴⁴² must be of such quality as necessarily prevent a fair trial____’” 315 Md. at 36-37 , 553 A.2d 233 quoting Lisenba v. California, 314 U.S. 219, 236 , 62 S.Ct. 280, 289 , 86 L.Ed. 166 (1941).

Hook did not pronounce a sweeping rule that the State may not nolle pros, or otherwise seek to relieve the jury from considering, lesser included charges. That “broad authority” in the prosecutor was only “tempered,” not eliminated. The Hook exception does not preserve to a defendant the possible “windfall” of jury confusion or the chance to exploit an otherwise legitimate tactical advantage. The Hook exception does not guarantee a defendant his opportunistic invitation to the jury “to split the difference” with a convenient compromise.

The only function of the Hook exception is to prevent the State from eliminating the realistic option of a genuinely plausible verdict, a verdict supported not by hypothetical possibility but by a believable evidentiary scenario actually before the court. For this reason, Hook eschewed any blanket pronouncement and called instead for a “case-by-case evaluation” based upon the unique unfolding of each trial: “[U]nder the concept of fundamental fairness with respect to a trial in a criminal case, 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.” (Emphasis supplied). 315 Md. at 37 , 553 A.2d 233 . Hook itself provided a textbook example of “the special circumstances” of “the rare case.” Two eyewitnesses testified to Hook’s having shot and killed two persons in the course of a robbery.

Hook himself confessed to the killings. Notwithstanding the plea of not guilty, there was no contesting the fact that Hook was guilty of some level of felonious homicide. A very real question remained, however, as to his level of guilt. There was extensive evidence that Hook had been drinking heavily throughout the course of the afternoon and evening before the killing.

Indeed, at the penalty stage of the trial, the jury rejected the death ⁴⁴³ penalty for Hook, designating “his intoxication” as one of the mitigating factors. The defense theory was that Hook, albeit guilty of felonious homicide generally, was too intoxicated to form the specific intent necessary for premeditated first-degree murder. Under those circumstances, Hook vigorously objected to the State’s nolle grossing of the second-degree murder charge. Based upon that nolle pros, moreover, the trial judge refused even to instruct the jury as to the possibility of second-degree murder.

As the Hook opinion pointed out, this denied the jury the option of a plausible verdict that was no mere hypothetical possibility but one realistically supported by prominent evidence in the case: “Hook requested an instruction on second degree murder. The evidence warranted the instruction — second degree murder was fairly supported by the evidence. The jury, in the exercise of its function to judge the credibility of the witnesses and weigh the evidence, could have reasonably found that Hook was so intoxicated as to lack the capacity to entertain the specific intent necessary to commit premeditated murder.” 315 Md. at 41 , 553 A.2d 233 . Denied any middle ground, the jury was confronted with the stark choice of “double or nothing,” finding Hook guilty of premeditated first-degree murder or setting him free.

With no support in the evidence at all for a not guilty verdict, the jury chose the only other course open to it. As the Hook opinion described the difficult choice, at 315 Md. 42 , 553 A.2d 233 : “We are mindful of the context in which the jury deliberated. Hook confessed that he shot and killed two persons and stole their property. These admissions were buttressed by the testimony of two eyewitnesses.

Hook made no attempt to refute or dispute that evidence---Proof of the corpus delicti and Hook’s criminal agency stood bright and clear. So the jury was called upon to render judgment on an admitted murderer and thief with no alternative but to find him guilty or not guilty of ⁴⁴⁴ murder in the first degree and guilty or not guilty of armed robbery.” The “rare occasion” of a true injustice was before the Court: “We think that the exceptional circumstances of this ease present a rare occasion calling for a tempering of the broad authority vested in a State’s Attorney to terminate a prosecution by a nolle prosequi. We believe that the State, in entering the nolle prosequi here, failed to observe that fundamental fairness essential to the very concept of justice. Its action was inconsistent with the rudimentary demands of fair procedure.” 315 Md. at 41-42 , 553 A.2d 233 .

Hook, indeed, had relied heavily upon the decision of Keeble v. United States, 412 U.S. 205, 213 , 93 S.Ct. 1993, 1998 , 36 L.Ed.2d 844 (1973), in which the Supreme Court had observed: “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.” (Emphasis in original). Based upon this rationale, Hook’s statement as to the circumstances required for applying the exception was clear: “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