Taylor v. State

WILNER, Judge. The evidence in this case, submitted to a jury in the Circuit Court for Prince George’s County, showed that appellant was driving southbound on U.S. Route 301 at a high rate, of speed, that he was weaving in order to pass other vehicles, that he failed to slow down or stop for a red light at the intersection of Brandywine Road, and that, as a result, he slammed into a car driven by one Howard Johnson with such force as to kill Mr. Johnson. In a six-count indictment, appellant was charged with manslaughter by automobile (Count 1), reckless driving ⁴⁰¹ (Count 2), negligent driving (Count 3), failure to obey a traffic control device (Count 4), failure to control speed to avoid a collision (Count 5), and unreasonable speed (Count 6). At the conclusion of the evidence and after the court denied appellant’s motion for judgment of acquittal, the State, over appellant’s objection, entered a nolle prosequi to Counts 2, 5, and 6, leaving the jury to ponder only manslaughter, negligent driving, and failure to stop for the light.

The jury found him guilty of all three of those offenses, whereupon the court merged the two lesser offenses into the greater and entered judgment on the manslaughter conviction. In this appeal, appellant makes four complaints, but we need address only two. We shall reverse for error in allowing the nol pros of the reckless driving charge but, because we believe that the evidence was sufficient to warrant a conviction for manslaughter, we shall remand for a new trial on that charge. In Hook v. State, 315 Md. 25, 43-44 , 553 A.2d 233 (1989), the Court of Appeals enunciated this principle: “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.” v That principle was confirmed in Fairbanks v. State, 318 Md. 22 , 566 A.2d 764 (1989) and commented on in Kinder v. State, 81 Md.App. 200 , 567 A.2d 172 (1989); Echols v. State, 82 Md.App. 594 , 573 A.2d 44 (1990); and Jackson v. State, 82 Md.App. 438 , 572 A.2d 567 (1990).

As we pointed out in Kinder , the Hook decision was reported in the advance sheets of the Maryland Reports on March 24, 1989, and thus, unlike the situation in Kinder , should have been ⁴⁰² known, appreciated, and followed by the prosecutor and the court at the trial in this case, which occurred in July, 1989. In objecting to the nol pros of the reckless driving charge, defense counsel sufficiently articulated the basis of his objection: “Basically what they [are] trying to do is blackmailing [sic] the jury [by] saying, you have got do [sic] find him, if you think it is — he is more than negligent, you have to find gross negligence. You can’t find the lesser, reckless.” The State does not suggest that reckless driving is not a lesser offense included within the manslaughter charged in Count 1. In seeking to sustain the court’s allowance of the nol pros, it urges instead that appellant was not prejudiced and, because he was not prejudiced, that there was no fundamental unfairness.

In presenting its defense in that way, it is arguing not harmless error, but no error. The defense is based on the assertion that, in the circumstances of this case, proof of reckless driving would also require a conviction of manslaughter,