Johnson v. State

⁶⁴¹ ROSALYN B. BELL, Judge. A jury in the Circuit Court for Talbot County convicted Noahvel Alonzo Johnson of theft of property worth more than $300, carrying a dangerous weapon openly with intent to injure, battery, and related counts. The trial judge sentenced him to 10 years for theft, five of which were suspended; three years for carrying a weapon openly with intent to injure, consecutive to the theft sentence; and two years for battery, consecutive to the theft and weapon sentences. The trial judge also placed Johnson on probation for five years.

Johnson has appealed, contending the trial judge erred: —by failing to instruct the jury that it could convict Johnson of theft under $300 instead of theft over $300; —in finding the evidence was sufficient on the count of carrying a dangerous or deadly weapon openly with intent to injure; and —in finding the evidence was sufficient on the remaining count. As to the theft and weapon charges, we will reverse. With respect to the battery conviction, we will affirm. On September 12, 1990, in Easton, Norwood Eaton saw a man pushing Eaton’s moped bike out of Eaton’s garage and across the driveway toward the street.

Eaton testified that the man was approximately 15 to 18 years old. Eaton ran up to the man and told him to drop the moped. The man pushed the moped toward Eaton and struck Eaton in the chest with the handlebars. When Eaton started to pick up the moped, the man pulled out a knife and threatened Eaton with it.

Eaton then abandoned the moped and went to a neighbor’s home to call the police. The man left, taking the moped with him. Eaton testified that he paid $1,000 for the moped approximately two-and-one-half years before it was stolen. Mohammed Kahn lived a few blocks away from Eaton.

Kahn testified that, at about 5:00 p.m. on September 12, 1990, he saw a man pushing a moped down the street. ⁶⁴² Thinking that the man might have run out of gas for the moped, Kahn went outside and offered to help. The man dropped the moped and ran. Kahn then called the police, who arrived on the scene a few minutes later. Kahn told the police that the man who dropped the moped was about 16 to 18 years old.

Eaton arrived shortly thereafter, took the moped home and placed it in his garage. At about 8:00 p.m., Eaton noticed that the door to his garage was propped open and the moped was gone. An acquaintance of Johnson, Paul Wilson, testified that in mid-September 1990, he discussed with Johnson a moped that Johnson had. Wilson later took the moped to Cambridge to get it painted.

Michael Elbert testified that, in late September 1990, he paid a man named “Paul Jones” $200 for a moped. Elbert registered the moped as his own. The Cambridge Police Department seized the moped as stolen property on October 4, 1990. Detective Marshall Bailey, Jr. of the Easton Police Department testified that he put together an array of six photographs, including one of Johnson.

Bailey showed the array to Eaton on October 22, 1990. Bailey testified that Eaton identified Johnson as the person who had initially taken his moped and threatened him with a knife. JURY INSTRUCTION ON THEFT UNDER $300 Appellant contends that the trial court erred in refusing to instruct the jury that it could convict appellant for theft under $300. He bases this argument on Hook v. State, 315 Md. 25 , 553 A.2d 233 (1989).

In that case, the Court of Appeals reversed Hook’s first degree murder conviction, holding that the trial judge erred in allowing the prosecutor to enter a nolle prosequi on the lesser included offense of second degree murder. The Court of Appeals , held that “fundamental fairness” required a limitation on the prosecutor’s discretion to enter a nolle prosequi, so that the jury could consider lesser included offenses where the evidence was sufficient to generate the issue. This rule is required ⁶⁴³ to avoid placing a defendant in an “all or nothing” posture where it is clear that some offense had been committed, but the degree or magnitude of the offense is in controversy. Hook, 315 Md. at 34-42 , 553 A.2d 233 .

Appellant argues that, by not instructing the jury on the lesser included offense of theft under $300, the trial judge placed him in the same situation as Hook. Appellant’s argument, while ultimately correct, relies, at least as to the factual predicate, on the wrong case. Hagans v. State, 316 Md. 429 , 559 A.2d 792 (1989), not Hook , is the primary case governing our decision here. In view of the arguments raised, we will take this opportunity to explicate the principles of these two cases.

