Scope of A Charging Document

• Jurisdiction: Maryland

XIII. Scope of a charging document

A. Notice of charges expressly included

The language in the "four corners" of the charging document must place the defendant on notice of the offense(s) to defend against, as required by the Sixth Amendment right to notice of charges, made applicable to the states through the Due Process Clause of the Fourteenth Amendment. See Thompson v. State, 119 Md. App. 606, 616 (1998). Generally, statutory language is sufficient to identify charged offense(s). See State v. Lassotovich, 162 Md. 147 (1932); Village Books v. State, 22 Md. App. 274, 286 (1974). If the legal authority is a local ordinance, the charging document must cite the ordinance by enactment date or codification. Md. Code Ann., Crim. Proc. § 4-107.

In Tapscott v. State, 106 Md. App. 109, 128-29 (1995), the Court of Special Appeals held that an incest indictment properly identified the essential elements by referencing (1) the incest statute, and (2) the fact that the victim was a minor, even without identifying the victim's age. See Lambert v. State, 193 Md. 551, 556 (1949); Baker v. State, 6 Md. App. 148, 156 (1968).

In Denicolis, 378 Md. at 662, the Court of Appeals held that, in a solicitation charging document, there is no requirement to name the victim(s). However, the Court noted that, "in some circumstances, [naming the victim may] be required in order to satisfy the defendant's Federal and State Constitutional rights to fair notice." Id. See Phenious v. State, 11 Md. App. 385, 392-93 (1971).

In Dorsey v. State, 356 Md. 324, 349 (1999), the Court of Appeals held that a charging document was insufficient to put the defendant on notice for contempt when neither the "civil" nor "criminal" paragraph in the charging document were checked.

B. Notice of charges implicitly included

Each count in a charging document implicitly contains all lesser included offenses under the required evidence test of Blockburger v. United States, 284 U.S. 299 (1932), and its progeny. See Hagans v. State, 316 Md. 429, 450 (1989). Thus, if the only offense listed in a charging document consists of elements A, B, C, and D, the defendant is charged with, and is on constructive notice as to, all offenses consisting of any combination of elements A, B, C, and D. MPC § 1.07(4).

For example, a charge of first degree premeditated murder, in Maryland, includes a charge of second degree murder, manslaughter, first degree assault, second degree assault, and reckless endangerment, even if none of those offenses is expressly charged. Middleton v. State, 238 Md. App. 295 (2018). A prima facie case of the only offense expressly charged is a prima facie case of all lesser included offenses.

1. Jury instructions on implicitly included offenses

Both the State and the defendant are entitled to jury instructions on all lesser included offenses of any greater offense for which the State established a prima facie case and prevailed on an MJOA or for which the defendant failed to make an MJOA. If so requested by either party, the trial court must instruct on the lesser included offenses. As to implicitly charged offenses, in Maryland, the court may not instruct on a lesser included offense if neither the State nor the defendant requests such an instruction. Hagans, 316 Md. at 455.

2. Exceptions to the rule that lesser included offenses are implicitly charged

Lesser included offense has a greater penalty than the greater offense

If a lesser included offense has a greater penalty than the greater (or "flagship") offense, it must be expressly charged or the defendant may not be subjected to the greater penalty. See,e.g., Dixon v. State, 364 Md. 209, 234 (2001); Gerald v. State, 299 Md. 138, 140-41 (1984) ("Like a little fish being eaten by a bigger fish which in turn is eaten by a yet bigger fish, simple assault is swallowed by robbery, which is then swallowed by armed robbery."); see Manigault v. State, 61 Md. App. 271, 275 (1985) ("[T]he various lesser included and other more or less related counts take on the coloration from the 'flagship' count. It is the 'flagship count' that gives the entire indictment its name and its identity.").

Statute of limitation expired on the lesser included offense

If a lesser included offense has a shorter statute of limitation than the greater (or "flagship") offense, and the statute of limitations has expired on the lesser included offense, the defendant cannot be charged with the lesser included offense, either expressly or implicitly, because the statute of limitations has expired. In Hagans, the Court of Appeals recognized that "the Defendant cannot be convicted of the lesser included offense if the statute of limitations has run on that offense even though the statute has not run on the greater offense." 316 Md. at 453.

Evidence refutes the lesser included offense

If there is evidence of a prima facie case of the greater offense, but the undisputed evidence negates the lesser included offense, the defendant is not entitled to a jury instruction on the lesser included offense.

For example, when the undisputed evidence was that the victim was robbed at gunpoint, and the only disputed issue was criminal agency, the defendant was not entitled to a jury instruction on the uncharged robbery, even though it is a lesser included offense of the charged robbery with a dangerous weapon. In Burrell v. State, 340 Md. 426 (1995), the Court of Appeals held that "[t]here was absolutely no evidence at trial . . . from which a rational jury could infer that [the defendant] was guilty of aiding and abetting a simple robbery only." Id. at 436.

Lesser included offense not generated

When the lesser included offense is not generated by evidence of the greater offense, the defendant is not charged with that offense and is not entitled to a jury instruction on the lesser included offense. See Dishman, 352 Md. at 293-94. For example, if the defendant is charged with specific intent to kill murder and/or specific intent to do serious bodily harm murder, and there is no evidence of either hot blooded response to legally adequate provocation or an imperfect necessity-based defense, the crime of voluntary manslaughter is not generated, and the defendant is not entitled to a jury instruction on the uncharged voluntary manslaughter.

C. "Flagship" offenses

At one end of the spectrum, a five-count charging document includes only one offense (the "flagship" offense) if the other four counts are all lesser included offenses. At the other end of the spectrum, a five-count charging document includes five offenses (each count being its own "flagship" offense) if each offense has an element that is not included in any other offense. Thus, the "flagship" offense(s) is(are) the greatest offense(s), and they determine the greatest possible sentence(s). In sum, a five-count...