It May Be Impermissible To Enter A Nol Pros On A Lesser Included Offense Or A Lesser Degree of the Crime

• Jurisdiction: Maryland

X. It may be impermissible to enter a nol pros on a lesser included offense or a lesser degree of the crime

In Hook v. State, 315 Md. 25 (1989), the defendant was tried on two counts of murder. At the close of the State's case, the prosecutor entered a nol pros to second degree murder, leaving only the charge of first degree murder. The trial court refused to instruct the jury on second degree murder, and the defendant was convicted of first degree murder. Although generally, whether to enter a nol pros is within the discretion of the State, the Court of Appeals held that fundamental fairness may limit the State's ability to enter a nol pros. The defendant had a right to present the lesser included offense to the jury. Id. at 37.

In Harrison v. State, 198 Md. App. 236, 250 (2011), the Court of Special Appeals held that it was permissible to deny the defendant's request for an instruction on a lesser included offense when the defendant failed to object to the State entering a nol pros to the lesser included offenses and went with an "'all-or-nothing' approach that left the jury with a 'Hobsian Choice'" of convicting of the greater offense or acquitting entirely. In Hagans v. State, 316 Md. 429, 456 (1989), the Court of Appeals held that it was error to not instruct the jury on lesser, non-charged crimes, when the defendant requested a jury instruction on lesser crimes to give the jury an option.

In Burrell v. State, 340 Md. 426, 430 (1995), the Court of Appeals provided the test for determining whether a nol pros by the State, to a lesser included offense, violates fundamental fairness. If there is a rational basis for the jury to convict the defendant of the lesser included offense, that count may not be nol prossed. If there is no rational basis for the jury to convict the defendant of the lesser offense, without also convicting of the defendant of the...