In Hagans , the Court of Appeals held that a defendant could be convicted of an uncharged, lesser included offense if the evidence presented in the case warranted such a conviction. Hagans, 316 Md. at 447-448 , 559 A.2d 792 . Hagans involved a trial judge’s sua sponte decision, over the defendant’s objection but with the prosecutor’s acquiescence, to instruct the jury on a lesser included offense. 1 The Court of Appeals noted: “The principle that a defendant, charged with a greater offense, can be convicted of an uncharged lesser included offense, has been adopted by virtually every jurisdiction in the United States which has passed upon the issue. ijc $ sfe * s*s “Since the rule permitting a conviction on an uncharged lesser included offense was well-established at common law, is accepted throughout the United States today, and generally promotes a just result in criminal cases, we shall adhere to it.” ⁶⁴⁴ Hagans, 316 Md. at 447-448 , 559 A.2d 792 . On the issue presented in that case, whether it was error for the trial judge to instruct the jury on the lesser included offense over the defendant’s objection, the Court of Appeals held: “The better view, we believe, is that the trial court ordinarily should not give a jury an instruction on an uncharged lesser included offense where neither side requests or affirmatively agrees to such an instruction.

It is a matter of prosecution and defense strategy which is best left to the parties. There is no requirement that the jury pass on each possible offense the defendant could have committed. We permit, for example, the State to nolle prosse an offense, and we allow plea bargains. When counsel for both sides consider it to be in the best interests of their clients not to have an instruction, the court should not override their judgment and instruct on the lesser included offense.” Hagans, 316 Md. at 455 , 559 A.2d 792 .

As the above discussion makes clear, Hagans deals with a general fact situation: any lesser included offense which is supported by the evidence which is not explicitly set forth in the charging document. Hook , on the other hand, deals with a slightly different fact pattern: where the charging document contains the lesser included offense, but the prosecutor, for tactical reasons, chooses to nolle prosse that offense. In Hook , the prosecutor, at the close of the evidence and over Hook’s objection, entered a nolle prosequi as to second degree murder, leaving the jury to consider only first degree murder. The trial judge, in keeping with precedent granting the prosecutor broad discretion in this area,, refused to place any limits on the prosecutor’s discretion to nolle prosse particular charges.

Hook, 315 Md. at 35 , 553 A.2d 233 . The Court of Appeals, while refusing to proclaim an outright ban on the prosecutor’s discretion to nolle prosse charges, reversed Hook’s first degree murder conviction, ⁶⁴⁵ holding that “fundamental fairness” in the trial process required that at least some limitation be placed on the prosecutor’s discretion in this context: “The rule is, 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.” Hook, 315 Md. at 41 , 553 A.2d 233 . 2 The above-quoted language clearly indicates that the analysis under both Hook and Hagans is the same. The only distinction between the two cases is the factual situation in which they arise: Hook arose from a prosecutor’s discretion to nolle prosse a lesser included offense, while Hagans arose from a trial judge’s refusal to instruct on the lesser included offense. In either event, the result is the same: a defendant is placed in an “all or nothing” position in which the jury must choose between outright acquittal and conviction on a charge on which the defendant may not be guilty.

The Court of Appeals in Hook held that placing a defendant in this predicament, through a nolle prosequi by the prosecutor, “is offensive to fundamental fairness,” Hook, 315 Md. at 44 , 553 A.2d 233 . We think that this rationale applies with equal force to the Hagans scenario, namely, a trial judge’s refusal to instruct the jury on a lesser included offense when that offense is fairly raised by the evidence. We see no reason why the rule or its rationale should turn on whether it was the prosecutor or the trial judge who placed defendant in the “all or nothing” predicament. If the lesser included offense was never charged, i.e., it does not appear in the charging document, then Hagans applies.

If, on the other hand, the prosecutor affirmatively seeks to nolle prosse a charged lesser included offense, then ⁶⁴⁶ Hook applies. As appellant in the instant case was never specifically charged with theft under $300, Hagans , not Hook , provides, at least factually, the governing precedent. 3 Because of the similarities between the two cases, however, we hold that the “fundamental fairness” and “all or nothing” rationales explicated by the Court of Appeals in Hook also apply to the Hagans scenario. In order to comply with the Hagans/Hook rule, the trial judge, on the request of either party, must (1) properly instruct the jury on a lesser