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Martin v. State No. 22, September Term, 2001 HEADNOTE: UNCHARGED; LESSER INCLUDED OFFENSE; CHARGED OFFENSE; NOLLE PROSEQUI; PROSECUTOR; INTENTION; CLEAR; UNAMBIGUOUS The State may not proceed on an uncharged, lesser included offense of a charged offense that it has nolle prossed, unless the prosecutor clearly and unambiguously evidences an intention to proceed on the lesser included charge.

IN THE COURT OF APPEALS OF MARYLAND No. 22 September Term, 2001

State of Maryland v. Kelly Day Martin

Bell, C.J. Eldridge Raker Wilner Cathell Harrell Karwacki, Robert L.(Retired, Specially Assigned),

JJ.

Opinion by Bell, C.J.

Filed: December 6, 2001

The question this case presents is whether and, if so, when, the State may proceed with the prosecution of a lesser included offense of a charge that it has specifically nolle prossed. We shall hold that it may do so, but only when, at the time of the entry of the nolle pros, the State has clearly made known its intention to proceed with the lesser offense. We further hold

that, in this case, that was not done. Accordingly, we shall affirm the judgment of the Court of Special Appeals. It is well settled in this State that charging an offense for which there are lesser included offenses permits the conviction of the defendant not simply of the specifically charged offense, but also of any lesser included offense the evidence supports. See Skrivanek

v. State, 356 Md. 270, 281, 739 A.2d 12, 18 (1999); State v. Bowers, 349 Md. 710, 718, 709 A.2d 1255, 1258-59 (1998); Hagans v. State, 316 Md. 429, 444-45, 559 A.2d 792, 799-800 (1989). In fact, the roots of the rule can be, and have been, traced back to the common law. See Hagans, 316 Md at 445, 559 A.2d at 799 ("At common law it was settled that a defendant, charged only with a greater offense, could be convicted of an uncharged lesser included offense as long as both were felonies or both misdemeanors."). It is equally well settled that "[t]he 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, 1012 (1981); see also In re Darren M. 358 Md. 104, 112, 747 A2d 612, 616 (2000); Maryland Rule 4-247 (a),1 and that it "may be entered as to

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Maryland Rule 4-247 (a) provides: "(a) Disposition by Nolle Prosequi. 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 defendant need not be present in court when

an entire charging document, or one or more counts, or even a part of a count." Ward, 290 Md. at 283, 427 A2d at 1008. See also Hook v. State, 315 Md. 25, 35, 553 A.2d 233, 238 (1989). Nonetheless, we have recognized 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." Hook at 37, 553 A.2d at 238. The facts necessary for resolution of this appeal are not in dispute. Kelly Day Martin, the respondent, was charged by indictment with murder (count one) and first degree assault (count two) in the case of Gilberto Hernandez and by criminal information with first and second degree assaults on Tomas and Juan Hernandez. At the conclusion of the State's case

in the trial of the consolidated charges, the State, in response to the court's inquiry whether it was conceding any charges, indicated that it "would concede in [the Gilberto Hernandez case], Count 2. ... First degree assault." Thereafter, the following colloquy occurred: "The Court: - first degree assault All right. You're nol prossing -

[Prosecutor]: However - well, I guess I can't nol pros it because it's second yeah. I'll nol pros that one because it's second at best. The Court: All right First degree assault is nolle prosequi...." Subsequently, the court informed the respondent that, in the case of Gilberto Hernandez, second degree assault "as lesser included" was still viable. The respondent argued

the nolle prosequi is entered, but in that event the clerk shall send notice to the defendant, if the defendant's whereabouts are known, and to the defendant's attorney of record."

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that the evidence was insufficient to sustain the charge of second degree assault against Gilberto Hernandez, but his arguments proved unsuccessful. He then proffered that this charge

was not before the court, noting specifically the State's failure to charge second degree assault in the indictment as to Gilberto Hernandez while doing so in the other case. follows: "And Your Honor, I would also argue that the State never indicted it [second degree assault], and they indicted it in the other case. There's no reason that they should not have indicted it. They indicted murder and they indicted first degree assault. If they wanted to proceed on second degree assault they should have indicted it. I'm going to ask the Court, for that reason, that it was not indicted in [the case involving Gilberto Hernandez] - They came back and they filed a superceding indictment, at which time they filed the first and second degree assault counts against Kelly Day Martin for both Juan and Tomas Hernandez. They could have added a second degree assault count against Gilberto Hernandez. They chose not to. It's not in there, and I'm asking the Court to grant a motion for judgment. I don't think I should have to address it." Without elaboration, the court denied the respondent's motion for judgment of acquittal as to second degree assault on Gilberto Hernandez, implicitly rejecting his argument that the issue was not properly before the court. The court then instructed the jury that it could convict the respondent of the second degree assault of Gilberto Hernandez. The jury convicted the respondent of three counts of second degree assault, the two counts charged as to Juan and Tomas Hernandez and the uncharged count as to Gilberto Hernandez. The respondent appealed to the Court of Special Appeals. That court, in an He argued as

unreported opinion, affirmed the judgments as to the charged counts but reversed the judgment as to Gilberto Hernandez. As to the latter, the intermediate appellate court opined: 3

"[T]he `charging document' that was nol prossed was Count Two of Indictment No 982050B, which charged [the respondent] with first degree assault and, without expressly stating so, charged him with the lesser included offense of second degree assault. ... By nol prossing this first degree assault charge, however, the State effectively nol prossed the lesser included offense of second degree assault which was subsumed into that charge in accordance with the statute[2] since the indictment contained no separate charge of second degree assault, the only remaining charge arising out of the attack on Gilberto Hernandez was first degree murder, and the jury acquitted [the respondent] of that charge. Therefore, it was error to instruct the jury that [the respondent] could be found guilty of second degree assault." We granted the State's petition for Writ of Certiorari to review this decision. 364 Md. 139, 771 A.2d 1069 (2001). The State urges that we reinstate the trial court's judgment convicting the respondent of the second degree assault of Gilberto Hernandez, arguing that the Court of Special Appeal's decision was based on that court's "erroneous assumption that the State cannot enter a nolle prosequi as to part of a count." Relying upon Hagans, supra, Ward, supra, Hook, supra, and Knotts v State, 237 Md. 417, 420, 207 A2d 100, 102-03 (1965), the State submits that the statement of the issue 3 and the result reached by the intermediate appellate court in the Gilberto Hernandez case are inconsistent with this Court's cases on the issue and exalt form State v. Martin,

Maryland Code (1957, 1999 Repl Vol., Cum. Supp.) Art. 27,

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